Solar Access: a Suggested Model Statute and Ordinance

Posted on January 26, 2011 by greenbuildingsubcommittee

As a result of the more rapid adoption of solar energy measures by homeowners and businesses in response to state and federal incentives, the US Department of Energy commissioned a study of the effectiveness of current laws pertaining to solar access.  Solar energy systems require direct access to sunlight to operate effectively and efficiently.

The solar access issue is separated into two distinct areas: solar easements and solar rights. “Solar easements” refers to the ability of one property to continue to receive sunlight across property lines without obstruction from another’s property (e.g., buildings, foliage, or other impediments). “Solar rights” refers to the ability to install solar energy systems on residential and commercial property that is subject to private restrictions (e.g., covenants, conditions, restrictions, bylaws, condominium declarations, and local government ordinances and building codes).

The United States has held that there is no common law right to sunlight. This requires that specific statutory authority be established to protect the rights of solar users in terms of their ability to install a solar energy system on their property, and after that system is installed, to protect their access to sunlight so the system remains operational.

Land-use planning, authority for solar easements, and prohibitive covenants, conditions and restrictions that impede the use of solar energy have all been employed to protect solar access with varying degrees of success. The DOE report reviews traditional legal mechanisms that govern the operation of public and private governments, as well as solar-specific ordinances and statutes that have evolved over the years. It concludes that most current law has been ineffective or too expensive because of the lack of enforcement mechanisms.

The report recommends a model statute for implementation at the state level. The model statute includes prescriptive provisions, such as community design and solar easements. It also includes prohibitive provisions, such as those restricting the use of solar energy. At the local level, the report recommends that focus be placed on implementation and enforcement of state law. Specifically, the site-plan review and approval requirement should include an element to address current and future use of solar energy (e.g., solar easements, landscaping, and building height restriction and orientation).

Note:  This work was sponsored by the Solar America Board for Codes and Standards. The Solar America Board for Codes and Standards (Solar ABCs) is a collaborative effort among experts to formally gather and prioritize input from the broad spectrum of solar photovoltaic stakeholders including policy makers, manufacturers, installers, and consumers resulting in coordinated recommendations to codes and standards making bodies for existing and new solar technologies.  The U.S. Department of Energy funds Solar ABCs as part of its commitment to facilitate wide-spread adoption of safe, reliable, and cost-effective solar technologies.

Download the Full Report:

www.solarabcs.org/solaraccess

Submitted by Colleen McCann Kettles, JD

Florida Solar Energy Center

 

 

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USGBC Sued in $100 Million Class Action Lawsuit

Posted on December 28, 2010 by greenbuildingsubcommittee

On  October 8, 2010, Henry Gifford and Gifford Fuel Saving, filed a complaint against the U.S. Green Building Council (“USGBC”) and its founders in the U.S. District Court for the Southern District of New York (Case No. 1:10 CV-7747).

The lawsuit alleges, among other things, that USGBC’s promotion of its LEED standards is misleading and fraudulent because buildings constructed to meet the LEED standards are not, in fact, energy efficient.  The complaint also asserts that that LEED certification does not require any verification of the data submitted in certification applications and does not require actual building energy use data.

The $100-million proposed class action lawsuit contains causes of action for monopolization through fraud under the Sherman Anti-Trust Act, 15 U.S.C. § 2, unfair competition under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), deceptive trade practices, false advertising, wire fraud, and unjust enrichment.

 

The proposed class of plaintiffs includes: (1) those who paid for LEED certification for property they own, (2) those who design energy-efficient buildings, (3) taxpayers whose city and state tax dollars are spent on the costs of LEED certification in public buildings, and (4) workers who lost money and time by complying with LEED specifications.

 

The deadline for the defendants to answer or otherwise respond to the complaint has been extended until December 28, 2010.

 

To learn more about the lawsuit against the USBC, click on the attached links:

 

Gifford vs. USBC Complaint:

http://www.greenbuildinglawupdate.com/uploads/file/Class-Action-Suit-v-USGBC-SDNY-10_12_10.pdf

USGBC, LEED Targeted by Class-Action Suit: http://www.buildinggreen.com/auth/article.cfm/2010/10/14/USGBC-LEED-Targeted-by-Class-Action-Suit/

Class Accuses Green Building Council of Fraud: http://www.courthousenews.com/2010/10/27/31395.htm

Do Not Pass Go: Why The USGBC Is Probably Not An Illegal Monopoly: http://www.greenbuildinglawblog.com/2010/10/articles/litigation/do-not-pass-go-why-the-usgbc-is-probably-not-an-illegal-monopoly/

Lawsuit Challenging Legitimacy of LEED Program Could Have Major Implications:

http://www.natlawreview.com/article/lawsuit-challenging-legitimacy-leed-program-could-have-major-implications

 

Submitted by Jeffrey S. Wertman of Berger Singerman

(JWertman@bergersingerman.com)

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City Secures Renewable Energy Agreement as Part of FPL Franchise Renewal

Posted on December 22, 2010 by greenbuildingsubcommittee

Sparked by a desire to promote clean energy, in 2010, the City of Sarasota debated creating a municipal utility vs. renewing a multi-year municipal franchise agreement. After several months of tense negotiations and lengthy public hearings, the City of Sarasota and Florida Power and Light Company entered into a Renewable Energy, Energy Efficiency, and Energy Sustainability Agreement (the “Renewable Energy Agreement”). According to a memorandum from assistant City Attorney, Michael Connolly, Esq., “The purpose of the Renewable Energy Agreement is to set forth in a binding contract the covenants made by FPL which would be necessary consideration to support the City Commission passing on [the franchise agreement].”

Mr. Connolly highlighted the products and services to be provided by FPL to the City and its citizens during the 30-year term of the franchise agreement in the memorandum:

•           FPL will provide educational resources and programs to inform and instruct the City and its citizens on issues related to energy efficiency and conservation programs and on the benefits and technology associated with renewable energy.

•           Prior to December 31, 2015, FPL shall perform an energy audit on all of the City’s electric accounts.

•           Prior to December 31, 2015, FPL will perform an energy audit of the 100 largest electricity consuming accounts located within the municipal limits of the City.

•           Within every five-year period thereafter, FPL will perform an energy audit for all City accounts and the 50 other largest electricity consuming accounts within the municipal limits of the City.

•           FPL will pay for one City employee to obtain LEED certification.

•           FPL will establish an educational testing facility within the City including new solar photo voltaic panels.

•           In 2021 FPL will install 10 additional pole mounted photo voltaic panels.

•           In 2031 FPL will replace the initial five pole mounted photo voltaic panels.

•           FPL will develop a solar school within the municipal limits of the City by installing solar photo voltaic panels.

•           In 2021 FPL will provide another solar school installation.

•           In 2031 FPL will provide another solar school installation.

•           FPL will install five electric vehicle charging stations within the municipal limits of the City.

•           In 2016 FPL will provide an additional ten electric vehicle charging stations.

•           In 2021 FPL will replace the initial five electric vehicle charging stations.

•           In 2026 FPL will replace the second ten electric vehicle charging stations.

•           During the next 30 years, FPL will perform home energy makeovers for 1,500 homes within the municipal limits of the City.

•           During the next 30 years, FPL will perform 15 non-profit energy makeovers for non-profit entities within the municipal limits of the City.

•           Subject to the passage of enabling legislation, FPL will develop a large scale rooftop solar facility within the municipal limits of the City.

•           Subject to the passage of enabling legislation, FPL will develop and install a demonstration LED streetlight pilot program.

•           Subject to the passage of enabling legislation, FPL will develop a utility scale solar generation project (perhaps on the Verna Wellfield site).

The Renewable Energy Agreement runs concurrently with the term of the franchise set forth within Sarasota City Ordinance No. 10-4917. The Memorandum, as well as the franchise agreement and the public hearing testimony can be found on the City of Sarasota’s website at www.sarasotagov.com.

Submitted by Casey Colburn, Esq., Kirk-Pinkerton, P.A.          

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Jacksonville Privately Owned Office Building Converted to Green with LEED Silver

Posted on September 30, 2010 by greenbuildingsubcommittee

The Allen Morris Company has received Silver LEED for Existing Buildings Operations and Maintenance Certification from the U.S. Green Building Council for its 110,235 square foot Center Building located in Jacksonville, Florida. It is the first privately-owned office building in Jacksonville to receive the designation. The building was built in 1977 and completely renovated in 1995.

Some of the green initiatives introduced in the building for the LEED certification process were: a recycling program to reduce trash and construction waste by more than 50 percent;  applying sustainable purchasing practices for office and building supplies;  and dramatically decreasing the building’s use of potable water by using 100 percent reclaimed rain water for landscape irrigation, a possible savings of 16 million  gallons of water per year.

It was not an easy process, but the LEED Silver designation enabled the landlord to draw key tenants in the building, including the Florida Department of Environmental Protection, GSA – Small Business Administration, GSA – US Veterans Administration, the Department of Agriculture and Consumer Services and ista North America.  A growing number of firms “want to show their corporate and personal commitment by choosing a sustainable, green building alternative,”   explained W. Allen Morris, Chairman and CEO of The Allen Morris Company.

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

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Miami Science Museum’s Green Roof Demonstration Project

Posted on September 15, 2010 by greenbuildingsubcommittee

After a year of development and data collection, the Miami Science Museum recently reported the findings of its Green Roof Demonstration Project and launched its second phase. The project included five roof assemblies: two extensive green roofs (one with irrigation, one without) and two intensive roofs (one with irrigation, one without) and a control, white roof. The extensive roofs  had five inches of soil, the intensive roofs had ten inches of soil.  Each assembly was equipped with three temperature sensors to compare temperatures above, in, and below the roofs.

The first phase of the project showed the white roof to perform as well as the intensive green roof and even better than the extensive green roof at reducing the interior cooling load. For the second phase, the Museum plans to continue monitoring temperatures and also look more closely at rainwater retention of the various assemblies. Additionally, the Museum has expanded its outreach with the project, donating two of the assemblies to MAST Academy for use in its renewable energy courses, and also partnering with students at FIU for work on the assemblies at the Museum.

MSM Green Roof Demonstration Project

The Green Roof Demonstration Project is being done to help inform the design of the Museum’s new 250,000 square foot facility slated to open in Downtown Miami at Museum Park in 2014. The building is being designed with the goal of LEED Platinum certification. For more information about both the Green Roof Demonstration Project and the new Museum, check out the MiaSci blog at: http://www.miasci.org/blog/.

Submitted by Chris Trigg, Energy Officer, Miami Science Museum.

Rendering of the New Miami Science Museum

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Green Building Litigation Update

Posted on August 18, 2010 by greenbuildingsubcommittee

Gidumal v. Site 16/17 Development LLC, et al., N.Y. County Index No. 105958/10 (New York County Supreme Court, May 5, 2010), is the first reported case against a developer of a green building alleging the developer failed to deliver a project as represented during pre-construction.

On May 5, 2010, unit owners of the 31-story, 264-unit Riverhouse condominium located in Battery Park City, filed a $1.5 million lawsuit against the project’s developer, Sheldrake Organization, and the building’s manager, Centurion Real Estate Partners, for breach of contract under the condominium offering plan and fraud based upon alleged misrepresentations in the offering plan about the building and its units.

Riverhouse was marketed as being at the cutting edge of green technology and advertised as a LEED Gold-rated building, which is supposed to feature fresh filtered air, filtered water, eco-friendly materials and low energy consumption.  The green features the developer allegedly promoted include a geothermal heating and cooling system, photovoltaic cells, low-E double-pane windows, a green roof, Energy Star appliances, recycled-content and locally-sourced building materials, a $1 million wastewater treatment plant, and a 60kW microturbine installation.

The complaint alleges that owners consistently experienced cold drafts and insufficient heat in their units and that the air temperature for heating the units was too low, which the plaintiffs claim are signs that the building is not maximizing energy efficiency.  The complaint further asserts that the pipes are not insulated, the heating unit covers are not sealed, and the air filters are clogged.

It will be interesting to follow this case and see if it paves the way for more green lawsuits based upon contract and fraud theories arising from a developer’s offering plan or pre-sale/pre-construction representations to purchasers.

Submitted by Jeffrey S. Wertman of Berger Singerman (JWertman@bergersingerman.com).

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Green Building Health and Productivity Benefits for Employees: First Steps Toward Scientific Evidence

Posted on August 16, 2010 by greenbuildingsubcommittee

A Michigan State University (MSU) study has taken a preliminary step toward providing scientific evidence on the health and productivity benefits of green construction and operations. Part of the allure of  green buildings is the promise of higher returns due to better employee productivity and health and less absenteeism. Green commercial developments potentially create a win-win situation for investors, landlords, and tenants. Historically, these particular goals have been difficult to measure and verify.  The MSU study, published in the online version of the American Journal of Public Health, documents two case studies of occupants who moved to LEED certified office buildings from conventional office buildings.  According to the study abstract and press release, participants self-reported reductions in both absenteeism and work hours adversely affected by respiratory conditions such as asthma and allergies, as well as reductions in stress and depression. They also self-reported increases in productivity.  Although this study design does not provide evidence of direct causation, the correlation between the LEED-mandated higher standards in Indoor Environmental Quality and better employee health and productivity is consistent with such a theory, and provides a solid beginning for further research.

Submitted  by Peyton White Lumpkin, Esq., LEED AP

The Lumpkin Law Firm P.A.

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Florida Opportunity Fund Seeks Applications for Clean Energy Investment Program

Posted on August 16, 2010 by greenbuildingsubcommittee
 
The Clean Energy Investment Program, launched by the Florida Opportunity Fund with an initial $36 million in funding, is now accepting applications for investment opportunities that advance the adoption of renewable energy and energy-efficiency technology across the State.
 
 The Clean Energy Investment Program will provide qualifying Florida businesses with investments in three primary areas of focus:
  •   Facility and equipment improvement with energy-efficient and renewable energy (EE/RE) products. Examples of potential opportunities would include a manufacturing or assembly business upgrading or expanding operations with energy-efficient equipment, a data center converting to energy efficient servers or cooling units, or a business seeking to retrofit or upgrade its facilities with energy efficient or renewable energy products and materials.
  •  Acquisition or demonstration of renewable energy products. For example, the program would evaluate a business looking to acquire or upgrade a solar or other renewable energy generation system or a technology provider seeking to demonstrate its commercially available renewable energy or energy efficient products for the first time in Florida. 
  • Process improvement of existing production, manufacturing, assembly or distribution of operations to increase energy efficiency or reduce consumption. This could include a warehousing, distribution or storage business implementing activities to conserve energy or streamline operations, an industrial materials company upgrading its water usage and treatment processes to conserve energy and improve the efficiency of existing operations, or an agricultural inputs provider improving excavation or handling processes to increase the energy efficiency of its operations.

“The program is a first of its kind for Florida. Beyond the goal of transforming the State’s energy profile, this is also designed to be a catalyst for jobs,’’ said Jennifer Dunham of Florida First Partners, manager of the Florida Opportunity Fund. “We expect to see job growth from businesses that integrate or produce energy efficient or renewable energy products and technologies. We also anticipate that companies will be able to expand their operations and become more competitive as a direct result of the achieved cost savings and other efficiencies.”

In evaluating opportunities that apply for the first series of clean energy investments, the Florida Opportunity Fund will consider businesses that have existing operations in Florida, companies with a significant presence in the State or businesses that are establishing Florida operations using EE/RE products, techniques and technology. Applicants that show significant reduction in energy consumption or are seeking to implement or demonstrate commercially available energy-efficient or renewable energy products and technologies represent the targeted audience of this program.

The clean energy program is managed by the Florida Opportunity Fund, one of the primary State-sponsored efforts designed to generate economic growth and long-term funding for an array of strategic programs. The Clean Energy Investment Program received funding this Spring from the Florida Energy and Climate Commission.

“This is a timely program for Florida businesses to access capital for reducing energy consumption, and to stimulate the adoption of clean energy solutions,” said Jim Murley, Chairman of the Commission. The State also hopes to see private investment increase to provide a capital infusion to this emerging industry in Florida. 

Applications for the program are now being accepted. Interested participants should visit the program’s Web site at www.floridaopportunityfund.com to access the application and additional program details.

 

For more information, visit the program’s Web site – www.floridaopportunityfund.com.
 
Submitted by The Florida Opportunity Fund.

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Paralyzing the PACE: Florida’s property assessed clean energy program likely strangled by Fannie Mae and Freddie Mac

Posted on July 19, 2010 by greenbuildingsubcommittee

The Florida legislature recently took a step towards creating a more sustainable future for our state. On May 27, 2010, Governor Crist signed into law House Bill 7179, which created Florida’s version of the Property Assessed Clean Energy (PACE) program. 

Florida’s PACE bill enables local governments to levy non-ad valorem assessments to fund improvements related to energy efficiency,conservation,renewable energy and wind resistance.  This type of program is more commonly known as a land-secured financing district or special assessment, which Florida municipalities have long used as a tool to finance projects that serve a public purpose, including street paving and the creation of parks.  The novelty of the PACE program is that it is not a  mandatory ad valorem property tax, has minimal fiscal impact on local governments, is not linked to the financial credit status of the property owner, and is completely voluntary.  The program shows promise as an innovative, no-taxpayer subsidy approach to financing individual energy efficiency and renewable energy projects without the traditional barriers: large upfront costs and difficulty of financing them.

Under a PACE program, property owners borrow money from a newly established “municipal financing district” to purchase eligible technologies that are determined at the local level.

PACE programs are funded through the issuance of local revenue bonds.  A PACE bond is a bond where the proceeds are lent to commercial and residential property owners to finance energy retrofits (efficiency measures and small renewable energy systems) and who then repay their loans over 20 years via an annual special assessment on their property tax bill.  The bonds therefore act as a lien on the property until the amount is paid off.  If the consumer sells the property, the tax would then be paid by the new owner.  For many home and business owners, the annual energy cost savings from the retrofitting will exceed the cost of the annual repayment.

Unfortunately, on July 6, 2010, the Federal Housing Finance Administration (FHFA), the agency that regulates mortgage finance giants Fannie Mae and Freddie Mac, issued a letter effectively bringing PACE programs across the Country to a screeching halt.  The July 6th letter expresses FHFA’s new requirement position that it will not purchase loans subject to PACE liens.  The tension lies in FHFA’s concern with the “senior liens” or “first liens,” which result from the tax assessment on properties participating in a PACE program.  The significance of the senior PACE lien is that if the property goes into foreclosure the PACE lien must be satisfied before the mortgage lender gets any money.  In short, FHFA has “safety and soundness concerns” resulting from a combination of “first liens that disrupt a fragile housing market and longstanding lending priorities, the absence of robust underwriting standards to protect homeowners and the lack of energy retrofit standards to assist homeowners, appraisers, inspectors and lenders [to] determine the value of retrofit products.” 

From a practical standpoint, FHFA’s blanket rejection of residential loans subject to PACE liens eliminates or restricts one of the most appealing aspects of the PACE program: the ability to make energy efficient improvements today and either pay the costs off over time or pass the costs off to future purchasers.  Banks generally want to sell their loans to Fannie Mae or Freddie Mac, so under FHFA’s new rules, whenever a homeowner with a PACE loan seeks to refinance, the homeowner will have to pay off the PACE lien in full.  In addition, whenever a homeowner with a PACE loan seeks to sell their home to a buyer using financing, the homeowner will have to either pay off the PACE loan or negotiate full payment of the PACE lien by the purchaser.  The restrictions created by the FHFA’s position and the orders it has issued to Fannie Mae, Freddie Mac, and the 12 Federal Home Loan Banks have served to bring PACE programs everywhere to a complete halt.

There will have to be a significant push in favor of PACE programs on a state and federal level if one of the most promising renewable energy programs to date is going to be saved. Some commentators believe the only way to cross the proverbial “line in the sand” drawn by the FHFA is for Congress to take action on this pressing issue. If implemented in Florida, PACE programs could rev-up the state’s economic engine. The promises of an accelerated rate of renewable energy production, energy independence, green job creation, and greenhouse gas emissions reductions are all reasons to fight for PACE programs.

Submitted by Stephen A. Liverpool.  Mr Liverpool is a third year law school student from Tampa, Florida. This December, he will graduate from the Levin College of Law at the University of Florida with a certificate in environmental and land use law. He is currently a summer associate at the law firm of Hill Ward Henderson and can be contacted at salpool@ufl.edu.

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Index of Sustainable Development Provisions in Florida Municipal Codes (2010)

Posted on July 19, 2010 by greenbuildingsubcommittee

Florida local governments continue to take action to adopt sustainable development provision (including green building, low impact development, and renewable energy/energy efficiency) into their comprehensive plans and codes.  Originally compiled in 2009, the index was updated in Summer 2010 to include new provisions including Leon County’s PACE ordinance.  Click here to view the updated Index of Sustainable Development Provisions in Florida Municipal Codes (2010).

 Invitation to Collaborate: Do you know of a local government provision not included in this index? Please send to Nicole Kibert (nkibert@carltonfields.com) for inclusion in the next update.

Submitted by Nicole Kibert, Carlton Fields, P.A.
nkibert@carltonfields.com
ph : 813.229.4205
fax : 813.229.4133

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