Green Building Law Blog : Green Building Lawyer & Attorney : Shari Shapiro: Calliope Communications, LLC

• Email This
• Print
• Trackbacks
• Share Link

Yesterday, the USGBC launched LEED ND, the program for certifying neighborhoods as green in cooperation with the National Resources Defense Council (NRDC) and the Congress for the New Urbanism (CNU). I am a big fan of the concept of LEED ND, because (as I have discussed extensively on prior posts), a green building on an unsustainable site is not green.
According to CNU, LEED ND:

integrates the principles of new urbanism, green building, and smart growth into the first national standard for neighborhood design, expanding LEED's scope beyond individual buildings to a more holistic concern about the context of those buildings.

However, certifying neighborhoods automatically requires that the timeframe is much longer than that required for individual buildings, and may incorporate many different owners of different parcels and over the lifecycle of the project. According to the USGBC, LEED-ND projects will typically comprise of numerous buildings within a geographical area of up to 320 acres.
To address these issues, LEED ND has a different registration process. Projects are registered at three different stages of development:

Stage 1 – An application for Stage 1 may only be submitted for those projects that have achieved land use entitlement for no more than 50% of the square footage of all buildings within the project boundary, whether new or renovated, as measured on an aggregate basis.
Stage 2 – An application for Stage 2 may only be submitted for those projects that have achieved land use entitlement by public authorities with jurisdiction over the project for 100% of the square footage of all buildings within the project boundary, whether new or renovated. The project may be under construction or portions completed, but may not have more than 75% of its total building square footage constructed, whether new or renovated.
Stage 3 – An application for Stage 3 may only be submitted for those projects that are completed. A project is complete when: i) the appropriate regulatory authorities have issued certificates of occupancy (or other official designation that such facilities are fit and ready for use) for all buildings within the project and have accepted all infrastructure within the project; ii) every aspect of the project that pertains to a prerequisite has been completed; and iii) every aspect of the project that pertains to a credit that is being pursued has been completed.

At Stage 1 and Stage 2, GBCI will award an official designation to a project team rather than full certification. These official designations indicate that if a project is completed consistent with the information provided in the project application, then such completed project should satisfy all prerequisites and achieve a minimum number of points outlined in the LEED for Neighborhood Development rating system such that it should be eligible to receive LEED certification at a particular level, such as LEED Certified, LEED Silver, LEED Gold or LEED Platinum. At stage 1 a successful project team will be awarded “Conditional Approval of a LEED for Neighborhood Development Plan.” At stage 2 the project team is awarded a, “Pre-Certified LEED for Neighborhood Development Plan.”

This, of course, leads to a fundamental issue which vexes any land approvals process—what happens when the certification criteria change over time. With a standard land approval, like zoning, projects are generally subject to the laws that were in place when the project was submitted to the regulatory body. This is also how projects registered for LEED Certification have also been treated. Not so with LEED ND. According to the USGBC,

LEED-ND projects are not grandfathered to the rating system requirements in place at the time of initial registration…Under LEED-ND, projects can be registered a total of three times, once at the initiation of each stage. The rating system requirements are locked in for a particular stage at the point the project is registered for that stage rather than when it is registered at the initial stage.
So, you can begin a project under the requirements of LEED ND 2009, but be held to the standard of LEED ND 2018 when the project is ultimately completed.

I asked Susan Dorn, General Counsel for the USGBC about this “moving target” issue.

We are treating the registration for each stage independently. It is possible that people will not go beyond the first stage of registration, and likely in some instances. A lot of things happen with development on these long timelines. We also didn’t want the market to think that a project that was started 20 years ago was compliant with current LEED requirements. While the USGBC cannot commit, the issue of grandfathering will be something that we will keep in mind as the rating system develops. For 2012 the idea is that those persons that are working to develop LEED ND are aware of the issue, and there may be something akin to grandfathering.
Beyond whatever grandfathering may be built into subsequent versions of LEED ND, there is a section of the certification policy manual that addresses hardship. GBCI has some discretion with respect to credits which are impossible for a project to achieve. On the other hand USGBC doesn’t want to undermine the concept of LEED moving forward and mislead consumers. That is the tension.

I recommend that the USGBC develop a credit exemption process, by which LEED ND projects can demonstrate that complying with the as written requirement is impossible, and proposing an alternative. Since the timeframes are long and the projects are complex, some flexibility needs to be built into the system for it to be successful. No zoning code could exist without a mechanism for variance. This is what LEED ND needs going forward.