How to "Green" Your Community: Key Considerations
As society becomes more environmentally conscious, as energy prices continue to soar, as governments mandate more green and high-performance buildings, more communities will be constructed green, retrofitted green, and managed green, including condominiums, cooperatives, apartment buildings, and homeowner associations. Communities that engage in green renovation and retrofitting and green management -- without the proper green knowledge and understanding -- do so at their peril.
Even on the most vanilla renovation or retrofitting project, the design and construction process has the potential for miscommunication, claims, and litigation. A green project adds another layer of complexity to this already complicated process. Additionally, while green issues are currently at the forefront of media blitz, most entities involved in green design and construction are inexperienced--"green lite," you might say. Therefore, it is simply good sense (and cents) for a community to be extra-vigilant when evaluating whether to jump--and how far--into a particular green initiative. That evaluation, requires, among other things, background knowledge on green issues and understanding and managing the risks.
What Is "Green"?
The word "green," in the environmental context, means different things to different people. It is essentially the design, construction, and operation of a building to reduce the use of natural resources, encourage re-use of construction materials, and encourage site development and maintenance to minimize injury to the natural landscape and community. Use of sustainable management practices reduces energy and utility costs, reduces waste, and minimizes the impacts on the environment and surrounding community.
The benefits of going green, either through retrofitting green features or incorporating green management practices into the community, include reduced long-term costs, less negative footprint on the environment, potentially enhanced property value, and justifiable pride in a green community.
LEED Rating System
The U.S. Green Building Council ("USGBC") is a non-profit private organization that publishes voluntary green building rating systems and certifies projects that meet those goals through its Leadership in Energy and Environmental Design ("LEED") green building rating system. Although there are other third-party green certification programs, such as the Green Building Initiatives' Green Globes rating system, the LEED certification system is by far the most widely accepted green building rating system in the United States.
LEED is a performance-based rating system through which buildings earn points for satisfying criteria addressing specific environmental impacts in design, construction, and operations of a building. The certification levels -- Certified, Silver, Gold, and Platinum -- are awarded based on the total number of points earned. While LEED certifications are voluntary, most green building legislation that mandates public, and sometimes private, green building is tied to the LEED certification levels issued by the USBGC.
The LEED certification system is tailored to different types of building projects, including LEED for New Construction and LEED for Existing Buildings: Operations and Maintenance. The LEED certification system is organized into the following six categories: (1) Sustainable Sites; (2) Water Efficiency; (3) Energy and Atmosphere; (4) Materials and Resources; (5) Indoor Environmental Quality; and (6) Innovation and Design.
Green Practices in Renovations and Property Management
Many opportunities exist at communities to implement green features during renovations and to implement green property management practices at any time. A number of community associations are initiating a variety of practices to make them more environmentally friendly. Even those communities that do not seek LEED or other green certification can implement green initiatives, many of them with cost-saving benefits. Green renovation and property management practices include, among others, the following:
- Reduce waste generated during renovation work
- Control air quality during renovation work
- Use environmentally friendly materials and products
- Use materials that are produced within 500 miles of the community
- Consider energy-efficient systems, technologies, and appliances
- Consider a green roof,2 where appropriate
- Reduce water and chemical usage
- Use native plants
- Reduce impermeable pavement
3. Sustainable Sites
- Bicycle storage
- Priority parking spaces/discounts for hybrid cars
4. Outdoor & Indoor Lighting
- Reduce energy consumption by using energy-saving bulbs
- Replace energy inefficient fixtures
- Install motion sensors to control lights
- Install timers to control lights
5. Storm Water Management
- Reduce storm water discharged into municipal systems
- Collect rain water to use for landscape watering
- Minimize erosion
6. Waste Management
- Reduce and recycle waste generated during renovations
- Use waste from landscape maintenance for mulch or compost
7. Cleaning Practices
- Use natural cleaning products
- Reduce waste generated by cleaning
Top Six Legal Obstacles to Green Renovations and Management Practices
1. What Does "Green" Mean?
Any time a community signs a contract for green renovations or green services, the community should ensure that all parties to the contract have the same understanding of the term "green." Because there is no widely accepted definition, the contract should affirmatively define "green" to reduce the risk of confusion and conflict. Everyone needs to be on the same page with the community, whether architect, engineer, contractor, vendor, or service contractor.
2. What Color Green Does Your Community Want To Be?
Each community considering going green has to establish its green goals and then implement a plan to achieve those goals. A community may want to seek green certification or implement a few green management practices. These goals can be established with a team that includes community members, Board members, and the community manager. Education of the entire community will help facilitate the implementation of the green goals. The community newsletter or other means of mass communication to the community members is an effective means to both educate and enlist the assistance of the members to achieve those goals.
3. Green Team
The green landscape is rapidly changing, with a steep learning curve for communities, managers, design professionals, contractors, subcontractors, suppliers, and consultants. It is critical that a community assemble a knowledgeable and experienced green team. A community must beware of "greenwashing," which is disinformation disseminated by an organization in order to present an environmentally responsible public image. A community must exercise due diligence prior to signing a green contract to ensure that the contractor has participated on other green projects, is familiar with green rating systems, and is knowledgeable about the relevant green laws.
4. Green Renovation/Retrofitting Contracts
Contracts for green services and products must be carefully drafted to achieve the desired goals. Green goals should be clearly set forth in the contract. Because these contracts are new and largely untested in the courts, it is critical for the contract to appropriately allocate the risks to the party in the best position to control that risk. While we have not seen much green litigation and arbitration so far, there is enough to know that the disputes often arise out of poorly considered and drafted contracts that do not properly set out responsibilities of the parties. Any performance goals should be clearly defined in the contract and responsibility for failure of any goal should be allocated in the contract.
5. Marketing Your Community as Green
When marketing a community with green features, it is important that no statements be made, whether written or verbal, that include exaggerated or overstated benefits or performance, misrepresentation, or outright fraud. Health claims and promises should be avoided, as should any vague or undefined assertions about the community's green features. The Federal Trade Commission, which regulates marketing claims in all industries, has recently updated its "Guides for the Use of Environmental Marketing Claims" and recommends that green marketing be very specific and factual. Any specific green assertion about the community should be verifiable and measureable.
6. Green Initiatives Can Violate Rules and Covenants
Green and environmentally friendly initiatives at community associations are often prohibited by their rules and covenants. For example, common restrictive covenants forbid solar devices and drying clothes outdoors. Increasingly, states are enacting laws that override environmentally unfriendly covenants. In 2008, Maryland and Virginia enacted laws that provided community associations can not prohibit installation of solar devices, although each permitted associations to establish reasonable restrictions for the installations. Additionally, in 2009, Maryland and Virginia each debated a bill -- right-to-dry legislation -- that would have prohibited community associations from using restrictive covenants to ban the use of clotheslines by a resident on private property. Although these bills were defeated this year, it is important that associations considering green initiatives stay aware of the relevant laws in their specific jurisdiction.
When a community association considers "going green" -- either through its renovations and /or its management practices, it must define its green goals, assemble an experienced and knowledgeable green team, negotiate proper green contracts, and identify and manage those risks that are unique to green renovation projects and management practices.
1. The author notes that much of this material was included as part of the presentation, "Green Property Management: How to LEED Your Community Towards Environmental Sustainability," which she presented with Doug White, Thomas Downey, Ltd., and Jim Nitschke, CMC Management, at the Washington Metropolitan Chapter of the Community Association Institute Conference on March 28, 2009.
2. Green roofs come in two general types: the well-known vegetated roof (if the structure permits) and the lesser-known reflective roof.