Bad Form by the Forum? (Part III)

The wheels of justice are grinding along as we continue our series of posts about the lawsuit over allegations of improper use of grant funding by the Columbus Green Building Forum (“CGBF”).

To quickly recap the status, CGBF felt wronged when Ohio Department of Development (“DoD”) auditors concluded that CGBF had misused grant funds, so CGBF retaliated by filing a pre-emptive lawsuit seeking (among other things) money and a judicial declaration that everything was kosher with CGBF’s use of public grant monies to pay for services provided by CGBF Executive Director Meera Parthasarathy.

The DoD denied wrongdoing and upped the ante by counter-suing CGBF for “an amount reasonably believed to exceed $70,000 for payments [CGBF] improperly received” with respect to the grants.  Full case docket at this link.

Now the row has intensified as we enter the discovery phase, in which the parties exchange requests for documents and other information.  The parties have already exchanged documents and the deposition of the aforementioned Ms. Parthasarathy has been noticed for June 11, 2013 (a deposition is a proceeding at which a witness is placed under oath and answers questions that are transcribed by a court reporter).  The entire discovery process must be wrapped up by December 20, 2013, and trial is set for March 24-26, 2014.

It’s not uncommon for parties to file “dispositive motions” (written requests to the judge that a party should prevail upon one or more claims without the need for trial), and any such motions are similarly due by December 20, 2013.

OGBL will continue to monitor the case and report as events of significance occur.

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What Green Means to Zoning Boards

Yesterday I presented on a panel at DesignColumbus 2013,  Ohio’s premier building educational event and tradeshow, co-hosted by USGBC – Central Ohio Chapter and the Construction Specifications Institute Columbus Chapter. My fellow presenters, whom I thank for doing a spectacular job, were Dan Barringer, (architect at MS Consultants and member of Upper Arlington Board of Zoning and Planning), Brian Szuch, (architect at MS Consultants and member of Westerville Planning Commission), and Michael Jones (realtor for Coldwell Banker and member of Columbus Board of Zoning Adjustment). Our presentation, “What Green Means to Zoning Boards,” discussed barriers and incentives that zoning codes present for green building.

“Green zoning” is a vague concept, and its definition varies depending on whom you ask. But one commonality between all the efforts to zone green appears to be a desire to add flexibility for developers/owners to incorporate sustainable design into their construction.

Zoning is a critical way for communities to shape their development.  Thoughtful, cohesive zoning codes make it easier for communities to implement their vision.   But codes are out of date or too rigid can abstruct or even preclude sustainable development.

For example, the standard zoning practice in the second half of the 20^th century was to separate uses into different districts – residential, commercial, retail, etc.  This rigid separation conflicts with the desire of many communities today to create vibrant and walkable mixed-use neighborhoods.

Outdated codes also impose restrictions that do not consider recently-developed sustainable materials and/or sustainable design techniques, presenting obstacles for developers to build green.

But there are a number of communities that have used their codes to incentivize green building (e.g., Philadelphia, Pittsburgh, Nashville, Arlington, and Seatle).  In general, the incentive is some type of  density or building height bonus given if a project achieves various levels of LEED Certification.  In some cities, there is a sliding bonus scale as a project achieves a higher and higher level of LEED Certification.  While this is certainly a proactive way to encourage green building in these communities, these types of codes do present legal issues.  For example, there could be adverse consequences (e.g., denial of a an occupancy permit)  for a building that has already been built with a density bonus that fails to achieve a required LEED Certification.  In areas that reward LEED certification with a tax abatement or credit, the failure to achieve a LEED Certification leads to a purely monetary loss (failure to claim the credit).

As sustainable design continues its inexorable march toward the mainstream, zoning boards will need to consider how best to harmonize green building techniques and materials with their unique development priorities.

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Do Risks of “Green Guarantees” Hinder Sustainable Development?

This month’s Engineering News Record’s article “Green Guarantees Vex Firms With Added Risk” (password required unless you’re an ENR subscriber) posits that “many contractors and designers are passing on work that includes long-term performance warranties for sustainable building systems.”

The article also quotes a lawyer who tells clients that “it’s better to walk away than to make uninsurable warranties.”

No doubt different companies, in different markets, facing different economic conditions, might have different reasons for declining work.  No debating that the insurance industry has some catching up to do with respect to identifying and helping manage certain novelties associated with certain aspects of sustainable design and construction.

But OGBL is interested to know how many owners/developers have demanded unreasonable “green guarantees,” and how many AEC firms have turned down work because they were unable to reach a meeting of the minds on green building objectives.

There are plenty of strategies available to balance owner/developer green goals with AEC business realities.  But some lawyers (particularly in the green building realm) use scare tactics and “fear of the unknown” to justify their existence.  The right attorney will understand your business needs and your bigger-picture goals, and help create solutions rather than impediments.

So the enquiring minds at OGBL want to know: Are you an owner/developer who demands green guarantees?  Are you an AEC firm who has received such a demand?  Have you ever turned down work because of such a demand?  Why couldn’t you work it out (with or without the need to engage legal counsel)?

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I can tell your future … look what’s in your hand.

‘Tis the season to look back and look ahead.  OGBL will let our archive of posts speak for what was, and this post will contemplate what will be in 2013.

To paraphrase Harvey Keitel as The Wolf in Pulp Fiction, if self-preservation is an instinct that we as a species possess, we have to act now to be more efficient and less wasteful in all of our activities.  Transforming the design and construction of buildings where we live, work and play is a great place to start.

This author will continue outreach, education, and advocacy on behalf of the USGBC-Central Ohio Chapter (USGBC-COH, working to transform Central Ohio’s built environment to be more healthy, prosperous, and sustainable).  USGBC-COH recently won a significant grant from USGBC (national) to identify & retain a consultant to build relationships between the various USGBC Chapters in Ohio, USGBC National Members, and other regional stakeholders.

This author will also contribute to the American Bar Association’s seminal Green Building Law treatise (green building litigation, aka “LEEDigation,” subsection).  Thankfully for this attorney’s clients, the predicted/feared maelstrom of litigation surrounding green buildings hasn’t materialized.  But there are some noteworthy examples to be evaluated and risk management lessons to be learned.

Whether or not LEED is a worthwhile mechanism to effect market transformation will be the subject of an ongoing research project in 2013.  Teaming with Battelle, and thanks to grant funding from USGBC, USGBC-COH is developing the ”Green Schools Compendium,” a scientific evaluation of data from Ohio’s approximately 300 LEED certified or registered schools to determine if there is any statistically significant deviation between traditionally constructed schools and LEED schools.  Green schools are (duh) just green buildings, so the results of this study could change the game for, or against, LEED.

But change is hard.  We’re creatures of habit, and doing things differently is contrary to human nature, so it’s easy for the short-sighted and the entrenched interests to dominate.  The Grateful Dead sing that “some folks trust in reason/others trust in might/I don’t trust to nothing/but I know it come out right.”  We shall see.

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Red Flag Against the Blue Dot on Green Schools

You know you’ve made it when you have haters, so if nothing else the recent series of articles by the USA Today (aka “the Blue Dot”) about LEED only reinforces that the sustainable building rating system has arrived.

But the Ohio Facilities Construction Commission (OFCC), which is responsible for Ohio’s nation-leading array of LEED schools, throws a red flag on the Blue Dot for sloppy journalism.  Lisa Laney, the OFCC Sustainability Administrator who is quoted in the latest installment of the series, notes that the reporter quite simply “doesn’t understand the funding for sustainability efforts on [OFCC] projects.”

OGBL respects that the OFCC and Ms. Laney give the reporter the benefit of the doubt.  Maybe he simply didn’t understand the data.  Maybe he wasn’t just weaving a diatribe of sensationalist drivel in a transparent effort to stir controversy.  Maybe we shouldn’t be surprised that conflict & dissent sell more newspapers than would a thoughtful, reasoned, and objective discussion of the yet-to-be-determined cost/benefit of green schools (or any green building).

None of these possibilities explain why, as Ms. Laney points out, “the information that [OFCC] provided to [the reporter] was not used in the context it was given to him.”  We don’t know why the reporter failed to note the OFCC’s ongoing efforts to “develop performance metrics to potentially enhance the [green schools] program.”  We don’t know why the reporter failed to mention the OFCC’s support of the USGBC-Central Ohio Chapter’s ongoing collaboration with research giant Battelle (with grant funding from USGBC) to develop the “Green Schools Compendium,” a scientific evaluation of data from Ohio’s approximately 300 LEED certified or registered schools to determine if there is any statistically significant deviation between traditionally constructed schools and LEED schools.

But we do know that the OFCC specifically mentioned the Compendium to the reporter, and Ms. Laney went so far as to offer to “share this data with [USA Today] once the grant period is complete and the data is published.”  OFCC is still waiting to be taken up on this gracious offer.

Perhaps that data will justify the cost/benefit of LEED schools, or perhaps it won’t, or perhaps it will be inconclusive.  All we know for certain is that the evaluation of the data will be objective, thoughtful, and well-reasoned … perhaps the USA Today will learn something from the effort.

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USA Today Misses the Point on LEED

North College Hill – courtesy SFA Architects

Ed. 11.12.12: Since the post below went live, many commentators and critics alike have resoundingly called for hard data (rather than projections or models) to substantiate the benefits of LEED.  The OFCC estimates and projections below are just that … estimates and projections … but the Central Ohio Chapter of the USGBC is partnering with Battelle to scientifically evaluate the data from the appx. 300 LEED registered or certified Ohio green schools to compare things like first cost, lifecycle costs, absenteeism, and occupant performance.  This robust data set could either quantify or impugn the value of LEED.  Efforts are ongoing to secure additional funding for this effort (called the “Green Schools Compendium”) so stay tuned. 

It’s ironic that USA Today, the newspaper that was ridiculed for picking a dot for its new logo, would miss the point so grievously in the first installment of its series on LEED.  OGBL will leave it to commentators like Nadav Malin and Lloyd Alter to address the myriad big-picture flaws & oversights in the article, and we will instead focus on one Ohio-specific reference that is particularly misleading.

Buried in the middle of the article is the provocative claim that “Public LEED buildings typically cost taxpayers extra. In Ohio, LEED certification for new state-funded schools has added $131 million in construction costs since 2007.”  Budget hawks would surely be livid about such a nonsensical waste of public dollars … unless they knew that the whole truth is the exact opposite of what the article implies.  Although the Ohio Facilities Construction Commission confirms that the expense data is roughly accurate, the OFCC points out that the estimated return on energy savings is just 5 years, projected savings will double the initial expenditure in appx. 10 years, and the buildings will be around for as much as 50+ years.  You do the math and decide if this is an egregious waste of public funds or a prudent long-term investment.

Now that LEED has become the national (if not global) standard-bearer for green construction, there’s certainly no harm in reasoned critique of the rating system, which even its staunchest proponents acknowledge is far from perfect.  But twisting data from Ohio is dirty pool.  Ohio is the #1 state in the country in high-performance green school construction, the OFCC recently celebrated its third LEED Platinum school (North College Hill Middle/High School, pictured above), and the Central Ohio Chapter of the USGBC won national grant funding to study the robust data that will come from these schools and help determine whether or not there is a measurable deviation between LEED and non-LEED schools in energy usage, test scores, and absenteeism.

Remember that green schools are just green buildings, and if they offer lower life-cycle costs, promote greater occupant health, and (oh, yeah) lessen our environmental footprint to boot, then the dialogue shifts from “why build green?” to “why not?”  Too bad USA Today missed an opportunity to critically evaluate the legitimate (and numerous) flaws in LEED, and instead chose to sensationalize and mislead, while downplaying or ignoring some of the most relevant benefits of the rating system (here in Ohio and elsewhere).

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(2012 Green Building) Survey SAYS…

Every two years, the USGBC – Central Ohio Chapter surveys Ohio’s statewide governmental leaders regarding their perspectives on LEED and green building.  The intriguing and enlightening results of this year’s survey will be revealed at this month’s “Lunch and Leaders” event this coming Thursday, October 25, at the Grange Insurance Audubon Center, from 11:30am-1:30pm.

The survey results will be followed by an interactive panel discussion about public/private synergies and opportunities in sustainable development.

Panelists will include:

• Michael Chow (MetroCD  Engineering, founder/owner)
• Ian MacGregor (Battelle, Air Quality Scientist)
• Alan McKnight (City of Columbus, Director of Recreation and Parks)
• Jason Woehrle (Gilbane Building Company, Sustainability Manager).

This author will be presenting the survey results and moderating what promises to be an enlightening and informative session.  To register for this event, please visit http://october2012lunchandleaders-rss.eventbrite.com/#.

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Bad Form by the Forum? (Part II)

In this second installment of our series about the lawsuit over allegations of improper use of grant funding by the Columbus Green Building Forum (“CGBF”), we discuss the Answer filed by the State of Ohio and the Department of Development (collectively “DoD”).

For the benefit of our non-lawyer audience, an “Answer” is the formal response that one who is sued files in response to a Complaint (the document that initiates a lawsuit) to either admit or deny the allegations.

In the dustup between CGBF and DoD, CGBF executed a preemptive strike by filing a Complaint to procure (among other things) a judicial declaration that CGBF was wronged when DoD’s auditors concluded that CGBF misused grant funds.

The Answer filed by DoD issues a general denial (legal equivalent of “nuh-uh”) plus a Counterclaim (legal equivalent of “Eff me? No, eff YOU”), whereby DoD asserts its own claim against CGBF seeking “an amount reasonably believed to exceed $70,000 for payments it improperly received with respect to the 2007 and 2008 grants.”

The next event of significance is likely to be CGBF filing its Reply (like an Answer) to the Counterclaim, and months of “discovery” (the process by which litigants exchange information related to the claims at issue).  The Court hasn’t yet issued a case scheduling order, so at this point we can’t say how long this whole process will last, but suffice it to say for now that the wheels of justice grind slowly.

OGBL will continue to monitor the case and report as events of significance occur.

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How Firm Thy Stewardship, O-HI-O

THE Ohio State University just announced another signficant step toward more responsible environmental stewardship.  Augmenting OSU’s LEED mandate for new major construction and renovation projects, the university has signed a letter of intent with Iberdrola Renewables to purchase 50 megawatts (MW) of wind energy capacity from the Blue Creek Wind Farm, which is in Van Wert and Paulding counties.  When consummated, this wind energy capacity will support about 25% of the electricity load on the main campus.

“The leadership demonstrated by Ohio State in this commitment to purchase clean, Ohio-grown renewable wind energy is notable because it is voluntary, and demonstrates a commitment to carbon neutrality,” said Barrett Stambler, vice president of origination for Iberdrola Renewables. “This is the largest university purchase of wind power in our company’s history, and we look forward to a long and fruitful partnership.”

Acquiring a significant (and local) renewable energy supply is a natural complement to Ohio State’s efforts to reduce energy consumption through more efficient buildings, including an expanding profile of LEED-certified projects like the Ohio Union, Kennedy Commons, Cunz Hall, and the 4-H Center.

Best of all, this could solidify Ohio State’s lead over Michigan in the College Sustainability Report Card (in 2011, the Buckeyes earned a B+, while the Wolverines garnered a mere B … but, as we know, they don’t give a d@mn for the whole state of Michigan).

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Bad form by the Columbus Green Building Forum?

A recent court of appeals victory means prolonged litigation for the Columbus Green Building Forum (the “CGBF”) involving allegations of improper use of grant funding.

First things first: Who is the CGBF?  The organization’s web site recites a noble yet vague mission (“to advance the principles & practices of sustainability throughout the region”), but the “Who we are” link doesn’t identify, er, who they are.

CGBF’s organizational structure plays a feature role in a Decision rendered earlier this month by Ohio’s Tenth District Court of Appeals (click here for full case docket).  The appeal challenged the dismissal of a lawsuit filed by CGBF against the State of Ohio and the Ohio Department of Development (“DoD”).  CGBF filed suit after a DoD audit determined that “CGBF had been reimbursed for $70,114.45 in unallowable costs” from total grant distributions of $145,000 in 2007 and 2008, with the disputed costs consisting “of payments to CGBF board members Meera Parthasarathy and Lisa Frasure.”

The auditor determined that the disputed payments to Parthasarathy and Frasure were unallowable according to Office of Management and Budget Circular A-122 – Cost Principles for Non-Profit Organizations (“OMB A-122”), which defines as allowable “[c]osts of professional and consultant services rendered by persons who are members of a particular profession or possess a special skill, and who are not officers or employees of the non-profit [grantee].”  (Emphasis added.)  CGBF noted that the grant proposals identified Parthasarathy and Frasure as CGBF board members and identified Parthasarathy as the coordinator of the events for which CGBF sought funding … so no blood, no foul.

To avoid boring our non-lawyer audience to tears, I’ll spare a discussion of the Court of Appeals’ detailed analysis of why the Court of Claims erred in holding that CGBF’s lawsuit lacked subject matter jurisdiction (meaning whether or not a court has the power to hear and decide a case on the merits … the Court of Appeals holds that the Court of Claims has jurisdiction), and that CGBF’s claims violated the statute of limitations (the Court of Appeals holds that CGBF’s claims are not time-barred and may proceed).  Suffice it to say that the Court of Appeals’ decision is technical/procedural, and it neither considers nor determines if anybody done wrong.

The upshot of all of this is that the battle over whether or not CGBF improperly used grant funds has only just begun.  The State of Ohio and DoD have argued that Ohio State University (as a partner in the subject grant applications) might be a necessary party, and CGBF alleges conflict of interest or bias because a member of DoD’s grant review team had been employed by Green Energy Ohio, so this row could spill over to others in the green building/energy sector and beyond.  OGBL will follow along and update as events of significance take place.

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