Legal Briefs

Guide to Green

Developers may find the path to sustainability overgrown with local regulations.

The perfect example of local government hurdles to green building leapt off the newspaper page a few months ago. Former Vice President Al Gore filed a plan with the municipality of Belle Meade, Tenn., to install solar panels on the roof of his mansion. The Belle Meade town building manager rejected the plan because the town only allows power-generating equipment to be placed on the ground level, and he considered solar panels to be generators, which they are in the strictest sense.

The Belle Meade zoning code originally was developed because a number of homes have backup electric generators, which need to be at ground level for safety and aesthetic considerations. No thought was given to how the code provision would affect solar panels because it simply wasn’t relevant. At that time, no one had them.

Green Challenges

Like Belle Meade, many cities have zoning codes that were developed in response to the health and safety issues of years past. At the same time, due to lack of federal action, other municipalities are on the forefront of the green revolution, passing new regulations to encourage sustainable development.

This creates regulatory environments in flux that can change drastically from one market to the next. But green building projects large and small must obtain permits from local governments, and therefore it is extremely important to recognize the relevant issues and strategies for meeting these requirements. Commercial real estate professionals must consider navigating the local regulatory scheme as part of the planning for a green project.

Studies analyzing the challenges to green construction code approval identified three main areas of conflict between local governments and applicants:

  • conflict with zoning or building codes;
  • insufficient knowledge of green building products and practices; and
  • not enough time to understand green products and practices.

Gore’s plight exemplifies the first issue. Zoning code provisions may require building practices or standards that have negative environmental consequences, such as requiring a specific type of fire retardant material now considered hazardous or precluding the use of an environmentally friendly technology.

Fortunately, most codes allow for some flexibility to substitute elements if it can be shown that they are functionally equivalent. However, historically local government decision makers lack awareness of green alternatives and may have inadequate time to analyze their acceptability. This may cause projects to be rejected despite the appropriate substitution of more-environmentally friendly technology.

On the positive side, some local governments are enacting green building regulations. For example, Boston and Washington, D.C., recently have amended their zoning codes to require buildings over a certain square footage to achieve green building benchmarks. In Boston, projects larger than 50,000 square feet must be certifiable under the United States Green Building Council’s Leadership in Energy and Environmental Design program and achieve four Boston-specific green building requirements. Similarly, Washington, D.C., passed amendments to its zoning code requiring that, by Jan. 1, 2009, privately owned, nonresidential projects with 50,000 sf of gross floor area or more involving new construction or substantial rehabilitation must be LEED certifiable. The law also requires builders to submit a green building checklist as part of the building permit application, and within two years after receiving a certificate of occupancy, the green building requirements must be verified.

In addition to new green building requirements, many municipalities are creating incentives to encourage green building. For example, Sunnyvale, Calif., has enacted new regulations that permit builders that decide to go green to increase the allowable height of their buildings. Washington, D.C., has created a fast-track system to allow green building permits to be approved more quickly.

In Pennsylvania, a bill has been proposed in the state legislature to establish a high-performance building tax credit for both new construction and renovations. Eligible buildings include commercial or industrial buildings exceeding 10,000 gross sf, four-story multifamily buildings containing at least 10,000 sf of interior space, and phased multifamily complexes containing, in aggregate, 20,000 sf of interior space. Combinations of building types also are eligible. The base tax credit would be $35,000 and recipients would receive an additional tax credit figured on square footage and performance attainment. Any taxpayer is eligible for the credit, whether owner or tenant.

On the federal level, the U.S. House of Representatives passed an energy bill on Aug. 4 that provides new incentives for energy efficiency and requires the Department of Energy to create a clearinghouse for green building information and promote green building in the private sector.

Guidelines to Green

Although there is no one sure way to navigate local government regulations, there are some guidelines to keep in mind.

Start Early. Allow for sufficient time to research the local issues, consider various strategies, submit plans, and revise or supplement where necessary.

Explore Local Government Incentives or Barriers. As discussed above, regulations old and new can significantly affect green building projects.

Establish Lines of Communication. Working with local officials during the design process will identify potential trouble spots and determine what is needed for project approval.

Provide Adequate Supporting Documentation. Introducing new technologies or requiring any special exceptions or variances may require adequate supporting documentation.

Provide Local Government Contacts. Studies of code officials have shown that providing contacts in other cities and markets where proposed projects or technologies already have been implemented enhances the probability of green projects gaining approval.

Educate, Educate, Educate. Green building is a new frontier, and all of the participants in the process are on a steep learning curve. Be prepared to educate your team members and local officials.

Be Patient and Persistent. Developers of green building projects that have been rejected by local authorities are more likely to remove the green component and resubmit for approval. However, they should be patient and persistent in providing education and information to local authorities.

As a sign of success, the Belle Meade lawmakers passed an ordinance allowing solar panels to be installed on the roof of a building so long as they are not visible from the street or from any adjoining property.

Shari Shapiro, JD

Shari A. Shapiro, JD, LEED-AP, is an attorney in the environmental department of Obermayer, Rebmann Maxwell & Hippel LLP in Philadelphia. Contact her at (215) 667-6335, shari.shapiro@obermayer.com, or greenlaw.blogspot.com.

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