How to Regulate Green in Virginia
Last week, we discussed a law in Virginia that prohibits municipalities from creating green building codes or mandates. In short, Dillon's Rule only grants to municipalities those powers that are explicitly granted by the state. The Virginia Code has specifically granted the power to create a building code to the state; municipalities, on the other hand, can create zoning ordinances.
Recently, I had the pleasure of sitting down to speak with Joan Kelsch, Environmental Planner for Arlington County, about the Arlington County green building programs. Arlington County has taken advantage of the opportunity to create zoning ordinances by promulgating two programs that stimulate the development of green building projects: (1) a Site Plan Program; and (2) a Bonus Density Program.
Lets start with the Site Plan Program. According to Kelsch, in Arlington County "green building policies are technically voluntary but site plan projects do allow Arlington County to ask for specific proffers from developers."
What is a site plan project? A site plan is a large project that requires a special exception to the zoning ordinance in order to be built. Because site plans require an exception to the zoning ordinance, Arlington County is able to require specific green building requirements, including:
(a) LEED™ Accredited Professional
(b) LEED™ Scorecard.
(c) LEED™ Tracking.
(d) Construction Waste Management.
(e) Energy Star Appliances.
In addition, Arlington County is also incentivizing green building development through its Bonus Density Program. Under the Bonus Density Program, projects larger than zoning would normally permit are allowed if the developer promises to achieve a specific LEED certification level.
We will be looking at Arlington County's Bonus Density Program in more detail, in part, because the enforcement mechanism involves a four-letter word that has created problems in Washington, D.C. (hint: bond).
Related Links:
- Virginia Green Building Regulations: Avoid the Building Code (GLBU)
- Green Building Regulations in Virginia: Zoning In (GBLU)
- Environmental Services (Arlington)
- Green Building Incentive Program (Arlington)
Chris -
According to the Green Building Incentive Program in Arlington, it states that "the program will allow the County Board to consider a modification of use regulations for additional density between .15 and .35 FAR and/or additional height up to 3 stories for special exception site plan requests. The site plan proposal must guarantee a LEED rating at the Certified award level or above (Silver, Gold or Platinum). "
The word that makes me, the fear monger insurance counselor, nervous is "guarantee." What happens if the project does not achieve or receive the LEED certification as required?
These two implementation requirements also make me nervous:
#10. If during construction, the developer is unable to include required green building components, or if the inspector/architect finds that the developer failed to include these components, then the County will pursue enforcement. (what do they mean, enforcement?)
#11. The Master Certificate of Occupancy will be issued when the building is LEED certified (at the agreed upon level or better) by USGBC and construction is consistent with the approved site plan. Certification by USGBC will be obtained when the building is complete and the developer has constructed or installed the approved green building components previously identified.
I have relatives that live in Arlington (clarendon, actually) and they have asked me about this. Thanks for putting it up!
Comments?
Great post as always, I shared it through my tumblog. The comment above is well taken. The devil is in the details and enforcement. But we all knew that didn't we?
Mark - I love it when people write great responses. Thanks for posting the text of the incentive program.
Great question regarding "guaranteeing" certification. I briefly touched on the issue in the last paragraph of my post. The owner must put up a bond guaranteeing certification. I was able to confirm that two bonds have already been achieved for this purpose.
You have also touched on how Arlington uses the certification of occupancy as an enforcement mechanism.
As I always say, if you see a green building regulation, determine what the enforcement mechanisms are. These mechanisms create your risk and potential damages.
Anyone have any other thoughts?
Chris - as always, thanks for reading, commenting and linking my blog.
Everyone - lets use the comments to discuss the details! There is a reason I glance over them in my posts...so we can discuss!
Show me that bond! I need to see it!
Show me that bond! I need to see it!
I just spoke with Joan Kelsch, the coordinator of the Green Building program in Arlington County because I couldn't wait for Chris to call me back. She responded to my concerns as indicated above:
The "Guarantee" that is required for a project to achieve a LEED certification is achieved through a collaborative effort of the County and the Developer, Architect and Construction team. She indicated that many construction professionals are proficient in green and LEED-related construction methods and that guaranteeing certification, in her words, is not too much to ask given the present landscape.
However, when asked how the county plans to enforce these incentives, she mentioned 2 specific vehicles:
1. The developer must post a bond (as Chris mentioned above) that will provide a guarantee (for 3 years) that a building will achieve LEED certification. The bond can be provided by either a surety (good luck) or an ILOC (letter of credit) which many contractors are hesitant to provide early in the process since it ties up their funds, but provide it nonetheless. The bond could be called or money in the letter of credit forfeited in the event a developer or construction team fail to either achieve certification or comply with their green construction practices during construction.
2. The other form of enforcement allows the county to deny any further above-grade permits for failing to comply with the aforementioned construction practices such as inadherence to the waste management plan or IAQ management plan.
The Master Certificate of Occupancy, as mentioned above, is not required for the occupancy of a partially completed building. It was comforting to hear that the County believes that it benefits no one to have vacant, completed space while waiting for the USGBC to issue the certification. In that manner, waiting for the Master Certification is not that big of a deal as i had previously posited.
Mark