I have discussed many issues related to regulating green here at GBLB (for the Regulating Green best practices series, go here). Some communities seeking to regulate green building, clearly with the best of intentions, have gone astray. The most vivid examples of this were the Las Vegas green tax credit which threatened to bankrupt Nevada and the Albuquerque regulation which the City Solicitor failed to analyze for federal preemption issues. But small communities are not immune from regulatory snafus:
Recently, I came across a density bonus regulation for Madison, New Jersey. The regulation reads as follows (emphasis mine):
Maximum dwelling units per acre: 12 units per acre base density, with bonuses as follows:
(a) Incorporation of green building/design techniques to achieve at least a Silver level LEED-certified project: bonus of 10% over base density. (NOTE: The applicant shall demonstrate the ability to achieve this standard prior to receiving preliminary approval and shall commit to providing those systems, site improvements and design features consistent with Silver LEED certification.)
This regulation would be acceptable if the word "qualify" were substituted for "achieve." There is simply no way for an applicant to demonstrate their ability to achieve a certification which is in the hands of a third party agency at the outset of the project. Moreover, what design professional would be able to provide this type of guarantee?
The Madison, NJ example demonstrates the importance of a good understanding of the LEED system (or other certification system) before utilizing it in regulatory drafting. Design professionals need to be aware of the obligations they are assuming when a project seeks to comply with local regulations. Finally, project owners need to ensure that they can comply with the local regulations, or seek legally binding representations by the government entity ensuring that their efforts to comply are sufficient.