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

Although most of you are probably in St. Martin enjoying fruity cocktails on the beach, we here at GBLB are hard at work.  So take a break from your mai-tai to read about a very interesting appellate decision out of California on weighing the relative priorities of green development.  The case, brought to our attention by a loyal reader, is Sven Toorvald v. City of West Hollywood, and the decision is available here.

A quick summary of the case is as follows:

Mr. Toorvald installed a small solar panel to power his halogen security lights, presumably like the one available here from Amazon.com.  Importantly, the Court notes:

The opening brief describes plaintiff's system, "an industry standard collector (one foot by one-foot comparable in size to a solar panel on a freeway call box), separate inverter and storage battery, [which] collects, stores and distributes solar energy for electrical generation."

Next door, a developer sought to build a four-story, nine-unit courtyard condo building with subterranean parking.  The development was a "green" development in that it complied with the West Hollywood green building regulations, was a "high achieving" green building project that qualified for an additional unit density bonus and had solar panels.  In addition, the project was an urban in-fill project.  

The controversy emerged because the green development was going to "cause an obstruction to his solar absorption for eight months of the year."  Mr. Toorvald alleged that this violated Municipal Code Section 19.20.170(A) which  mandates:

A structure, fence, or wall shall not be constructed or modified in a residential zoning district, and vegetation may not be placed or allowed to grow, so as to obstruct more than 10 percent of the absorption area of a solar energy system on a neighboring parcel at any time.
 

The trial court determined that Mr. Toorvald's solar lighting installation was not a "solar energy system," and therefore its obstruction did not violate Section 19.20.170(A). 

To justify this conclusion, the trial court and the appellate court go through a convoluted set of contortions to conclude that a solar panel that produces electricity for a lighting system is not "Any solar collector or other solar energy device whose primary purpose is to provide for the collection, storage and distribution of solar energy for...electricity generation..."

If that sounds like a silly argument, it is. What the courts were really trying to resolve is whether a high-value green development project was "worth" more than a tiny solar light.  The problem was not in the decision--I believe that the court and the city council rightly decided that an appropriate, in-fill green development should be approved.  The problem was in the justification, and the clumsy regulatory drafting which it uncovered.  "Solar energy system" was not defined in the Municipal Code.  The definitions that the Court refers to in state legislation were equally broad. 

Now that green buildings and renewable energy installations are becoming more commonplace,  city councils and planning commissions will be forced to weigh the environmental impact of competing development.  Is an in-fill development more environmentally worthwhile than a tiny solar installation? Just like health and safety regulations, these regulatory bodies will need to have discretion and guidelines to weigh the relative factors on environmental impact.

Because if it looks like a solar energy system and it quacks like a solar energy system, it probably is a solar energy system.

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The wild west is alive and well, and in New Jersey. 

I have a client there who consults with farmers who own wide swaths of land and with renewable energy companies that are looking to develop solar farms on that land.  He describes the phenomenon as a "land grab," where the renewable energy companies are trying to tie up the land available for large scale renewable projects, and landowners are trying to find the best deal for their land.  The land grab is fueled, in part, by the favorable incentives New Jersey provides for solar projects, and a renewable energy portfolio standard of 22.5% by compliance year 2020-2021.

California--the site of the original gold rush--is primed to see another one.  On September 24, California regulators raised the state's renewable energy portfolio standard, the requirement that power companies obtain a certain percentage of their power from renewable sources,  to 33 percent by 2020.  California's renewable energy portfolio standard was already 20%. 

The fever for gold in them there hills (and valleys and rooftops) could soon spread nationwide.  Sens. Jeff Bingaman (D-N.M.), Sam Brownback (R-Kan.), Byron Dorgan (D-N.D.), Susan Collins (R-Maine), Tom Udall (D-N.M.), and Mark Udall (D-Colo.) introduced the Renewable Electricity Promotion Act on September 23, which would: 

install a renewable portfolio standard (or renewable electricity standard, in D.C. parlance) requiring states to generate at least 15 percent of their electricity from renewable sources by 2021

 DSIRE has a nice map with all the portfolio standards for states nationwide.

What does this mean? 

Where green buildings are concerned, higher renewable energy portfolio standards will mean that utilities are looking for additional sources of reneable energy, so it will pay for large scale projects like big box stores, hospitals and manufacturing facilities to incorporate solar into their designs.

Also, because the real estate market has been largely dead for big projects, open space that might have once been yet another shopping mall or housing development may be more likely to go to solar farms and other large scale renewable energy projects. 

But, optioning land for renewable energy projects does not mean that all the renewable energy potential will be realized.  For example, Goldman Sachs, no stranger to the speculation business, has tied up land in Nevada for solar farming:

A Goldman Sachs & Co. subsidiary with no solar background has claims with the BLM on nearly half the land for which applications have been filed, but no firm plan for any of the sites.
 

For the policy makers, the key will be to incentivize projects coming to fruition, not to facilitate  pyramid scheme of tying up land with the hopes of flipping it to later developers of power projects. The task is to balance spurring the growth of the renewables market without creating a solar bubble in the process.  

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Earth2Tech ran two stories recently on backlash by customers against utility companies for unusually high electricity bills after smart meters were installed. 

In Bakersfield, California, a homeowner actually sued Pacific Gas and Electric on behalf of himself and a class of smart meter recipients:

The original plaintiff, Bakersfield resident Pete Flores, filed the suit after his electric bill tripled fro $200 to $600 a month — right after having a new smart meter installed in his home. Objecting that PG&E described the meter as a money-saving device, he decided to sue for fraudulent advertising, negligence and unjust enrichment

The complaint is available here.

The only evidence of the alleged fraudulent, negligent and unjust failure to accurtately measure Mr. Flores' electricity was an increase in his bills, with "no change in usage pattern on the part of Plantiff."  Complaint at 5.  Evidence of complaints of fellow class members comes from:

countless complaints on the internet, over 100 complaints to activist group TURN (The Utility Reform Network) and a special meeting led by State Assemblyman Dean Florez...

Complaint at 5.

After reading the Complaint, I have a few questions:

1.  What evidence is there that Mr. Flores did not change his usage patterns other than his electricity meter reading?

2. Is it possible, that, as compared to the meter maid stopping by and checking your traditional meter, a smart meter is actually accurately measuring electricity usage, and Mr. Flores was actually being poorly measured, BEFORE, not after the installation of smart meters? 

3. What is the misreading rate of meter maids? More than 100 complaints across the state of California for the same time period? 

Smart grid technology, and smart meters are grassroots level green building technologies which are likely to effect millions of homeowners nationwide.  It is likely that we will see more lawsuits like Mr. Flores'. 

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Today on CNN.com, there was a little piece on the non-acceptance of aerated concrete material pursuant to the California Building Code. 

According to CNN:

AAC is a mixture of sand, water, lime, portland cement and aluminum powder that is formed into blocks and cured in an autoclave, a sort of industrial pressure cooker. It has been used in Europe, where it was invented, for more than 70 years.

Besides being fire-resistant, AAC also deadens sound, is energy efficient, is impervious to termites, is bulletproof and waterproof, generates no waste in its creation, and can be recycled, its fans say.
 

We all know how important it is to live in a green, not to mention bullet-proof, structure, so one would think that a progressive state like California would allow for the use of this material.  Not so, says CNN.com, because AAC has not been tested for its seismic resistance.

"Autoclaved aerated concrete cannot be used to resist seismic forces because it has not been seismically tested," said David Walls, executive director of the California Building Standards Commission in Sacramento. The restriction is based on guidelines from the National Earthquake Hazards Reduction Program, he said.

The AAC issue is illustrative of the issues which accompany incorporating new materials into traditional building code structures. 

First, you have the issue of overlapping regulatory interests, like promoting energy efficiency and preventing buildings from crushing people during earthquakes.

On top of these regulatory interests, you have administrative considerations.  Most states adopt the International Building Code or some form of it on a regular schedule.  New materials and products may emerge as salient between upgrades to new code systems.  In addition, not all of the code may be adopted.  In this case, California adopted the 2006 IBC without the companion housing code which would have included acceptance of AAC in seismic areas, according to a CNN.com source. 

Finally, there are the political considerations.  From the AAC example, manufaturers of competing products may intrude with acceptance of the provisions of the building code which allow for new materials.  

Greening the building codes is not a simple task--competing administrative, regulatory and political forces must be managed and balanced.  Even with the best of attention to each of these considerations, there will always be examples like AAC which fall through the cracks. 

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There was a nice article on Triple Pundit this AM on the positive impacts on business that the California green regulations have had. 

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