LEED Green BuildingThis post, a part of five part series on green building regulation looks at the anatomy of green building regulations identifying three main types of regulations, which are command and control, in other words building codes and such; financial incentives, like tax breaks; and non-financial incentives such as increases in floor to area ratio, building height or density for building green.

by Shari Shapiro, Associate with Cozen O’Connor. View her blog on legal issues related to Green Building, Green Building Law. Connect with Shari on Linkedin

In the past five years, green building regulation has been on a meteoric rise. Green practices are being incorporated into state an local building and zoning codes and ordinances. According to the AIA, 14% of US cities with populations in excess of 50,000 people now have green building programs in place, and the number of counties with green building programs has grown nearly 400% since 2003. In addition, federal statutes were passed requiring federal agencies to build green, procure recycled materials, reduce energy consumption and prevent pollution. The regulatory schemes fall into one of three basic types: command-and-control regulations, financial incentives and non-financial incentives.

Command and Control Regulations

These laws mandate that buildings comply with a green building standard of some type. Command and control regulations often reference a private green building standard, like LEED, but may also include local green building requirements on top of the referenced standard.

Command and control regulations come in two basic types, zoning ordinances and building code changes. One model for instituting a command-and-control regulation is to pass a zoning ordinance which requires that a proposed project meet the referenced green building standard, in order to obtain zoning.

In 2007, Boston made several amendments to the Boston Zoning Code to require all projects over 50,000 SF to be designed and planned to meet the “certified” level using the USGBC’s LEED systems modified with Boston-specific credits.

The advantage of a zoning code based regulation is that the project team can determine how to achieve the green building standard. In addition, local governments have almost exclusive control over their zoning.

Another approach is to revise the building code to require green building practices. On July 17, 2008, California adopted a green building code applying to all new construction statewide, with targets for energy efficiency, water consumption, plumbing systems, diversion of construction waste and use of environmentally sensitive materials in construction and design.

Some advantages to amending the building code to include green building requirements is that more buildings are generally impacted by changes to the building code, and the system of inspection for compliance with building codes is already in place.

Financial Incentives

Municipalities can also provide financial incentives to promote green building practices. These financial incentives can take almost any form: tax rebates, fee waivers, cash payments, etc.

Portland, OR recently instituted a unique “feebate” structure whereby buildings built in a conventional manner pay a specified fee for their permits, building s built to LEED Silver standard get the fees waived and get access to green building resources, and buildings built to LEED Gold or higher actually get a rebate from the government.

The advantage to financial incentives is that they use the market to encourage green building, as opposed to mandating green building practices. However, there has been little data collected regarding whether financial incentives cause developers to go green where they would not have otherwise. In other words, the value of the financial incentives in stimulating new green building projects has not been adequately studied.

Non-Financial Incentives

The third common type of green building regulation is the non-financial incentive. Some local governments allow for increases in floor to area ratio, building height or density for building green. Others expedite the permitting process.

Using non-financial incentives has the advantage of being inexpensive for cash-strapped local governments, and harnessing some of the same market based value of financial incentives. It is also a good gateway for entry into regulating green buildings for local governments who want to proceed in a step-by-step fashion.

The related post: “Green Building as a Market Advantage“, uses a real world example to talk about some of the reasons the developer chose to go with the LEED Silver standard and what his cost benefit analysis was based on.

NEXT UP: To LEED or Not To LEED: Pros and Cons Of Integrating Third Party Certification Into Green Building Regulations

© 2011, Shari Shapiro. All rights reserved. Do not republish.

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Author: Shari Shapiro (3 Articles)

Shari Shapiro is an associate with Obermayer Rebmann Maxwell & Hippel LLP. She is a member of the Environmental Department. Ms. Shapiro is a LEED Accredited Professional. Ms. Shapiro focuses her practice on green building law, which includes sustainable project financing, regulatory drafting, land use approvals, contracts, and conflict resolution. Ms. Shapiro is the Sustainability Coordinator for Obermayer’s Sustainability Initiative. Ms. Shapiro maintains a blog on legal issues related to Green Building, available at www.greenbuildinglawblog.com. Ms. Shapiro is on the Board of Directors of the Delaware Valley Green Building Council, and the Legal Advisory Board for the United States Green Building Counsel. Ms. Shapiro was named a 2009 “Lawyer on the Fast Track” by the Legal Intelligencer.