Friday, May 28, 2010

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.

Wednesday, May 26, 2010

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. 

Friday, May 21, 2010

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. 

Thursday, May 20, 2010

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

Monday, May 17, 2010

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

Friday, May 14, 2010

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.

Thursday, May 13, 2010

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.

Monday, May 10, 2010

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

Thursday, May 6, 2010

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.

Wednesday, May 5, 2010

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