USGBC-Maryland's New Headquarters

The USGBC Maryland Chapter will showcase its new Hunt Valley headquarters tomorrow, July 1, at 5:30 pm with a “See the Green Building Tour.”  For more information on the event and to register, click here. The new office is in Schilling Green, Maryland’s first speculative LEED Platinum Core and Shell building. Schilling Green features a green roof and rooftop photovoltaic panels, among other green elements. Whiteford, Taylor & Preston’s Tom Barbuti, LEED AP and Tami Daniel represented the Maryland Chapter on a pro bono basis in negotiating the lease for the new space with the building’s owner, Merritt Properties, as well as a sponsorship agreement whereby Merritt Properties has become a major sponsor of USGBC-Maryland.

Green Building and Sustainability Newsletter: DOE Proposes New Standards for Federal Buildings; Baltimore County's Tax Credit for High Performance Homes

Every two weeks, Whiteford, Taylor & Preston’s Green Building and Sustainability Industry Group publishes an e-newsletter, edited by Adam Baker, LEED AP BD+C, covering sustainability issues that impact a wide array of industries, including Real Estate, Construction, Government Contracts, Manufacturing, and Intellectual Property. The latest edition can be found here.  It features an article by Martha Perkins on proposed new standards from the Department of Energy for energy efficiency and sustainable design for the construction and major renovation of federal buildings; a piece by Jennifer Busse, LEED AP BD+C on green residential property tax credits in Baltimore County, also briefly discussed in this recent Green Building Law Brief post; and a recap of the USGBC-Maryland Chapter's 2010 Maryland General Assembly Session Green Legislation Wrap-Up Event, hosted by Whiteford, Taylor & Preston at our Baltimore office on June 9.

Update on Baltimore County's Green Residential Property Tax Credit

The Baltimore County Council has now passed a green residential property tax credit bill, No. 43-10, that maintains the county's grant of a tax credit for residences attaining a LEED for Homes Silver or better rating.  As noted in an earlier Green Building Law Brief post, the initial version of this bill did not include LEED standards in establishing eligibility.  The version as passed adds to the existing law by granting tax credits based entirely on the home’s energy efficiency, as established using either the Home Energy Rating System (HERS) or the Passive House standards, as well as the credits based on LEED standards. 

Summer 2010 Construction Update Newsletter: Hybrid Public/Private Construction Projects; Sovereign Immunity Held by Maryland School Boards

Whiteford, Taylor & Preston's Construction Industry Group periodically publishes the Construction Update newsletter, edited by Lisa Sparks, LEED AP O+M, which covers legal issues of note to the construction industry.  The Summer 2010 edition is out now.  It features an article by Bob Carney and Lisa on the increased use of hybrid public/private construction projects, adapted from a paper the two authored earlier this year, Is It Public or Not?, which was presented by Bob at the 2010 ABA Forum on the Construction Industry MidWinter Meeting, held January 27-29, 2010 in San Francisco.  The newsletter also includes a piece by Will Pearce, LEED AP BD+C on the Maryland Court of Special Appeals' recent decision in Board of Education of Worcester Co. v. BEKA Industries, in which the court addressed the sovereign immunity of Maryland’s county school boards to breach of contract actions and the application and enforceability of a no-damages-for-delay clause in a cosntruction contract.  Most notably, the court held that in order for the waiver of sovereign immunity applicable to the school boards to be effective, the board must have appropriated funds available to satisfy the judgment.  Since the newsletter went to print, the Maryland Court of Appeals, Maryland's highest court, granted certiorari and is expected to hear arguments in the appeal later this year.

Green Building and Sustainability Newsletter: The Growth Goals of Baltimore County's Master Plan 2020 - Are PUDs the Answer?

Baltimore County's Master Plan 2020 will focus on sustainable development more than any previous plan developed by the county, promoting higher density, mixed use development types and walkable communities.  The new approach to development is expected to result in significant decreases in stormwater runoff and vehicle miles traveled.  In the latest edition of the Green Building and Sustainability Newsletter, Jennifer Busse looks at what's anticipated to be in the new plan, still in the process of formulation by the county, and how Planned Unit Developments ("PUD's") may play a substantial role in carrying out the goals of the new master plan.

The New Broadneck High School Environmental Literacy Signature Program

Broadneck High School (Annapolis, Maryland) will launch its new Environmental Literacy Signature Program tomorrow, June 9, with a kickoff event at the school at 5 p.m.  Anne Arundel County Public Schools' Signature Schools program calls for each of the county's high schools to focus on a specific theme across its curriculum.  Broadneck's Environmental Literacy Signature Program is the second such program to launch; the first was Meade High School's Homeland Security Signature Program.  Whiteford, Taylor & Preston's Will Pearce was among the citizens who assisted in the introduction of the program to the school system's Signature Programs committee, presenting on the importance of green procurement to the county's economy.  Click here for the press release from the school system announcing the program kickoff.  The community is invited to the event; click here for more information.

The Newly Released AIA A312-2010 Performance and Payment Bond Forms

Green Building contractors and subcontractors should be aware that The American Institute of Architects recently released updated versions of its widely used A312 Performance and Payment Bonds and A310 Bid Bond. Click here for the AIA’s Commentary on the change, featuring the text of the new bond forms and for each, a comparison of the new version with the previous version (the AIA A312-1984 for the Performance and Payment Bonds, the AIA A310-1970 for the Bid Bond).

Probably the most notable feature of the new A312 is the addition of language that would avoid the effect of National Union Fire Insurance Co. v. David A. Bramble, Inc.  Under the A312-1984 form, the surety has 45 days from receiving a payment bond claimant’s notice of bond claim to provide the claimant with a response “stating the amounts that are undisputed and the basis for challenging any amounts that are disputed.” In the Bramble case, decided in 2005, the Maryland Court of Appeals held that where the surety fails to provide this response under the A312-1984 payment bond form, it waives its defenses to the claimant’s payment bond claim, regardless of whether the claim is valid or the amounts sought are legitimately owed to the claimant by the bond principal. Few courts that have addressed the issue in the years since have agreed with the Bramble court’s holding, but the issue has not been definitively addressed in most jurisdictions.

In opposition to the adoption of the Bramble holding by courts in other jurisdictions, sureties have argued, among other things, that the penalty of a waiver of all defenses is too steep, that construing a surety’s silence as a waiver contravenes longstanding principles of contract interpretation, and that the 45-day period is too short to conduct an investigation on a complex construction project, especially given that the claimant is required to give little information in order to provide notice of its claim.

The surety industry’s concerns have resulted in changes in the new form. Under the A312-2010 form, the surety has 60 days to respond to the claimant, and for those subcontractors without a direct contract with the bond principal, this period starts to run only when the claimant provides the surety with a written statement similar to that required under public works bonds.

The most significant change is an explicit rejection, in Section 7.3, of any waiver of surety’s defenses for failure to respond. The new form provides that the claimant is not entitled to such a waiver if the surety fails to respond, but can recover attorney’s fees incurred in seeking amounts found to be due and owing to the claimant. The American Subcontractors’ Association has criticized this new provision, calling it “unfathomable” and arguing that it is unfair to bond claimants, who in some jurisdictions can lose entirely their rights to payment under a bond if they fail to comply strictly with its notice provisions, including claim submission deadlines.

It remains to be seen how widely used the A312-2010 form will be in both the short and long term. For years, the A312-1984 form has been relatively common in the industry. Owners and contractors, who generally mandate specific bond forms in their construction contracts with contractors and downstream subcontractors, will not be required to use the new form in place of the previous version, so the A312-1984 may well continue to see significant use in the coming years. Even today, some project owners still use the old AIA A311 bond forms, which were long ago replaced by the AIA A312-1984.

It’s worth noting that sureties, obligees, and bond principals can amend the bond language, so even where an A312-1984 form is used, it may include additional language similar to that in the new form, expressly disclaiming any intent to waive defenses from the surety’s failure to respond to a notice of claim. Such language has been added to the A312-1984 form for many projects since the Bramble decision came down; in 2008, the AIA even came out with its own such amendment to the A312-1984 to deal with the waiver issue.  But not all users of the AIA A312-1984 necessarily included this new amendment in the A312 payment bonds mandated for their projects.  So all parties have to pay close attention to the specific payment bond issued for their specific project in submitting and responding to bond claims.  As they say in the industry: RTFB.

-- Will Pearce, LEED AP BD+C

Green Building Video Roundup

We're not going to delve into anything deeply substantive until after the holiday weekend.  Check out these video shorts on Green Building topics:

• Baldwin Homes' new Preserve at Severn Run community features an innovative Coastal Outfall System for stormwater management, designed to create its own ecosystem in a few years, so it might not even be perceptible as a stormwater management system.  Click here for a video presentation on the system. 
• Trauner Consulting's Construction Netcast site features netcasts on a number of construction topics.  Click here to see Scott Lowe discuss the use of photographs to document issues on the jobsite as they occur.
• Energy Star's National Building Competition is a competition among 14 commercial and institutional buildings nationwide to see who can eliminate the most energy waste.  Two area buildings are among the contestants: the 1525 Wilson Boulevard office building in Arlington, Virginia and the Sears in the Marley Station Mall in Glen Burnie, Maryland.  Energy Star is styling the contest as a reality show, "Biggest Loser"-esque event.  In that spirit, click here for a pep talk to the contestants from fitness expert Bob Harper.

The International Green Construction Code, Baltimore County Green Legislation, and the New Montgomery County Carbon Tax: The Whiteford, Taylor & Preston Green Building and Sustainability Newsletter

In the latest edition of the Whiteford, Taylor & Preston Green Building and Sustainability Newsletter, Jennifer Pollard analyzes the new International Green Construction Code, Jennifer Busse takes a look at recent Baltimore County green legislation, and Adam Baker discusses the carbon tax recently passed by Montgomery County.  Click here to check it out. 

Update on Green Building-Related Legislation Passed by the Maryland General Assembly

Green Building Law Brief earlier summarized newly passed bills relating to Green Building and Sustainability issues here and here.  As of yesterday, all of the bills discussed have been signed into law by Governor O'Malley. 

Baltimore County May Replace LEED-Based Residential Property Tax Credit

A recently introduced bill before the Baltimore County Council, Bill No. 43-10, would repeal the county's existing residential property tax credit for compliance with LEED for Homes, replacing it with a similar credit based entirely on the home’s energy efficiency.

Under the current provision, discussed by Dino La Fiandra last year in an article for the Green Building and Sustainability Newsletter, a residential property owner is eligible for a property tax credit for 40% of the tax assessed for a property attaining LEED for Homes Silver status, 60% for being LEED for Homes Gold-compliant, and 100% for LEED for Homes Platinum level compliance. The tax credit runs for three years after the taxpayer files for it.

The LEED for Homes rating system is based on the award of points for a home’s performance across eight categories: Innovation and Design Process; Location & Linkages (measuring the sustainability of the placement of the home within a community); Sustainable Sites; Water Efficiency; Energy & Atmosphere; Materials & Resources; Indoor Environmental Quality; and Awareness & Education (measuring the education of the home’s occupants about the operation and maintenance of green systems in the home).

In contrast, the new approach would focus solely on energy use. The amount of the new tax credit would be a percentage of the assessed tax equal to the percentage of increased energy efficiency – i.e., a home that achieves a 55% increase in energy efficiency would be eligible for a tax credit of 55% of the tax assessed on the property. A property owner must attain an energy efficiency increase of at least 40% to qualify for the credit.

How would increased energy efficiency measured? For existing structures undergoing renovation, the increase is to be calculated by comparing the actual energy use after renovation to a baseline of such use immediately prior to the renovation. The calculation for new construction is a little more complex. The new bill would require energy modeling at the design phase to compute the anticipated energy use of the new residence, comparing that result to a baseline of the existing requirements of the county code.

This potential move away from reliance on LEED for Homes to a focus on energy use follows criticism of LEED standards as failing to result in reduced energy use in LEED-compliant buildings. The New York Times examined this issue last summer, noting that a USGBC study had found that more than half of the LEED-certified building that had obtained certification prior to 2006 did not qualify for an Energy Star label, and many were the bottom half, in terms of energy use, of comparable buildings nationwide.

The new tax credit, like the current one, would run for three years from application, unless the residence attains carbon-neutral status, in which case the credit would run for five years. The county would be permitted to revoke the credit if the building is altered so that it no longer complies with the bill’s energy use requirements. The new bill would not permit revocation simply because it turned out that a new residence used more energy than predicted by design phase energy modeling.  Additionally, it would not undo tax credits already earned by residential property owners under the existing LEED-based approach for future tax years.

The council will discuss and hear testimony on the bill at a June 1 afternoon work session and is currently scheduled to vote on it on June 7.

-- Will Pearce, LEED AP BD+C

Upcoming Events

Scroll down and check out our Events Calendar, on the lower right hand side of this page, listing a wide array of networking opportunities, educational seminars, and other events of interest to those in the business of green building and sustainability.

We'd like to highlight some events from the calendar of particular relevance taking place this month and next -- those that Whiteford, Taylor & Preston is sponsoring, or at which Whiteford, Taylor & Preston attorneys will be speaking:

• Alex Koff will be a member of the Vietnam Environmental Business Mission delegation of the Maryland-Asia Environmental Partnership. The delegation's trip, which will take place from May 22-May 30, will include sessions of the Vietnam Environmental Forum, a Conference on Environmental Solutions Backed by American Technology, on May 25 in Hanoi and May 27 in Ho Chi Minh City. Alex is the US Conference Program Chair.
• Adam Baker, LEED AP BD+C will speak on the status of green building policies, regulations and legislation in Maryland on May 26 at the USGBC National Capital Region chapter's Public Policy Forum, which will be held at the offices of Holland & Knight, 2099 Pennsylvania Ave., NW, Suite 100, Washington, DC.  Kyrus Freeman of Holland & Knight and Russell Randle of Patton Boggs will also speak, addressing the status of green building laws in the District of Columbia and Virginia, respectively.  Chris Cheatham of Crowell & Moring will moderate.  For more information and to register, click here.
• On June 9, Whiteford, Taylor & Preston will host the USGBC Maryland Chapter's Wrap Up of the 2010 Maryland General Assembly.  This event, to be held at WTP's Baltimore Office, will cover the new green building laws passed in the just concluded General Asembly session.  For more information and to register, click here.
• Martha L. Perkins will be a program speaker on “Novel Surety Issues Presented by Green Construction” at the Surety & Fidelity Claims Institute Annual Meeting in Williamsburg, Virginia, on June 24, 2010.

If you have any events you'd like to have listed on our Events Calendar, please e-mail us at greenbuildinglawbrief@gmail.com.

Maryland's New Benefit Corporations Law

In April, Maryland became the first state in the nation to enact legislation permitting the creation of Benefit Corporations. Such business entities are often referred to as “B Corporations,” a term that is a trademark of B Lab, a non-profit that has worked to popularize the concept and that certifies such businesses. This category of business entity permits a corporation to identify goals other than profit maximization, generally objectives relating to social and environmental performance.

Traditionally, the duty of corporate directors and officers is to maximize the monetary return on shareholders’ investment. Benefit Corporations are for-profit enterprises, but they also identify in their corporate documents social progress objectives. The concept grew out of a concern on the part of socially conscious business owners that tapping capital markets can serve to undermine the social mission of their businesses, as the new investors may grow weary of the social mission and simply seek profit maximization.

Green Building and Sustainability Newsletter Review of 2010 Green Building-Related Maryland Legislation

The latest edition of the Green Building and Sustainability Newsletter features a summary of the Green Building-related legislation passed by the Maryland General Assembly during its 2010 session, which closed in April.  The review, written by Will Pearce and Adam Baker, expands on earlier blog posts on Green Building Law Brief on the session's bills and contains summaries of bills not previously discussed here, including bills on compact fluorescent light bulb recycling and renewable energy mandates.

The New Towson City Center Project

The Indoor Environmental Quality (IEQ) Credits for LEED certification are the major reason why LEED-certified buildings are believed to lead to greater employee health, productivity, and morale. IEQ credits can be obtained for features such as increased ventilation, reduction in the use of volatile organic compounds, and facilitation of greater occupant control of heating and cooling systems.

Employee health problems became a significant problem for commercial facilities in late twentieth century, as occupants of "sick buildings" came down with an array of symptoms, including headache; eye, nose, or throat irritation; dry cough; dry or itchy skin; dizziness and nausea; difficulty in concentrating; fatigue; and sensitivity to odors.  These conditions were attributed to poor ventilation systems and biological and chemical contaminants present in carpets, paints, and mechanical equipment.  Buildings where such features were believed to have led to the aforementioned sysmptoms were labeled as "sick buildings.”

One Investment Place, in Towson, was one such office building. Its tenants, mainly state and local governments, moved out in 2001 and 2002, believing that the facility had led to employee health issues. Such was never proven, but once the building was labeled as “sick”, it had a difficult time attracting new tenants. Despite an enviable location near the corner of York and Delaney, it has sat empty since 2002.

Now, its new owner proposes to completely remake it, stripping the building down to its steel structure and rebuilding its facade and building systems to erect a largely new building it plans to name "Towson City Center", leased to a mix of retail and commercial office tenants. 

The new Towson City Center project will advance sustainability goals in a couple of ways.  First, its owner plans to obtain a LEED Silver or Gold Certification, which would require that it attain at least one IEQ credit.  In any event, new building systems should be environmentally superior to the old ones, whether they caused sick building syndrome in its occupants or not.  Additionally, any new well-occupied commercial space in downtown Towson will enhance its status as a dense, walkable community.

-- Will Pearce, LEED AP BD+C

Maryland's New "Right to Dry" Law

Two weeks back, in this post, we noted the General Assembly's passage of SB 224, which bans prohibitions by homeowner and condominium associations on the use of clotheslines to dry laundry.  Governor O'Malley signed the bill into law on Tuesday, May 4.  WTP attorneys Martha Perkins and Joe Douglass today released an analysis of the new law for HOA's and condo associations; click here to check it out.

LEED in Litigation 2010

To date, there has been little reported litigation relating to green building certification issues.  Recent filings in two cases, however, give us a taste of the green building issues that may be litigated in the coming months.

• Failure to obtain certification.  A series of lawsuits relating to sales of newly constructed condominium units in New York City have raised this issue.  The developer of a condominium project in West Chelsea terminated sales contracts into which it had entered with several prospective purchasers of condominium units, citing the failure of the purchasers to close on the units.  In so terminating the sales contracts, the developer kept the substantial down payments made by the purchasers.  The purchasers have responded by suing to get the down payments back and for the sales contracts to be rescinded.  Among the purchasers' arguments is that the failure to close is excused by the developer's failure to keep its end of the bargain in making material changes to the project, including an alleged failure to obtain the promised LEED certification touted by the developer in marketing the units.  LEED certification is just one small part of the significant problems between the parties (like many condominium projects of the past few years, this one apparently had be substantially reworked), but the inability to meet promised standards may be important evidence of the materially changed nature of the project.  One of these Complaints, filed last month in Barber v. West Chelsea Development Partners LLC, Index No. 16104615/10 in the Superior Court for New York County, can be found here; the LEED-related allegations are on pages 19 and 20. 
• Cost of meeting LEED or equivalent standards as potential damages.  More local governments are requiring LEED or equivalent compliance for private projects.  As these new mandates come online, they are often pegged to filing of permit applications.  Those projects for which the process is already underway when the new requirements become effective do not have to meet LEED or equivalent standards, but those not yet started are subject to such standards.  Delays in financing or closing, then, could result the incursion of increased costs resulting from LEED compliance.  Such increased costs were cited by a jilted seller of land in JLB Realty, LLC v. Capital Development, LLC, Case No. 1:09-cv-00632-BEL in the United States District Court for the District of Maryland.  After the prospective purchaser backed out of the sale of land to be developed for a relative large residential project in the Washington Hill neighborhood of Baltimore, the seller kept the earnest money paid by the prospective purchaser.  The prospective purchaser then sued to get the earnest money back.  In defending against this claim, the seller stated in a court filing (click here; the LEED-related allegations are at pages 4 and 5) that one of the reasons for requiring a substantial deposit of earnest money was the potential increased cost of meeting LEED or equivalent standards.  New private construction in Baltimore is under such a mandate as of July 1, 2009, and the seller suggested that the cost of LEED or equivalent compliance could be as much as $4 million.  Green building issues were not central to this case, however, and Judge Benson Legg did not address them in deciding earlier this year on summary judgment in favor of the prospective purchaser on the grounds that it had properly exercised a termination right under the terms of the sales contract; the case is on appeal to the Fourth Circuit.  Still, given the potential for cost increases resulting from new mandates of compliance with LEED or equivalent standards, such increased cost may become one component of damages where one party is alleged to have delayed the development of a parcel of land by its actions or failure to act. 

-- Will Pearce, LEED AP BD+C

The Sustainable Communities Act of 2010

HB 475, The Sustainable Communities Act of 2010, passed by the General Assembly shortly before the 2010 session ended earlier this month, replaces and expands the former Maryland Heritage Structure Rehabilitation Tax Credit, offering income tax credits to further the related goals of encouraging the renovation of historic buildings and driving development to areas that are already relatively high density. In addition to providing tax credits, the legislation is intended to be a means of channeling state and federal aid to preferred areas. The bill favors construction in “Sustainable Communities.”

The first requirement to qualify as a Sustainable Community is that the community be in a Priority Funding Area. Under Maryland’s smart growth policy, Priority Funding Areas are those areas that Maryland state and local governments have designated for encouragement and support of economic development and new growth. Such areas include the entire area inside the Washington and Baltimore Beltways and urban and dense suburban locations throughout the state; for a map, click here. The second requirement is that the community must be within an area of Transit-Oriented Development, in a BRAC Revitalization and Incentive Zone (“BRAC Zone” for short), or otherwise determined to be eligible for reinvestment by the Smart Growth Subcabinet.

There is $10 million for fiscal 2011 for tax credits under this bill.  Credits are to be awarded by a competitive ranking system among the applicants. Governor O’Malley has not yet signed this bill, but its passage was among the Administration’s legislative goals for the 2010 session, so it seems likely he will sign it in the next few weeks.

The Green Premium for New School Construction

Will Pearce authored an article on the green premium for new school construction for the latest edition of the Whiteford, Taylor & Preston Green Building and Sustainability Newsletter.  The phrase "green premium" refers to the additional construction cost associated with complying with green building standards.  All new public school construction in Maryland will have to comply with the High Performance Buildings Act of 2008; the State is picking up half the green premium until 2014, after which it will be the full responsibility of the county school boards.  Click here to read the article.

Earth Day: Looking Forward

As Earth Day comes to a close, let's take a quick look at what we might see on Earth Days to come:

Earth Day Future (near term) -- Earlier this week, we looked at green building-related bills that passed the Maryland General Assembly.  One that didn't may well get passed by next Earth Day: SB 479, a bill that would have permitted the use of Green Globes to attain sufficient performance under the High Performance Buildings Act, failed to get a floor vote in the House after passing the Senate 47-0.  Federal agencies, including the Department of Veterans Affairs, are already using Green Globes certification to meet their green building goals, as an alternative to LEED.

Earth Day Future (long term) -- Under the Energy Independence and Security Act of 2007, fossil fuel use by newly constructed federal buildings will have to be completely eliminated by 2030.  Two new cutting-edge federal buildings coming on line this year -- a NASA facility in the Bay Area dubbed "Sustainability Base" and a Department of Energy building outside Denver -- provide us with a glimpse of how federal agencies plan to reach this goal.  Both intend to achieve net-zero energy usage and attain LEED Platinum certification.

Maryland General Assembly 2010 Session: A Summary of Green Building-Related Legislation

The Maryland General Assembly’s 2010 session has come to a close, with the General Assembly having passed a number of bills related to green building.  We’ll be taking a look at HB 475, titled “Smart Green and Growing: The Sustainable Communities Act of 2010” and passed just before the session ended, later this week [Update: our summary of HB 475 can be found here].  The other bills of note to the green building industry concern, among other things, a new State initiative for Environmentally Preferable Purchasing, a new LEED mandate for community college projects, and homeowners’ and condominium owners’ right to use clotheslines to dry their laundry.  Listed below are summaries of these and a few other relevant bills, with links to the text as passed:

• HB 1164 substantially broadens Maryland’s use of Environmentally Preferable Purchasing, sometimes referred to as “Green Procurement.” It creates the Maryland Green Purchasing Committee, which is charged with drafting a strategy to increase environmentally preferable purchasing as well as a best practices manual for such purchasing. The committee is specifically directed to look into smart meters, the reduction of operating times for HVAC systems in State buildings, increased energy efficiency from new computer servers and data storage centers, and the purchase of food containers made of preferred materials. The Committee will have to report on its efforts annually to the General Assembly. Additionally, the bill mandates that recycled paper make up 90% of the paper purchased by the Department of General Services and directs that the State use compost for fertilizer “to the maximum extent practicable.” You may have heard about this bill in the context of its proposed elimination of State purchase of polystyrene products, which ran into opposition from Solo Cup Co. That provision was eliminated from the bill as passed.
• HB 1044 extends the requirements of the High Performance Building Act of 2008 to projects funded by the State’s Community College Grant Program, under which the State pays for a percentage of new community college buildings and the local government pays for the rest. The High Performance Building Act provides that most new or renovated State buildings and new public school buildings are to be built to comply with the requirements of the LEED Silver rating or its equivalent. Most new construction on Maryland community college campuses will now also have to meet this LEED Silver or equivalent standard. Interestingly, on pages 3 and 4 of the Fiscal and Policy Note for this bill, the Department of Legislative Services surveys the cost premium for LEED compliance for completed State-built LEED-compliant buildings and estimates that new community college projects will see a two percent construction cost increase resulting from the LEED mandate. HB 1044 does not provide for additional state funding for these projects.
• SB 224 bans homeowners’ associations and condominium associations from enacting complete prohibitions on the use of clotheslines for clothes drying. While such associations may place reasonable restrictions on the placement, size and appearance of clotheslines, they can only do so after a public meeting. With this bill, Maryland joins a number of other states in passing so-called “right-to-dry” legislation. Clotheslines have in recent years experienced a resurgence in popularity as an energy-saving method of drying clothes. However, many HOA’s and condo associations have enacted bylaws that ban clotheslines, which are often considered eyesores. Those bylaws will need to be revisited in light of SB 224.
• HB 1062 permits Maryland counties and the City of Baltimore ("counties" for short) to create property tax credits for real property used for urban agriculture. The property subject to such tax credit must be between one-eighth of an acre and two acres in size, be used exclusively for agriculture, and lie in a Priority Funding Area. Counties are permitted to enact stricter requirements for the tax credit. Under Maryland’s smart growth policy, Priority Funding Areas are those areas that Maryland state and local governments have designated for encouragement and support of economic development and new growth. These include the entire area inside the Washington and Baltimore Beltways and urban and dense suburban locations throughout the state; for a map, click here. It is up to the counties to enact the credit, and they will take a revenue hit in so doing. Given the current economic climate, it is unclear how many counties will choose to create this tax credit in the near future, and how broad those programs will be.
• HB 1112 permits Carroll County to alter its existing green building tax credit program by extending it to residential buildings. It is likely the county will elect to use this new authorization to provide tax credits for green residential building, as the bill was sponsored by the Carroll County Delegation. Martha Perkins analyzed Carroll County’s existing green building tax credit program in this 2009 article for the Green Building and Sustainability Newsletter.

To date, Governor O’Malley has not signed any of the bills listed above. Maryland’s Governors typically extend bill signings for several weeks after the close of the legislative session.

-- Will Pearce, LEED AP BD+C

Sustainability Efforts at Aberdeen Proving Ground

Will Pearce recently authored a post over on the Whiteford, Taylor & Preston BRAC Blog on Aberdeen Proving Ground's profile in the Maryland Green Registry.  Check his post out here.  The BRAC Blog, which is dedicated to covering the challenges and opportunities presented by the Department of Defense’s Base Realignment and Closure process (“BRAC” for short) from a legal perspective, is run by members of WTP's Government Contracts/BRAC Industry Group.

Whiteford, Taylor & Preston Green Building and Sustainability Newsletter

Every two weeks, Whiteford, Taylor & Preston’s Green Building and Sustainability Industry Group publishes an e-newsletter, edited by Adam Baker, LEED AP BD+C, covering sustainability issues that impact a wide array of industries, including Real Estate, Construction, Government Contracts, Manufacturing, and Intellectual Property. The latest edition can be found here. Dino Lafiandra discusses the Maryland General Assembly's choice to use millions of dollars from the Regional Greenhouse Gas Initiative that had been initially earmarked to fund energy efficiency programs to instead fund the state's direct bill pay assistance program, which helps low income families pay their utility bills.

LEED Roundup

What we've been reading about LEED certification in the past week:

• The Philadelphia Inquirer looks at commercial landlords' divergent attitudes re: LEED certification.  No surprises here -- some landlords have no use for it, while others are scrambling to get approval from the green powers that be.  The article doesn't really scratch much below the surface, unfortunately, largely failing to explain or reconcile the differences -- e.g., why some tenants favor LEED certification and others don't feel the need to lobby their landlords for it, or if there's something other than tenant demand (such as tax benefits) driving the certification efforts.  The article's timing is keyed to the first LEED-EB (Existing Building) certification in Philadelphia for an existing multi-tenant structure, achieved by 1601 Market Street. 
• Frank Gehry is among those who are skeptical of the benefits of LEED certfication, according to this post from BusinessWeek's Next:Innovation and Design blog.  At a recent Chicago function, the renowned architect complained that LEED credits are given for "bogus stuff" and that the cost of compliance outweighed the benefits.
• WRC Channel 4 Washington notes that the Twin Cities' Target Field, new home of the Minnesota Twins, has surpassed Washington's Nationals Park as the "greenest" stadium in baseball.  The new ballpark has attained LEED Silver status, and scored two points higher than the home of the Nats, which is also LEED Silver.  The additional cost associated with certification has been reported by the St. Paul Pioneer-Press to be just $2 million on a $545 million project, less than one percent of the total project cost.  Target Field might not be the greenest for long: the new stadium being built for the Florida Marlins will also seek LEED Silver certification, so it could potentially accrue more points than Target Field.

-- Will Pearce, LEED AP BD+C

Upcoming Events

Scroll down and check out our Events Calendar, on the lower right hand side of this page, listing a wide array of networking opportunities, educational seminars, and other events of interest to those in the green building industry.

We'd like to highlight some events from the calendar of particular relevance in April, May, and June 2010 -- those that Whiteford, Taylor & Preston is sponsoring, or at which Whiteford, Taylor & Preston attorneys will be speaking:

• At the National Association of Independent Sureties' convention in Phoenix, Martha Perkins will give a presentation on "Green Expectations: Identifying and Managing the Risks Unique to Green Building" on April 15.
• On April 19 from noon-2:00 pm, Whiteford, Taylor & Preston will host a presentation by Dr. Gregory Smith of the Patuxent Wildlife Research Center of the US Interior Department about the first US-Vietnam bilateral Working Group on Climate Change meeting, held on March 31-April 1, 2010 in Hanoi, which Dr. Smith attended.  Those in attendance will also be updated regarding the upcoming Maryland-Asia Environmental Partnership and Washington Laboratories Trade Mission to Vietnam, scheduled for May 22-28, 2010.  Please RSVP to 443-275-2489.
• Martha Perkins is among the Facilitators for a course presented by the Washington Metropolitan Chapter of the Community Associations Institute, "Green Common Interest Community Management." This half-day seminar will be conducted twice: April 20 in Alexandria and April 22 in Beltsville. The course provides information about Going Green, LEED, Energy Star, and other Green-related government programs. Attendees will learn about the pros and cons of sustainable waste programs, modifications to and replacement of appliances, green heating and air conditioning, low energy lighting, fuel efficient vehicles, alternative utility sources, power consumption, building sustainability, and green landscaping. For more information and to register, please click here.
• The ChinaWise Business Seminar will be held on April 27 at Whiteford, Taylor & Preston's Baltimore Office, 7 St. Paul Street, Nineteenth Floor, Baltimore. As China buys, builds, and upgrades, its growing economy is rich with business opportunities for U.S. firms.  U.S. government officials as well as corporate and association executives will share insights and perspectives to help companies minimize potential risks, while maximizing rewards associated with pursuing commercial opportunities in China.  Alex Koff, chair of the firm's Global Practice, will speak on "Standards & Intellectual Property: Implications for Your Business," with Elise Owen of the American National Standards Institute.  The program will conclude with a networking reception hosted by the Baltimore-Xiamen Sister City Committee and Maryland China Business Council in support of a September 2010 Trade/Business Mission to China. For more information and to register, please click here.
• One forum in which American companies seek to protect their intellectual property rights in cutting edge technology is the U.S. International Trade Commission ("ITC" for short).  At the American Bar Association seminar, Live at the ITC: Second Annual Forum on Section 337 of the Tariff Act of 1930, Alex Koff will moderate a Roundtable Discussion on "Foreign Discovery in Section 337 Investigations."  To register, click here.
• Whiteford, Taylor & Preston will sponsor the May 11 event, "Bioparks Update," at which speakers from the University of Maryland System, Johns Hopkins University, and Forest City Science + Technology Group will update attendees on progress at Maryland's research parks: Science City, Shady Grove, UMB BioPark, Science and Technology Park@Hopkins, and bwtech@umbc.  A presentation of the Greater Baltimore Committee, this event starts at 8:00 am at the UMB BioPark, 801 West Baltimore Street, Baltimore.  For more information and to register, please click here.
• Alex Koff will be among the speakers at the University of Baltimore's Executive Forum on Global Business, which will be held on May 13.  Alex's presentation will be on "Understanding Export Licensing."  For more information and to register, please click here.
• Adam Baker, LEED AP BD+C will be presenting at the 2010 RealGreen Mid-Atlantic Conference & Expo in Washington, DC on the morning of June 22.  Adam and his co-presenters, Harid Karimi of the District of Columbia Department of the Environment and Chris VanArsdale of the Canal Park Development Association, Inc., will speak on "Public Stormwater and Green Building Initiatives in the Chesapeake Bay Watershed." 

If you have any events you'd like to have listed on our Events Calendar, please e-mail us at greenbuildinglawbrief@gmail.com.

-- Will Pearce, LEED AP BD+C

ConsensusDOCS 310 Green Building Addendum

One of the signs green building is moving into the mainstream is the formulation of industry standard form contracts specifically tailored for green construction projects.  Perhaps the leading such document is the ConsensusDOCS 310 Green Building Addendum, which among other things provides a means by which parties can allocate risks unique to green building.  Martha Perkins, a Partner in Whiteford, Taylor & Preston's Washington office, served on the Associated General Contractors of America's Contract Documents Committee Green Building Task Force, which drafted the Green Building Addendum.  Her summary and analysis of the Green Building Addendum was recently featured in the National Association of Surety Bond Producers' Legal Spotlight, and can be found here.

Welcome to Green Building Law Brief

Green Building has exploded in popularity over the last few years.  Area governments increasingly mandate compliance with green standards for new private and public construction.  By 2013, some estimates suggest up to twenty-five percent of new commercial non-residential starts will be intended to meet at least one green building standard, such as LEED certification or Green Globe, and the value of the green building market overall will exceed $100 billion.  Such increases are just one part of the new Green Procurement efforts by private industry and federal, state, and local governments, as purchasing departments seek to benchmark the sustainability of the goods and services they procure.

Green Building Law Brief is a new blog from the members of Whiteford, Taylor & Preston's Green Building and Sustainability Industry Group, designed to analyze the legal ramifications of these new Green Building and Green Procurement initiatives.  Please feel free to join our discussion by posting in our Comments section, or e-mailing us at greenbuildinglawbrief@gmail.com.