The Growth Of Green Building: New Laws Impact Construction Practices

By Adam L. Browser, Esq. 

To quote Bob Dylan, “The times they are a-changing.”

The construction industry is undergoing a sea change. Ever higher energy costs and concerns about global warming have prompted governments to revise building codes to increase energy efficiency and, in many cases, consider other environmental factors, such as water conservation, air quality or the use of recycled materials, in the design and construction process. This practice is known as “green” building.

Many cities across the country have adopted green building criteria, including Atlanta, Austin, Boston, Boulder, Chicago, Dallas, Los Angeles, Portland, San Diego, San Francisco, San Jose and Seattle. The most notable green building criteria is that established by the United States Green Building Council and known as LEED (Leadership in Energy and Environmental Design). Recently, New York City and the Towns of Babylon and Brookhaven adopted green building requirements, but have taken somewhat different approaches.

In 2005, New York City enacted Local Law No. 86, also known as the LEED Law, which is effective January 1, 2007. It is projected to affect $12 billion in construction financing over a ten-year period.

The LEED Law focuses on major capital projects that are financed by New York City and requires that projects be designed and constructed to meet certain designated LEED green building and energy efficiency standards. In order for the LEED Law to apply to a project, the project must be of: (a) a certain scope; (b) relate to a certain building type; and (c) be financed, in whole or in part, by the City. As for scope, the LEED Law focuses on larger projects, those in which the construction costs are estimated to be $2 million or more for the construction of a new building, or an addition or substantial reconstruction to an existing building. Substantial reconstruction is defined as work on at least two of the three major building systems, electrical, plumbing and HVAC, and affecting at least 50% of the building’s floor area.

Even if the project is of sufficient scope, the type of structure must also be considered. The LEED Law applies to buildings classified as storage, mercantile, business, indoor assembly (such as theaters, restaurants and museums), educational and institutional. It does not apply to buildings classified as high hazard, industrial, outdoor assembly or residential.

Last, the LEED Law applies to City projects or projects where the City pays $10 million or 50% of the project’s estimated construction costs.

Here on Long Island, the Towns of Babylon and Brookhaven have also taken steps to require that certain new construction meet environmental and energy efficient standards. Whereas New York City targeted large, non-residential projects, both the Towns of Babylon and Brookhaven initially focused on new residential construction. Subsequently, the Town of Babylon passed legislation that requires all new construction that exceeds a certain square footage to be built using green building principles.

In August 2006, the Town of Babylon adopted Local Law No. 23, which amended the Babylon Town Code to require new single-family dwellings to comply with LIPA Energy Star Labeled Homes Program Guidelines, including: (a) achieving a Home Energy Rating of 84 or higher; (b) achieving 500 kilowatt hours of electricity savings per dwelling unit; (c) installing an automatically controlled mechanical ventilation system; and (d) complying with the Combustion Safety Testing Standards and Procedures for Energy Star labeled homes

The legislation takes a phased approach. Commencing on April 1, 2007, before a building permit is issued for a new dwelling, the applicant must certify that the plans will comply with the Energy Star requirements for the thermal envelope, electrical savings, ventilation and equipment efficiency. Commencing in January 2008, before a building permit is issued, the applicant must also certify that the dwelling will comply with the envelope and duct leakage requirements of the LIPA Energy Star Program. Commencing in April 2008, before a building permit is issued, the applicant must certify that the dwelling will comply with all aspects of LIPA’s Energy Star Program.

There are testing and verification requirements in the legislation as well, but those can be waived if LIPA certifies that no testing or verification procedure or protocol can be applied accurately to the particular structure.

In December 2006, the Town of Babylon took another step in the green direction and passed an ordinance that requires all new construction – commercial, industrial, office and multi-family residential – to be constructed according to LEED standards, provided that the structure will be more than 4,000 square feet.

In August 2006, the Town of Brookhaven passed its Local Law No. 24, which is, in many respects, identical to the Town of Babylon’s Local Law 23. One difference is that the Town of Babylon focused, at first, on new single-family dwellings, and the Town of Brookhaven’s legislation cast a wider net. It applies the same requirements (as the Town of Babylon local law) to new single-family dwellings, multi-family dwellings, planned retirement communities and planned retirement congregate housing where the buildings contain four units or less, are three stories or less, have a separate means of egress for each dwelling, and a separate electric meter for each dwelling unit.

The Town of Brookhaven’s legislation also specifies that the certification of compliance must be from a New York State licensed architect or engineer, whereas the Town of Babylon merely requires the applicant to provide the certification.

Furthermore, the Town of Brookhaven imposes some lesser requirements upon multiple family dwellings, planned retirement communities and planned retirement congregate housing communities that are more than three stories in height, have more than four units or share a common egress. As of April 1, 2007, a building permit will not be issued for those types of structures unless a New York State licensed architect or engineer certifies that the plans comply with the thermal envelope, electrical savings, ventilation and equipment efficiency requirements of the LIPA Builder Option Package.

The changes adopted by New York City and the Towns of Babylon and Brookhaven are just the beginning. It is likely that within a few years all new construction projects, whether residential, commercial or industrial, and including substantial reconstruction of an existing structure, will be required to incorporate increased energy efficiency standards, water efficiency standards and other environmental criteria in the design and construction process.

Adam L. Browser, Esq. is a senior associate at Ruskin Moscou Faltischek, where he is a member of the firm’s Litigation Department and Construction Practice Group. He can be reached at 516-663-6559 or abrowser@rmfpc.aw-develop.com

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