Florida Green Building Law

Cisco has presented an interesting integrated information technology model in its Cisco ® Connected Real Estate solution. [http://www.cisco.com/web/strategy/docs/trec/Cisco_AAG.pdf].

The system has overlap with green goals, and encompasses a similar conceptual shift away from the operational separation of traditional tenants in a building (each with their own communications, internet, and other systems) to shared building-wise infrastructure, which can be more efficient in cost and operation, plus provide a unified level of compliance with “green” (e.g., LEED) operational requirements.

Connectivity is treated like a new utility. The single network requires less design, engineering, installation, and operational work, increasing initial and ongoing efficiencies in time and cost, and allowing for much greater flexibility in reconfiguring space within the building. It allows for the control of building-wide systems such as HVAC, security and energy management. The building-wide performance data provides feedback and validation, providing a sensitive gauge of what is working well and what can use a tweak.

Posted by Peyton White Lumpkin, The Lumpkin Law Firm P.A.

Despite predictions that the construction industry would be inundated with green building lawsuits, there is a paucity of reported lawsuits relating to green building projects.  One of the first reported cases involving green buildings is Southern Builders, Inc. v. Shaw Development, L.L.C., Case No. 19-C-07-01145 (Circuit Court of Somerset County, Md. 2006).  This dispute arose from a $7.5 million, 23-unit condominium project in Maryland.  The owner wanted the project to attain a USGBC LEED certification, which would have resulted in more than $600,000 in tax credits if a certificate of occupancy was issued by a certain date.  After the contractor filed a $45,000 mechanic’s lien action, the owner counterclaimed against the contractor for, among other things, its failure to deliver a LEED silver certified project.  The parties used an AIA A101 -1997 Standard Form of Agreement Between Owner and Contractor and the contract documents included LEED requirements in an incorporated project manual.  The contractor, however, was not obligated to secure a formal silver-level certification.  Although this case had the potential to resolve a LEED issue and provide guidance to the green industry, the case was not litigated to conclusion because the parties settled.

A second reported lawsuit, filed in federal court in 1998, arose from the City of Albuquerque, New Mexico’s enactment of a new green building law.  The case, The Air Conditioning, Heating, & Refrigeration Institute v. City of Albuquerque, Civ. No. 08-633 MV/RLP (D.N.M.), involves the novel application of federal preemption doctrine, in which federal law trumps local-level green-building legislation.  The Air Conditioning, Heating and Refrigeration Institute and several distributors sued the City of Albuquerque alleging that the city sets energy efficiency standards for furnaces, water heaters and air conditioners that are more stringent than those allowed under federal law.  The U.S. District Court agreed with the plaintiffs and issued a preliminary injunction temporarily stopping the city from enforcing the law.

There are other potential areas that may give rise to green building litigation, which are not as obvious as the failure to achieve a certain designated LEED standard.  They include:

1.         “Green washing.”  Building owners, landlord representatives and real estate brokers need to be careful on describing a building as “green.”  There is no legal definition of what a green building is and if not carefully limited, this could give rise to a claim of a breach of warranty or fraud.

2.         Failure of a building to achieve expected energy performance and savings, which a purchaser or tenant may assert were either explicitly promised or implied, failure to achieve zoning bonuses or other preferential development approvals, utility rebates, and the like.

3.         Claims by design professionals asserting that they have the experience and expertise necessary to serve on a green design team. In many areas of the country, there have not been enough green projects to justify a large number of experienced professionals.  Specific background and experience should be carefully disclosed.

4.         Fitness of new materials for their intended use as well as issues related to durability and reliability.  There are many new products involved in green building which do not have proven reliability, which could give rise to claims.

5.         Increased burden of ownership and maintenance of a green building.  The design of a LEED building, particularly a gold or platinum, can include many new and complex systems, such as vegetative roofs, new building materials and the like. The responsibility and liability for these type systems needs to be carefully addressed.

The number of green building lawsuits and reported decisions is certain to change as state and local governments continue to enact green building statutes and regulations, the number of LEED projects proliferates, and the means and methods to measure post-occupancy performance are refined.

Posted by Jeffrey S. Wertman of Berger, Singerman and

Terence J. Delahunty, Jr., Esq., LEED AP of Gray Robinson, P.A.

Perhaps the biggest loophole in the LEED certification process is the fact that there is little incentive for owners to ensure that buildings maintain efficient performance post-certification.  Under the previous LEED rating systems, once a building obtained a LEED certification level, it would not be downgraded if actual building performance deteriorated or did not live up to the energy models that helped it achieve its certification level.  The most recent LEED rating system changes take a small step toward closing this loophole, as indicated in the recent New York Times Article: Some Buildings Not Living Up to Green Label.  The U.S. Green Building Council now requires that newly constructed buildings submit energy and water bills for the first five years of operations as part of the certification process. The failure to produce the information can lead to revocation of the building’s certification level.

The U.S. Green Building Council and other green building professionals recognize the loophole and expect future LEED rating systems to incorporate a comprehensive recertification procedure.  See Some Buildings Not Living Up to Green Label.  Although the recertification benchmarks are in the works, owners should be prepared to take steps from the inception of the project in order to maximize the recertification opportunity and document compliance with recommended operations and maintenance procedures.  Ultimately, this means hiring a reputable commissioning agent to monitor and document operations and maintenance of the building systems throughout the life of the building.  Therefore, when determining projected profitability and costs for the project, the owner should budget for continuous commissioning.

 Counsel should draft the commissioning agent service contract to require the maintenance of records of compliance with all recommended building operation and maintenance (“O&M”) procedures.  This documentation can be crucial if the project fails to obtain recertification and leads to litigation due to underperformance of building systems.  The owner will want to point the finger at the design professional and/or the contractor for design/construction defects.  A likely defense by the design professional and contractor will be improper O&M.  As a result, documentation of compliance with O&M procedures will be essential to proving the owner’s case.    

 From a practical standpoint, the specific types of documentation necessary to show compliance may not be identified until the design and construction teams have completed their scopes of work.  Therefore, the owner may want to enter into separate agreements: one for the initial commissioning stage of the project and one for ongoing commissioning after the O&M procedures are developed.

 Counsel should also advise the owner of the risks of hiring a commissioning agent that includes a limitation on liability clause in its contract for services.  For example, if the commissioning agent’s damages are limited to its fee, the owner may lose out on a significant pocket for recovery if damages exceed the amount of the fee. 

Submitted by Desiree Noisette, Hill Ward Henderson.

Recently, Nicole Kibert of Carlton Fields, P.A., compiled an Index of Green Building Provisions in Municipal Codes.  The article is an excellent resource for Florida green building practitioners because it identifies the local green building requirements and incentives.  The following excerpt from  Kibert’s article highlights state a local efforts to mandate and encourage green building practices into new and existing buildings:

 On July 13, 2007, Governor Charlie Crist signed three Executive Orders during the Serve  to Preserve Florida Summit on Global Climate Change.  The three Executive Orders “will guide Florida to reduce green house gases, increase efficiency and pursue more renewable and alternative energy sources, such as solar and wind technologies, ethanol and hydrogen.”  The spirit of these executive orders was largely put into action in the 2008 legislative sessions culminating in many directives that will impact our clients and our practices in the years to come.  Some of the highlights include the following mandates:  All new state buildings must be built in accordance with the U.S. Green Building Council’s Leadership in Energy and Environmental Design for New Construction (LEED-NC) standards.  Leadership in Energy and Environmental Design for Existing Buildings (LEED-EB) standards must be implemented for all existing state buildings.  Florida’s 2008 Energy Act created a state definition of green building and started the ball rolling on several initiatives including increased energy efficiency in the Florida Energy Code and the legislative authority for the development of the Florida Renewable Portfolio standard.  The Florida legislature passed on taking related action in the 2009 session.

 Many Florida municipalities are adopting green building provisions into their codes.  The “Index of Green Building Provisions in Florida Municipal Codes” was compiled during the summer of 2009 for informational purposes only.

Index of Green Building Provisions in Florida Municipal Codes submitted by Nicole Kibert, Carlton Fields, P.A.

Old Coral Gables Fire Station

What’s old will not only be new again but if all goes right, green and LEED certified!  The Coral Gables Museum will be housed in the city’s original police and fire station located at 285 Aragon Avenue. The building was constructed in 1939 by architect Phineas Paist, one of the original designers of the City of Coral Gables who was responsible for the Mediterranean look and feel of the city. The building is also listed on the National Register of Historic Places. This original structure is currently being restored. In addition, a new 3,000 square foot gallery and a 5,000 square foot public plaza will be incorporated into the Museum complex.

“The Museum’s ‘green’ initiatives represent an institution taking the lead to be an example for the community,” says Director of Operations Christine Rupp. “From construction to programming to operations, the Museum will continue to exemplify civic and social responsibility.”

In 2005, Jorge L. Hernandez Architects were contracted to design the project. Creating a structure that was environmentally sustainable was a main concern from the start and certain steps needed to be taken in order to obtain LEED certification.

“Many credits have to do with the building’s location in the urban environment and proximity to hubs of transportation, restaurants and other facilities,” says lead architect Jorge L. Hernandez.  “We are re-using an existing building [which is] the greenest choice for construction. We are fortunate that the Museum is located in the heart of Coral Gables.”

The Coral Gables Museum is set to open in 2010. Upon its completion, it will not only display Coral Gables history, but the building itself will also make history if it achieves LEED certification as planned.

“This will be the first National Register civic building to be LEED certified in this region,” says Hernandez. “As the green movement continues to grow, we will become increasingly sophisticated in dealing with our building stock and the energy implication of producing and maintaining them in a sustainable manner.  This project represents an important step in what will be a reformative cultural and environmental movement.”

For more information regarding the Coral Gables Museum, call 305-910-3996.

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

PURETi is a surface treatment that uses UV-PCO (ultraviolet photocatalytic oxidation) with ultraviolet light to transform treated materials into self-cleaning surfaces. Benefits include reducing the water, chemicals, and energy used in cleaning by at least 50%, plus significantly reducing air pollution. Light energy from the sun (or fluorescent lamps) energizes a mineral called anatase titanium dioxide (TiO2) in the treatment product, which in turn accelerates the natural chemical breakdown of organic molecules comprising grime, bio-film, smog and volatile organic compounds.

An independent laboratory study was conducted at Stony Brook University by Professor Alexander Orlov, Ph.D. “Experiments conducted in our lab found that PURETi UV-PCO technology is able to eliminate almost 80% of harmful NOx emissions by using light energy from ultraviolet light,” said Orlov. NOx (nitrogen oxides) can react with volatile organic compounds to form Ozone, which can have adverse health effects.

The treatment helps keep glass free of unattractive organic films, and when applied to cool white roofs, it reduces reflectance loss caused by the growth of biological matter and other soil.

Projects using this treatment include the Los Angeles Community College District (with a >$4 billion budget, arguably the largest green building project in the country), which is treating a million square feet of building roofs, windows, and cement and brick facades and plans to treat approximately 15 million square feet on nine separate campuses over the next three to four years.   Goshow Architects used it in its newly renovated Manhattan office.

For more information visit www.csggrp.com.

Posted by Jackie Felegy, President,  CSG Sun Coast

Have a big blank wall in a green building but don’t know what to do with

Mangrove Seedlings

it? The social and environmental values underlying green buildings are spurring innovation in art. A great example is the Mangrove Wall at the Miami Science Museum. Conceived by artist Xavier Cortada, the wall began with volunteers collecting mangrove seedlings. The seedlings were placed in plastic cups attached to the wall with binder clips and left to grow. They will be replanted by another group of volunteers to create a mangrove forest.  The visual display makes me think of all the volunteers who came together to collect the seedlings as well as those who will come together to plant them and enrich the eco-system. It’s beautiful and inspirational, a lovely extension of the ideals behind green building. The

Model of new Museum of Science facility

Museum’s president, Gillian Thomas, said they plan to include a focus on artists whose work relates to the environment at the new facility being built on Biscayne Bay in Bicentennial Park, and Xavier Cortada is a very likely candidate. The new museum with its aquarium and “living core” will go beyond LEED certification and embody green principles at every level.

Posted by Peyton White Lumpkin, The Lumpkin Law Firm P.A.

Miami Mayor Manny Diaz and Volunteers

 Submitted by: Taylor Ralph, RealBuilding, LEED AP, Green Building Consultant

While the rain begins to hit our roofs almost daily—those afternoon showers that simultaneously cool things off yet make our air more humid—consider the fate of this precious source of water for our region…

Our water infrastructure includes the design of expensive, and extensive, storm water management systems that add huge costs to new development, require expensive/disruptive repairs, and transport the toxins, debris and trash that comes from water hitting our impermeable driveways, streets and gutters.  It then goes into the sewer, enters the storm water pipes, is filtered with powerful chemicals at treatment plants, and eventually reaches (and negatively impacts) the precious ecosystems and waterways that Floridians and (and tourists) visit and enjoy daily.

In response to this unsustainable method of collecting and treating surface waters, green building advocates, environmental organizations and individuals mindful of the complicated and costly requirements of an impermeable environment have started advocating for more permeable site design, and employing conservation strategies that once were common remedies when water wasn’t as readily available in the home—rainwater storage/use and grey water recycling.

Tampa Bay Water defines grey water as “untreated household wastewater that has not come in contact with toilet waste and includes wastewater from bathtubs, showers, clothes washers and laundry tubs.” Grey water makes up roughly 50-80% of the water heading down our drain, leaving a large capacity of reusable water that could be filtered easily and efficiently…reducing overall water use in the home by 30% or more!

We are still in a drought; homeowners, businesses and municipalities have been required to eliminate their use of potable water for irrigation and maintenance in order to conserve our dwindling water reserves.  People learned quickly that these kinds of limits are not fun for water-hungry landscapes, and cringe at the thought of higher water surcharges—taking a second look at our everyday use of water.

Those that weren’t concerned had already prepared for this predicament—with their rain barrels/cisterns, drip irrigation systems, Florida-friendly landscape and low-flow fixtures helping keep their yard lush and monthly bills low.

www.realbuilding.com

445 25th Ave N, St Petersburg, FL 33704
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The June 2, 2009 issue of USA Today(page 5D) has an article, “Prefab homes now sprout green designs.”  This article features Michelle Kaufmann, a San Francisco Bay area architect who first designed her own manufactured green home and then went into business building them for others.  The article gives other examples and states that building homes in a factory is “inherently greener” than building them on site because, e.g., there is less waste, greater efficiency, and the materials are not exposed to the elements.

Additionally, Nationwide Custom Homes of Martinsville, VA, claims to have the first completely green community in the Tampa Bay region – Glencairn Cottages.  This site also has a virtual tour of the project.

Posted by Howard Allen Cohen, Esq., Atkinson, Diner, Stone, Mankuta and Ploucha, P.A.