Thoughts on construction law from Christopher G. Hill, Virginia construction lawyer, LEED AP, mediator, and member of the Virginia Legal Elite in Construction Law
As a new LEED AP, I could not help but reflect on my studying and the learning curve that I went through during the process.
First of all, thank you to all who helped along the way. Your support and advice was invaluable to my success. Without the support of family and my friends and colleagues who assisted with encouraging words and the occasional advice, I could not have completed the journey.
Second of all, I learned a lot. While much of the process is rote memorization, one can’t help but learn a lot about sustainable building practices and some of the easier ways to “go green.” I find myself looking at the world a bit differently. I notice things around the home and office that are both good, and not so good, for the environment and also for the bottom line as far as energy costs.
As I have discussed before, the economic impact of sustainable building is an emphasis that I see as a great tool toward “selling” sustainable building practices. I am more convinced than ever now that this is the way to go after going through the LEED AP accreditation process.
Good luck to all of you that are taking the exam over the next two days.
As always, please share your thoughts below or subscribe if you find this or other Musings of interest.
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.
Much debate has occurred relating to the USGBC determination to use potential de-ceritification of buildings as an enforcement mechanism to assure energy reporting guidelines are met. As ENR reported last week, this new requirement has caused much wailing and gnashing of teeth.
My question is this: Why the fuss? When you get right down to it, LEED is just a private rating system originally designed to give a snapshot of “green”-ness of a building when built that is now seeking to provide a rating for energy performance over a longer time frame. The USGBC did a great job of getting out first and having the debate focus on LEED. Please, don’t take this wrong, I went through the LEED AP process, learned a lot and am firmly on the sustainable building side of the debate (if there even is one). However, LEED is just one of several green building rating systems that exist (Green Globes being the likely next most known system).
With a tip of the respectful cap to my friend Chris Cheatham (from whom I expect a seriously good comment) at the Green Building Law Update, what makes the debate regarding the liability and enforceablity both interesting and necessary is not LEED itself. What makes the debate necessary is the public’s use of LEED as the standard for building codes, tax incentives, zoning rules, and private contractually created energy performance benchmarks. Frankly, one could substitute any rating system into this debate and the debate would just change from, for instance, USGBC to GBI, and the arguments would be essentially the same. We would all be discussing how the GBI changed the rules and what contractors, owners, insurance companies, governments, etc. would be doing about it. As Matt Devries points out, the types of claims (be they tort, contractual, or otherwise) will not change in this new “Green” world, but the expectations and the contant of those claims very well may.
Presently, the content, and thus the focus, is on LEED. However, the USGBC did not create the firestorm, just the presently “hot” system for builders, owners, and governments. Good for the USGBC for having brought the debate forward, but the USGBC does not make the final rules; government regulations and contracts do. Without the incorporation of LEED into these types of rules, LEED would just be a label.
UPDATE: Please check out the great post by Matt Devries that sums up the latest on this nicely.
If you have an issue or agreement with these Musings, please comment below. Of course, if you find this interesting, I encourage you to subscribe to keep up with the latest.
For this week’s Guest Post Friday, Musings is excited to delve into the lighting expertise of a good friend, James Bedell.
First off, I want to thank Chris for the wonderful opportunity to post on his blog. Chris is one my key sources when it comes to sustainability and the ever changing world of “green” here in the US. As my friend Vik Duggal has said in the past the attorney will be the super hero of the green movement. Chris Hill is definitely part of my personal super friends league.
He asked me to jump in and discuss the concept of green or sustainable lighting design. The topic is massive so I wanted to give you all an overview if where sustainable lighting design is and how the lighting industry is moving to respond tithe challenges of “green” design.
I’ve been a professional lighting designer for over 9 years. Working first in entertainment and now on architectural lighting. I belong to no professional guild or organization for lighting designers, mostly because I do not whole heartedly agree with the political or philosophical statements of the major industry groups. Therefore the following will be my views on the industry writ large and not a regurgitation of the talking points of any given professional organization.
The lighting design industry had taken a reactive rather than a proactive approach when it comes to sustainability. Rather than leaping forward and challenging their counterparts to be more sustainable, lighting designers have fought for wide ranging choice when it comes to lighting sources. The most famous example is the IALD’s fight against the phasing out of incandescent light bulbs. As the government was moving to phase these inefficient sources out of the market place, lighting designers struggled to maintain them as a possible choice. Lighting Designers are generally curious people by nature and are always ready to explore new options, but many, I fear, also want to retain all of the choices they’ve always had, including unfortunately, the least efficient.
The counter-active force to lighting designers when looking at the industry as a whole are the lighting manufacturers. They are in a race to “out-green” one another and find themselves caught in the middle of two competing tensions. One is the market’s race against the clock to see who provides the most energy efficient lighting sources and fixtures. The other are lighting designers/specifiers constant demand for better quality light sources and fixtures. Generally, in a war between art and commerce, art loses. Such is the case when it comes to lighting fixtures and LEDs. According to Petersen Parts, LED technology is the next wave, there is no question that not only is it the prominent lighting technology, and it’s likely to be the primary source of lighting in the electrified world over the course of the 21st century. It’s going to fundamentally change the way we design light into interior spaces and how we expect light to function in the coming century. Yet, the technology is still not perfect, not by a long shot.
Every project large and small falls somewhere on these spectrums between having the most energy efficient lighting (think WallMart) and having the most beautiful (think of the last high end restaurant you went to in a major metro area). The next generation of lighting designers will heed the call to finding the middle ground between perfect light and energy efficiency. This will be the great challenge of the 21st century lighting specifier and designer. While some see this as the death-knell for an industry (lighting design) I see it as a major opportunity for designers to make their mark, being selective about the tools they use, and then astounding observers with the final results. I believe that beautifully designed lighting isn’t wasteful, it’s well thought out, abundant where appropriate and beautiful to live work and play in. Lighting Designers bust become as resourceful in their design work as manufacturers are when it comes to incorporating the latest technology, and they must be no less willing to experiment and fail.
One final thought in closing, this little essay only describes two legs of the sustainability stool. Specification/Design and manufacturing, but the most important part of all this is the end user. The person who has to live with these light sources or work underneath them, or change them when they burn out. Lighting design integrity and maintenance is the gaping hole in sustainability of lighting today. All light sources have a life cycle; they all must be replaced and maintained in field. In order to maintain proper design integrity lighting must be maintained by trained professionals and diligent facilities managers. Without it, designers and manufacturers will always be in the dark when in comes to “green.”
As always James and I welcome your comments below.Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.
For this week’s Guest Post Friday Musings, we welcome Nick Pacella. Nick is an architect licensed in New York, New Jersey and Connecticut. His practice has spanned several economic swings and he has been able to reposition the eggs in his basket to make the most of each recovery. He is currently focusing on adapting existing commercial buildings to take advantage of materials and processes that promote improved energy efficiency for both the owner and the tenants. For a more colorful rendition of projects you can visit his company’s website, www.nmparch.com.
I remember as a kid when the attendant at gas stations would not only clean your windows but also check the oil level of your vehicle as it was filling up with $0.25 per gallon gas. (I did say that I have seen several economic swings) These services have mostly disappeared, and to no great effect to your car since most cars go much longer between oil changes. Other than a slightly dirtier windshield it hasn’t affected your ability to drive and maintain your car.
This is not so with professional services. Architects used to include many services that are now sourced to others. Project Management, Owner’s Representatives and Program Managers now populate the landscape. In many cases they came to be because architects either did not provide the service their client’s were looking for or they allowed themselves to be put into an adversarial relationship with their clients. They were likened to foxes watching the chicken coop, especially for project management and owners representative services. Client’s have had others buzzing in their ears “are architects really going to look out for my interests above theirs?’” Of course the clients never ask if the new wave will do any better at rallying behind their interests.
For the most part Owners Representatives and Project Managers are well trained and offer a dependable service, but the issue still remains; is the architect still a part of the main team in terms of the dissemination of information? The more information from the client is filtered as it is passed on, the more dissimilar it is to the original. Just think of any game of ‘telephone’ and how the first phrase that is whispered is mutated and transformed by the time it reaches the last pair of ears. This becomes even more disjointed if the disseminator is deciding what information each person ‘needs to know’. I have worked with many skilled PM that can do this well. Unfortunately, I have seen a trend to hiring younger and less experienced (cheaper) staff that is not experienced. Information is portioned out so as to protect their interests/job and not those of the client or the project. In the end the architect will be held responsible for a design that does not meet the clients needs even when he did not receive all the pertinent data.
I also see a disconnect happening at the construction administration side of projects. This time it is more of a cost saving move by owners who may have facilities staff and feel they don’t need CM services from the architect. Decisions are made on the site that have a negative domino effect and could have been avoided if the architect was engage during the CM process. Usually the costs to reconcile any problems are far in excess of the fee an architect would have charged to attend weekly meetings. Again, a seasoned facilities engineer would know when to call in the architect or engineer when a question that is outside their expertise comes up. The trend to hiring younger, less seasoned staff has extended to these positions as well and they tend to shoot from the hip as a matter of course just to show they have game.
The other central factor in limiting services is the architect themselves. As access to projects becomes more competitive, fees become are being set for a limited scope of services, almost like a Chinese menu approach, so that the base fee presented with the bid is as low as possible. If you want services for specifying furniture that is extra, or you are allowed only one schematic design or no bid supervision. It can go on and on and the service that is offered for the base bid is almost useless in producing viable construction documents.
This can produce a disastrous soup when you combine documents that do not fully describe the scope of work to be done with inexperienced project management or facilities personnel. Peer review of documents would go a long way to aiding he architect in providing adequate documentation, but I don’t see much of that happening any more. The same goes for lessons learned sessions after the project is completed. No money in the budget to do that and so it is off to the next billable hour.
As we move forward with new dictates for greater sustainability and owners’ expectations of higher energy efficiency in the designs they are paying for I only see this scenario getting worse, except, that is, for lawyers.
As always, Nick and I welcome your comments below. Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.
