Legal 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 . . . from the University of Illinois in Chicago in 1988, and a Master of Architecture, 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 and supported the National Register program, provided technical assistance for 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 adjunct faculty at my alma mater, the University of Illinois’ graduate architecture program, and actively taught a course each year in its historic preservation option through 2001, finally cycling off as a Visiting Associate Professor in 2007.

In 1994, I returned to Chicago to attend law school at Loyola University, graduating in 1998, following which I became a construction attorney with a Chicago law firm. Since that time, I’ve worked for two of Chicago’s largest law firms, Winston & Strawn and Seyfarth Shaw, and was also in-house counsel for one of the Southeast’s largest retail developers, The Sembler Company, where I worked in its finance and development departments in a wide range of roles on about $750 million in development.

Since 1992, both an architect, and later as an attorney, I’ve been involved in maximizing development financial incentives on both historic and non-historic properties. Several years ago, I became interested in the impact of sustainable development; in particular, how the well-established principles and laws governing historic rehabilitation would mesh with emerging “Green Building Ordinances” or as I’ll call them here: “GBOs.”

For me, the most interesting thing about public speaking is exploring new ideas and spotting issues before they become mainstream. There have been discussions about preservation and green building, but none I’ve read address them from a legal and development perspective, and certainly none that question GBOs in the way I will today.

Scope of the Discussion

What I’ll be talking about today is confined purely to the legal issues I see that can arise between existing historic preservation ordinances and laws – which I’ll call here “HPOs” – and the recent emergence of GBOs; and, how to avoid such conflicts by careful analysis and planning. I’d like to say in advance that some of what I’ll be talking about will sound critical of GBOs. It’ll sound critical because it’ll represent a critical reflection about an increasingly polarizing subject – anthropogenic global warming, which is usually the justification for enacting GBOs. But if you feel I’m being unduly harsh on GBOs, hear me out and I ask that you wait till then end of my talk before tossing rotten fruit or vegetables at me – it’ll be closer to lunch and I’ll probably be hungry by then anyway.

I’d like to talk first about what GBOs are, what they’re intended to do and then the different types that I’ve seen. Then I’ll talk about some of the legal problems I see with them. Then we’ll swing into an overview of HPOs before we get to the meat of the talk – the potential for legal conflict between GBOs and HPOs in the context of historic rehabilitation. I’ll discuss a methodology for reconciling these points of conflict, and I’ll wrap things up by discussing possible ways of taking advantage of both GBOs and HPOs along with some suggestions for municipalities considering imposing GBOs on properties covered by HPOs.

But this is a traditional building conference, not a green building conference and I’d argue that there’s a presumption that what I have to say is for the benefit of historic properties first, though not to the detriment of the green building movement which I’m in no way opposed to when approached in a thoughtful and sensible manner – the same feelings I have about historic rehab. If you’re engaging in historic rehab and/or green building – be smart about it. But GBOs, especially those rushed into existence for political reasons and without concern for the economic harm they can cause, could be as detrimental to the built environment as the wrecking ball ever was to Penn Station.

1. What are Green Building Ordinances (GBOs)?

For our purposes here today, the term “GBOs” refer to local ordinances that mandate some sort of energy performance and resource conservation for the new construction or renovation of certain types of buildings built within a municipality’s jurisdiction. We’re not talking about state or federal requirements, just local ones. They come in a variety of shapes and sizes and I’ll talk more about those that home-grow their own requirements and those that incorporate third-party requirements – like LEED.

But today’s topic is as much a cautionary discussion as anything else. While federal historic preservation laws have been in existence for over forty years, GBOs are a relatively new phenomenon. Preservationists have been quick to embrace sustainable building practices, with the often heard mantra: “the greenest building is the one that’s already built.”

But is that true? Can anyone even define with certainty, what “green” really means? I’ve posed this question many times and have yet to receive a clear and concise answer. The term “Green” is really more of a marketing slogan, which in the minds of some, conjures vague notions of sylvan woods bounding flowery meadows swaying gently beneath the blue skies of a pollution and waste-free world – all next to an abandoned coal-burning power plant.

From a legal perspective, “green” has no meaning at all, and even the term “sustainable” has little more. Plug these notions into historic rehab, but deprive them of using the catchphrases “green” and “sustainable” and what you really end up with is pretty much just an old building that uses less energy and water. But none of these vagaries of form and substance have prevented many cities around the county from enacting GBOs. And it’s not that improving energy and water use efficiency isn’t an attractive idea – especially to building operators who pay those utility bills – but the justification for mandating those standards is what’s shaky – something I’ll talk about shortly.

2. What are Historic Preservation Ordinances (HPOs)?

Now for the other prong of the discussion. Because this is a traditional building conference, I’m assuming most of you are generally familiar with HPOs, but I’m going to expand the scope from just local preservation ordinances to include the Secretary’s Standards and National Register-listed properties and districts – guidelines which generally don’t have any restrictive teeth unless properties are participating in a tax-benefit historic rehab program or grant.

Unlike GBOs, HPOs have been around for quite a while which means they’re well-seasoned in a legal sense. Most also have a solid legislative foundation, especially those adopted by Certified Local Governments, since they’ve sprung more or less from the NHPA of 1966. That doesn’t mean they’re not without flaws or invulnerable to legal attack, as the City of Chicago is experiencing right now with the so-far successful challenges to the constitutionality of its venerable preservation ordinance by the case Hanna v. City of Chicago. It also doesn’t mean that the political winds won’t change in response to a declining public appetite for governmental land use restrictions on private property.

But HPOs have also figured out how to balance the carrot/stick equilibrium and most municipalities and states have various incentives intended to encourage historic rehab. Added to the various federal rehab incentives, we end up with an overall regulatory scheme that has done a pretty decent job at meeting its goals.

3. Problems with GBOs

Types and Problems with Green Building Ordinances

In preparing for this presentation, I spent quite a bit of time reviewing green building ordinances from around the country and have concluded that there are essentially two types. The first type pegs the energy and resource efficiency performance criteria to achieving a certain LEED certification. The other eschews this for a more home-grown set of performance standards. Both are performance, rather an prescriptive-based and both types use sticks and carrots, meaning the stick is what you’ll get wacked with if you don’t comply, and the carrot is your reward if you do. Unlike most historic rehab regulatory schemes, GBO sticks current weigh considerably more than the carrots.

But I see three (3) fundamentals weaknesses of GBOs, weaknesses that can leave them open to legal challenges in way that HPOs avoid. The first is the basic premise or need for GBOs; the second the political reasons for why they’re enacted and how that affects local development; and, the third is that unlike HPOs, GBOs have not yet done a great job balancing its sticks and carrots.

However, I don’t think that any of these weaknesses are so obvious that all the GBOs under consideration and those already enacted will be tossed out tomorrow – this isn’t the iceberg sinking the Titanic – more like rust that can cause slow leaks. But, you never know. Keeping with my strained nautical analogy, it often only takes one court decision to sink the whole raft, or at least send everyone scurrying to plug the holes – a position the City of Chicago may soon find itself in, depending on the final outcome of the Hanna case.

A. Controversial Premise.

Most HPOs are founded on the principles laid down in the NHPA of 1966, and seasoned by decades of state laws and court decisions – and the reasons for their existence is well-known and now generally integrated into our society’s cultural values. Of course, this wasn’t always the case, and preservation still has its detractors – though I find that objections arise these days more in response to government’s encroachment on private property rights than a belief that the past isn’t worth conserving.

But none of this really exists in the green building world – yet. There are no NHPA equivalents with the well-debated principles trickling down from federal to state to local governments resulting in well-reasoned GBOs that balance regulations with incentives. GBOs exist in a legal landscape I find precarious from a sustainability point of view. I’m concerned that the way they’re being handled by politicians – whether input from those who actually fund historic rehab is being considered properly, especially regarding the impact GBOs might have on local development.

That’s not to say there aren’t good reasons for passing GBOs – but I would argue that the more legally defensible reasons are not ecological based on grand schemes for lowering the earth’s temperature one city at a time, but economic and humanist based on reducing building operating costs and creating healthier and more comfortable work environments. Stagnate enough local economic development by overburdening regulations and the average temperature in another part of the world will be the last thing on local voters’ minds.

Also, most of entire premise for enacting green building ordinances is based on the notion that our way of using energy is contributing to what’s commonly referred to as “global warming” or “climate change,” or the White House’s new directive that it be called “Global Climate Disruption.” The latter term seems more descriptive of the aftermath of an asteroid strike that – scientists postulate – was T-Rex’s fiery pink slip than whether it’s warm enough for my father to start planting Illinois tomatoes in March – which I know would make him very happy.

Now, my reason for bringing this up isn’t to debate what has become increasing controversial – whether anthropogenic warming even exists. For purposes of our discussion today, I don’t even care, nor will I engage in that debate because that’s not the issue here. What is the issue is that when the NHPA of 1966 was enacted, it was in response to the very real and observable effects that post-war urban renewal was having on America’s built heritage. And it was debated endlessly and eventually a great law was passed in Congress. Sure, there were and are those who still argue that preservation laws are unnecessary, but let’s face it, preservation went mainstream a long time ago.

But that’s not the case in the green building movement – enormous controversy exists – and it’s growing, particularly in the last year. What that means to our discussion today is that the entire premise for enacting GBOs is legally shaky. For example, the “Purpose and Intent” section of Florida Model Green Building Ordinance says, in part:

The purpose is to establish goals, programs and procedures that will help the jurisdiction become a more sustainable community. This program shall establish new environmental goals for the jurisdiction, define a certification-based “green building” program with incentives, and define new measurement parameters and reporting criteria to track the jurisdiction’s performance towards its environmental goals.”

Never mind that several key terms of that passage have no legal meaning at all – it sounds great. But, being cursed with a suspicious mind whenever government claims to be doing something for me – which I didn’t know I even needed – I took a look under this particular rock at the accompanying notes which explain the reason for this preamble:

“The Purpose and Intent section increases the legal defensibility of the ordinance by substantiating that the regulations of the ordinance are a warranted exercise of the police power of governments for the protection of the public health, safety and welfare.”

In other words, the drafters were very concerned about the legal defensibility of the ordinance’ Purpose and Intent statement and I can guarantee you, as a lawyer, each word of that section was endlessly debated and sweated over. I’m also a little disturbed by the words “. . . a warranted exercise of the police power of the government . . .”? For what proven justification?

This serves to illustrate that unlike the NHPA of 1966, which was a response to a very visible and inarguable flurry of wrecking balls and which helped codify our cultural values regarding conservation of the past; GBOs must be founded – but currently aren’t – on uncontroversial proof and conclusions of science.

Anyone who has followed the Climate Change controversy knows that there’s considerable argument about the existence of anthropogenic warming among those in the best position to know – scientists, not politicians. Consider the words of Harold Lewis, Emeritus Professor of Physics, University of California, Santa Barbara who, after sixty-seven years with the American Physical Society – the world’ second largest organization of physicists – recently resigned in protest of the APS’s politicization of climate change:

“When I first joined the American Physical Society sixty-seven years ago it was much smaller, much gentler, and as yet uncorrupted by the money flood (a threat against which Dwight Eisenhower warned a half-century ago). Since I am no philosopher, I’m not going to explore at just which point enlightened self-interest crosses the line into corruption, but a careful reading of the ClimateGate releases makes it clear that this is not an academic question.”

The drafters of the “Purpose and Intent” section of Florida Model Green Building ordinance knew that this controversy is the Achilles Heel of GBOs. I suspect most drafters of GBOs know this, since most of their justification language sounds the same. So whether you are a proponent of climate change or a detractor – a serious debate exists in the scientific and political communities – and until that debate is concluded, the essential premise for needing GBOs is at risk to legal challenge, which is important to understand when creating GBOs that affect historic properties.

B. Politics and Development/Undemocratic

Of the two types of GBOs I reviewed, I consider the types that specifically require LEED compliance to be the most problematic for a couple of reasons: one, it reflects to me an easy, political-driven approach to jumping on the green bandwagon – actually rather lazy and not considerate of the potential negative local consequences. As anyone who has studied for the LEED exam knows that while much of it is well thought out, some of it is quite silly and unrealistic, and, more importantly, subject to revision by the USGBC at any time and certainly without notice to any municipality that has incorporated LEED into their green building ordinance.

What difference does that make? Well, for one, it imposes a level of uncertainty on local private development, which, of course includes historic rehab. Real estate developments take years to work their way through the planning, approval and construction process. Who knows if GBO compliance today equals GBO compliance tomorrow? What if the required LEED certification imposed on local projects changed without notice – how would that affect projects working their ways through the planning and approval process?

Will a developer’s bank decide to loan more money to accommodate the changes or will the developer be forced to find increased equity? Even if the money can be found, will the project still be profitable? Anyone in the design, preservation and green building communities who reacts to these questions with an indifferent “So what?” – I’d say they’re in the wrong business, if for no other reason because they’re failing to grasp the basic priorities of the clients who pay their bills – that developments, even historic ones, must make money.

The other concern I have about these types of GBOs is that they feel somewhat undemocratic because without a mechanism in the ordinance that requires public notice and hearings about LEED changes before they become law, those who are affected most have lost their voice and their due process. By comparison, the revised Americans with Disabilities Act accessibility guidelines were just published last month – after six years of public notice and comment. And how many times have the Secretary of the Interior’s Standards ever been changed?

While it’s true that LEED certification has a built-in mechanism to fix their requirements during the pendency of the approval process in the event of changing certification standards, that only applies to the LEED certification itself. What if a poorly drafted ordinance required a project to achieve, say, LEED Silver, but didn’t provide that the ordinance’s requirements were essentially subordinate to any changes in LEED’s requirements? Even being silent on the matter can’t be construed one way or another and it would very little legal horsepower on the part any development’s opposition to throw a wrench in a project by claiming that the ordinance required achieving not the old LEED Silver certification, but the new LEED Silver, with all the possible changes to the program and design and all the attendant cost increases.

This isn’t a criticism of LEED, it’s an observation about what can happen when private standards are incorporated by reference into public laws without due consideration of local conditions. But without the ability for local developers to have a public notice and comment period, it means someone else, far away and without consideration for local conditions will dictate how their buildings will be constructed. So GBOs pegging their criteria to LEED, absent some mechanism for public notice and comment upon each and every revision to the LEED standards, are very ripe for legal challenges – which throw even more uncertainty into local economic development.

The other kind of GBO, which arrives at its own point system is more defensible because the problems inherent in the LEED standard approach are absent and it’s presumed that any changes to that ordinance would involve local notice, comment and, naturally argument – that noisy, messy thing we call a democracy. For me it also presumes that a more cautious approach to passing a GBO has been taken – one that considers the impact on local development, including historic rehab – because it takes more work to come up with new standards than to just incorporate someone else’s.

C. Balancing Carrots and Sticks

But with either type of ordinance, what should always happen, but often doesn’t, is that the stick and the carrot must be striving for some sort of equilibrium. Whenever local governments impose ever stringent regulations on development, it can have a chilling effect on private decisions to develop in those cities. Cities are in competition with each other to attract economic growth and developers are generally pretty savvy about places that are less troublesome to do business in. There’s a reason Las Vegas became the convention and trade show center of the country – the local politicians very deliberately decided to make holding conventions there easier and more economically attractive than other cities.

Cities that don’t take into account the long-term impact these new regulations could have on local development ensure that their GBOs will be the least sustainable thing they’ve ever done. It doesn’t take long for developers to figure out that the grass is greener elsewhere.

4. Conflicts and Strategies

Having discussed what I see are the problems with GBOs and also done a quick refresher on HPOs, it’s time to talk about where they may overlap and conflict.

For this I’m going to use a hypothetical project with the greatest possibility of conflict: a hypothetical developer has just purchased a 25,000SF building in a dodgy part of town; it’s vacant, brick with some interesting limestone classical detailing which looks to be in good shape and he’s excited about bringing this property back in to productive use as a mixed-use retail/market rate apartment building project. The property is both locally designated historic and listed on the National Register, it’s also subject to a new local GBO which mandates that buildings of that size achieve a LEED Silver rating.

To finance the property, the developer plans to apply for all the historic rehab incentives he can, and, to the extent such exist, any energy efficiency incentives. So, where will the problems arise? From my perspective, they boil down to this:

(1) strategies for compliance with the GBO to achieve LEED Silver may impact the character-defining features of the historic property, thereby running afoul of the HPO, preventing permitting from the local preservation commission, as well as disqualifying the project for historic tax incentives; and/or,

(2) compliance with the local HPO and the National Register may prevent the property from acquiring enough points to be LEED Silver-certified, affecting permitting and any possible financial incentives.

In both cases, the possible conflicts affect both the sticks and the carrots of each ordinance. From a developer’s perspective, this provides a quandary. He has to comply with both requirements as a matter of law and to acquire the necessary incentives. So what should he do? Try to comply, regardless of cost and difficulty? Seek a variance for one or both? Sue the City? Or just take his business to a jurisdiction that had the sense to reconcile this problem before it ever arose.

Frankly, none of these options are particularly good, but before the developer opts for the Gordian Knot approach untangling the problem – which probably works better when dealing with ancient Persian satraps than local preservation commissions and building departments – I’d suggest a more analytical way of dealing with the problem.

A. Sticks and Carrots

The first step is to understand both the GBO and the HPO thoroughly, making particular note of both the sticks and carrots presented by each and administrative procedures for compliance. There’s a myth that only lawyers can read and understand the law. That’s not really true – most laws today are written so that anyone can understand them from the plain meaning of their words. Lawyers start by reading the law carefully and then merging the plain meaning of the words with a broader understanding of the legal principles that affect those particular laws. But anyone can read an ordinance and form their own conclusions as to their meaning and do the same thing I do when I don’t know the answer to something: I ask for clarification from someone in a position to provide it. And then I ask someone else, and after that, someone else.

By reading both of these ordinances carefully, the points of friction will start to become obvious. As I stated a minute ago, what we’re really looking for is where the requirements of one ordinance interferes with the compliance of the other. Now that we’ve become experts on the requirements of the two laws, let’s look back at the Project.

B. Character-Defining Features Meet LEED

I’m going to give a little deference to compliance with the HPO first because it’ll require respecting the character-defining features of the property for compliance, and some of those features may literally be carved in stone without much flexibility in strategies for compliance with the HPO. Because there might exist several equally good strategies for racking up points to comply with the GBO, we have more flexibility.

In the interest of time today let’s just stipulate that the developer has properly assessed the character-defining features of the property and incorporated their retention and rehabilitation into his program, thereby complying with the Secretary’s Standards and the HPO, and he’s in good shape for maximizing any historic rehab incentives.

So what about the LEED Silver rating required by the GBO? Using our compliance with the Secretary’s Standards and therefore compliance with the HPO as a legal baseline, we need to craft strategies to comply with the requirements of the GBO – using a careful cost-benefit analysis of opportunities that put the developer in the best possible position and maximize financial incentives.

Since we don’t have much information about our hypothetical building, let’s run down the areas of concern for achieving any LEED-certification using the standard LEED categories:

Sustainable Sites. Since we’re rehabbing an existing building, there isn’t much we can do about locating the site. We should, however, get points for undertaking an Urban Redevelopment and possibly some for reducing the heat island effect. Generally, the landscaping around historic buildings isn’t considered part of the character-defining features of the property so there may be some opportunities there to score points. So as far as the Sustainable Sites category goes, there doesn’t appear to be much of a conflict between the requirements of the GBO and the HPO.

Water Efficiency. In most commercial historic rehabs, plumbing fixtures and systems are not considered part of the historic character of the property, so there should be great latitude in upgrading the wastewater system and implementing water use reduction strategies so long as the new service and waste pipes don’t require chases that slam through historic spaces or features. This seems to be another easy category in which to score LEED points.

Energy & Atmosphere. Like the plumbing systems, HVAC and electrical systems are routinely upgraded in historic rehab so generally there’s no problem with removing character-defining wires and plenums. However, new HVAC system ducting sometimes require modifications to ceilings, so there is a possibility of conflict here, especially if ceilings have to be lowered, which might also require the removal of decorative millwork or plaster.

But as long as the new active systems occupy the same spaces and don’t intrude on character-defining spaces and features, this shouldn’t be a problem. Where problems might occur though is if larger rooftop units are required for to service these systems, and the street character of the property is impacted. In terms of green power, the installation of solar panels, or rooftop micro turbines could easily cause a conflict with the historic character of the property so this should be carefully considered.

Of course, a part of this category is increasing the thermal performance of the building. Strategies using additional insulation, so long as they don’t impact the character of the building, probably aren’t a conflict and a good way to score LEED points. Where the most obvious problem lies, however, is with the windows. The eternal question in preservation of whether it’s better to rehab historic windows or replace them with new compatible ones becomes even more significant when we need a certain energy rating to achieve the required LEED score. Obviously, care in this area is required.

Materials & Resources. When LEED finally gets around to addressing historic rehab properly, this category will likely undergo some major surgery. Though weak, this category still provides our project with good opportunities to score points by reusing the building, managing the waste properly, reusing and recycling existing materials and to the extent possible, specifying local and regional materials and rapidly renewable materials including certified wood. As a side note – the San Francisco GBO actually does a good of addressing this.

Indoor Environmental Quality. I’d consider this in the way we evaluated Energy and Atmosphere since some of these points are achieved by the types of HVAC and electrical control systems specified. Specifying materials that don’t off gas and kill small animals is usually good, as is making the most of the large windows found in many historic buildings. Even if historic lighting fixtures are retained, new control systems and bulbs can be used without impacting their character.

Innovations & Design Process. Innovation in design will depend a lot on how much of a blank slate the historic building is – the less character-defining material, as with our hypothetical building, the more opportunity for fun design. And since the developer has engaged a LEED-accredited professional, he gets points there.

5. Ways To Mitigate and Take Advantage of These Situations

We’ve gone through some lengthy analysis and arrived at a plan that meets the requirements for both the HPO and the GBO, and we’ve managed to maximize the incentives available to both. But savvy developers know that isn’t the end of the game, that there’s more negotiating to be done.

Depending on the nature of the historic property – how badly the city wants it rehabilitated – developers should always consider asking for more concessions from the city. It’s a little outside the scope of this talk to go into these in detail, but I would always recommending negotiating for as many development incentives and city concessions and fee waivers as possible. As a client of mine is fond of saying: “You don’t ask – you get.”

6. Suggestions For Cities Considering Green Building Ordinances

First – don’t peg a GBOs performance to LEED or any other system that’s subject to change without a built-in system for public notice and comment prior to adoption of the changes. Second, cities should develop their own rating systems, based on their own economic growth concerns and that keeps the goals reasonable and not based on something controversial. Third, develop a system of financial incentives that balance the sticks and carrots and that are compatible and not exclusionary with historic incentives. Fourth, to the extent any conflict arises between HPOs and GBOs – the HPOs should always trump the GBOs and waivers automatically granted.

Historic properties have been with us for a long time and have earned the right to continue their existence long after the Green Building Movement has matured into something less controversial and, more you know – sustainable.

© Copyright Gary L. Cole AIA, Esq. 2010






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