USGBC has denied the appeal which challenged the LEED Gold certification awarded to the Northland Pines High School in Eagle River, Wisconsin.
Green construction practices may increase the risk for site safety hazards that can lead to personal injury claims. Green building project teams should guide themselves accordingly, particularly in New York and other jurisdictions where controlling statutory law makes liability for those hazards absolute under certain circumstances.
In a decision with implications for owners and lenders, the Appellate Division for New York State’s Fourth Department recently upheld a preliminary injunction in favor of the Destiny USA development in Syracuse based explicitly on the project’s green features.
According to an article that appeared last week in Eagle River, Wisconsin’s Vilas County News-Review, a group of local residents have filed a 125-page complaint with USGBC that challenges the award of LEED Gold certification to the Northland Pines High School.
The possibility that a LEED-certified project could be “decertified” by USGBC or GBCI in the event that any of the new LEED 2009 Minimum Program Requirements (“MPRs”) are not satisfied presents a variety of novel legal issues which we presented earlier this year here at GRELJ when the first iteration of MPRs was announced by USGBC. Today, Engineering-News Record (“ENR”) published an article that highlights a number of those issues, but also raises the question of who, exactly, would have standing to bring a decertification proceeding. If strictly limited to USGBC or GBCI, a recent comment here at GRELJ from Brian Anderson (“lawsuits are bad for marketing”) suggests that decertification would be a remote possibility. However, in the ENR piece, which is titled Building Rating System Requirement Raises Concern and authored by Nadine Post, my colleague Ujjval Vyas notes that “[a]ny third party has the right to initiate a non-compliance action by USGBC. This creates a huge risk and provides standing to any entity whatsoever to injure a building owner or tenant.” If third parties can compel decertification proceedings, the risks associated with failing to comply with the MPRs are far more serious than if that discretion rests exclusively with USGBC or GBCI.
In a piece that appeared both on her blog and at Greener Buildings, my colleague Shari Shapiro opines on why, as we rapidly approach the midpoint of 2009, there remains a dearth of reported lawsuits arising out of green building projects, despite much commentary suggesting the contrary to be imminent. Ms. Shapiro suggests four reasons: (1) a relative lack of green building practices generally as compared to overall construction; (2) owners who are “too afraid” to measure building performance and are thus unable (or unwilling) to assert a claim arising out of violated green building expectations; (3) a general reluctance to engage in costly litigation given the economic downturn; and (4) the green building movement’s relative infancy. However, over the course of 2009, and notwithstanding the lack of lawsuits filed to date, there has been an explosion in commentary on green building litigation across the legal community. Accordingly, I thought Ms. Shapiro’s piece was particularly timely and worthy of some additional discussion here at GRELJ.
The owner of an Indian restaurant in Midtown has filed a lawsuit against Boston Properties in connection with excavation and foundation work for the (currently suspended) LEED Gold-hopeful 250 West 55th Street project.
In a last ditch effort to stop this modern, Bates + Masi-designed, two-story office building project from proceeding, a group of local residents have filed a lawsuit against the East Hampton Town Architectural Review Board in Supreme Court for Suffolk County, alleging that it was negligent in awarding its approval.
Yesterday, I gave a presentation to a local architecture and interior design firm on current trends in green construction law. I was impressed at how willing the firm’s design professsionals were to listen to my thoughts on the emerging risks associated with green design. In addition to suggesting a number of other legal issues, I selected a handful of claims reported by Maryland-based attorney Frank Musica at the 2007 AIA National Convention in San Antonio to open up a discussion on form contract language – particularly from the AIA documents – and suggested how certain applicable provisions might be amended to reduce the architect’s risk when rendering green design services. The claim that made the biggest splash with my audience yesterday was where Musica reported how an architect failed to perform sufficient due diligence in crafting green building specifications for a particular project and specified what turned out to be a patented solar shading system. After the project was complete, the patent holder approached the owner and demanded a licensing fee for its use of the system. The owner pointed a finger at the architect and sought indemnification under the terms of the parties’ agreement.
Shaw Development, LLC – the developer of the Captain’s Galley condominium project in Crisfield, Maryland that was the subject of the Shaw Development v. Southern Builders litigation that I have discussed extensively both here at GRELJ and over at gbNYC – recently filed for Chapter 11 bankruptcy protection. Since the development was completed back in 2006, only 3 of the 17 units available had proceeded to contract. In late December, a foreclosure auction was to take place for the remaining units, but Shaw filed for bankruptcy protection in order to restructure and allow the pending sales to ultimately proceed. Asking prices now start at $250,000.00 for the remaining units (apparently Shaw expects to close on a number of additional contracts by the spring), though all prices are off 50 percent from when the project came on line back in 2006. When I saw the article detailing Shaw’s Chapter 11 filing, I was curious to very generally consider whether the specter of a bankruptcy filing might allow us to add an additional twist to the discussion of the Shaw Development litigation.