This week, Musings welcomes

The Noisette Rose – A Triple Bottom Line Approach

For the Noisette Development in North Charleston, SC, via a collaboration of BNIM and Burt Hill Architects, we created a framework called the Noisette Rose. Based on the Triple Bottom Line concept, project goals combined concerns for Prosperity and People as well as the Planet. The Rose signifies the qualifications and rates the success in meeting those criteria as radial arms around the circle.

The Noisette Rose effectively illustrates the complexity of sustainable design. While LEED and other models establish minimum standards for energy use, waste management, and so on, many experts consider sustainability environmental criteria along will not achieve sustainable development. The Noisette Rose and Triple Bottom Line method describe that larger vision.

What is Sustainable Design?

Several organizations have defined sustainability in the spirit of the Triple Bottom Line,

• United Nations: Development that “meets the needs of the present without compromising the ability of future generations to meet their own needs.” They added the three mutually reinforcing pillars of economic development, social development, and environmental protection.
• US Office of Federal Environmental Executive: “The practice of 1) increasing the efficiency with which buildings and their sites use energy, water, and materials, and 2) reducing building impacts on human health and the environment, through better siting, design, construction, operation, maintenance, and removal — the complete building life cycle.”
• USGBC: Certification defines “green building” as primarily environmental components and identifies five areas – site, water, energy, materials, and indoor environmental quality.
• Cascadia Green Building Council: “A built environment that is socially just, culturally rich and ecologically restorative.”

In other words, while USGBC has focused on environmental “green building,” several other organizations embrace social and economic terms as well. Consequently, it seems likely that sustainable development in coming years will extend beyond strictly environmental concerns and include all three areas of the Triple Bottom Line.

What Will That Mean to Our Practices?

The broadened goals warrant even greater clarity and precision in metrics, and ultimately establishing appropriate jurisdictions for compliance. Like the Noisette Rose, the value of each goal will be judged by how carefully we define excellence and track performance, and how effectively the combined criteria create true sustainability.

If environmental performance, being the most readily measured, is covered by building codes and regulations, it removes the question of the short-term marketplace. Similar to other life safety mandates that are the foundation of building codes, everyone plays to the same minimum standards. While individual heroics suffice for pushing knowledge during innovation, only mass adoption creates true environmental change. Voluntary efforts will always fall short.

As building owners, design professionals and users are discovering, we no longer can imagine sustainable design is achieved at occupancy.

The built environment no longer sits passively as a collection of boxes for shelter; experts, owners, and users collaborate with buildings and cities everyday to achieve environmental, social, and economic goals. The aggregation of individual choices determines performance.

True Green

Based my sustainable design work, research, and analysis, I am writing a series called True Green. A number of public challenges highlight the shortcomings of our current practices. Those questions range from inadequate energy performance and design conflicts to green washing and user complaints. These reactions are healthy so long as we respond and improve our practices. In particular, a lack of well documented, shared data and user education emerge as weaknesses.

As Benjamin Franklin said, “When the well’s dry, we know the worth of water.” It’s our collective job to make certain the well remains full. If we can do it forever, it’s sustainable.

Cindy and I welcome your comments below.  Also, please subscribe to keep up with this and other Guest Post Friday Musings.

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This week Musings welcomes Scott Edward Anderson.  Scott is founder of VerdeStrategy and the popular blog “the green skeptic.” He has held management positions with Ashoka and The Nature Conservancy, is co-founder of the Cleantech Alliance Mid-Atlantic, and a frequent commentator on Fox Business Network. VerdeStrategy is a consulting and advisory firm focused on the clean tech, energy, and environment sectors.  You can follow Scott on Twitter at @greenskeptic.

“LEED buildings are great, until the tenant moves in,” the head of a large, international construction company once said to me.  “Once the tenant moves in, the environmental sustainability of the building goes out the window.”

The Leadership in Energy and Environmental Design (LEED) rating system, developed by the U.S. Green Building Council (USGBC), has done a great job providing standards for environmentally sustainable construction.

LEED now encompasses more than 14,000 projects in the United States and 30 countries covering 1.062 billion square feet (99 km²) of development area, according to the USGBC.

But what happens after the building is occupied?  Is there a way to monitor and improve the performance of a LEED building throughout its life-cycle?

An interview in Energy Priorities Magazine may provide a clue.  Editor Denis Du Bois was talking with Erin Rae Hoffer of AutoDesk, a developer of Building Information Modeling (BIM) software.  Hoffer suggested that BIM and LEED were “two of the three big trends that seem to be converging.”

Du Bois later added that “one of the promises of BIM is, potentially, to be able to do continuous commissioning on a building.  LEED is leaning this way toward looking more at the performance of a building after it’s occupied rather than solely at the attributes of the building at the point where the plaque is hung in the lobby.”

But, as Matthew Millan, a Philadelphia-based architect pointed out to me, “BIM doesn’t really have a feedback mechanism.  You can enter information about how you think the building will perform once it’s occupied, but it is still speculative.”

So how to pull data from the building as it is being operated?  You’ll need smart meters to pull the data, analyze it, and make suggestions to the building occupants or managers to make changes.

“BIM works very well when properly implemented during design and construction,” Millan says. “But once a building is complete, the building performance is largely dependent on the building’s occupants.”

“During use, building automation systems (BAS) can provide sophisticated feedback to its occupants, helping them to maximize the building performance,” Milan explains.

Potentially, you could also automate the process so that changes can be made from a remote location or without any human intervention at all.

That got me thinking about the opportunities for investors if this harmonic convergence of BIM and LEED takes off, and collides with changes in regulatory and reporting requirements related to CO2 output.

With buildings consuming 40 percent of energy in the US, according to the USGBC, and the prospect of energy efficiency design or retrofitting tackling that usage and its associated greenhouse gas emissions, it seems there will be plenty of opportunities for investors to get on the efficiency bandwagon.

This “perfect storm” of LEED, BIM, and the low-hanging carbon fruit of efficiency could lead to advances in data and systems needs, which in turn could drive further adoption of advanced building materials, LED lighting, demand management and energy management software, smart metering and smart grid technologies.

This isn’t your Jimmy Carter-sweater efficiency.  We’re talking highly sophisticated software systems and metering installations, from simple smart meters and online portals to fully integrated, networked building automation systems that can actually control the usage, improve building performance, and save money for building operators.

Bright green investors are wise to keep an eye on developments in green building.  It may yield a whole new arena of opportunities.

As always, please comment below and let Scott and I know what you think.  Also, please subscribe to keep up with this and other Guest Post Fridays here at Construction Law Musings.

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The more I examine the construction landscape, the more green building makes sense. As argued by Chris Cheatham at Green Building Law Update, customers want it.

Set aside all of the environmental and political reasons for building green (less oil dependence and the corresponding dependence on middle eastern interests, “global warming” and the like), and look at the economics. Not only do contractors need to keep up with the times, but they need to provide what their customers want. Quite simply, owners want to look good and save money in the long term. The owner of a project can do both by building green.

On the one hand an owner can strut a bit and brag about his new green building, on the other he or she can save long term cash! A win win for the owner. (As an aside, the latest IBM commercials have been brilliant in focusing on this aspect of “green”)

What does this mean for builders? Quite frankly, go green or go home! You need to distinguish yourself from the rest. Green certified contractors will have a leg up on others without this certification, and will get more work! How can this be a bad thing.

Of course (and you knew this was coming), you as a contractor will need an attorney to help with the contractual and regulatory issues. I will be posting more on this later, but good thoughts on this were posted at the Green Building Law blog and at Wolfe Law to get you started. Frankly, contract forms and other issues have not been vetted in courts and building codes and safety regulations have not caught up with this relatively new area. Having a competent, knowledgeable attorney on your side will help with this immensely.

I hope all my readers have a great holiday season and get off on the right foot in 2009.

As always, I welcome your comments.  Also, please subscribe to keep up with this and other Construction Law Musings.

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Green Building is all the rage. From the latest version of LEED, LEED 3.0, to discussions of “LEEDigation.”

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For this week’s Guest Post Friday, Musings welcomes Johanna Hoffmann.  Johanna is a marketing and management consultant to construction professionals, architects and interior designers. Her company, Oomph Group Inc. delivers workshops and webinars in the areas of marketing and sales, human resources, general business and financial management. Oomph programs are accredited for continuing education by leading professional and regulatory organizations. Her newsletter and blog are jam-packed with great business tips and resources and you can follow Johanna on Twitter.

2010 is just getting going and it looks as if the long-awaited recovery is finally beginning to take hold. This is good news for everyone, but especially so for the construction industry, which has been so affected by the collapse of the housing and mortgage markets.

Recessions are incredibly and difficult to navigate, but for companies on solid footing, business downturns provide the extra time needed to take stock and refine or restructure the company’s direction, services and management systems. “The first step is to define your value proposition,” says Gabriel Draven, co-founder of Village Technologies Inc, a Toronto-based leader in the design and installation of energy conservation and recovery systems. “Ask yourself: what problem are we solving for our clients or, what do our clients value most about our service? This is critical because, as Mr. Draven says, “If you can’t answer this question and you are not able to describe your value effectively to potential clients, then you are left having to compete on price alone.”

Indeed, if you describe what you offer as ‘drywall installation’ or ‘roof replacement’ you are selling a generic service people will buy at the lowest possible price. But, if you present your services as a powerful solution to clients’ problems, you will be more able to justify your fees because clients will perceive what you provide as a valuable benefit.

“The question of value changes over time,” explains Mr. Draven, “so you need to be aware of the larger trends in the market place and position your business and services accordingly. Right now people are starting to value energy efficiency. Soon, an aging population will need homes that will remain affordable and comfortable, so demand for energy efficiency will continue to grow as will the need for barrier free designs and retrofits”.

To tap and incorporate market trends into your value proposition you need to research the areas you are interested in and become an expert in all related technology and construction systems. As well, knowledge of government financing programs and other pertinent data will enable you to provide extra information that can help reposition you from a ‘hammer and nail guy’ to a valued counselor or consultant.

In addition to providing a way of differentiating yourself from the competition, being ‘on trend’ enables you to ‘package’ services that tap market demand and drive sales in times when people aren’t embarking on large-scale building projects. Current examples include energy audits and long-term home maintenance and renovation plans, which are precursors to actual building projects.

Another value-driven option is the packaging of services aimed at specific market segments. Women and elderly home owners often need help with seasonal home maintenance tune-ups, like the installation and removal of storm windows and the cleaning of eaves troughs. While not significant from a building point of view, these types of services are great for establishing long-term relationships and for generating ongoing bread-and-butter business to help weather economic downturns.

Teaming up with a specialist and combining forces to sell a service to existing and past clients is yet another option. “The growing need for energy management, conservation and recovery systems and the wide range of government funding and rebate programs provide an excellent opportunity for driving sales right now,” states Mr. Draven. “We are teaming up with contractors who don’t have our expertise in this area but who do have an extensive Rolodex. We encourage them to review their current and past client list, to identify prospects for energy system upgrades and we help them pitch and procure this type or work.”

Tapping clients to ‘up sell’ is only effective if you have diligently provided good service, otherwise they may not want to see you again. Using the slowdown to review and revamp your client and project management procedures is another valuable strategy for driving future sales. In an industry that has often been plagued with poor service, haphazard project management and shoddy business practices, a firm that can guarantee satisfaction, outstanding client service and impeccable project management will always find clients willing to pay for top quality service and who are happy to tell their friends about it.

Resources:

●       Visit DSIRE – Database of State Incentives for Renewables and Efficiency for information on Virginia programs including:

●       Arlington County Green Building Incentive Program

●       Energy Efficiency Rebate Program – Residential

●       Energy Efficiency Rebate Program – Commercial

●       Renewable Energy Rebate Program – Residential

●       Renewable Energy Rebate Program – Commercia

●       TVA Partner Utilities  – Energy Right Water Heater Rebate Program

Virginia Natural Gas – Residential Energy Efficiency Rebate Program

As always, we welcome your comments below.  Also, please subscribe to keep up with this and other Guest Post Fridays here at Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

An article in the latest issue of Constructor Magazine, the publication of the AGC of America, makes a point that I have been making for a while, namely that sustainable building is here to stay.

The article quotes several contractor members of the AGC and essentially concludes that

Green is the new gold

I agree. Especially in tough economic times such as these, contractors and subcontractors need to distinguish themselves. Owners need to save money through more sustainable and energy efficient practices. Possibly more importantly, government is jumping into the breach to require such building practices, whether through building codes or LEED certification requirements.

Not only is such activity a moral imperative, but it makes good economic sense. For this reason construction professionals must learn how to “talk the talk” of sustainability. To miss this train could mean bankruptcy or worse given current trends.

Of course the risks must be taken into account. Contracts must be drafted in such a way that those performing the work are not held accountable for uncontrollable human interaction with a building so that contractors and subcontractors will be ready to do what is necessary for a sustainable building future. A qualified construction attorney can help.

In short (like that isn’t too late at this point), while construction professionals must learn to build “green” to survive, they also need to make sure they don’t die trying.

As always, I strongly encourage comments below. Also, please subscribe to keep up with this and other Construction Law Musings.

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My good friend, and great Washington State construction attorney, Doug Reiser (@douglasreiser) recently posted a great set of thoughts at his Builder’s Counsel Blog.  Doug’s inspiration for this great post was an article posted by ENR magazine outlining a proposal from the Department of Energy that Congress pass a statute requiring “sustainable design, siting and construction methods” on all federal new construction and renovations.  Doug then goes on to discuss how the proposal is a great first step, though he opines that it falls short of the mark on particular protocols to implement its requirements.

I agree that in some ways this proposal is one that has merit.  However, the devil is in the details.  Without a particular protocol for implementing this noble goal, the proposal is hard to evaluate, so I won’t do so here.

More importantly, this is one more reason why contractors and design professionals need to learn to speak the language of sustainability particularly in times of recession.   Whether we like it or not (and I am on the “like it” side of this), sustainable or “green” construction is here to stay.  Despite the various legal, bonding and business issues that we construction lawyers discuss (some of which are coming home to roost), the government regulators from the Federal level on down to local zoning boards are requiring or soon will require such energy efficiency measures.

Doug’s great post is just one more reminder that in order for contractors and other construction professionals to survive and flourish they will need to become familiar with sustainable building and their local regulatory environments.  Having a construction attorney as a business partner in this endeavor will greatly assist you to make sure that you deal with both the risks and the rewards of the new world of sustainable building.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

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For this week’s Guest Post Friday here at Construction Law Musings, we welcome J. Roger Wood.  Roger is a partner with Carpenter Hazlewood Delgado & Wood, PLC

I’ll begin with a big thank you to Chris for giving some space to those of us on the residential side of his always insightful Construction Law Musings.

Specifically, I’m interested in the end product.  My work as a lawyer for HOAs, condos and co-ops begins and thrives in providing a full slate of legal services to the completed neighborhood. Our work for community associations and condominiums happens as we roll up our sleeves to help boards of directors solve every day legal problems.

Because of this, my normal Association Musings are about watching and commenting on this village melting pot of diverse personalities and experiences.  I hope what I write highlights issues of owner concerns, gives practical information for board members and community managers, and, occasionally, offers a dig or two at the dumb things we lawyers sometimes do and say.  But after reading a recent article about the Commonwealth of Virginia’s new laws limiting a Virginia municipality’s obligation to provide street maintenance services (i.e. snow removal) to any cul-de-sac in any new residential development, I decided to steal a play from my host blogger’s playbook and now find myself musing about the greening of HOAs and Condos.

Don’t get me wrong, I’m no HOA green expert, and a few of my tweeps (@GeorgiaHOALaw and @ColoradoHOAGal) as well as other great lawyers know more than I do. At our law firm, we are experts on homeowners association and condominium association law.  We have clients in Arizona and New Mexico.  From the 10 unit condominium project to the 12,000 lot master-planned community, we deal with green issues when HOA boards and neighbors square-off on solar panels, clotheslines and compost piles, among others.  From our vantage point, everyone likes the idea of green until it means too much glare from the shiny panels on the neighbor’s house.  The clothesline isn’t a problem until you have to stare out your kitchen window at your neighbor’s drawers all day.  Most board and association members I meet want state legislators to make good environmental protection laws, so long as those protections don’t cause a stink (literally) in the neighbor’s back yard.

That’s when boards start calling us, the HOA lawyers.  Some boards fight the changes and can’t imagine why the law would require an approval of those “ugly” solar panels on the neighbor’s roof.  Other boards of directors vote to acquiesce and do attempt some reasonable aesthetic modification to placate green owners and complaining owners alike.  But in my recent pit stops on the road to HOA sustainability, I’ve come across a few observations that might help us all with getting to green.

1. The Green Temperature in Most Communities is Sub-Zero to Cold with a Few Hotspots Scattered Around the Country.

Whether you believe Al Gore or not, and no matter the cost savings or the benefits to our environment of “going green,” many board members have been reluctant to bend community aesthetic standards for one homeowner’s request for a green modification.  Oh the hours of board meetings we have attended to quibble over inches of visible solar collectors on the rear face of a neighbor’s rooftop. Boards are reluctant to swallow the perceived bitter pill of green initiatives as a whole and even more reluctant to make changes to their own governing documents to accommodate environmental trends. Most associations have not caught up to the green innovations.

There are a few exceptions to the rule and the awareness of the clash between green and most HOA CC&Rs and architectural guidelines is growing.  Just last month, the green versus HOA issue hit the big time.  The Colbert Report ran a short, snarky piece about an Oregon woman battling her HOA over a clothesline. Both hilarity and thoughtful discussion ensued.

A few HOAs are the exception, where grassroots movements have sprouted up and homeowners are working together to communicate with neighbors about greener HOA policies.  The website Sustainablecreekside.org is an example of one such effort where some Oregon neighbors have created an internet site to help communicate, organize and promote green initiates in their own community. However these few bright spots and spirited discussions continue to be overshadowed by the NIMBY crowd.

Enter the state legislatures.

2.       State Legislatures Are Trying to Force a Robust and Square Peg of Green Ideas into the Very Round Hole of Existing Law and HOA Documents.

I am aware of many state lawmakers passing (or in even more cases, attempting to pass) legislation to force green regulation on community associations.  Here in Arizona, there were several bills introduced in our legislature this year that would have allowed homeowners to install or operate various energy saving devices.  These proposed bills would have allowed owners to ignore contractual deed restrictions and install and operate an energy saving device free from any HOA scrutiny and regulation.  Our Arizona legislature proposed bills about clotheslines, rainwater harvesting systems, and awnings for shade.  Due to our state’s budget woes, the bills did not get out of the legislature and to the Governor’s desk.  However, several passionate legislators (and their lobbyists) have vowed to introduce similar green bills again next year.

One of the troubling issues about forcing green into some of the same existing communities with existing standards and restrictions is that often state legislatures show little consideration for contractual CC&Rs or for other existing state laws that regulate much about HOAs and condos.  In many situations, the new laws would make implementing green impracticable and in some cases legally impossible.

For example, this year the Arizona House of Representatives introduced HB 2778.  This bill would have amended Arizona’s condominium statutes and planned community statutes.  The bill would have allowed homeowners to ignore existing HOA/condo deed restrictions (CC&Rs) and install “rainwater harvesting systems that are intended to act as a water saving device.”  The bill went on to give associations some rights about aesthetics and placement, but the HOAs could not have prohibited these water saving devices.

It doesn’t sound too terrible or too complicated.  Water conservation is good, right?

But there is a serious square peg/round hole problem here.  The bill would have allowed an association to decide how the water collection device looks, but the bill would have done nothing to contemplate the legal realities of a condominium.  Many condominium owners only own the space bound by the four walls of the unit.  The rest of the property is usually defined as some type of a common element, co-owned in undivided equal interests by all of the owners in the project.  Often times, condominium restrictions require the condo association to maintain those common elements, which are to be paid for by the assessments of all.  The language of this bill would have contemplated a situation whereby one neighbor’s 100 gallon water tank could be stored on a second-story, common element balcony.  The homeowner may have the right to occupy and use the balcony, but who maintains the system when the association is obligated to maintain the balcony itself?  Are the balconies designed to withstand an additional 800 pounds of water weight?  Who pays premiums to insure the system?  Does legislating green really have to risk the health and safety of the downstairs unit owner?

3.       The Most Logical and Least Painful Greening Is Happening at the Development Stage.

Thoughtful legislation may be one way to go green, but perhaps those laws are best made to help developers who create and build the communities.  Starting from scratch with the development and creating of a green neighborhood avoids the square peg/round hole problem altogether.  Proposing and passing new laws and municipal building codes that impose greener practices on residential builders and developers may be the best way for HOAs and Condos to dive in to the green movement.  This is not only about construction standards, but it should be about requiring developers to draft documents that encourage green rather than restricting those kinds of modifications.

Sweeping and radical changes to the 30-year-old condominium project will likely only grow and cultivate litigation, and in the end, that’s only good for me, the HOA lawyer.  Influencing green development, construction and HOA formation will inevitably lead to marketing the kinds of homes consumers want to buy and the kind of sustainable communities were homebuyers want to live.

Using Virginia as an example, its legislature recently reacted to some studies by smart urban planning types who have written to warn of the ill-effects of cul-de-sacs on our communities and the health of our planet.  These experts posit that cul-de-sacs challenge public transit plans, result in more driving, discourage walking, are more expensive for municipalities to maintain and can even make us fatter. (Harvard Business Review Magazine, May 2010).  Virginia legislators made a new law to limit the construction of cul-de-sacs in new developments by allowing municipalities to suspend maintenance of cul-de-sac roadways.   The Commonwealth’s new law requires green from the get-go, saves money and fuel expenses at the local level and does not impose new restrictions on any already established cul-de-sac communities.  Green is already part of these communities before anyone buys the first lot.

Green residential construction projects are popping up all over the country.  The market for green housing and the attention on these kinds of projects is gaining popularity. Perhaps the economy has slowed interest, but a quick google search yields an abundance of information about who is building green residential projects and the location of some of the greenest neighborhoods around the country.

A recent Wall Street Journal article chronicles the story of one such green development.  Owners at Riverhouse in New York City were marketed and sold green condominium units.  The posh condo development is at the river’s edge on Manhattan’s lower west side and the developer/builder fetched a pretty penny for the promise of a sustainable life and the highest of green building standards.  The lure of green was so strong that when condo owners began to have problems with their units and the building as a whole, they filed a lawsuit alleging construct defects and alleging that the builder did not construct the community up to the proper and promised LEED standards.  If you want to know, “not green enough” comes with a $4.2 million claim.  If you build it (green), they will come (for green), and if you don’t build it green enough, it will cost you.

Riverhouse may be an extreme example, but incorporating green from the beginning may be the best and simplest way to turn the tide and change some minds on the residential side. Grass roots green efforts inside of communities builds hostility and make lawyers richer.  New legislation, without some very thoughtful statutory language and a complete understanding of the HOA/Condo structure (they never seem to ask us), will only frustrate association leaders and legislators alike.  Once again, the lawyers benefit.

The path to green of least resistance starts at the beginning, a raw plot of land and a dreamer with an idea.  Builders and developers have never had problems making that dream a reality and then marketing the next, best new home idea.  When builders market and sell house-proud and community from a row of well-staged model homes, why not sell sustainability right alongside all of upgraded appliances and marble countertops?  It’s not that I don’t relish a good compost pile fight, but the mud-slinging about green deserves a better starting point.

Both Roger and I welcome your comments below.  Also, please subscribe to keep up with this and other Guest Post Friday Musings.

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Musings is honored to have joined the likes of Shari Shaprio, Chris Cheatham, Rich Cartlidge, and, yes, even Erin Brockovich, on a great list of environmental law and developments blogs at the e-Justice Blog. Please check out the list for a great resource on all things relating to environmental law. Thanks to all the folks at e-Justice for putting together this great list!

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

What is all the ruckus about Northland Pines?

In 2004, the voters of Vilas County Wisconsin voted to approve the sale of
$28,535,000 worth of bonds to finance a new High School for the Northland Pines
district.

The appellants in this case all served on the Building Committee for the new school
and each brought specific talents and experience in design and construction of large
buildings. Each was dedicated to the proposition of creating the most efficient
structure possible.

The design team and school board discouraged any outside input and set forth to
design and construct the school as they saw fit.

As the design developed, the appellants questioned whether the facility would
indeed meet the prerequisites for LEED® Certification and were told that it would
despite what appeared to be glaring shortfalls with respect to these requirements.
The appellants retained the service of two highly regarded consulting engineers to
review the plans. Both of them determined that the facility as designed would not
qualify for LEED® Certification.

In December 2008, the appellants filed an appeal with the USGBC challenging the
award of the Gold Certification given to Northland Pines. Some 16 months later the
appellants were notified that the USGBC had looked into the matter and found
everything to be fine. They based this on reports from two more consulting
engineers who said that the building did not meet the prerequisites but concluded
that “pretty close” is close enough. When the appellants’ engineers asked for the
back up data to the USGBC reports, they were told that they were pretty busy and
would address that request when they have time. Time has passed and the
requested materials have not been forthcoming. Why?

On behalf of the taxpayers of Vilas County who would like to know with certainty
whether they got what they paid for or not, we ask the engineering community to
look at this file and tell us, did we miss something here? How can it be alright to
certify a building that doesn’t fully comply with the rules set forth by the body that
is doing the certifications?

We would love to hear what you think. We are only in search of the truth which
ultimately will be what is best for Northland Pines.

The challengers also cite to a report from a consulting engineer that the USGBC hired to help respond to the challenge that stated that certain prerequisites were not met.  The report concludes that the building should remain certified because it achieved enough points regardless of missing some of the prerequisite requirements.   Essentially, the report concludes that the building was close enough to meeting every requirement and therefore the challenge should be denied.

What do you think?  Is “close enough” a good standard on these appeals?  What about the potential issues for contractors who build to plans that do not meet the prerequisites but a building is certified only to have a justifiable challenge be upheld?  Let’s discuss.

UPDATE:  The USGBC Response can be found at the Green Building Law Update.  Please check it out here.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

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