by Mary C. Klima, Associate

Environmentally - friendly (or “green”) buildings are rapidly growing in popularity and, accordingly, number.  To encourage the construction of green buildings, municipalities and cities provide developers with incentives for constructing green buildings, such as density bonuses and grants.  Alternatively, some municipalities and cities have enacted legislation which requires certain construction projects to comply with green building standards.  Green building has been around for many years, but only recently has it become such a hot topic of interest.

Green building is a land-use, design and construction process that promotes economic health of the community and reduces the environmental impacts that buildings have on their surroundings.  According to the U.S. Green Building Council (“USGBC”), green building results in environmental benefits such as reduction of solid waste, conservation of natural resources, improvement of water and air quality and enhancement and protection of ecosystems and biodiversity.  Economically, green building reduces operating costs, improves employee productivity and satisfaction, enhances asset value and profits and optimizes life-cycle economic performance; there are health and community benefits as well.

Common green building features include Energy Star Appliances, compact fluorescent lighting and water saving appliances which lower energy consumption and reduce operating costs; preservation of natural vegetation; green roofs, which control the amount of water released into storm water systems, reduction of the heat island effect, which the EPA defines as “a ‘dome’ of elevated temperatures over an urban area caused by structural and pavement heat fluxes, and pollutant emissions”; non-toxic or recycled content building materials; natural lighting; access to public transportation; low-E glass which reduces the cooling and heating load; and the use of renewable materials such as cork and bamboo, therefore reducing deforestation, among many other features.

One prime example of green building is 1180 Peachtree in Atlanta, Georgia, completed in February 2006.  1180 Peachtree is a LEED CSGold certified development.  LEED is the Leadership in Energy and Environmental Design Green Building Rating System, which is a way to measure the energy and environmental performance of buildings.  The LEED rating system awards points within seven categories associated with environmentally beneficial building design and materials.

According to its developer, numerous features of 1180 Peachtree were geared specifically toward preserving or enhancing environmental resources, including but not limited to, water efficiency by the use of low flow faucets, showers and janitor’s sinks; reduction of the heat island effect by Energy Star compliant roofing materials and well as roof vegetation (i.e., green roofs); use of regionally produced materials and recycled content; and energy efficiency resulting from building orientation, building envelope glazing, highly efficient roof insulation and highly efficient mechanical equipment.  Most notably, 1180 Peachtree uses no potable water for irrigation by using native plants which tolerate drought and a design which captures stormwater.  All site stormwater is captured and diverted to an underground detention vault and is later used for irrigation, resulting in significantly less water use then the baseline requirements of the Energy Policy Act of 1992.  Although initial construction costs may be higher for green buildings, such costs will likely be quickly recouped by the drastic energy savings in green buildings such as 1180 Peachtree.

Another example of green building relates to the new Washington Nationals’ ballpark located in Southeast Washington, D.C. which will have the first “green roof” at a big league sports facility.  Grass and other plant life will be planted on top of a 6,300 square foot waterproof surface above a concession stand in order to absorb the rays of the sun and, as a result, reduce the amount of heat reflected back into the atmosphere.  The D.C. Sports and Entertainment Commission hopes to be the first stadium in the United States certified under the LEED system.   Many municipalities have realized the benefits of green building to the community and environment and, as a result, provide developers with incentives for constructing green buildings, and/or require developers to meet certain standards in design and construction.  Arlington County, Virginia adopted a Pilot Green Building Incentive Program in October 1999 and expanded in 2003, which allows the County Board to consider the modification of use regulations for additional density between .15 and .35 FAR and/or additional height up to three stories for special exception site plan requests.  Additional density and/or height is not guaranteed, but determined on a case-by-case basis.  The site plan proposal must guarantee a LEED rating of Silver, Gold or Platinum.  Bonus density greater than .35 FAR may be considered for site plan proposals in which the LEED-certified Gold or Platinum award levels are being sought.  Developers not seeking LEED certification must contribute 3 cents per square foot of their project to the county’s Green Building Fund which is used to promote sustainable design in the form of education and outreach to developers and the community.  Many other municipalities, such as Fairfax County, Virginia have already, or are seriously considering environmental initiatives that would require construction or retrofitting of green buildings.  In fact, last year, Montgomery County, Maryland became one of only two jurisdictions (Pasadena, California was the other jurisdiction) in the nation requiring private and public buildings to meet strict energy-conserving criteria.

Washington, D.C. became the first major U.S. city to mandate sustainability guidelines for privately owned real estate when it passed The Green Building Act of 2006 (the “Act”) on December 5, 2006.  The Act calls for all new development in the District of Columbia, beginning in 2008 for publicly financed buildings and 2009 for private construction, to conform to the LEED standards.  By January 1, 2009, privately owned, non-residential new construction or substantial improvements projects with at least 50,000 square feet of gross floor area will be required to comply with LEED.  The Act provides incentives, subject to availability, in the form of grants from a “Green Building Fund” for early compliance from applicants for construction permits for commercial private buildings that will meet or exceed certain LEED requirements.  The Green Building Fund will be funded by a fee assessed as part of the building construction permit fees.

For years, the environmental benefits of green building were highlighted as the reason to “go green” and, accordingly, municipalities have begun to require more environmentally-friendly buildings; however, the recent focus has turned to the economic benefits, which really seems to be getting people’s attention.  Green building not only helps the environment, but drastically reduces utility bills, a significant long-term economic benefit of building green.  Additionally, according to industry professionals, green building does not necessarily mean higher initial construction costs.  A study for California’s Sustainable Building Task Force found an upfront investment of two percent results in life cycle savings of twenty (20) percent of the total construction costs.  Such long-term savings coupled with incentives municipalities and cities provide for green building, are leading many to think that maybe it really is time to go green.


The information or opinion provided in this article is the author's own and not necessarily that of Watt, Tieder, Hoffar & Fitzgerald, LLP. The author is solely responsible for the information and opinion that he or she has provided. The information contained herein does not replace seeking specific legal counsel to directly address individual client needs.
 
Watt, Tieder, Hoffar & Fitzgerald is one of the largest construction law firms in the world, with a practice that encompasses all aspects of construction contracting, claims and disputes resolution, and transactional legal services. WTHF principally represents large general contractors, design firms, and sureties throughout the country and internationally.