Legal Considerations For Green Retrofits

By Philip M.J. Edison

The concept of building green has entered the mainstream. More and more green projects are undertaken, and more and more people involved in construction projects are asking “what can we do to make this project green?” After the architect, often the first person to hear this question is the attorney. Green building adds an additional layer of detail to every project, and many construction practices that have been used for years are not designed to address the unique requirements of sustainability. If you intend to have your green project certified by an organization such as the United States Green Building Council (USGBC), even more issues arise.

Legal issues crop up at the earliest stage of a project, including understanding the availability and requirements for government incentives and understanding the application of government mandates. Many levels of government have been passing both green incentives and green requirements at a rapid pace over the last few years. It is important to keep up with new ordinances and to determine the requirements of each. Frequently, the attorney is in the best position to offer up-to-date advice.

An issue that is frequently overlooked is the zoning code. For example, most would agree that generating electricity on-site through renewable sources such as wind power is a worthy goal, but until recently in Chicago, residential district wind turbines were effectively shut out by height limits. The zoning code has now been revised to specifically allow such turbines to be roof-mounted. Without reviewing the zoning code in advance, there is the possibility of spending architectural fees for a design that is not buildable or having to go through the lengthy and costly process of requesting zoning relief.

Many building contracts allow for the substitution of materials of a “like kind.” Unfortunately, standard contracting agreements are usually broad enough to allow builders to substitute a traditional product in place of the specified green product. For example, wood certified by the Forest Stewardship Council may have the same appearance and performance characteristics as traditional lumber. In such cases, unless the contract prohibited it, there is very little to stop the builder from performing substitutions. When specifiying green materials, it is also a good idea to require that the desired green products are available and will be delivered to the job site on time. These requirements are especially important if you intend to have the project LEED-certified and the use of specific materials is necessary to reach an expected certification level.

LEED certification is another area where many existing contracts do not accurately contemplate risks and responsibilities. Contracts produced by the American Institute of Architects now address certification issues, but many contracts in use today do not. Although an owner, or a professional hired by the owner for the purpose, is the best person to oversee the certification process, each contractor needs to understand the scope of the work to be performed from a LEED perspective, as well as the performance characteristics of the work and the certification responsibilities of the contractor. These issues need to be agreed upon in advance, at the time the contract is drafted. There is no one party who will warrant that a certain LEED certification level will be achieved, but each party on a project should warrant the work that they are to complete, as set forth in the respective contract. The combination of these warrants can help to ensure that the owner receives the expected LEED certification.

Although there are many other legal issues that arise in any green retrofit project, the point of this article is to get people thinking about legal issues from the very beginning of each project and to look for issues at every stage of the process. By identifying and addressing issues early in the process, building owners can achieve their green expectations more quickly for less money.

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