Building a Green Maryland : Maryland Green Building Lawyer & Attorney : Megan Reuwer : O’Malley, Miles, Nylen & Gilmore Law Firm : MD Green Building, Sustainability

As a state, we have green building laws that have existed and that continue to come into existence in the northern and central parts of Maryland (Baltimore City, Annapolis, Howard County, and Montgomery County), but I think that we're beginning to see local governments moving - albeit at more of the turtle's pace than the hare's-  towards integrating green building requirements in the southern counties. In particular, I'm talking about the exceptionally lovely Charles, Calvert, and St. Mary's Counties.

Charles County: Charles County is beginning to take a more active role in mandating green building for some publicly-owned or funded buildings.

• The Town of La Plata passed Town Council Resolution #08-2, which requires that all town-owned and town-funded new construction and major renovations greater than 5,000 square feet become LEED Certified. According to this Resolution, the Town of La Plata is leading the way in green building in Charles County - its La Plata Town Hall is the County's first LEED certified building.
• "LEED or its equivalent” language is becoming integrated in zoning approvals.  For example, a bill passed in 2009 rezoned 48 acres from the Agricultural Conservation zone in Charles County to the Planned Employment Park zone which allows for the inclusion of industrial, office, and retail components.  As a condition of that bill, the owner-applicant is required to obtain LEED certification “at both the site level and the architectural level.” As a side note, this is an interesting (read: complicated!) requirement because the LEED certification process isn't broken down into two levels of certification.  There is no site development certification that is separate and apart from the building/architectural review - therefore, it could prove difficult for the owner to satisfy this condition (self-serving plug in 3...2...1: if you're a developer facing issues like this, you might benefit by having a land use attorney that's familiar with green certification requirements on your team). 

Calvert County: Calvert County is in the planning phases for green building laws.

•  At the end of 2008, the Director of Planning and Zoning began advocating that the Board of County Commissioners consider enacting green building amendments to the Zoning Ordinance– but, to my knowledge, nothing has been implemented yet.
• Calvert County has created a Green Team that is charged with the task of making recommendations regarding the County's future green building goals.  Some of the Green Team's recommendations include preparing town center ordinances that facilitate green site and building design and requiring future county-owned buildings over 10,000 square feet to comply with LEED Silver certification.

St. Mary’s County:  St. Mary's County is home to some incredible LEED-certified institutions.

• The Evergreen Elementary School is LEED Gold certified and won an award last night at the USGBC Maryland Chapter's 5th Annual Awards Ceremony. 
• St. Mary’s College has a LEED Silver certified academic building

Predictions: There's a pattern that counties, towns, cities and other municipalities follow when going green.  The first step is to require that publicly owned or funded buildings incorporate green elements or achieve various levels of certification.  As the local government becomes more comfortable with legislating green, the focus may start to transition towards the private sector (Baltimore City and Annapolis are good examples). While the shift to mandating green building for private construction might be a bit far off in the future for these southern Maryland counties, I think we're beginning to see the first steps.

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Did you know that Maryland has a Green Building Council that was created by state law in 2007? It's true - and this Council is charged with some pretty important responsibilities (expanded by state law in 2009), including:

1. Evaluating current high performance building technologies;
2. Providing recommendations for cost-effective green building technologies for the State to consider requiring in the construction of State facilities;
3. Providing recommendations concerning how to expand green building in Maryland; and
4. Developing of a list of building types for which green building technologies should not be applied, considering the operational aspects of these facilities, and considering a waiver process where appropriate.
5. As part of these tasks, the Council must report annually to the Governor and the General Assembly on its recommendations and any progress that has been made during the preceding year by November 1.

Let's take a look at the 2009 Annual Report to review some important recommendations that, if implemented, will impact the green building industry in Maryland:

• Encourage green building practices that can be done without government funding: This might not be the most welcome recommendation by members of the building industry.  As we've learned from industry leaders like Marnie Abramson in previous posts, there are learning curve costs associated with going green. If there are no incentives to help offset those costs, then we might see less novice, would-be green builders taking those beginning steps.
• Reward exceptional projects through high-profile awards recognition: I think this is a great idea - if the government makes a commitment to publicize (and keep publicizing) the "greenest" buildings in the State, this will continue to create market recognition (and eventually, market demand) for these types of projects.  Maybe the Council could take this recommendation one step further by also rewarding the tenants/occupants of the greenest buildings through a badge or logo that they can display in their spaces to further publicize the program.
• Require that new or renovated buildings (greater than 7,500 square feet) on State-owned or State-leased land achieve LEED Silver certification: This is followed in the Report by a recommendation that all major building projects funded entirely or in part by the State meet LEED Silver (to include construction by local governments, boards of education, community colleges, bond bill recipients, health care providers, and affordable housing developers). This would significantly expand the existing mandate for green building in Maryland (which is set forth in the High Performance Building Act - see section 2 of this prior post for details).
• The "bare minimum" recommendation: The Council acknowledges that mandates that change accepted practices tend to evoke a negative reaction and may be resisted by those impacted by the change. With that in mind, the Council suggests that, at a bare minimum, applicants for State aid for building construction should be requested by lawmakers to provide detailed descriptions of how green their projects are anticipated to be, and this information should be considered when decisions are made on the extent of funding they receive. [Pg. 11 of 2009 Report]. This is both a carrot and a stick - and "punishment" and a reward system that could penalize those not green enough while rewarding the greenest among us. I think this might have promise because it's not an out-and-out mandate, but it does have a bit of teeth to it.  On the practical side, if implemented, it will likely require a greater time component for those requesting State aid.

We'll see if and how these recommendations are addressed as this year's Session gets to business.

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There are a couple of interesting upcoming events and presentations concerning green building and smart growth in Maryland that you may want to consider attending.

1.  Green Building: An Overview of Tax Incentives and Local Regulations (co-presented by yours truly). Details: This breakfast seminar will feature two components: An exploration of available federal and state tax incentives for green building practices; and a review of existing and proposed green building regulations affecting Montgomery, Prince George’s, Calvert, Charles, St. Mary’s, Howard and Anne Arundel Counties and the District of Columbia. Your presenters are Kevin Jones, Esq., CPA of Watkins Meegan and William M. Shipp, Esq. & LEED AP and Megan L. Reuwer, Esq. & LEED AP of O’Malley, Miles, Nylen & Gilmore, P.A.

• When: Tuesday, January 26, 2010 from 8:30am-10:00am
• Where: Amicus Green Building Center, 4080 Howard Ave., Kensington, MD
• How to Register: http://www.mncbia.org/cde.cfm?event=283562 Cost is $20 for members of the MNCBIA and $35 for non-members (includes breakfast). 

2.  The Task Force on the Future for Growth & Development presents a Stormwater Management Forum that is open to the public.

• When: January 15, 2010 from 1:00-4:00pm
• Where: MDE, Aqua Conference Room - 1st Floor, 1800 Washington Blvd, Baltimore, MD
• For further details, please see: http://www.mdp.state.md.us/YourPart/773/773Meetings.shtml#20100115

Hope to see some of you at these events.

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Before launching into an analysis of Senator Cardin’s bill (S. 1816, the Chesapeake Clean Water and Ecosystem Restoration Act) as promised, I have a quick update on last week’s post, in which we learned that some people found fault with the EPA’s plan to implement its task of protecting and restoring the Chesapeake Bay. We were also made aware that the EPA had sent a “consequence” letter to the six watershed states outlining the potential steps that the EPA might take should a state fail to meet the EPA’s expectations for developing a Watershed Implementation Plan or should that state not meet its performance milestones. A copy of the Region III letter is now available; I have also made a pdf of the letter that I’ve marked up to highlight the consequences that may resonate the most with the building industry (see Enclosure B, in particular, for the real meat of the consequences as presented to the states).

Now, on to S. 1816 – let’s begin with a few basic facts:

• Title of bill: A bill to amend the Federal Water Pollution Control Act to improve and reauthorize the Chesapeake Bay Program.
• Sponsors of bill: Sen. Benjamin Cardin (MD), Sen. Barbara Mikulski (MD), Sen. Edward Kaufman (DE), and Sen. Thomas Carper (DE)
• Last major action: November 9, 2009 (Committee on Environment and Public Works Subcommittee on Water and Wildlife)

Several notable provisions of the bill (of general interest):

1. Calls for the continuation of the Chesapeake Bay Program
2. Proposes establishment of additional grants to Bay states
3. Calls for the creation of a nitrogen and phosphorus trading program
4. Similar to the EPA's announced strategy for restoring and protecting the Bay in response to Executive Order 13508, the bill requires that each Bay state adopt a Watershed Implementation Plan (due on or before May 12, 2011). The Plan must include state-adopted management measures that are binding and enforceable as well as an enforcement mechanism to include a penalty structure for failures (example: fees or forfeiture of State funds). In light of the "consequences" letter sent by the EPA discussion above, it's interesting to see that the bill asks the Bay states to craft their own penalties - as least with respect to their Watershed Implementation Plans.

Provisions of the bill that specifically impact land development:

1. Stormwater Permits - effective January 1, 2013, Bay state must provide assurance that the owner or operator of any development or redevelopment project with an impervious footprint size to be determined through rulemaking, will use strategies "to the maximum extent technically feasible" to maintain or restore the predevelopment hydrology of the property with regard to stormwater temperature, rate, volume and flow, AND the property owner or operator will compensate for any unavoidable impacts.  A definition of the terms "predevelopment hydrology," "development or redevelopment impervious footprint," and "compensation" does not yet exist and regulations defining these terms aren't "due" until December 31, 2012...!
2. Federal oversight of projects resulting in impervious development - (1) Administrator to establish guidance for site design, construction, and maintenance to ensure land maintains previous hydrology; and (2) establish model ordinances for low-impact development infrastructure techniques.

I think this bill, if passed into law, will significantly broaden federal control and oversight of the Bay states.  This could be positive if the end result is actual protection and restoration of the Bay and its ecosystem; but there's also a federalism issue here that could prove quite negative.

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In a Washington Post article titled “Chesapeake Bay advocates call EPA cleanup plan too weak,” published December 31, 2009, author David A. Fahrenthold reports that a collection of scientists, environmentalists and ex-politicians have stepped forward to admonish the EPA that its plans to protect and restore the Chesapeake Bay  in response to Executive Order 13508 aren’t nearly tough enough. 

Fahrenthold writes that the 38-member group, brought together by a former Maryland state senator, said the EPA is not moving aggressively enough to curb pollution that drains off farmland or to protect the forests that serve as a natural water filter.

According to Fahrenthold, the group gathered at the Maryland State House and included several "waterkeepers" -- advocates for the Patuxent, Severn, Choptank and other bay tributaries -- and prominent scientists who study crabs, oysters and water pollution. Former U.S. representative Wayne T. Gilchrest (R-Md.) and former U.S. senator Joseph D. Tydings (D-Md.) also were there.

The EPA has said that it plans to punish states that lag behind their cleanup goals (sanctions could include some prohibitions on new subdivisions or sewage plants, more restrictions on farms and tighter controls over federal grants to states), but the group said that the federal government should do more than that, and is calling for Congress to pass legislation to expand that power to punish.

They said all but the smallest farms should face tight restrictions on the disposal of animal manure, which can wash into bay tributaries and feed the algae that cause dead zones. And they said the EPA should require forests to be protected -- or replanted -- on 85 percent of the shoreline of the Chesapeake and its tributaries.

Fahrenthold further writes that the group also called for Congress to pass legislation sponsored by Sen. Benjamin L. Cardin (D-Md.) and Rep. Elijah E. Cummings (D-Md.) that would give the EPA more muscle to punish states (S. 1816, the Chesapeake Clean Water and Ecosystem Restoration Act). The bill has been opposed by agricultural groups and home development firms, which say it will impose crushing costs on their industries.

Next week, we'll take an in-depth look at S. 1816 (introduced October 20, 2009 and referred to the Senate Environment and Public Works Committee) to get a sense of possible industry ramifications should this bill become law.

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I am on vacation this week in sunny Florida (woohoo!), but I wanted to wish you all good times, good cheer, and a happy "green" new year!

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As we draw closer to the end of 2009, I'm beginning to think about statistics relating to green building here in Maryland (and no, I didn't quit my day job as an attorney to become a mathematician...). It's been a tough year in terms of getting new projects up and running, but, amazingly, the green building movement has continued to grow despite the weakened economy.

Here are a couple of interesting statistics for you to mull over:

• In Maryland, 11 out of 24 Counties (counting the City of Baltimore) are working towards implementing some form of green building practices - in various forms including regulations mandating LEED certification (or its equivalent) for both public and private new construction projects; the offer of tax credits to incentivize green building techniques; the offer of added density to projects or for fast-track permitting processing; etc. Obviously, from an industry perspective, the use of incentives is more attractive (and hopefully those remaining 13 counties consider creating incentives if and when they decide to implement green building practices).
• The number of LEED registered projects in Maryland has increased by over 35% this year; increasing from 520 in 2008 to over 800 by the end of 2009.
• Maryland is home to over 60 LEED certified buildings, up from approximately 40 certified projects at the end of 2008
• [Source for all statistics: www.usgbc.org]

It's great to see numbers like these considering the many challenges of 2009. Based on this type of performance, I'm betting that these numbers will continue to increase over the coming new year!

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Last week, I posted the first part of a two-part interview with Marnie Abramson, a Principal and the Director of Public Relations and Marketing at The Tower Companies, about their double Platinum LEED certified 200,000 square foot, multi-tenant commercial building located at 2000 Tower Oaks Boulevard in Rockville, Maryland and about Tower's experiences with green building in general. I've heard from several readers personally about how much they've enjoyed Part I of the interview  - and so I'm happy to share with you the continuation of that interview in Part II here today.

Has Tower been able to estimate the utility savings for 2000 Tower Oaks Boulevard as compared to a non-certified 200,000 square foot office building?

LEED doesn’t really translate across the board into energy savings. Because of the way the LEED point system is designed, you as a builder can pick and choose the points that you want to pursue. If you’re not pursuing the Energy & Atmosphere points, then there’s not going to be that correlation between your project and energy savings. It’s hard to estimate utility savings between a certified and non-certified building for these reasons; however, you can look at your Energy Star score. At 2000 Tower Oaks, our Energy Star score is a 90. That means that we’re going to perform, under the most recent ASHRAE standard, about 28% more efficient than an average new construction Class A office building.

Do you think the benefits of designing your corporate headquarters on the ninth floor to meet Platinum certification under LEED for Commercial Interiors have merited the costs?

There were a few things that we did for our interior office space that were expensive, but I think that they do merit their costs. For example, we installed carbon dioxide sensors in our offices. These help us monitor air quality and that’s especially important in shared spaces like conference rooms. If you’ve ever been in a conference room for a long period of time, you may notice that you start to become tired or develop a headache. The reason is because there’s not enough oxygen in that room. When you come out of an all day conference in our offices, you do not leave tired. You can literally go back to your desk and start working. So, for us, there’s a huge productivity benefit that, hands down, pays for the initial cost over time.

Additionally, we maximized the amount of natural light that comes into our space so that we’re harvesting a free, natural resource and using less artificial lighting. LEED recommends that an office building not exceed 1 watt per square foot; in our space, we’re at 0.63 watts per square foot. We installed day-lighting sensors to read interior candle lumens that then automatically adjust the amount of artificial light needed to light the space. In addition to the energy savings that this provides, we’re also helping to increase employee productivity by providing views and access to natural daylight. 

We always knew that we wanted to go for Platinum level certification for our corporate office space because sustainability is everything that we stand for. We were committed and ready to achieve that level of certification from the beginning, and we’re happy with the result.

What were some of the challenges or surprises that you faced in getting 2000 Tower Oaks Boulevard certified under either track (CS or CI)?

One interesting fact is that we ended up getting an Innovation Point for the installation of a system that protects the base building and everyone who works in it from electromagnetic frequencies (EMF). Here at Tower, we talk about EMF as the asbestos of the future, but this wasn’t something that the USGBC really understood at first because they hadn’t seen it before. We submitted a Credit Interpretation Request and supplied them with lots of information and studies demonstrating the potential negative consequences of EMF exposure, and the USGBC agreed with us in the end and we did get the Innovation point. I thought this was really interesting and important and I hope that the USGBC begins to integrate EMF concerns when they’re reexamining sustainability goals.

What’s next for The Tower Companies in terms of green building projects?

We are, without a doubt, focused on our existing building stock. We are looking at our entire building stock first for Energy Star purposes and then we’re going to go for LEED certification for Existing Buildings. There’s an interesting statistic floating out there that 90% of all buildings that will exist in the year 2020 have already been built.  What that means is that we can’t build our way into a more sustainable future. We’re always going to have more existing buildings than new construction, so until we start looking at how we can improve our existing building stock, we’re not going to have a meaningful and measureable impact on the environment. 

What I’m personally passionate about is trying to educate people and governments on the larger benefits of green building. The benefits go beyond fresh air and daylight and productivity. When you start to really think about the existing building stock on a national scale and how it can be improved, you begin to see all the economic opportunities that exist. The concept of a “green economy” becomes real when you think about how many jobs and opportunities this presents for plumbers, electrical engineers, mechanical engineers, renovating contractors and retrofitting contractors – the list just goes on and on. I think we’re faced with a great opportunity here and I hope that we can work with governments to create meaningful tax incentives and depreciation programs that can help spur job growth.

Thanks again to Marnie for her wonderful responses. I think it's clear that The Tower Companies is passionate about green building for all the best reasons - the benefits to the environment, to the people who inhabit or work in the green buildings, and to the building industry and economy in general.

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I recently had the wonderful opportunity to chat with Marnie Abramson, Principal and Director of Marketing & Public Relations at The Tower Companies, about Tower’s double Platinum LEED certified 200,000 square foot, multi-tenant commercial building located at 2000 Tower Oaks Boulevard in Rockville, Maryland.

The Tower Companies is a three-generation, award winning commercial real estate development company founded in 1947 and headquartered in Rockville.  Tower is EPA-certified carbon-neutral, a member of EPA’s Climate Leaders and Energy Star programs, and is the area’s leading regional builder of U.S. Green Building Council LEED® certified projects.  Tower has six LEED certified projects, seven are LEED registered, and 25% of their employees are LEED Accredited Professionals (AP). Their diverse portfolio includes more than 4.5 million square feet of office building, 1400 apartments, regional malls, residential communities, lifestyle centers, office parks, and hotels within the DC area.  Of this total, one million square feet are LEED or sustainable projects, and another 2.5 million square feet are in the planning stages.

2000 Tower Oaks Boulevard (pictured at right) has been certified LEED Platinum for Core and Shell and the Tower Companies’ headquarters, located on the ninth floor, is certified LEED Platinum for Commercial Interiors. The building was recently heralded by Peter Franchot, Comptroller of Maryland, as being the “greenest” office building in Maryland.

In part one of this two-part this interview, I ask Marnie questions about The Tower Companies’ experience with the LEED certification process, the cost of green building, and how Tower maintains its commitment to sustainability once the building is complete. Thanks again to Marnie for her time and very thoughtful responses.

How did The Tower Companies develop its passion for green building? What inspired you and what continues to inspire you?

The Tower Companies began building sustainably in the mid-1990’s. Our passion for green building was fueled when we learned that buildings were responsible for 40% of the carbon dioxide emissions and 40% of energy consumption nationwide. These statistics horrified us, and they became the trigger for the company to begin to think about how we, as builders, could change. At that time, were in the process of renovating a building that we had built in the 1970’s (1909 K Street). We decided to take the building down to the slab; add four new floors; add new curtain walls and a new electricity system – and when we were done, the building actually used the same amount of electricity as it had before we added the new 85,000 extra square feet. That was a big “wow” moment for us, and it sparked our imagination and caused us to challenge ourselves to explore further possibilities.

From there, we took what we learned and we ran with it. Since then, we have completed both commercial and residential projects that are LEED certified. In fact, one of our residential projects, the Blair Towns in Silver Spring, Maryland, is the first LEED certified apartments in America. We introduced the Blair Towns apartments into the market in 2003 when LEED was still relatively new and it was a challenge to build to even the most basic certification level of LEED. None of our partners wanted to work with us; none of our construction contractors wanted to do it; and our vendors all thought it was crazy because everything was still so new. Fast forward 6 years, and now we have a double platinum LEED certified building for basically the same cost premium. It’s been an amazing journey for us.

2000 Tower Oaks Boulevard is a beautiful building. Was there a “green premium” for constructing the building to meet Platinum certification under LEED for Core and Shell?

For a project like 2000 Tower Oaks Boulevard, our green premium is “in the noise;” it’s essentially equivalent to a rounding error, and worked out to be approximately 1-2% percent of our total soft costs – so you can see that it’s a small number.

We also got a tax credit through Maryland and a tax rebate through Montgomery County. The tax credit from Maryland is a base building tax credit, and the tax rebate from Montgomery County is for the commercial office space, so both programs are different but compliment each other nicely. Tax incentives are important because they help offset learning costs. If a government can offer these kinds of incentives to developers that enable them to recoup some of the learning costs associated with sustainable projects, then that developer is going to continue to build sustainably because it becomes easier and more efficient for them to do as they acquire experience. Analogously, it’s like learning to transfer from a word processor to Microsoft Windows. Once you learn how to use Windows, you don’t go back to word processing. Today, The Tower Companies strives to build every building to be at least LEED gold certifiable; we’re able to raise the bar because we have that experience and that’s the path we’ve been growing on as a company. 

Has the LEED Platinum certification of 2000 Tower Oaks been a draw for your commercial tenants?

I think that people are curious and interested in the Platinum certification, but there’s also still a lot of fear that people are paying extra for that certification. The truth is that they’re not paying for the green products in your building. The whole concept of a “green premium” is an anomaly; it doesn’t really exist in a quantifiable way unless you’re developing a green building for the first time. I think that perhaps brokers and clients are confusing what they perceive to be a “green premium” with the market cost that usually accompanies a high-end product. 

Do you continue to maintain the green components of your buildings once they are occupied?

At Tower, we have implemented a green lease for all of our tenants in all of our buildings. Through this green lease, we ask our tenants to achieve a certain level of LEED certification depending on the building. We sit down with our tenants and explain to them what they need to do to achieve that certification and specifically what points we want them to acquire. We do this because we want to continue to make an impact. What people don’t understand about LEED for Core and Shell or LEED for New Construction is that the moment you deliver that building and turn over space to tenants, the benefits that you’ve created have expired. The building itself has been constructed to be sustainable, but it’s equally important once the building is complete to transition in to operating and maintaining the green components.

Part II of the interview will be available here next Wednesday. Check it out and learn what some of the challenges were to LEED certification and what Marnie sees as an economic future for the green building industry.

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