Angry, Rich, and Wrong: The Fight to Ban LEED in Ohio (Part II)

Yesterday saw further Ohio Senate testimony on Concurrent Resolution 25, urging that LEED v4 be banned for public construction.

Opponents of SCR 25 included Nadja Turek, an Air Force veteran and director of sustainable design services at Woolpert, Inc.  Asked if Ohio could build green without LEED, Ms. Turek explained how the U.S. military tried without success to do so, and why our armed forces now trust the third-party verification and standardization that LEED provides.

Dan Roberts, retired superintendent of Miami Trace Local School District, explained that passing SCR 25 and banning of LEED “would be saying to the public, ‘no, we don’t want the best buildings for our kids anymore.’ It would be an incredible disservice to our students and our constituents to take away such a strong, effective and proven program.”

Tyler Steele, vice chair of the board of directors at USGBC Central Ohio, testified that LEED schools result in “taxpayer savings through energy and water efficiency, reduced water waste, and most importantly, healthier students and teachers.”

Project manager and small business owner Karen Joslin explained the folly of banning v4 at the behest of a narrow industry segment, clarifying for the record that “there are no new prohibitions on products of any composition in the LEED v4 update. Early draft credits proposed a variety of avoidance or chemicals of concern restrictions, but these were all completely removed” as part of the consensus process followed by USGBC.

Instead of urging that LEED v4 be banned, Ohio’s leaders should figure out the best way to fulfill SCR25′s aspirational recital that the State should achieve “energy efficiency and environmental performance” in all state buildings.

If nothing else, all sides appear to agree upon that eminently sensible objective.

Additional testimony against SCR 25 was offered by Michael Berning (senior principal at Heapy Engineering), Tyrone Hissong (a parent and farmer in Troy, Ohio), Jim Volkert (sale director, Go West 765), and Allison McKenzie (architect, SHP Leading Design).  Proponent testimony was offered by Justin Koscher (Washington, D.C. – based Center for Environmental Innovation in Roofing).

Angry, Rich, and Wrong: The Fight to Ban LEED in Ohio

The most cynical lawyers say that the best client is angry, rich, and wrong.

While that sad truth sinks in, one can’t help but wonder if the Ohio senators who introduced Concurrent Resolution 25 (SCR25), the pending legislation urging that LEED be banned in Ohio, see how well this description fits the special interest groups who influenced them to do so.

Ohio is #1 in the U.S. in green school construction, prudently investing tax dollars in buildings that are designed to be 35% more efficient and use 37% less water than buildings built to previous standards and diverted over 188,000 tons of construction waste from landfills, thanks to state policy for new public school buildings to earn minimum LEED silver certification.

Enter a small but well-funded faction of protectionists who complain that the latest evolution of LEED, called “v4,” puts them at a competitive disadvantage.  This faction of vinyl, plastic, chemical, and other carbon-intensive industries, is angry, rich, and dead wrong.

They are so angry that they are pushing legislation to ban LEED v4 in Ohio without offering any better alternative.  Following recitals that whisper sweet nothings about jobs and green building rating systems, SCR25 delivers its punch line, “RESOLVED: That the LEED v4 green building rating system no longer be used by Ohio’s state agencies and government entities…”

LEED hasn’t been good for Ohio.  It’s been great for Ohio.  In addition to those energy and water savings, and diversion of waste from landfills, Ohio’s green schools have obtained 35% of material from regional sources, benefitting the local economy while curbing transportation-related greenhouse gas emissions.  Yesterday a diverse group of sustainability-minded professionals, and one inspired and inspiring high school student, delivered powerful testimony against SCR25.

But this faction of protectionists is angry with LEED v4, and they’re rich.  So rich that they could afford to hire one of Ohio’s leading influence-peddlers to curry favor with well-placed senators who are championing their cause through SCR25.

So why is this faction so angry, and what makes them so wrong?  They complain that LEED v4 creates a “blacklist” of certain products that unfairly discriminates against their stuff.  Only problem: The blacklist doesn’t exist.  Strike one.

They complain that LEED v4 doesn’t meet “American National Standards Institute voluntary consensus standard procedures.”  Only problem: An independent, multi-year study commissioned by the United States General Services Administration and prepared by division of Battelle, confirms that LEED is indeed a “consensus” standard:

Strike two.

They complain that their concerns weren’t heard during the LEED v4 development process.  Only problems: Their own literature details their extensive input into LEED v4, which was approved only after an unprecedented six comment periods resulting in over 22,000 public comments, with 86% of overall membership in favor of adoption, including majority approval from each major stakeholder group (89% of producers/contractors/builders, 90% of users, and 77% in the general interest category of utilities, manufacturers and organizations).  As I routinely explain to my daughters, there’s a big difference between not being heard and not getting your way … this is the latter. Strike three, you’re out.

This attack on LEED in Ohio is a tired rerun of the same industry attack against LEED at the federal level.  In response to that study cited above, the GSA decided to keep LEED along with Green Globes as rating systems of choice.  Yet Ohio stands poised to ban LEED v4 without conducting any independent investigation and solely at the behest of the angry, rich, and wrong.

LEED isn’t perfect.  Some say it should be stricter, some say it should be more lax.  But it is the consensus worldwide standard for making better buildings, and banning LEED v4 in Ohio at the whim of a small but powerful group of protectionist lobbies who offer no data to substantiate their scare tactics about jobs and economy would be a short-sighted and tragic mistake.

Ed: The views of his article are exclusively those of Ohio Green Building Law and this author, a member of the Board of Directors of the Central Ohio Chapter of USGBC

Ohio’s Ghosts of Green Building Law Past, Present and Future

After introducing my young daughters to the movie Scrooged earlier this week, I’m inspired to close 2013 with visits from the ghosts of Ohio green building law past, present, and future.

In the past OGBL published a series on the lawsuit between the Ohio Green Building Forum and the State of Ohio involving allegations of improper use of grant funding.  The lawsuit grinds on, with the Forum having filed papers on December 20, 2013, seeking to preclude a trial on the merits.  The State of Ohio has until mid-January to file its response.

The present offers a mixed bag of good tidings and threats, as the Ohio Facilities Construction Commission this month announced its 100th LEED Certified public education facility, and the Ohio Assembly introduced Senate Concurrent Resolution No. 25, urging the state to abandon the LEED as the green building rating system of choice (with this author featured in a Columbus Business First article on the topic).

The future of green building in the Buckeye State is up for grabs, as competing visions (encapsulated by editorials in the Columbus Dispatch in opposition to, and support of, SCR25) vie for supremacy.

Will the Ohio Assembly abandon LEED without first undertaking any independent analysis of the cost/benefit of the Buckeye State’s multibillion dollar investment (OFCC reports that the 100 schools certified to date are 35% more energy-efficient & use 37% less water than buildings built to previous standards, obtained 35% of their material from regional sources, and diverted over 188,114 tons of construction waste from Ohio landfills), and without offering any comparable third-party verification system as an alternative?

If SCR25 goes down, will the powerful and well-financed forces opposed to LEED simply fold their tent, or will they return with a vengeance?

Here’s to hoping that, no matter how things play out, we all put a little more love in our hearts in 2014.

Judge OK’s demolition of world’s most expensive green building billboard

On Friday, August 23, a state court judge in Las Vegas approved the demolition of the Harmon Tower, a building that was to be the primary design point for the sprawling $8.5 billion CityCenter complex.  Originally intended to be a 49-story hotel and centerpiece among numerous properties within the 18-million-sq-ft urban metropolis that already earned LEED certification, the Harmon was subsequently downsized to just 26 stories and eventually relegated to being just an outrageously expensive billboard after an engineer’s report concluded that it could collapse in a strong earthquake.

Since the report was issued back in 2011, lawyers for owner/developer MGM and general contractor Tutor Perini Corp. have argued about what to do, with MGM insisting that the hazard be taken down, and Tutor arguing that the building should stay up to preserve evidence.  The judge vacillated for years before a recently-completed fourth round of testing convinced her that implosion was the best (or, rather, least bad) option.

Notwithstanding the Harmon debacle, the CityCenter project was already a distressingly powerful engine of attorney employment, as Tutor sued MGM for $191MM in disputed unpaid bills, MGM counterclaimed for up to $400MM in allegedly nonconforming work, and various third-and fourth-party actions ensued against the steel installer, the installer’s successor-in-interest, and the designer, among other skirmishes.  Trial is scheduled for February 2014.

The litigation has already resulted in a significant decision from the Nevada Supreme Court regarding whether the economic loss doctrine applies to bar a claim alleging negligent misrepresentation against a structural steel engineer on a commercial construction project.  Stay tuned for a follow-up post on Nevada’s take on the economic loss doctrine, and how it compares with Ohio’s.

Thanks to OGBL friend DuWayne Baird for the idea to discuss this topic.

SID Vicious-ly Good Tool for Energy Efficiency in Ohio

Ohio law allows for the creation of special improvement districts (SIDs) for energy improvements, including some unique features that make the program a particularly effective tool for incentivizing building energy upgrades.

First the basics.  Back in 2009, Ohio HB 1 authorized local municipalities and townships to create “special energy improvement districts” that offer property owners financing to install PV or solar-thermal systems on real property.  In 2010, S.B. 232 further allowed for financing of geothermal, customer-generated systems (e.g., wind, biomass, and gasification systems) and certain energy efficiency improvements.  More info about Ohio’s program is available at DSIRE, and Ohio Revised Code Chapter 1710 offers the gory details.

The main barrier to energy efficiency upgrades is pretty simple: money (or, rather, lack of money or the will to spend it to pay for upgrades).  Ohio’s program is designed to help overcome that barrier through a variant of Property-Assessed Clean Energy (PACE) financing, which basically lets property owners borrow money to pay for energy improvements. The amount borrowed is typically repaid via special assessment on the property over up to 30 years.  In other words, for little or no up-front investment, the owner can invest in energy improvements and reap the benefits now by stretching the payments over time.

Among the unique aspects of Ohio’s program are its inclusion of energy efficiency improvements (it’s not limited to renewable energy-generating features), and a special energy improvement district does not have to be comprised of contiguous properties.  With proper planning and structure, stakeholders can overcome the Federal Housing Financing Agency (FHFA) declaration relative to senior lien status associated with most PACE programs.

Such programs have been unveiled in Cleveland and Toledo, and OGBL contributors (including this author) have consulted with various municipalities and individuals about taking advantage of the program in Central and Southern Ohio.

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.

Mitigating Risk Through Sustainable Building

Ed: OGBL has previously posted on the subject of the insurance industry evolving to meet the challenges and opportunities associated with green building.  Today we welcome a guest post by Carrie Van Brunt-Wiley, Editor of the HomeInsurance.com blog, on the subject of green building materials, techniques and systems that could potentially mitigate homeowners’ risk and premiums.

Insurance experts have new insights into about how LEED and other types of sustainable-building certification help lower the risk of insurance claims for green homeowners. It starts with the materials.

The U.S. Green Building Council awards Leadership in Energy and Environmental Design points for homes built from long-lasting, durable materials. A green building that lasts twice as long as a conventional building means you get twice as much bang for your buck.  Additionally, a homeowner who lives in a more durable home mitigates his risk of getting tangled up in costly home insurance claims for fire, storms and other covered perils.

One example of a durable, sustainable building material is aluminum roofing. Aluminum is one of the most recyclable materials on the planet and is extremely effective at maintaining cool temperatures even during hot summer months. It also has a remarkable ability to withstand heavy rains, strong winds, hail and other severe weather hazards, significantly reducing a homeowner’s risk of suffering weather-related damage. Here’s why it matters:  The average amount of a home insurance claim in the U.S. for weather-related damage is $6,000.

Another LEED requirement that mitigates homeowners’ risk of costly damage is the higher standard for energy efficiency. Typically, in order to earn points towards green certification, homeowners turn away from outdated electrical, plumbing and heating and cooling systems in favor of more modern devices. Here are a few ways these upgrades help reduce the possibility of damage to a home:

• A large portion of the total yearly damages attributed to electrical fires are a result of faulty appliances, old fuse boxes, ungrounded power outlets and other out-of-date electrical systems. Green homes typically utilize modern electrical systems and energy efficient appliances built for high standards for sustainability and safety.
• New LEED requirements call for homes and businesses to utilize plumbing fixtures that offer 20% water savings. Upgrades that comply with this requirement are also typically much safer than older systems and greatly reduce the chances of burst pipes, water leakage and other water damage that costs an average of $7,000 per claim in the U.S.
• According to the National Fire Protection Association, faulty heating and cooling systems contribute to 2,500 home fires every year. Updated HVAC systems earn big points towards LEED certification and are significantly less likely to contribute to fires as well as freezing pipes in the winter.

Green building materials, techniques and systems significantly cut the risk of homeowners suffering damaging events that would result in claims against home insurance. Consequently, home insurance providers generally assign lower premiums to such homes.

In addition to promoting a healthier, safer lifestyle for green homeowners, the risk-mitigating features of LEED certification offer even larger implications for all homeowners and insurance policyholders: Consider the impact green homeowners could have on insurance rates across the board by lowering the number of claims filed per year. The lower the number of claims filed, the lower the amount that insurers have to pay out every year. The lower their payouts, the less they’ll have to charge for home insurance premiums. Therefore, as the number of safer, greener homes grows in the U.S., homeowners and policyholders across the board may start to see some relief in insurance rates and other costs.

This article was contributed by Carrie Van Brunt-Wiley, Editor of the HomeInsurance.com blog. Carrie has been writing insurance news and consumer information for HomeInsurance.com since 2008. She graduated from the University of North Carolina in Wilmington in 2005 with a B.A. in Professional Writing and Journalism.

OFCC earns more national recognition for green schools leadership

Congratulations to Lisa Laney and the Ohio Facilities Construction Commission for earning more national acclaim for their leadership in high-performance green school facilities.  As mentioned in a recent article authored by Chris Pyke, USGBC Vice President of Research, OFCC was honored this past week for its completion of 50 LEED certified buildings, with over 300 currently registered projects ongoing.

Ohio should be proud to be the national leader in transforming our students’ leaning environments to be more healthy, prosperous, and sustainable.

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.

Can LEED help zone defense?

A recent legal decision from Pennsylvania suggests that pursuing LEED certification could help overcome zoning challenges.

Much has been written and discussed about how zoning rules sometimes have the unintended consequence of stifling green building techniques.  For example, Seattle’s Bullitt Center (called the “Greenest Office Building in the World“) had to overcome restrictions on rainwater harvesting, and New York City had to update its zoning regulations to facilitate energy efficiency and renewable energy innovations.

But last month the Commonwealth Court of Pennsylvania suggests in its opinion Gregory Campbell v. Doylestown Borough Zoning Hearing Board that pursuit of LEED certification could be a factor in helping secure a zoning variance.  After suffering the rejection of an initial variance application, the property owner (Applicant) re-submitted a revised variance request that included a self-imposed mandate to obtain LEED Silver certification.  The zoning board granted the variance, and the board was affirmed through two subsequent appeals.

The LEED mandate was just one of a host of factors cited in upholding the variance, as the application also lowered the building height, decreased existing lot and impervious surface coverage,decreased building mass, provided for a more attractive exterior appearance, was less objectionable regarding noise, dust, waste disposal, and storage, reduced on-street parking, and reduced traffic.  But it is notable that LEED is mentioned as a positive contributor to the project fulfilling the zoning code’s stated purpose of “promotion of health, safety and general welfare.”

What is also interesting about this decision is that it highlights the collaborative process of securing a zoning variance. More specifically, it serves as an example of how Zoning Boards can suggest to an applicant that securing a LEED certification could add significantly to how favorably the application is viewed.   The Doylestown Zoning Board previously denied the Applicant’s request for a variance.  In an effort to improve one of the Doylestown central residential districts, the Board requested that the buildings obtain a LEED Silver rating.  The building owner could have certainly fought the request by the board.  Instead, the building owner likely realized that it was in his best interest, as well as the interest of the surrounding area to agree to secure a LEED Silver certification on any new/renovated buildings.