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VOL. CXCIIV - NO.8 - INDEX 702 NOVEMBER 24, 2008 ESTABLISHED
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Corbett is Of Counsel in the
Environmental Practice Group and
Hopkins is a senior Associate in the
Business and Real Estate Practice Groups
with Patton Boggs in Newark.
Developing Green into Green
Reprinted with permission from the November 24, 2008, edition of
the New Jersey Law Journal. 2008 ALM Properties, Inc. All rights
reserved. Further duplication without permission is prohibited.
For information, call 973.854. 2923 or
[email protected]. ALM is now Incisive Media,
www.incisivemedia.com
Strategies for green building success
By John C. Corbett andChristopher D. Hopkins
The rise of so-called green buildinginitiatives at every level
of govern-ment in New Jersey, combined with
private sector incentives and pressure togo green in the midst
of the current eco-nomic chaos, has created a green perfectstorm of
sorts for New Jersey developersand businesses trying to sort out
theirlegal obligations and business strategiesin 2008. Developers
and busi-nesses generally evaluating their green
building objectives first must assess whatthey need to do under
existing regula-tions from the local level on up, thenmake the call
on whether green buildingoptions not mandated by governmentare
nevertheless worth the investment.Contemplating these options under
theweight of the escalating economic pres-sures makes each green
call a criti-cal one. To address these issues, NewJersey businesses
should first evaluate thelocal regulatory climate, carefully
selectprofessionals capable of implementing
whatever options are chosen, and mostimportantly negotiate
critical elementsof the design and construction contracts
to clearly define the responsibilities andallocate the risks
associated with green
building.From a practical standpoint, there
is little empirical data to suggest thatgreen building shorthand
for sustain-able design, construction and operation positively
impacts the economics ofany given project. Yet for the past
year,the green building boom has proceededpretty much unabated.
While the realestate industry is retrenching in todayseconomic
climate, and no one can predictthe fate of any forward-thinking
approach
to construction projects, the NationalAssociation of
Homebuilders (NAHB)and McGraw Hill not long ago estimatedthat by
2010, as much as 10 percent or $8billion dollars of U.S.
residential construc-tion activity will be green. This past
yearalone saw a 400 percent increase in thenumber of NAHB state and
local associa-tions with green committees, councils andworking
groups. Though the pace may beslowed somewhat by the economic
down-turn, the trend toward green building isclear and will not
reverse course.
Green builders first must understandhow to comply with green
mandates atevery level of government so they knowwhat it takes to
get a certificate of occu-pancy, obtain permits, earn tax
creditsand access other incentives. A diligentreview of state and
local requirementsand incentives should include
preservationordinances, neighborhood design controls
and local sustainability requirements suchas regional sourcing
of materials, emissions controls for construction equipmenand
utilization of recycled or sustainableharvested materials. It is
also worth know-ing what regulations and ordinances arein the
pipeline, and which requirements
are being challenged. For example, inJuly, a group of HVAC and
water heat-ing equipment contractors, distributorsand trade
organizations sued the City ofAlbuquerque to block the energy
effi-ciency provisions in the citys high perfor-mance building code
on the basis that thecode is pre-empted by the Energy Policyand
Conservation Act of 1975 and otherfederal laws.
At the state level, New Jersey has agrowing number of green
building initia-
tives overseen by NJDEP, the Board ofPublic Utilities, Economic
DevelopmenAuthority, Housing and MortgageFinancing Agency, Commerce
andEconomic Growth Commission and theNew Jersey Redevelopment
Authority. Onthe legislative side, the high performancegreen
building standards enacted for newbuildings greater than 15,000
square feeapply only to buildings solely for state useUnder these
requirements (N.J. Stat. Ann52:32-5.3 et. seq.), the buildings must
meethe Silver standard set by the U.S. Green
Building Councils Leadership in Energyand Environmental Design,
or LEED pro-gram, or an accepted equivalent such asthe Green Globe
standards developed inCanada.
In what may signal a shift to a morelocal focus, this August the
New Jerseylegislature authorized municipal planningboards to adopt
green building standards
Environmental law
