LEED for Neighborhood Development (LEED-ND)

Posted on May 2, 2012 by greenbuildingsubcommittee

 LEED for Neighborhood Development (“LEED-ND “) is a collaboration among the U.S. Green Building Council (USGBC), the Congress for the New Urbanism (CNU) and the Natural Resources Defense Council (NRDC).  The collaboration seeks to develop an environmental strategy that brings sustainability to the scale of neighborhoods and communities. This new venture known as LEED for Neighborhood Development or LEED-ND is a system for rating and certifying green neighborhoods.  The project builds on other LEED systems by expanding its scope beyond individual buildings to a more holistic examination of the context of those buildings.  Through a multi-year research and review process, the LEED-ND partners have identified draft criteria that will guide developments to achieve significant improvements in sustainability. The pilot version of LEED-ND began in February 2007.

During the pilot phase, the LEED-ND rating system is tested against real world projects in order to improve the system and its applicability in the marketplace. The program was tested in 238 pilot projects in 39 states and 6 countries.[1] LEED-ND gives architects a binary checklist of sustainable systems and practices to attain for points. The more points each project earns, the higher the rating, from Standard/Certified, Silver and Gold to Platinum. The current version of LEED-ND is LEED 2009 of Neighborhood Development. There is no minimum or maximum project size for LEED-ND though USGBC posits that the system will work best on projects with a minimum of 2 buildings up to 320 acres. Also note that the project must have at least one LEED certified building in the project.  Accordingly, it is important for the project team to evaluate overall LEED certification plans to control associated costs.

The LEED-ND point checklist is primarily divided into three main categories. The first large category (27 points) is called Smart Location and Linkage and deals with fundamental site planning and context issues. It includes points and prerequisites for protecting sensitive sites like farmland and locations of endangered species.  The second category, and category with the largest point total (44 points), is called Neighborhood Pattern and Design. It deals with general infrastructural development and design, like designing densely populated residences with walkable streetscapes. It also looks at the social engineering role of sustainable development by encouraging the productive collaboration of groups with different incomes and development roles. Mixed uses are rewarded, as well as local food production and reduced parking lot footprints.  The final category is Green Infrastructure and Buildings (29 points). This is where individual sustainability practices and systems make their appearance: using recycled content, reduced water use, heat island reduction, infrastructure energy efficiency, and, of course, developments get points for having LEED certified buildings on-site.  As with all LEED standards, points are also available for innovation (6 points) and design and regional priority credits (a project may earn up to 4 credits based on a project’s location).

LEED-ND has three stages for certification based on development stage: (1) Conditionally Approved Plan – for use during entitlements, (2) Pre-Certified Plan – for use after entitlements have been obtained and while under construction and (3) Certified Neighborhood Development – for use after construction is completed.

LEED Links

  • USGBC’s LEED ND page: http://www.usgbc.org/LEED/ND
  • LEED Online (registration & certification): http://www.leedonline.com.
  • GBCI (registration & certification process info): www.gbci.org.

General Sustainable Development Information for Lawyers

For a general background in sustainable development for lawyers, you may find my article “What You Should Know About Sustainable Development Projects” The Practical Real Estate Lawyer (March 2009) helpful. It is available on-line at: http://www.carltonfields.com/What-You-Should-Know-About-Sustainable-Development-Projects-04-07-2009/ .  In addition, the American Bar Association Section of Real Property, Trust and Estate Law’s Green Building and Sustainable Development: The Practical Legal Guide (2009) provides an outline of many of the legal issues related to green building and sustainable development (disclaimer: I am one of the editors/authors).

[1] LEED for Neighborhood Development Sustains the Places in Between Spaces. AIA Architect. October 24, 2008. Available at http://info.aia.org/aiarchitect/thisweek08/1024/1024p_leednd.cfm

Submitted by Nicole C. Kibert, Carlton Fields, P.A.
4221 W. Boy Scout Boulevard, Suite 1000
Tampa, Florida 33607
(813) 223-7000
nkibert@carltonfields.com

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Florida’s Local Government Sustainable Development Code Provisions

Posted on April 2, 2012 by greenbuildingsubcommittee

Florida’s growth management legislative landscape experienced a tectonic shift in 2011. Since the passage of the 1985 Local Government Comprehensive Planning and Land Development Regulation Act, Florida has experienced top-down environmental leadership from the state executive and legislative branches. In 2011, Florida legislators and Governor Scott fundamentally transformed Florida’s land use and growth management structure by effectively decentralizing growth management oversight and shifting the responsibility to local governments.

Specifically, 2011 growth management and government reorganization legislation terminated the Department of Community Affairs (“DCA”) and transferred the surviving growth management functions to the newly created Division of Community Development within the new Department of Economic Opportunity (“DEO”).  As of October 1st, 2011, DEO instead of DCA will operate as the State Land Planning Agency to administer Florida’s local government comprehensive planning, DRI and other growth management programs.  While the same kinds of state oversight of local planning are still mandated in select areas, most comprehensive plan amendments only receive comments and can be challenged by the new division when proposed plan amendments have adverse impacts to important state resources and facilities.  Additionally, the burden of proof has changed in most plan amendment cases so that third party challengers must prevail over a fairly debatable test which means if the issue is subject to fair debate, the decision of the local government is upheld.  The legislation also repeals state mandates for transportation, education and parks and recreation concurrency and makes these optional with local governments.  Most local governments have indicated a desire to continue utilizing some form of concurrency, while others have indicated a desire to abandon concurrency. However any analysis at this point is premature and speculative since it is unknown how local governments will really act in the future.

Ultimately, the 2011 Legislative Session was marked by a shift away from top-down state regulation of growth and sustainability issues and toward empowering local governments to make their own decisions.  In fact, local governments – particularly the League of Cities – testified that the existing process stifled their creativity in dealing with issues such as sustainable development.  Hopefully, the legacy of the 2011 Florida legislative session will be local government empowerment to regulate growth management more comprehensively by directly incorporating sustainable development. Such an empowerment would only be an acceleration of a longer-term trend. Nationwide, between 2003 and 2007, there has been a 418 percent increase in the number of county-level green building programs.[iii] Since 2009, local municipalities in Florida have increasingly enacted a number of green development initiatives throughout this state. As of the 2011 update to this index, 81 out of the 324 (25%) Florida local governments surveyed have enacted some form of sustainable development legislation. To encourage green development, these municipalities offer varying types of incentives to developers constructing new buildings or retrofitting existing buildings to make them more sustainable. The most commonly utilized programs take the form of tax incentives (credits, deductions, and exemptions), permitting fee waivers, density bonuses, and expedited approval processes. The most innovative programs integrate other low-cost inducements such as marketing and publicity incentives to encourage adoption.

This index contains excerpts from Florida municipal codes and ordinances that address sustainable development through green building initiatives, low impact development, and renewable energy programs. The purpose of this index is to assemble these provisions in one place to allow for comparison of the numerous approaches being implemented around the state, and to monitor trends in the industry. This index was originally compiled in 2009, and updated mid-year in 2010 and 2011.  It was constructed using the most accurate information available but is intended for informational purposes only. For the most current and accurate information, please verify the provisions with the applicable local government. Even where such incentives have not yet been codified, increasing emphasis on such values is apparent. Some local governments have incorporated definitions of green building terms in preparation of future legislation. Additionally, numerous local governments have appointed “green task forces” or promised green initiatives in their comprehensive plans. Optimistically, we hope this trend will continue as local governments step in to fill the vacuum.

 Definitions

Sustainable Development

The most often-quoted definition of sustainable development characterizes it as development that “meets the needs of the present without compromising the ability of future generations to meet their own needs.” Three principles are found at the core of sustainable development:

  1. Developing in a targeted, compact, and balanced manner;
  2. Promoting energy and resource-efficient development and operations; and
  3. Preserving and protecting natural resources.

Green Building

Fla. Stat. § 255.253(6) defines a “sustainable building” as “a building that is healthy and comfortable for its occupants and is economical to operate while conserving resources, including energy, water, and raw materials and land, and minimizing the generation and use of toxic materials and waste in its design, construction, landscaping, and operation.”

The Environmental Protection Agency defines “green building” as “the practice of creating structures and using processes that are environmentally responsible and resource-efficient throughout a building’s life-cycle.”[iv] Accordingly, such “green buildings” are designed, built, operated, renovated, and disposed of using ecological principles promoting occupant health and resource efficiency while minimizing any harmful effects upon the natural environment.[v]

Green buildings are resource efficient and consume far less energy and water than their predecessors. They are respectful of the site where they are placed, minimizing impacts on land and to the ecosystems in which they reside. There is an emphasis on promoting alternative means of transportation such as bicycling, high efficiency automobiles, and rapid transit by addressing where the buildings are built. Renewable energy, recyclable materials, restoration of existing buildings, and the impact of the building on the health of its occupants are themes common to green buildings.

Low Impact Development (LID)

A site design strategy to enhance community stormwater management and water quality by allowing stormwater to percolate in place using biophysical characteristics of a property.[vi] The use of LID practices offers both economical and environmental benefits.

The appropriate LID technique for a specific community will depend upon the site-specific characteristics of the community and any special ecological needs. Since most local governments and applicable regulatory agencies adopted their stormwater guidelines long ago and have not undertaken action to update their requirements, LID is often not permitted without a variance from traditional stormwater requirements. Nevertheless, as the index demonstrates, an increasing number of local governments have implemented low-impact requirements into their current building codes.

Renewable Energy

Fla. Stat. § 377.803 provides that “renewable energy” means electrical, mechanical, or thermal energy produced from a method that uses one or more of the following fuels or energy sources: hydrogen, biomass, as defined in § 366.91, solar energy, geothermal energy, wind energy, ocean energy, waste heat, or hydroelectric power.

Invitation to Collaborate

Do you know of a Florida local government with an applicable code provisions not listed here?  Please email pertinent information to Nicole Kibert at nkibert@carltonfields.com.

***
Many thanks to Nicole Kibert at Carlton Fields for this post!

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Dismissal of Gifford V. USGBC (S.D.N.Y)

Posted on August 30, 2011 by greenbuildingsubcommittee

On August 15, 2011, the U.S. District Court for the Southern District of New York dismissed with prejudice the federal law claims brought against the U.S. Green Building Council by Henry Gifford and others.  The court ruled that the plaintiffs did not have standing to sue under federal law.  “Plaintiffs plainly do not compete with USGBC in the certification of ‘green’ buildings or the accreditation of professionals….Likewise, plaintiffs do not adequately allege a reasonable commercial interest that is likely to be damaged by USGBC’s alleged false statements.”  The court added, “[b]ecause there is no requirement that a builder hire LEED-accredited professionals to attain LEED certification, it is not plausible that each customer who opts for LEED certification is a customer lost to Plaintiffs.”

The court also ruled that Mr. Gifford was not able to show that the alleged false advertising claim by the USGBC had made an impact on the marketplace. “Whatever the merits of Plaintiffs’ claim that the conclusion of the study was false,” any claims to that effect were “too speculative.”

The court, however, said the plaintiffs still could bring false advertising and deceptive trade practices claims under New York state law.

See the attached link to the 8/15/11 Memorandum & Order.

Submitted by Jeffrey S. Wertman of  Berger, Singerman

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Energy Aligned Lease

Posted on July 7, 2011 by greenbuildingsubcommittee

The City of New York Mayor’s Office of Long-Term Planning and Sustainability recently completed its Model Energy Aligned Lease and announced its use in a transaction at the 7 World Trade Center Building.   I think the innovative approach with the Energy Aligned Lease Language is a good step forward for trying to manage the “split incentive.” However, when I read the press release and the lease language, it struck me that success of the approach still depends on the building performing substantially as modeled since there is no actual performance verification. While the 80% pass thru provides some hedge, it appears that a Tenant with a short-term lease could find itself on the short end of the stick if actual energy savings falls significantly short of expectations. Not that such ever happens in the real world….

Taking the example in the Model Energy Aligned Lease Language itself in section 1(b)(i), assume that the $2,000,000 in Landlord’s capital improvements is “projected” to result in $500,000 in energy savings, which can then be passed through to Tenant at $400,000 per year for 5 years at the 80% rate. Let’s then assume the base energy cost without the capital improvements was $1,500,000 a year (e.g., the improvements are “projected” to result in a 33% energy reduction – a notable outcome).

What happens if energy consumption is only actually reduced by 10% for whatever reason, rather than the anticipated 33%?

Tenant’s Outlay:

Energy cost ($1,500,000 x 90%)                                $1,350,000

Capital Ex pass thru based on “anticipated” savings $   400,000

Total Annual Outlay for 5 years                                 $1,750,000

Total Annual year 6 +                                                 $1,350,000

Now I am just a lawyer and not a finance guy so someone please correct me if I am wrong, but query whether this is a good outcome for a Tenant with a 5-10 year lease who would have otherwise paid $1,500,000 a year without the capital improvements being made.   For example, at the end of year 7, Tenant would have paid $11,450,000 under the Energy Aligned Lease under this scenario, but would have paid only $10,500,000 without the energy improvements.  If I am not wrong, then the point is that with the Energy Aligned Lease approach, much still depends on actual building performance aligning fairly closely with projected or modeled performance (or having a very long-term lease over which to recoup the shortfall). From what I understand from the building performance experts, the alignment between modeled and actual performance is no sure thing and some buildings are performing far worse than anticipated.

Perhaps the Model Energy Aligned Lease Language should be backstopped somehow by a provision that allows reconciliation if actual energy use is significantly greater than that projected? The plaNYC document “Model Energy Aligned Lease: Detailing language to help solve the split incentive problem” provides that “Moreover, using projected savings avoids having to monitor actual savings, which can be prohibitively expensive.” Again, as merely an attorney, I would let others opine on whether it would in fact be “prohibitively expensive” to establish a baseline and monitor actual energy savings.

In sum, kudos for the forward thinking by the folks in NY in developing this model language. However, as with all model language, careful evaluation should be conducted to fully understand the implications to you or your party in interest based on the specific facts before dropping the Model Energy Aligned Language into a lease.

Submitted by Paul D’Arelli of Berger Singerman

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UPDATE ON GIFFORD V. USGBC (S.D.N.Y)

Posted on July 7, 2011 by greenbuildingsubcommittee

Henry Gifford filed his opposition to the U.S. Green Building Council’s motion to dismiss Gifford’s amended complaint on May 2, 2011.  Gifford’s argues, among other things, that (1) direct competition is not a requirement for Lanham Act standing; (2) as competitors in a niche market, plaintiffs are especially likely to be harmed by the USGBC’s claims; and (3) causation, a question of fact, will be proved in discovery.

It is expected to take several months for the court to rule on the USGBC’s motion to dismiss.

Gifford’s Memorandum of Law in Opposition to Defendant’s Motion to Dismiss can be viewed at: http://bit.ly/kywGsD

Submitted by Jeffrey S. Wertman of Berger Singerman

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New Guide Available: Negotiating Leases in the Era of Green Building

Posted on July 7, 2011 by greenbuildingsubcommittee

This informative 42-page guide written by Paul D’Arelli provides a “plain English” presentation of issues and concepts that must be considered by landlords, tenants and their representatives in this new era of sustainability where traditional leasing is intersecting with green building pursuits and requirements.

Rather than attempt to move the industry toward some new model of  green leasing – a difficult proposition given the variation in local leasing customs – this guide provides an issue-focused approach that can be used as a basis for informed negotiation geared toward accommodating the needs of the parties regardless of local lease preference. The style is  conversational guide as opposed to a legal treatise, making it an easy read about an increasingly complicated subject. It’s available at the link below.

www.greenleasingguide.com

Submitted by Peyton White Lumpkin, Esq., LEED AP
The Lumpkin Law Firm P.A.

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UPDATE ON GIFFORD V. USGBC (S.D.N.Y)

Posted on June 7, 2011 by greenbuildingsubcommittee

Henry Gifford filed his opposition to the U.S. Green Building Council’s motion to dismiss Gifford’s amended complaint on May 2, 2011.  Gifford’s argues, among other things, that (1) direct competition is not a requirement for Lanham Act standing; (2) as competitors in a niche market, plaintiffs are especially likely to be harmed by the USGBC’s claims; and (3) causation, a question of fact, will be proved in discovery.

It is expected to take several months for the court to rule on the USGBC’s motion to dismiss.

Gifford’s Memorandum of Law in Opposition to Defendant’s Motion to Dismiss can be viewed at: http://bit.ly/kywGsD

Submitted by Jeffrey S. Wertman

Berger Singerman

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My Building Ate the Smog!

Posted on May 31, 2011 by greenbuildingsubcommittee

According to an article in the May 13, 2011, issue of USA Today, Alcoa is now selling building panels that have a titanium dioxide coating that reacts to nitrogen oxide in the air when exposed to sunlight, reducing it to a harmless power that is washed off by rain. Nitrogen oxide is the smog-causing compound emitted by vehicles

Alcoa claims that a 10,000 sq. ft. area of the panels will have the same cleansing power as 80 trees

Alcoa did not invent the technology; it has been used with concrete in Holland on streets.

The USA Today report also mentions other products that attack pollution, such as a light bulbs and ceiling tiles.

See the USA Today article at http://usat.ly/m6ehk1 for the details.

Submitted by Howard Allen Cohen, B.C.S.
Atkinson, Diner, Stone, Mankuta and Ploucha, P.A
Fort Lauderdale
hac@atkinson-diner.com

 

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Greening the Law –Live Presentation or Webcast

Posted on March 16, 2011 by greenbuildingsubcommittee

The Florida Bar Continuing Legal Education Committee
And Real Property, Probate and Trust Law Section presents

Greening the Law (1197R)

Live Presentation or Webcast
Friday,May 6, 2011
8:25 a.m. – 5:10 p.m. Eastern Standard Time
Tampa Airport Marriott – Tampa, FL
Credit Hours: 9.5 with 1 hour of ETHICS

To register click the link below:

http://www.floridabar.org/FBWEB/CLEReg.nsf/zLocations2/ESMH-8DYNB8?OpenDocument

Submitted by Peyton White Lumpkin

The Lumpkin Law Firm P.A.

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The Battle Over Wood Certification Standards

Posted on March 8, 2011 by greenbuildingsubcommittee

On October 20, 2009, the Coalition for Fair Forest Certification (the “Coalition”) filed a complaint with the Federal Trade Commission (“FTC”) alleging anti-competitive behavior by the Forest Stewardship Council (“FSC”) and the United States Green Building Council (“USGBC”).

The Coalition has requested that FTC investigate, through the Bureau of Consumer Protection, the alleged deceptive and unfair trade practices arising out of FSC’s forest certification standards; investigate through the Bureau of Competition concerns about anticompetitive activities and monopolization arising out of USGBC’s LEED rating system and the alleged preference for FSC-certified products; and provide guidance to standard-setting organizations concerning behavioral standards for compliance with antitrust law.

The heart of the Coalition’s trade complaint is the allegation that FSC and the USGBC “operate in tandem to disadvantage wood products certified by SFI and other certification systems.”
FSC-certified products remain the only forest products eligible for credits under LEED.

These complaints are set against the backdrop of the USGBC’s proposed changes to its certified wood credit.  USGBC has conducted its first public comment period regarding opening the wood certification process to other standards. Under the newly proposed credit language, wood certification systems would be evaluated for eligibility to earn points towards LEED certification against this measurable benchmark that includes: Governance; Technical/Standards Substance;
Accreditation and Auditing; and Chain of Custody and Labeling.

For more information, please see the links below:

USGBC Accused of Anti-competitive Practices:

http://www.greenbuildinglawupdate.com/2010/01/articles/codes-and-regulations/usgbc-accused-of-anticompetitive-practices/

Feud Continues Between Wood Certifiers:

http://green.blogs.nytimes.com/2009/10/26/eco-friendly-wood-certifiers-continue-feud/

LEED Accused of ‘Conspiracy to Monopolize’:

http://thetyee.ca/News/2010/03/18/ConspiracyToMonopolize/

My Wood is Greener than Your Wood: Certification Battles Continue:

http://feeds.lexblog.com/~r/VirginiaRealEstateLandUseConstructionLaw/~3/RrCzOCwqtSc/

LEED Credit Revisions for Certified Wood:

http://www.usgbc.org/DisplayPage.aspx?CMSPageID=1866


Submitted by Jeffrey S. Wertman of Berger Singerman

(JWertman@bergersingerman.com)

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