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Building Green With Carrots and Sticks

Christi Hogin is an attorney with the law firm of Jenkins & Hogin, LLP, which specializes in representing public agencies. She currently serves as city attorney for the cities of Lomita and Malibu and can be reached at chogin@localgovlaw.com.

About Legal Notes

This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.


The fabled Three Little Pigs were probably the earliest recorded pioneers in the quest for sustainable buildings. If the Big Bad Wolf symbolizes environmental forces and nonrenewable resources, then the tale becomes allegorical and apt. Through their building choices, the little pigs demonstrate that survival requires hard work and wise decisions.

 

Green building, also referred to as sustainable design, strives to reduce the environmental impacts of buildings on their surroundings throughout the construction process and after its completion. "Traditional" buildings consume more resources than necessary and generate large amounts of waste.

Green objectives may be achieved through land use regulation, building design and construction methods. To create more efficiency in construction and function, green building programs address the interrelationships between a building’s components, surroundings and occupants. Cities are increasingly using such regulations and incentives to develop new building practices that reduce development’s short- and long-term environmental impacts.

Regardless of the specific regulations your city may consider, certain legal issues arise from a city’s desire to "go green" (or greener).

The First Legal Issue: Building the Program on the Right Legal Foundation

A city may impose mandatory green building regulations or develop incentive programs within these three general frameworks:

1. By making local amendments to the California Energy Code;

2. By making local amendments to the California Building Standards Code (CBSC); or

3. By enacting local zoning regulations.

Each specific regulation requires independent analysis and likewise each option presents certain legal considerations.

Amending the California Energy Code. The Energy Efficiency Standards for Residential and Nonresidential Build ings are codified in the California Energy Code, which is part of the California Building Standards Code (CBSC).1 Cities must adopt the CBSC but may also make local amendments to it.2 A city may require more stringent energy efficiency standards on construction to help meet green objectives. As with all amendments to the CBSC, a city must find that the pro posed local amendments are reasonably necessary based on unique local climatic, geologic or topographic conditions. There are additional requirements for amending the California Energy Code.

To adopt more stringent energy code standards, a city must prepare a study showing how it determined that the local amendment would result in energy savings. The local amendments must be cost effective, and the city must document its basis for determining that the standards are cost effective.3 Both the California Building Standards Commission and the California Energy Commission (CEC) must approve local energy efficiency standards. Although considerable paperwork is involved in getting such amendments approved, the CEC actively encourages cities to adopt more stringent energy efficiency require ments. Cities can expect CEC approval of reasonably justified local amendments.4

California Energy Code amendments are suitable for those provisions of a green program that directly address energy performance standards. For example, Marin County recently increased performance standards for less-efficient large homes. Santa Monica requires that all windows in new structures be double-glazed and meet a specific standard. Culver City requires new commercial and multifam ily construction to install 1 kilowatt-hour of solar photovoltaic power per each new 10,000 square feet of construction. Culver City’s code also provides that if the new project’s geometry does not permit com pliance with the requirement, the applicant may pay an equivalent amount into a city fund to pay for solar systems on city facilities or other local nonprofit entities. Thus, one way or the other, energy ef ficiency is increased and the demand for off-site electricity is reduced.

Amending the California Building Standards Code. The Legislature enacts uniform statewide building standards. The CBSC is a compilation of these building standards and is binding on the state and other public agencies.5

Cities may amend the CBSC to require green building measures; for example, requiring certain types of building materials in new construction, if the amendments are reasonably necessary because of unique local climatic, geologic or topographic conditions. This raises an interesting issue for communities that want to impose higher standards in response to global climate change. The law requires that the more stringent standards must be necessitated by local conditions, so global climate change alone may be insufficient justifica tion without a local contributing factor.

Amendments to the CBSC are suitable
for those provisions of a green program that regulate types of building materi als and methods. For example, local ordinances may require use of specified amounts of recycled building materials. Malibu adopted extensive amendments to the plumbing code to require tertiary treated water in connection with all new on-site wastewater treatment systems.

Enacting a Zoning Ordinance. Green land use regulations may be constructed on the strong foundation of a city’s police powers to protect the public health, safety and welfare of its residents.7 A city’s police power can support any land use regulation that is reasonably related to the public welfare.8 A city may enact green building regulations within its zoning ordinance as long as the regulations do not conflict with state law, are not impermissibly discriminatory and are neither arbitrary nor capricious.

Amendments to the zoning code are suitable for those provisions of a green program that offer development standard incentives for projects that incorporate green elements into their design and construction. For example, incentives could include additional height, density, reduced processing fees or expedited permit pro- cessing. Many ordinances also require an applicant to make choices that result in measurable reductions of impacts or reach a minimum level of LEED certification. The U.S. Green Building Council’s Leadership in Energy and Environmental Design (LEED) Green Building Rating System is a program widely recognized and used by cities as a way to measure the "greenness" of a project.

The Second Legal Issue: Deciding To Build the Program with Incentives, Mandates or a Hybrid

Cities of all sizes have also developed green building programs for public and private development.

Mandatory but Simple. The City of Calabasas’s ordinance is typical of the popular choice of simply requiring LEED certification. Calabasas adopted a specific version of LEED (2.0) and designated it as the Calabasas-LEED standard. For buildings up to 5,000 square feet, Calabasas requires the project to achieve a certified rating, the lowest level rating under LEED; build ings of more than 5,000 square feet must achieve a silver rating.

Voluntary Programs. Build It Green guidelines are a set of voluntary mea sures and practices for sustainable home construction. The City of Rancho Palos Verdes decided to use Build It Green, a suite of products and services that consists of guidelines and a rating system on which to base its green building program. The city’s ordinance is typical of the ordinan ces designed to educate and encourage residents and builders. Compliance with the green standards is not mandatory.

For example, Rancho Palos Verdes created New Home and Multifamily GreenPoint Checklists; new homes that achieve 50 points or higher with minimum points from various categories and meet the prerequisites of 50 percent construction waste diversion receive Build It Green certification. As an incentive to builders and homeowners to construct green buildings, new buildings that meet the minimum point value of 50 points would qualify for an expedited plan review through the city’s Planning and Building De partment and/or reduced application fees.

Build It Green certification includes a numerical score that provides information about the home’s environmental performance for its future buyers.

The Hybrid Green Ordinance Uses Incentives and Mandates. West Hollywood’s Green Building Program was designed to be innovative and achieve results. The city’s program has two phases. In Phase One, the city consolidated and amended its existing green requirements and required public buildings to achieve
a LEED-certified rating. Phase Two established a mandatory green building point system for private development and in centives for high-achieving projects. West Hollywood’s program is a good example of a comprehensive ordinance with both incentive-based (the carrot) and mandatory (the stick) components.

Certain aspects of incentive programs have proven controversial. Some people may question the wisdom of relaxing certain development standards in exchange for greener designs. Ultimately, these issues are policy questions that involve weighing competing interests. As a legal matter, as long as reasonable use can be made of a property without the incentive, voluntary incentives are a permissible way of encouraging compliance with more rigorous standards.

Footnotes:

1 Title 24 of the California Code of Regulations is known as the California Building Standards Code or "Title 24." It contains the regulations that govern the construction of buildings in California. Title 24 is composed of 12 "parts." The California Energy Code is part 6 and is also known as the 2005 Energy Efficiency Standards.

2 See Health & Safety Code §17958.

3 See 24 Cal Code Regs. Section 10-106.

4 The Energy Code is undergoing revision currently and the revised code becomes effective in 2009.

5 See Health & Safety Code §18944.5.

6 Health & Safety Code §17958.5(a).

7 See Cal. Const. art. XI, §7.

8 Associated Home Builders, Inc. v. City of Livermore (1976) 18 Cal. 582; Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 861.