“Arbitration and Mediation for Architects” PowerPoint PDF Available for Free Downloading
By Gary L. Cole AIA, Esq.
A PDF of the PowerPoint presentation “Arbitration and Mediation for Architects,” presented by Gary L. Cole AIA, Esq., on December 7, 2011, as a part of Halfmoon LLC’s day-long “Legal Issues for Illinois Architects” seminar, is available for free downloading by CLICKING HERE.
[PLEASE NOTE: downloading and reading the attached PowerPoint presentation does not convey any form of continuing education credit for any reader; nor shall it be construed as legal or business advice - it is for informational purposes only.]
Copyright Gary L. Cole AIA, Esq. 2012
Read MoreBeyond Historic Tax Credits: Treasure Hunting for Historic and Non-Historic Rehab Financial Incentives
Originally Published 2011
By Gary L. Cole AIA, Esq.
[Author’s Note: The following lecture was presented on October 22, 2010 at the 2010 Traditional Building Exhibition and Conference in Chicago. Fair warning – it’s a bit longer than most LawArk posts. I’d originally intended to post it in parts, but instead, have decided to post the whole thing at once and also provide it as a PDF that can be downloaded by clicking here - to be chewed in bite-sized chunks at any reader’s leisure.
And, as always: Nothing in the following article should be construed as legal or business advice. Readers should always consult their legal or business professionals for specific advice and information.]
Gary L. Cole AIA, Esq. http://www.lawarkbuilding.com/ is Chicago-based Illinois and Florida-licensed attorney and Illinois-licensed architect. He practices design & construction law, real estate law, preservation law and accessibility law, is an arbitrator with the American Arbitration Association’s Construction Division, and is a Certified Mediator and on the roster of Mediators for the Association of Licensed Architects. He can be contacted at garycole@lawarkbuilding.com.
The following is a bullet-point summary of the lecture’s main points:
▪ A wide range of historic and non-historic incentives benefitting a property owner’s federal income taxes, property taxes, project equity requirements – far beyond those typically promoted by government historic preservation entities and preservation not-for-profits – may be available for historic rehabilitation projects.
▪ Development incentives that are not specifically intended for historic redevelopment may be available to historic rehabilitation projects.
▪ A comprehensive approach for discovering incentives available for historic rehabilitation projects should include a methodology for researching and analyzing both historic and non-historic incentives.
▪ The tools for discovering incentives are available to anyone.
▪ This lecture used the metaphor of “treasure hunting” to illustrate how to research and discover development financial incentives for historic rehabilitation as a way to frame the exercise in a more interesting way – hopefully.
Beyond Historic Tax Credits: Treasure Hunting for Historic and Non-Historic Rehab Financial Incentives
By Gary L. Cole AIA, Esq.
Introduction: I’d like to thank everyone for coming here today. My name is Gary Cole, and I’m an Illinois-licensed architect, and an Illinois and Florida-licensed attorney. 
I received a Bachelor of Architecture degree from the University of Illinois in Chicago in 1988, and a Master of Architecture degree, in its Historic Preservation option, from the Universe Illinois and Champaign-Urbana in 1992. Following graduation, I became an historical architect with the Illinois Historic Preservation Agency, during which I helped administer various historic rehab tax benefit programs, supported the National Register program, provided technical assistance in connection with state and federal preservation regulatory laws, and also worked with the National Trust and FEMA during the 1993 Mississippi floods. Also in 1993, I became . . .
Mediation and Arbitration 101 for Architects, Engineers & Contractors
By Gary L. Cole AIA, Esq.
[Gary L. Cole AIA, Esq. is Chicago-based Illinois and Florida-licensed attorney and Illinois-licensed architect. He practices design & construction law, real estate law, historic preservation law and accessibility law. He is also a member of the Roster of Neutrals for the American Arbitration Association’s (AAA) Construction Division, a Certified Mediator and an Expert Witness. He publishes regular articles for the design, construction, real estate development, historic preservation, accessibility and alternative dispute resolution industries on his website “LawArk” at www.garylcolelawblog.com and can be reached at www.garylcolelaw.com]
[Author’s note: Nothing in the following article should be construed as legal or business opinions or advice. Readers should always consult their legal or business professionals for specific advice and information.]
A PDF of the following article can be downloaded by CLICKING HERE.
With civil litigation’s rising costs, mediation and arbitration are growing in popularity as potentially quicker and more cost-effective alternative dispute resolution forums. Architects, engineers and contractors who incorporate well-considered mediation and arbitration clauses into their contracts and service agreements may have an advantage over those who do not, and, who later find themselves embroiled in costly and protracted litigation.
Mediation and arbitration, however, differ fundamentally in their approaches and some conflicts may be better resolved in one forum over the other.
Mediation Basics
Broadly speaking, mediation is a more informal dispute resolution process than arbitration in which a neutral party – a mediator – assists two or more parties in reaching a negotiated settlement on their own.
Mediation is private, confidential and generally non-binding; unless a settlement agreement is entered into by the disputing parties. Many contracts, especially design and construction agreements, contain requirements that parties attempt to resolve any disputes through mediation as a prerequisite to pursing arbitration and/or litigation.
Mediation can occur through a process known as facilitative mediation, in which parties . . .
Read MoreCorvettes and the National Register: A Landmark in Your Garage?
Originally Published 2011
By Gary L. Cole AIA, Esq.
[Note from Gary L. Cole AIA, ALA, Esq.: Government-sponsored Historic Preservation as a movement is nearing the half-century mark, and though it's done its job well, it's also due for fresh ideas and thought leadership. Actually, it’s in need of a substantial 21st century overhaul: one that shifts it from government as a strict regulator of private preservation activities, to more of a public-private partnership with government as a learned mentor and advisor to private capital investors – those who take 100% of the risk in any historic rehabilitation project.
Accordingly, this article looks at the National Register of Historic Places landmarking process as a tool for encouraging the preservation of not simply buildings and other fixed icons of American culture – but mobile ones as well.]
Stephen A. Thompson is a guest author on LawArk and a unique historic preservation professional who has been involved with more than 10,000 historic preservation regulatory and landmarking matters. He’s an Illinois-based cultural resource consultant focusing on the management and development of historic properties. Through full-time positions within historic preservation and environmental sections of the National Park Service, the Illinois State Historic Preservation Agency and the U.S. Department of Defense, Mr. Thompson has gained unique insight in the legal, procedural and budgetary planning aspects of cultural resource management. Thompson is a student of post-Napoleonic military history and is an enthusiastic participant in battlefield archaeological documentation and interpretation programs.
His CV can be viewed and downloaded HERE and he can be contacted directly at skthompson@mchsi.com.
By Stephen A. Thompson
When the idiom “historic landmark” comes to mind, some envision a grand piece of architecture regaled for its innovative aesthetic design or classical presentation. Others may visualize the landscape remains of some archaic civilization. Generally, historic landmarks are defined by entities advocating preservation as properties associated with human activity. Buildings, structures, objects and landscape sites exhibiting significance, integrity and meeting minimum age requirements can easily fall into the landmark category.
But what of the mobile mechanisms of society, those marvels of engineering without which the State of Mankind would be differently structured? Those ships, planes, trains, trucks, motorcycles, automobiles and their derivatives?
Actually, a few ships, locomotives, rolling stock and aircraft have been . . .
Read MoreLegal Issues When Historic Preservation Goes Green
Originally Published 2010
By Gary L. Cole AIA, Esq.
[Author’s Note: The following paper was presented on October 21, 2010 at the 2010 Traditional Building Exhibition and Conference in Chicago. Fair warning – it’s a bit longer than most LawArk posts. Well, a lot longer. I’d originally intended to post it in parts, but instead, decided to post it all at once to be chewed in bite-sized chunks at a reader’s leisure.
And, as always: Nothing in the following post or paper should be construed as legal or architectural advice – the contents are entirely the unsolicited opinions of the author. Parties should always consult their legal or design professionals for specific advice and information.]
The following is a bullet-point summary of the paper’s main points:
▪ Local governments that have enacted historic preservation ordinances (HPOs), and, that are considering enacting green building ordinances (GBOs) which might affect local or National Register-designated historic properties, should proceed with caution because:
- unlike the underlying legislation for most local HPOs – the NHPA of 1966, which was deliberated by the U. S. Congress and is well-vetted after more than four decades since its enactment – the entire premise for GBOs, i.e., “anthropogenic global warming” is becoming increasingly controversial, rendering GBOs increasingly vulnerable to legal challenges;
- tying compliance with GBOs to third-party energy and resource-efficiency standards such as LEED, especially for politically motivated reasons and without proper consideration of local economic development, may subject such GBOs to legal challenges;
- GBOs that fail to require prior local approval of adopting changes to third-party standards such as LEED may also subject such GBOs to legal challenges; and
- GBOs that fail to balance carrots and sticks – incentives and requirements – may have a chilling effect on local development.
▪ Depending on how GBOs are drafted – with or without due consideration of HPOs – the two ordinances may impose conflicting requirements on owners and developers undertaking the rehabilitation of local historic properties as follows:
- compliance with a GBO may impact the character-defining features of an historic property, thereby running afoul of an HPO and preventing permitting from a local preservation commission as well as disqualifying a project for historic tax incentives; and/or
- compliance with a local HPO and the National Register may prevent a property from complying with a GBO, especially as relates to achieving any required green building ratings, thereby affecting permitting and any possible financial incentives.
▪ The paper concludes with possible mitigation strategies for dealing with conflicts between HPOs and GBOs, and suggestions for cities considering enacting GBOs.
Traditional Building Exhibition & Conference, Chicago, October 21, 2010 – “Legal Issues When Historic Preservation Goes Green”
Introduction: I’d like to thank everyone for coming here today. I’m going to start by giving a brief introduction of myself, and why I think a discussion about possible frictions between green building ordinances and historic preservation laws is both timely and relevant.
My name is Gary Cole, and I’m an Illinois licensed architect, and Illinois and Florida-licensed attorney. I received a Bachelor of Architecture . . .
Read MoreGary L. Cole AIA, Esq. Speaking at the Traditional Building Exhibition & Conference in Chicago, October 21 & 22, 2010
Originally Published 2010
By Gary L. Cole AIA, Esq.
Gary L. Cole AIA, Esq., will deliver two lectures at the Traditional Building Exhibition and Conference in Chicago on October 21 & 22, 2010.
The first lecture will be held at 9:00 a.m., on Thursday, October 21 and is titled “Avoiding Legal Liability When Preservation Goes Green.” Attendees of this session will gain an understanding of how to avoid legal pitfalls that can arise when rehabilitating historic properties that are subject to both preservation laws and energy-efficiency requirements.
The second lecture will be held at 1:15 p.m. on Friday, October 22, and is titled “Beyond Historic Tax Credits – Creatively Combining and Strategizing the Use of Historic Rehabilitation Economic Incentives and Finance Opportunities.” This lecture will deal with how to treasure hunt and research, analyze and project historic rehabilitation development incentives that go beyond the usual Federal Historic Tax Credits to include such incentives as New Markets Tax Credits, historic property-tax incentives, historic façade/conservation easements, Low-Income Tax Credits, Tax-Increment Financing (TIFs), public financing, energy-efficiency tax benefits, cost segregation and accelerated depreciation, various grants and other development incentives – and how to bundle these incentives together for greater benefits.
Further details about the Traditional Building Exhibition and Conference, including registration information, can be found at the conference’s website at http://www.traditionalbuildingshow.com/index.shtml
© Copyright Gary L. Cole AIA, Esq. 2010
Read MoreADA Update – 9/16/2010: New Americans With Disabilities Act Regulations Published and Available
Originally Published 2010
By Gary L. Cole AIA, Esq.
Following up on a recent LawArk article that discussed Attorney General Eric Holder’s July 23, 2010 signature of the ADA’s revised regulations – which have been in various stages of administrative review and approval since July 2004 – the Department of Justice (DOJ) published the official text of the ADA’s regulations and the ADA Standards for Accessible Design in the Federal Register on September 15, 2010.
According to the DOJ’s announcement:
“These final rules will take effect March 15, 2011. Compliance with the 2010 Standards for Accessible Design is permitted as of September 15, 2010, but not required until March 15, 2012. The Department has prepared fact sheets identifying the major changes in the rules.”
Evan Terry Associates, P.C., one of the country’s leading ADA and Universal Design specialist architectural firms, provides an excellent collection of ADA-related resources in its September 15, 2010 newsletter, including:
1. New ADA Regulations and Standards Released Today
2. New Pocket Guide to 2010 ADA Standards
3. Pocket Guide to GSA’s ABA Standards for Federal Facilities
4. Detailed Comparison of 2010 ADA Standards to the 1991 ADA Standards (Free Download Coming)
5. NAADAC Webinar Series for ADA Coordinators and Access Specialists
As always, LawArk will continue to publish timely updates on the development of the ADA and other accessibility-related issues.
© Copyright Gary L. Cole AIA, ALA, Esq. 2010
Read MoreMoving at the Speed of Government: New Americans with Disabilities Act (ADA) Regulations Signed (Finally)
Originally Published 2010
By Gary L. Cole AIA, Esq.
In 1990, President George H. W. Bush signed the Americans with Disabilities Act (ADA), which was followed by the ADA’s first publication in 1991. On September 25, 2008, President George W. Bush signed into law the Americans with Disabilities Act Amendments Act of 2008, which became effective on January 1, 2009.
It was hoped that prior to leaving office President Bush would sign into law the much-awaited revised Americans With Disabilities Act Accessibility Guidelines (ADAAG), first issued for public comment on July 23, 2004, but, unfortunately, it didn’t happen. The ADAAG includes, among other things, the core physical specifications for accessibility under the ADA and works in concert with many state and local accessibility laws.
Upon taking office in January 2009, President Obama directed the Department of Justice to withdraw . . .
Read MorePart 2 – New Services for Architects: Helping Clients Discover Ways to Pay for Historic Rehabilitation Projects
Originally Published 2010
By Gary L. Cole AIA, Esq.
[The following is for informational purposes only and should never be construed as legal or business advice – architects should seek advice only from own their legal counsel and business advisors in advance when considering whether to undertake any of the services discussed in this article.]
The following is Part 2 of a two-part series dealing with new professional services for architects. Both parts will appear in the September 2010 issue of “Licensed Architect,” published in print and online by the Association of Licensed Architects.
3. The Secretary of the Interior’s Standards for Rehabilitation – What They Mean and What They Really Mean
Central to any project’s approval for Historic Rehab Incentives is its compliance with The Secretary of the Interior’s Standards for Rehabilitation (the “Standards”), which are published by the National Park Service (NPS) as a set of guiding concepts to ensure that properties retain their essential historic character during rehabilitation. While complying with the Standards can mean qualifying for incentives, failing to comply almost always means denial. In addition to denied Historic Rehab Incentives, locally landmarked projects that fail to meet the Standards may also fail to obtain permit approval from local historic preservation commissions.
But despite the importance of a historic rehab project’s compliance with the Standards, and, despite some of the Standard’s interpretations having become a little calcified over the decades, they most definitely aren’t carved in stone. The Standards are not prescriptive specifications; they’re performance guidelines that require interpretation on a case-by-case basis . . .
Read MorePart 1 – New Services for Architects: Helping Clients Discover Ways to Pay for Historic Rehabilitation Projects
Originally Published 2010
By Gary L. Cole AIA, Esq.
This article will be posted in two parts and a version of both parts will appear in the September 2010 issue of “Licensed Architect,” published in print and online by the Association of Licensed Architects. The following is for informational purposes only and should never be construed as legal or business advice – architects should seek advice only from own their legal counsel and business advisors in advance when considering whether to undertake any of the services discussed in this article.
PART 1 – Historic Rehab Financial Incentives and Working with Governmental Entities
Ask a roomful of architects what each thinks is the most important element of a successful project and you’ll likely receive as many different answers as there are architects answering. But nearly everyone will agree that the single most indispensable element of any project is financing – no money, no project. Real estate developers are always searching for two things: quality projects and ways to pay for them. For purposes of this article, the latter is where architects come in.
Though helping developers find ways to finance projects isn’t typically defined in their scope of services, architects involved in historic rehab may be able to expand their services and enhance their marketability by helping clients obtain Historic Rehabilitation Financial Incentives (Historic Rehab Incentives). In these challenging economic times of reduced demand for traditional architectural services, architects who . . .
Read MoreExpanding Your Architectural Services: Become an Historic Rehabilitation Economic Incentives Consultant
Originally Published 2010
By Gary L. Cole AIA, Esq.
On July 8, 2010 at 12:00 p.m., Gary L. Cole AIA, Esq. will present before the Chicago Chapter of the American Institute of Architects Historic Resources Committee at 35 E. Wacker Dr., Suite 250 Chicago, IL “Expanding Your Services: Become an Historic Rehabilitation Economic Incentives Consultant.” See http://www.aiachicago.org/events.asp for the AIA Chicago’s announcement.
The intent of the presentation is to expose architects to new ways of expanding their services by building on their core skills while acquiring new ones, based on Mr. Cole’s experiences in historic preservation as both an architect and an attorney. Architects involved in historic rehabilitation projects may be missing out on significant opportunities to enhance their practices and boost their fees by assisting developers in obtaining historic development incentives.
Many historic rehabilitation projects succeed or fail depending on their ability . . .
Read MoreThe New ConsensusDOCS 310 Green Building Addendum: Avoiding Green Legal Liability With Actions Over Words
Originally Published 2010
By Gary L. Cole AIA, Esq.
ConsensusDOCS, the construction industry’s leading standardized construction contracts and general analogue to the American Institute of Architect’s Contract Documents, recently unveiled a new contract addendum for “green building” projects – the “ConsensusDocs 310 Green Building Addendum.” The two most interesting things about the new document are: (1) that it exists at all; and, (2) that ConsensusDOCS has very cleverly taken steps to shield its member-users from what, to some, is the Achilles Heel of the entire green building movement: that in any useful design, construction or legal sense, the term “green” has no reliably consistent meaning at all. That the new ConsensusDocs 310 Green Building Addendum achieves its goals by contractually defining a project’s greenness through actions instead of words is perhaps its most admirable achievement.
“Green Building” – “Green Living” – “We’ve gone Green!” In any real design, construction or legal sense, exactly what does “green” mean? And what does “green building” mean? Ask a hundred people . . .
Read MoreAre Architects and Other Designers Missing Out On the Gold in the Green?
Originally Published 2010
By Gary L. Cole AIA, Esq.
[Disclaimer: Nothing in the following article should be construed as legal or accounting advice, nor endorsements of any parties referenced within – the contents are entirely the opinion of the author. Parties interested in learning more should always consult their tax, legal and other professionals for specific advice and information.]
Architects, engineers, contractors and other designers of energy-efficient public projects may be eligible for substantial tax benefits under the Energy Policy Act of 2005 – though it appears than many are unaware of this opportunity to effectively increase their project compensation.
Under Section 179D of the Internal Revenue Code (the “IRC”) – created as a part of the Energy Policy Act of 2005 – owners of energy-efficient commercial buildings, which generally includes federal, state and local properties, may take a tax deduction of up to $1.80/SF square foot of qualifying construction. The $1.80/SF maximum deduction is allocated at $.60/SF for each of the three following improvements: (1) the interior lighting system; (2) the heating, cooling, ventilating, and hot waters systems; and, (3) the building envelope.
While that’s great for owners of income-producing commercial properties – how does it help architects, engineers, contractors and other designers increase their compensation on such projects?
In an apparent effort to incentivize the design and construction of green public buildings, Section 179D of the IRC includes a clever provision that allows owners of “Government-Owned Buildings” to “. . . allocate the § 179D deduction to the person primarily responsible for designing the property (the designer).”
In other words, since the federal, state or local agency that owns the energy-efficient building doesn’t pay income taxes – and therefore doesn’t need and can’t take tax deductions – they can allocate their tax deducations to the “designer” (defined as “. . . the person that creates the technical specifications for installation of energy efficient commercial building property . . .”) of the building.
Let’s do the math. Suppose the “designer” designs a 100,000 SF building that qualifies for the maximum deduction of $1.80/SF. Since 100,000 multiplied by $1.80 equals $180,000, the owner can allocate a tax deduction of $180,000 to the designer.
Nice as this is, it’s important to understand . . .
Read MoreMirror Worlds: Good News For Developers, Architects and Lawyers – They Really Are Making More Real Estate!
Originally Published 2010
By Gary L. Cole AIA, Esq.
Online virtual worlds, also called metaverses, have been around for some time now, all the while growing in complexity and sophistication, first in gaming and then as online 3D social networking sites. But the majority of these are fantasy worlds – like the well-known role-playing game World of Warcraft for sword-swinging gamers, and Second Life (SL) – a metaverse where social interaction between avatars, not troll bashing, is the primary objective.
Freed of annoyances like structural engineering and material specifications, building and zoning codes, weather and oh, yes – gravity – anyone willing to shell out a few Second Life Lindens (SL’s virtual currency), can purchase virtual real estate on Second Life and build a house, a commercial building, a Harvard lecture hall, a floating museum – just about anything. And businesses are taking note as quite a few corporations and educational institutions have opened virtual operations in Second Life and extended their marketing to the virtual world.
But as imaginative constructs, fantasy virtual worlds will probably be limited . . .
Read MoreLocal Landmarking v2.0 – Are Historic Preservation’s Glory Days of Local Landmarking Winding Down?
Originally Published 2009
By Gary L. Cole AIA, Esq.
Note: Despite its title, this article in no way advocates scrapping the current practice of local landmarking, though it does propose that serious upgrades are not only desirable, but probably unavoidable.
Part 1 of this two-part series argues that a combination of possible changes in the historic preservation legal landscape and the certainty of a dwindling supply of properties worthy of landmarking may force the current practice of government-controlled local landmarking to evolve.
Part 2 of this series proposes modifying the current practice of local landmarking in a way that addresses both problems raised in Part 1 by shifting landmarking from a government-only practice to one that shares responsibilities with the private business and investment sectors, i.e., those with the capital and the appetite for risk needed to invest in historic rehabilitation – a plan I’m calling here Local Landmarking v2.0.
Part 1 – Possibly – Maybe – Depends.
“If, one day, for some mysterious reason, all the buildings, settlements, suburbs and structures built after 1945 – especially those commonly called “modern” – vanished from the face of the earth, would we mourn their loss? Would the disappearance of the prefabricated tower blocks, mass housing estates, commercial strips, business parks, modular production halls, university campuses, schools and new towns, damage the identity of our favorite cities and landscapes?
If, on the other hand, some parallel phenomenon destroyed in one fell swoop the whole of out pre-World War II architectural heritage, namely all “historic” buildings, hamlets, villages, bridges, and cities, what would be the significance of such an event? What would be a greater loss? Replacing all pre-1945 buildings with post-war buildings, or the reverse?”
Leon Krier – Introduction to “The Architecture of Community”
Since the enactment of the National Historic Preservation Act in 1966, preservationists, including local, state and federal agencies, have been busy promoting the preservation of our nation’s built environment through a number of means, including, legally designating both individual properties and districts as historic via local preservation ordinances, sometimes state landmarking programs, and by listing on the federal National Register of Historic Places.
Initially created as a response to the widespread destruction the country’s pre-WW II built environment . . .
Read MoreAt last! Green Professional Liability Insurance for Architects and Engineers
Originally Published 2009
By Gary L. Cole AIA, Esq.
[DISCLAIMER: The following discussion is intended for general informational purposes only and is expressly not offered as legal or architectural advice, nor does it constitute advertising or a solicitation of any kind. And most of all – readers should always seek legal advice about their specific situations only from their attorneys, and architectural advice only from their architects.]
First it was the lawyers. Now, professional liability insurers are dipping their toes in the reclaimed waters of the green building movement.
Argo Insurance Group recently announced its “comprehensive insurance solution for architects & engineers servicing “green” developers and owners.”
Underwritten by Lloyd’s of London, Argo’s intent is to provide architects and engineers with claims coverage for green design’s unique risks, including:
• failure of projects to achieve a required LEED certification;
• failure of projects to meet their specified energy performance criteria; and
• failure of projects to qualify for certain economic incentives related to their green certification.
While some builders’ risk carriers already offer “green” endorsements and the insurance industry in general is actively tracking the green building movement’s rapid growth, professional liability coverage for architects and engineers involved in green design and construction is something new – and welcome.
Some may see the need . . .
Read MoreThe Real Green Goblin – Emerging Legal Liability for Green Design Professionals and Contractors (Part 2.1)
Originally Published 2009
By Gary L. Cole AIA, Esq.
[NOTE]: The voice employed in Law/Ark posts is intentionally non-legal. Herein, you will find no wherefores. And, while I welcome and warmly appreciate the readership and comments of my fellow attorneys, these posts are written mostly with Law/Ark’s other readers in mind – those of you out there responding to your passions and answering your callings by designing, building and developing green projects.
And, despite the sometimes playfully polemical tenor of these posts, they’re not intended to discourage you from that pursuit, but, rather, to encourage you to pursue them with the proper forewarning and forearming.
Part 2.1 (Part 1 was posted May 18, 2009)
This is Part 2.1 of the “Green Goblin” Series, of which Parts 2.2 and 2.3 will follow shortly. The series will wind it all up with Part 3, which will address specific legal and design/construction practice approaches for avoiding the pitfalls discussed in the series.
The Green Goblin series can be summarized in one statement: “unsupportable claims about the performance of “green” design and construction may inspire a new understanding of the American legal system by those who make such claims – as defendants.”
Part 1 of this series touched on something I called “unfulfilled expectations” in green design and construction – essentially, what was expected did not occur, and/or what occurred was unexpected. Unfulfilled expectations is a simplified way of referring to some manifestation of a “breach of contract.” Breaches of contract can arise . . .
The Real Green Goblin – Emerging Legal Liability for Green Design Professionals and Contractors (Part 1)
Originally Published 2009
By Gary L. Cole AIA, Esq.
[DISCLAIMER: The following discussion is intended for general informational purposes only and is expressly not offered as legal or architectural advice, nor does it constitute advertising or a solicitation of any kind. And most of all – readers should always seek legal advice about their specific situations only from their attorneys, and architectural advice only from their architects.]
“Green” design and construction legal liability. It was, of course, inevitable that the legal profession would turn its curious eye in that direction – there’s just too much splashing in the water to ignore it. But before panic sets in, the news may not be all that bad, because in the fast-evolving world of “green” and “sustainable” design and construction, Ben Franklin had it right – an ounce of prevention truly is worth a pound of cure.
First the good news: by large, the legal profession hasn’t yet embraced the litigation potential of green design and construction the way it has, say, work-related injuries, deadly prescription drug side effects, or tobacco-related lung cancer – though a caveat to that statement will be discussed later in this post. It’s unlikely that you’ll soon see 2:00 a.m. commercials asking if you or a loved one have been injured or killed by poor site design or the loose prop of a wind turbine.
The bad news is that attorneys, especially those already practicing in construction law . . .
Read MoreNAHB’s 2008 National Green Building Standard for Residential Design and Construction Gaining Acceptance
Originally Published 2009
By Gary L. Cole AIA, Esq.
Green residential design and construction is quickly finding acceptance in the homebuilding industry. However, defining the amorphous and often interchangeable terms “green” and “sustainable” has frustrated residential developers, architects and builders seeking to address a growing market demand and, in some cases, comply with local building ordinances mandating sustainable residential development. Since green design/construction litigation has not yet achieved sufficient critical mass for attorneys and the insurance industry to provide legally defensible definitions for these terms (though this is fast evolving) . . .
Read MoreMissed Opportunity? The Historic Preservation Tax Credit Program Proposal in the “AIA’s Economic Stimulus Recommendations”
Originally Published 2009
By Gary L. Cole AIA, Esq.
Through its Renew and Rebuild initiative, the American Institute of Architects (AIA) recently released its AIA Economic Stimulus Recommendations, a set of construction-related spending recommendations for the Obama administration’s proposed economic stimulus package. Among the proposals are: $25.7 billion for “21st Century Schools”; $50 billion for various green-related construction projects and an enlargement of the Energy Efficient Commercial Buildings Tax Deduction; $12 billion for “Transit and Livable Communities,” and various business-related tax amendments.
For the sake of this posting, Law/Ark assumes that the AIA’s recommendations are based . . .
Read MoreObama Administration Directs Department of Justice to Withdraw Proposed ADA Accessibility Guidelines
Originally Published 2009
By Gary L. Cole AIA, Esq.
As predicted in a January 23, 2009 posting on Law/Ark, the Obama administration has directed the Department of Justice to withdraw the final draft of the revised Americans With Disabilities Act Accessibility Guidelines (ADAAG) from the Office of Management and Budget review process. It was hoped that prior to leaving office President George W. Bush would sign into law the much awaited revised ADAAG, first issued for public comment on July 23, 2004. The ADAAG include, among other things, the core physical specifications for accessibility under the ADA and work in concert with many state and local accessibility laws.
On January 28, 2009, the Department of Justice posted the following notice on their ADA website:
“Proposed ADA Regulations Withdrawn from OMB Review
On January 21, 2009, the Department of Justice notified the Office of Management and Budget (OMB) that the Department has withdrawn its draft final rules to amend the Department’s regulations implementing title II and title III from the OMB review process. This action was taken in response to a memorandum from the President’s Chief of Staff directing the Executive Branch agencies to defer publication of any new regulations until the rules are reviewed and approved by officials appointed by President Obama. No final action will be taken by the Department with respect to these rules until the incoming officials have had the opportunity to review the rulemaking record. Incoming officials will have the full range of rule-making options available to them under the Administrative Procedure Act.
Withdrawal of the draft final rules does not affect existing ADA regulations. Title II and title III entities must continue to follow the Department’s existing ADA regulations, including the ADA Standards for Accessible Design.”
It is unknown whether the new ADAAG will be signed into law by President Obama in 2009 or even later.
Updates will follow on Law/Ark. © Copyright Gary L. Cole 2009
Read MoreVirtual Retail: Linden Labs Buys Virtual Retailers
Originally Published 2009
By Gary L. Cole AIA, Esq.
As reported in the January 21, 2009 edition of the San Francisco Business Times, Second Life owner Linden Labs has just purchased two Second Life apparel retailers.
To translate that from virtual-speak to real world retail-speak: A real world company (Linden Labs), that leases Second Life virtual space (in the form of computer memory), to tenants who then build 3D virtual stores there (existing only in computer memory) and who sell online 3D virtual apparel to online 3D virtual representations of real-world people (avatars), for the virtual equivalents of real money (Linden Dollars) – just purchased two retail businesses, though the currency type and purchase prices are unknown.
Second life is a Metaverse, not an online game like the well-known World of Warcraft. Second Life isn’t played – it’s a place where Residents as avatars interact with other Resident avatars in a fully fleshed out 3D environment. Residents can walk, run, fly, drive cars – shop – and even teleport to different places in Second Life. From Second Life’s home page: “Second Life is an online 3D virtual world imagined and created by its Residents.” Real world companies, retailers, professionals, educational institutions, and religious organizations have established presences in Second Life. Anglicans have purchased a virtual island to construct a virtual Gothic cathedral; there’s a Second Life Israel and Muslims can now visit a virtual Hajj. The Maldives, Sweden, Columbia, Estonia and other countries have established embassies in Second Life.
With the U.S. and now European recessions in full swing, real world retail development has all but stalled. But the name of the game in retail is foot traffic – how long before retailers look beyond bricks and mortar stores to the virtual world for virtual customers spending real dollars?
© Copyright Gary L. Cole 2009
Read MoreNew ADA Accessibility Guidelines Adoption Still in Limbo
Originally Published 2009
By Gary L. Cole AIA, Esq.
The revised Americans with Disabilities Act Accessibility Guidelines (ADAAG), first released by the U.S. Access Board for public comment on July 23, 2004, were not, contrary to expectations, signed into law by President Bush prior to leaving office. In 1990, President George H. W. Bush signed the Americans with Disabilities Act (ADA), which was followed by the ADAAG’s first publication in 1991. On September 25, 2008, President George W. Bush signed into law the Americans with Disabilities Act Amendments Act of 2008, which became effective on January 1, 2009. Among its provisions, the ADA Amendments Act of 2008 reverses certain recent U.S. Supreme Court rulings. More information regarding the ADA Amendments Act of 2008 can be found on the Equal Employment Opportunity Commission’s website.
Though as of the date of this posting no updates regarding the ADAAG’s status appear on the Department of Justice’s ADA website, according to a DOJ representative on the DOJ’s ADA Information Line, the ADAAG will likely be subject to the new Obama administration’s review and a date of final adoption is unknown.
The new ADAAG features a revised format, the first major change since it was adopted and brings it into line with model building codes such as the International Building Code. The revised ADAAG’s new requirements will affect anyone in the real estate development industry including, but not limited to architects, contractors and attorneys.
Updates will follow on this Blog. © Copyright Gary L. Cole 2009
Read MoreA Tale of Two Tiffanies Restored
Originally Published 2009
By Gary L. Cole AIA, Esq.
A Tale of Two Tiffanies Restored – The Tiffany Dome at the Chicago Cultural Center and the Tiffany Chapel at the Charles Hosmer Morse Museum of American Art
Two of Louis Comfort Tiffany’s finest Chicago works have recently been restored to their original splendor – one in its original setting, the other half a country away following a century-long trek that ended in the subtropics of central Florida.
When the Chicago Public Library (now the Chicago Cultural Center) was completed in 1897, Tiffany’s 38-foot glass dome, comprised of approximately 30,000 separate pieces of art glass set in 243 separate panels adorning an iron frame, formed a spectacular focal point to the city’s new, richly detailed neoclassical library. The receiving vaults supporting the dome were covered in marble and mosaics, also by Tiffany. It remained unaltered until the 1930s when the original protective translucent glass covering Tiffany’s dome was replaced with a concrete and copper dome . . .
Read MoreVirtual Worlds Meet Real World Litigation
Originally Published 2009
By Gary L. Cole AIA, Esq.
A December 11, 2008 post on Sean F. Kane’s Virtual Judgment, “Does Worlds.com Hold the Patent for the Virtual World?” discussed Worlds.com’s recent teaming with General Patent Corporation (GPC) to enforce patents Worlds.com holds relating to virtual world intellectual property. This was also covered by Mike Sellers’ December 12, 2008 post on Terra Nova, “Worlds.com Asserting Patents on Virtual Worlds.” From Virtual Judgment:
“According to statements by Alexander Poltorak, General Patent Corporation’s Chairman and CEO, “[t]he Worlds patents represent exceptionally valuable intellectual property,” and “[w]e welcome licensing inquiries from the on-line game industry. Non-exclusive licenses are available on favorable . . .
Read MoreArchitects: Tips For Negotiating With Attorneys
Originally Published 2009
By Gary L. Cole AIA, Esq.
The January 16, 2009 edition of AIArchitect – the American Institute of Architects’ weekly e-newsletter – C. Douglas Barnes penned a response to the January 9, 2009 edition’s article by Michael Stroghoff, AIA’s “Negotiating With a Client’s Representative Requires Different Tactics.” Mr. Barnes’s response “When the Client Insists on Its Own Contract, Then What,” and comments from other architects expressed some frustration with purportedly one-sided owner-supplied contracts. As first a licensed architect and now, for the past decade, a construction attorney, I understand the frustration . . .
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