LEED Certification Challenges: What is “Close Enough”?

There have been many discussions lately regarding the Northland Pines challenge to the LEED certification of its high school facility recently rejected by the USGBC, notably at the Builder’s Counsel Blog and at the Green Building Law Update. You can check out the Green Building Law Update link for the entire group of documents that the challengers used in their appeal. The rejection was not the end of the road, however. The challengers have appealed the ruling and issued the following statement on June 5, 2010:

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.

Appellants’ Statement
June 5, 2010
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.
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8 Responses to LEED Certification Challenges: What is “Close Enough”?
  1. Timothy R. Hughes
    Twitter:
    June 14, 2010 | 11:27 AM

    Very interesting case – have you read the documents Cheatham posted? The Taylor report is very interesting, suggests the original submissions did not meet the prerequisites but they still greenlighted the Gold cert.

  2. Christopher G. Hill
    Twitter:
    June 14, 2010 | 11:34 AM

    It does suggest exactly that. It makes you think. I haven’t really taken a side on this one, but it sure is interesting.

    Thanks Tim
    Christopher G. Hill recently posted..Form Contracts are Great, but. . .My Profile

  3. Salt Lake City Energy Auditor
    June 14, 2010 | 1:31 PM

    I give the USGBC a lot of credit for how they are handling this situation. For a nonprofit organization, they are managing this controversy with class and dignity. It sure is a unique argument. I didn’t think a building could be LEED certified without meeting prerequisites. That’s the whole point of prerequisites.

  4. Christopher G. Hill
    Twitter:
    June 14, 2010 | 1:48 PM

    Thanks for checking in. It sure is an interesting debate.
    Christopher G. Hill recently posted..Check out the Virginia Lawyers Weekly Green IssueMy Profile

  5. Melissa Brumback
    Twitter:
    June 14, 2010 | 7:30 PM

    Personally, I think the way the challengers sent all the documents out all over the web to the green bloggers was a brilliant PR move! (Haven’t had much of a chance to get into the legal issues, but that marketing move caught my eye).
    Melissa Brumback recently posted..LEED Credibility Challenged– UPDATEMy Profile

  6. Christopher G. Hill
    Twitter:
    June 14, 2010 | 8:52 PM

    Great thoughts, thanks Melissa.

  7. dennisfa (dennisfa)
    June 15, 2010 | 2:16 PM

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I am a construction lawyer in Richmond, Virginia, a LEED AP, and have been nominated by my peers to Virginia's Legal Elite in Construction Law on multiple occasions. I provide advice and assistance with mechanic's liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.

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