In case you have not noticed by now, I am truly an advocate of infill development. I think my fascination with this particular development was highlighted in this interview by CNN with Richard Florida. In the video he highlights how America bounced back after the Great Depression. The recovery was due in part to the flight from inner cities to the suburbs. That flight was a gift and a curse in that it took our best and brightest, along with their wealth, to the emerging suburbs. We effectively built our way out the Depression. Fast forward 75 years, here we are again at a crossroads where everyone from the President to economists are trying to figure out how we recover.

“[We] must get back into the game…[we'll] be condemned to high unemployment and sluggish growth, if the 35% of the economy real estate represents is not engaged.” Patrick Doherty, Washington Monthly

What do I propose? I’m so glad you asked.

America can recover by rebuilding our cities.  The Urban Land Institute noted that there is a demand for attached housing to the tune of 25 million units by 2025; that translates into 3 million acres of infill sites scattered throughout America prime for redevelopment and new uses. If history is any indicator, we will recover-the question is how we will recover. Over the last decade we’ve seen a migration back to the city and the trend is continuing for a number of reasons. Some would argue because my generation, the Echo Boomers or Millennials, want to be near “life” and that tends be in urban centers. The game has changed. We no longer solely prefer the housing options our parents and grandparents had.

Progress has been made to raise awareness about the need to curb carbon emissions by changing the way buildings are built. I applaud the USGBC, Southface and others who are championing high performance building. I propose we shift gears. Now that we understand “green building” as means to curb emissions, we need to understand infill development as alternative to suburban sprawl. Many local governments don’t have policies in place that encourage infill development whereby developers opt for the lesser expensive suburban model.

“There’s a frequent obstacle: neighbors’ opposition to infill development and the extra density it adds. But neighborhood doubts can often be satisfied by collaborative planning and prospects of quality redevelopment near transit stops, as well as attractive makeovers of obsolete shopping centers and low-grade strip commercial corridors. Plus, downtowns, universities and medical centers are new magnets for quality redevelopment.”

From “Compact Real Estate: The Stimulus We Need” Citiwire.net

Construction jobs were halved in Florida, Nevada and Arizona. What if we took the charge to build more sustainable cities? What if we built out half of the 3 million acres with walkable, transit oriented developments? Millions would be put back to work. Instead of putting lipstick on a pig, yes, I’m talking about GM, let’s redirect those funds to help cities incorporate policies that incentivize developers to pursue infill developments.

There is a stimulus package for you.

I have spoken on many occasions at Construction Law Musings and elsewhere about the risks and rewards for contractors found in sustainable construction. The rewards were fairly apparent. New markets, government incentives and the desires of owners to be “green” clearly point toward a need for contractors to get into the sustainable building game.

However, when I was first writing my Eeyore like thoughts most of the thoughts of all us construction attorneys were speculative. Whether because wholesale “green” construction was relatively new or because the court process was relatively slow, there were not many ways to test if our, shall we say “less optimistic,” predictions were going to come to pass.

For better or worse, several of the more dire predictions have come true. One major green construction debacle is the Destiny USA litigation. I cannot possibly set out all of the various issues as well as my friend and colleague Chris Cheatham does in his e-book about the project and its aftermath (.PDF). I highly recommend this e-book and the posts found at Chris’ Green Building Law Update blog for those of you interested in how the IRS, the USGBC and the Green Bonds Program interact to cause many a pitfall for construction and design professionals.

Another scenario that has always been at the back of my mind is the potential liability found in the engineering aspects of these construction projects. As I have said before, contractors, subcontractors and engineers are all interacting with new building materials or using tried and true materials in new ways. This type of innovation is both laudable and risky. Without years of engineering data or an eye toward the potential future issues, AEC professionals can get caught in a liability bind.

This scenario came to a head in the case of the Chesapeake Bay Foundation building in Montgomery County, MD. In that case (described well at GBLU), the Foundation wanted “green” building materials in their local headquarters. The Foundation then used “green” Parallams in the construction of the roof truss system (among other elements of the building) in order to meet its goal. Despite assurances from the supplier of the parallams, a Weyerhauser subsidiary, that these beams would survive exposure to the elements, the parallams began to rot and the building became potentially unsafe. Needless to say litigation ensued.

At the risk of sounding like I’m saying “I told you so,” these scenarios are just the sort of scenarios that my colleagues and I have been discussing. I am far from happy to be among a group of folks that have been shown to be correct. I am fully behind the move to sustainable building and do not want to see these hopefully isolated incidents put a damper on that laudable movement. However, these examples show the need to anticipate risks and work with construction attorneys, architects and engineers knowledgeable in the practical and legal aspects of risk management in sustainable building.

On a more optimistic note, and despite the title of this post, I do not believe that the sky is falling. If anything, these incidents should give us the ability metaphorically get our umbrellas up and anticipate these risks better in the future. With the added knowledge that these cases provide, we can carefully move forward to a future in construction with a strong sustainable base.

Green Building is all the rage. From the latest version of LEED, LEED 3.0, to discussions of “LEEDigation.”

After decades of declining productivity, the facility design and construction industry is beginning to benefit from powerful technologies that are poised to transform the way we design, construct and operate buildings. These technologies are commonly referred to as “BIM,” the acronym for Building Information Modeling. I personally prefer VDC, or Virtual Design and Construction, but let’s stick with BIM for the sake of conformity.  

The benefits of BIM are so compelling that they have ushered in whole new project delivery methods, relationships and workflows. Many A/E firms and construction companies have begun to embrace BIM, and are seeing substantial improvements in productivity, construction quality, budget and schedule control.

At the heart of BIM is 3D computer modeling, which greatly enhances the ability of project stakeholders to visualize, collaborate and coordinate their efforts toward the shared goal of completing a project efficiently. Construction prefabrication, decreased materials waste, and enhanced energy modeling applications all dovetail nicely with virtual models.  The lifecycle view of the sustainability world also rings true with BIM, as the model is well-suited for use as a virtual, real-time, as-built owner’s manual, throughout the lifecycle of the facility. Thus the marriage of BIM and sustainability is a potential virtuoso performance in the making.

As facility owners and managers have become savvier of the opportunities for cost savings and operational efficiencies afforded by BIM, they have moved towards mandating that their new facilities utilize BIM, just as many have with LEED. Because “BIM” means various things to differing parties, those owners who have also established standards to define processes, requirements and protocols, have realized the greatest benefits. In doing so, they have defined a roadmap that should not only produce a better, cheaper, faster facility, but also deliver a final, as-built BIM–a digital asset which will provide the foundation for 21st Century facility management.

Among the early-adopting agencies now requiring BIM for all their projects are the GSA, US Army Corps of Engineers, NASA, Veterans Administration, State of Texas, State of Wisconsin and Indiana University. Many others have now followed suite, and the National Institute of Building Sciences and its buildingSMART Alliance have played a leading role in blazing the trail, in development of standards and fostering software interoperability, a major challenge facing the nascent industry.

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Bob Munger, President of Munger Associates Consulting, LLC, is a Georgia licensed Architect, Certified Construction Manager (CCM) and LEED AP.  Recognizing the power BIM to transform the facility design, construction and management processes, he has made virtual design and construction a cornerstone of his practice. A LEED AP since 2003, Mr. Munger also envisions a synergistic relationship between BIM and sustainability.

The blogs have been crackling for several weeks with reports and analysis of the LEED “challenge” process.  Chris Cheatham devoted a multiple part series to analyzing the challenge filed and ultimately rejected to the LEED Gold certification awarded to the Northland Pines High School in Wisconsin.  Shari Shapiro has discussed the same and included an interesting interview with the challengers discussing their reasoning for the protest.

Without getting too bogged down in the technical details of the Northland Pines case that are covered elsewhere, I would highlight a couple important takeaways from what we have learned from the Northland Pines challenge case:

1. Currently, anyone can file a challenge – there are no standing requirements whatsoever.  If anyone can file a challenge, the threat to projects, and to LEED, is that anyone will file a challenge.
2. There are very loose/limited guidelines or rules on procedure, hearings, document and information exchange and the like in the challenge process.  Look for a future revamping adding more clarity in the challenge process rules.
3. It appears that USGBC permitted Northland Pines to correct, amplify and update its submittals during the challenge process to demonstrate compliance with the prerequisites.  USGBC needs to make clear whether certification requires bright line compliance based on initial submittals and information, or whether they are more interested in allowing some wiggle room as long as the project meets the standards at the end of the finish line.  Failing to make this basic philosophical tenet clear is not fair to project participants, opens the process to future inconsistency during later challenges, and ultimately threatens the credibility (and thus potentially the viability) of the USGBC process.
4. Last point, which may be the biggest and has not really percolated as a point of focus: as currently conceived, the LEED challenge process adds another completely unpredictable line item expense to the process.  The challenge process may also add another angle of attack on projects for unhappy losers in bidding, neighborhood NIMBY uprisings, and competitors that may want at low cost and effort to financially damage their opponents. At least courts have a theoretical sanctions approach to address complaints filed in bad faith.  USGBC should strongly consider adopting rules that require a USGBC member to certify the challenge as being in good faith, along with membership penalties or sanctions for individuals signing off on complaints that have zero merit.

The challenge process in theory may add an important element of credibility, verification and transparency to LEED certifications.  As it stands though, there are loose rules, no standing requirements, and one can easily file challenges even in bad faith without facing any impact.  If we start seeing a rash of such challenges, we may start also seeing a growing movement away from LEED certification due to increased unpredictability.  The current challenge structure presents some serious risks and issues moving forward and needs to be the subject of significant thought and retooling to avoid future problems.

It’s a beautiful, warm spring day here in Richmond, VA.  The sprinklers were going in neighborhood yards as I left for work this morning and the clouds are moving lightly on the breeze.  With the sun shining and the birds chirping outside of my office window, even I and my old pal Eeyore could smile and see some optimism for the future.

Activity abounds in the sustainable building world.  California is implementing the first state wide “green”  building code and, according to my friend Imad Naffa (@imadnaffa on Twitter), that state will be pressing builders and developers to build in a sustainable manner.  Governmental units, both small and large, are seeking to add zoning or other incentives to build in a sustainable manner.   More and more developers are seeking LEED certification (though this certification is sometimes subject to challenge).  All of these signs point toward the desire for a more energy efficient and responsible built environment.

The dad in me wants this badly and quickly.  Better air quality, less energy use, and a more predictable weather pattern (to the extent that weather is predictable) can only lead to a better future for my kids.  However (and this is where you should get the “here he goes again” look on your face as you read this), the sad little donkey on my other shoulder is always reminding me to step back and take a quick look at the big picture.

The enthusiasm for the sustainable construction paradigm is laudable but should not overtake some sensible discussion of risks and costs.  Questions (several of which I have discussed at Construction Law Musings) that should be considered during the policy phase of this enterprise are as follows:

• What are the costs to a private developer of forced “green” building that cannot be tailored to a particular project?  Will these costs preclude certain development?
• Can the insurance industry catch up with the regulators?  Without proper insurance coverage, contractors may not be able to justify construction.
• How does the use of LEED (a laudable private rating system that can change without the usual legislative process) in certain zoning and building requirements create risks for the owners, architects and builders?
• What about simple time horizon risks?

None of these issues are insurmountable and I remain optimistic that we can deal with them in a rational fashion.  While I don’t know the answers to these questions from a legal risk management standpoint, as a construction attorney and father, I feel that I would not be promoting a permanent change without bringing the questions to light so that they don’t surprise us and kill this hard fought momentum.  Once many of these questions are considered carefully, we may decide that some are simply too small to deal with, while others are highly relevant and should be dealt with before the courts make the decisions for us.  Once the questions are in the open and some answer is reached, a more permanent foundation for a brighter, more energy efficient future will arise.

Let me close by saying that because of folks like Yahya Henry and the other contributors here at Aribra, and the many great friends I have met along the way, Eeyore is getting quieter and quieter as time goes on.

A recent article at the Ahead of Schedule Blog brings up a project owner’s perspective on “green” building.

The article starts by stating that:

Despite the explosion of articles, seminars and webinars on green building and development during the last year or so, there is a dearth of information in the development world regarding what project owners and developers who do want to build a green project should actually put in their design and construction contracts.

The post then lists several good points regarding what a construction project owner should look for and request in its contracts, particularly with a design professional.

My blog, Construction Law Musings generally discusses these issues from a contractor, sub-contractor or construction attorney’s perspective and the potential liability inherent in constructing such projects and this article has much to recommend it, and not just from an owner standpoint.  The fact remains that owners will be seeking sustainable building, whether through LEED or some other energy efficiency or environmental measure.  Project Owners will either chose sustainable building for economic or moral reasons, or through government mandate.

Knowing the other side’s playbook is one way that a football team can prepare, the same holds true in pre-construction negotiation of contracts. Knowledge of the types of contractual provisions an owner will seek to include in a construction contract can and will go a long way toward a general contractor’s ability to negotiate a proper contract, both with the owner and its subcontractors.  A working knowledge of the possible issues between owners and architects will inform a contractor’s working knowledge of the benefits and potential liabilities inherent in “green” building and keep it ahead of the curve.  Such knowledge will also go a long way toward dealing with these issues of human action and the long time horizons inherent in sustainability.

In short, just like a football coach who would love to know the other teams next play, contractors should be sure to check out this article and it’s insight into an owner’s “playbook.”

For more on this check out fellow Aribra contributor Tim Hughes’ post at the Virginia Real Estate, Land Use and Construction Law blog.

A recent post by my friend Andrea Goldman raises the interesting question of “why bother with LEED certification”? The post highlights a recent profile on the highly sustainable Hutton Hotel project in Nashville which elected to forego seeking LEED registration and certification. In particular, Hutton Hotel representatives are quoted as saying:

Doing the government documents alone cost $50,000. Also, the paperwork is so complicated you have to hire an expert to do it. They make the certification a little onerous so everyone won’t pile on. You also need engineers that do testing. It’s a whole process.

If the goal truly is to develop more sustainable, energy efficient and better performing buildings, perhaps that is where a project’s generally limited resources should be directed. The question is how less technically savvy owners, developers, and even perhaps government officials are able to evaluate how “green” are these buildings. USGBC has been able to carve out a niche and indeed expand that niche into widespread identification of LEED being synonymous with green building and presenting LEED as the most credible source of third party validation of green design and construction.

The questions raised by Hutton Hotel are not unique. Indeed, last week I had a long conversation with a longtime client who builds very upscale homes. He remarked that their design and building practice had “been what people are calling green now” for years. He added that LEED did not make sense for them because of its lack of teeth regarding energy performance. These comments echo the themes of earlier discussions regarding critiques of LEED and energy performance, its efforts to incorporate post-occupancy energy reporting, and the changes in credit emphasis in LEED 3.0.

In the end, the ability of LEED to succeed relies upon its stance as an accepted source for third party validation is critically dependent on its ability to maintain credibility. It is for this reason that the recent critiques of energy performance of LEED certified buildings and the USGBC’s efforts to address energy performance issues are so important to USGBC’s long term success. It seems to us that in addition, third party validation relies in part on the market necessity to “prove” a project is green rather than having a knowledgeable marketplace already in position to make that evaluation on its own. As marketplace knowledge and information improves, perhaps the need for third party validation begins to erode over time.

Originally published at Virginia Real Estate, Land Use and Construction Blog.

If you were to ask three different people the definition of sustainability, you’ll receive three different answers; this is ours.  Business structures are moving away from models based solely on economic returns and are now considering the environmental and social returns as well. The tides are shifting.

From Mother Nature Network | Sustainability: What does it really mean?

We are perhaps transitioning from a communications age to one of sustainability.

It is the buzzword of today, used in reference to the environment, economy, development, health care, food and more. During his address last month to Congress on health care, President Barack Obama said, “our health care system is placing an unsustainable burden on taxpayers.” He is working to restructure our economy around sustainability and “green” jobs rather than manufacturing and finance as in the past.

The Dow Jones Sustainability Index now tracks the financial performance of leading sustainably driven companies worldwide. We see the ideal in the construction of our homes and businesses. Colleges and universities now are creating environmentally sustainable campuses and adding courses that reflect students’ new belief that their futures will be driven by the ideal, says Dr. Shana Weber, sustainability manager in the Office of Sustainability at Princeton University. At Princeton alone, 51 courses now address sustainability in some way, in subjects such as the economy and energy.

We use the word so much, but do we really understand what it means? Is the word so overused it is in danger of losing its meaning?

Sustainability refers to everything

The word carries a “green” connotation, but really everything is connected, says Nancy Gabriel, director of the Donella Meadows Leadership Fellows Program at the Sustainability Institute in Hartland, Vt. A world in which the environment is pristine but poverty is rampant is not sustainable. She believes the definition includes three components: the environment, economy and social justice.

“It is truly an all-encompassing word,” Weber says. “We have to look at business structures. We have to look at social structures. We have to look at almost every aspect of how we live. And so that seems overwhelming, but that’s really what it’s about. What can we do to stabilize our global environment, social and economic systems?”

The word’s modern meaning dates to 1987. That year the United Nations World Commission on Environment and Development (also called the Brundtland commission after its chair, the Norwegian diplomat Gro Harlem Brundtland) issued a report defining sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”

In time, a movement began revolving around a word that didn’t carry the negative connotations of environmentalism, Weber says. The LEED green building rating system emerged, making environmentalism more mainstream, and then Al Gore released his film, An Inconvenient Truth. The film was released at “exactly the right moment,” she says. “It was already in the air, and that film really seemed to galvanize something.”

At risk of losing its meaning

Today advertisers and marketers use sustainability to describe nearly everything. Perhaps the word is in danger of losing its meaning. But we also have been shocked by economic collapse and natural disasters such as Hurricane Katrina and the tsunami that devastated South Asia. We have watched water levels rise and glaciers melt. We understand change is necessary. Gabriel wonders whether, in fact, a sustainability age already has passed, whether instead we are entering an age of restoration or regeneration.

“People are feeling that I think our lifestyle of consuming goods, the way our lifestyle is, it has disconnected us from each other,” she says. “People are feeling that and feeling and really looking, wanting something different. And so this, all these kinds of collapses are opportunities really to restructure in different in ways.”

In a country where more is the American way, is sustainability feasible?

Embedded in our identity is a deeply held ambition to push away at boundaries. Early Americans pushed across the Atlantic and declared our independence. Then we pushed across the continent toward the West, crossing the Mississippi River and scaling the Rocky Mountains. We invented cars and planes and reached for the moon. Over time even our houses and food portions grew in size. “Where’s the beef?” we said.

That is why what has happened to our economy is so shocking and painful. The contraction we have experienced is un-American. The discouragement and humility we feel are foreign. Sustainability advocates insist they do not mean for us to lower our standard of living, but rather they want us to understand that less of many things taken together actually can lead to a better life.

Sustainability is a concept we are drawn to because it offers hope, Weber says. It makes us believe we can have both less and more at the same time, that our problems are surmountable, and the solutions lie within us.

“I think we have to shift away from this industrial growth model,” Gabriel says. “I really think there is a way to look at how to do development that’s more focused on well-being and not on this consuming of goods.”

Full | Sustainability: What does it really mean?