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

I am surrounded by a lot of intelligent, talented attorneys at O'Malley, Miles, Nylen & Gilmore, P.A. and though I am currently the only "blogger" here, I'm certainly not the only writer. Here are a couple of green-related articles for your reading pleasure penned by members of OMNG's Administrative Law & Government Relations Practice Group, along with an interesting news item.

Nancy L. Slepicka is a Shareholder with the firm and oversees our La Plata offices in Charles County, Maryland. She is a land use, zoning, and environmental attorney with over thirty years of experience counseling clients on the environmental risks and legal strategies of community and commercial development throughout the Maryland counties. In her article titled "A New Day Has Dawned - Construction Permits Subject to Citizen Opposition," published in the January/February 2010 issue of the BIA's BUILDING magazine, Nancy discusses the potential challenges facing the industry as citizens now have the right to request public hearings on construction permits disturbing one-acre of land or more.

Lawrence N. Taub is also a Shareholder with the firm practicing in our Calverton, Maryland offices. Larry represents his builder and developer clients before administrative, legislative and judicial bodies in Prince George's County to obtain approvals for a wide range of developments, including mixed-use and transit-oriented projects, retail centers, office complexes, single-family and multi-family residential developments, senior housing projects, private schools, religious institutions, sand and gravel mining operations, and solid waste facilities. In his article titled "Planning and Zoning for Mixed Use: Balancing Redevelopment Vision with Economic Reality in Prince George's County, Maryland," Larry traces the pattern and evolution of development in Prince George's County and cautions that mixed use development, while an important and practical tool for smart growth, is not always immediately economically feasible.

Last but certainly not least, I'm proud to share that William M. Shipp, Practice Group Leader of the Administrative Law & Government Relations Practice Group, and a land use, zoning, and green building attorney practicing in Prince George's County, Maryland for over twenty years, was recently recognized as a Maryland Power Player as "The Land Use Lawyer" in The Gazette of Politics and Business March 2010 Supplement. Check out page 16 in the link for more information on Bill's practice areas and past achievements.

 If you have questions for Nancy or Larry about their articles, feel free to contact them directly - or contact me and I'd be happy to pass them along. If you're interested to learn more about us, please check out our new website at www.omng.com.

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Two weeks ago, we learned that stakeholders had reached a compromise regarding the grandfathering in of new stormwater management regulations to extend the implementation date for those projects in the pipeline that meet certain threshold qualifications (see this past post for details specific to the compromise). 

Now, we're hearing that the compromise might be...dead in the water.  The terms of the compromise agreement state that the revised regulations must be in place by April 12, 2010 (Sine Die), but it now appears as though the regulations might not make it out of the Joint Committee on the Administrative, Executive and Legislative Review (AELR) in time.

 HB 1125, whose scheduled March 10, 2010 hearing was canceled in light of the compromise, has been resurrected and a new hearing on this emergency legislation is scheduled for this Wednesday, March 24th, 2010 at 1:00pm before the House Environmental Matters Committee. This is a sponsor-only meeting and not open for public testimony.

There is a well-written article by Tim Wheeler, "Storm-water bill revived amid flak over compromise," published March 19, 2010 in the Baltimore Sun, that highlights various issues surrounding the status of the compromise.

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As many of you know, one of the biggest agenda items for local building industry groups this year was the scheduled phasing in of the new Stormwater Management regulations which were to apply to projects that had not achieved “final approval” for their erosion and sediment control and stormwater management plans by May 4, 2010.

THE CONCERNS:

The stormwater management regulations implementing the 2007 Stormwater Management Act were causing a lot of concern to developers and builders mainly for two reasons:

1. The grandfathering provisions were not very favorable for projects in the pipeline that may not be able to achieve “final approval” prior to May 4, 2010; and
2. The regulations as written may have had the effect of making infill development and redevelopment more difficult and therefore less attractive as a development site – especially problematic since a major tenement of “Smart Growth” relates to reducing suburban sprawl through infill development and redevelopment of existing sites.

Building and housing industry groups were gearing up to testify before the House Environmental Matters Committee on HB 1125 on Wednesday, March 10^th, but this meeting was canceled in light of the announcement that a new compromise had been reached (kudos to MML, MACo, NAIOP, CBF, 1000 Friends, MDE and MSBA for their roles in reaching this agreement). Under the compromise agreement, Maryland Department of the Environment will issue emergency regulations to revise the stormwater requirements that more fully address these two chief concerns.

THE COMPROMISE:

Grandfathering: Those projects that have received some sort of preliminary approval (but not “final approval”) prior to May 4, 2010, may be granted an administrative waiver by the local jurisdiction. A project that has been granted an administrative waiver will not be required to meet the new regulations, but will be governed by the stormwater ordinance in effect as of May 4, 2009 in the jurisdiction where the project is located. The administrative waiver will expire if the project does not attain “final approval” by May 4, 2013, or begin construction before May 4, 2017. 

The administrative waiver may be extended, but ONLY IF the project has received a “Preliminary Project Approval” prior to May 4, 2010 AND was subject to a Development Rights and Responsibilities Agreement, a Tax Increment Financing approval, or an Annexation Agreement. An extension granted under this circumstance will expire when the DRRA, TIF, or Annexation Agreement expires.

Redevelopment Sites: The emergency legislation will define redevelopment as “any construction, alteration, or improvement performed on sites where existing land use is commercial, industrial, institutional, or multifamily residential and the existing site impervious area exceeds 40 percent.” 

For all redevelopment projects, the stormwater regulations require reducing imperviousness, implementing ESD to the MEP to provide water quality treatment for one-inch of rainfall, or using some combination of these for at least 50% of the existing impervious area.

There are several alternative stormwater management measures that may be considered if addressing 50% of the site’s impervious area cannot be accomplished. These include a combination of ESD and on-site or off-site structural Best Management Practices (BMPs), or other options including:

• participation in a stream restoration project;
• pollution trading with another entity;
• Watershed Management Plans;
• payment of a fee-in-lieu; and/or
• Partial Waiver of the treatment requirement to the extent that ESD is not practicable.

In deciding what alternatives measures may be required, a local government may consider:

• whether the project is in an area targeted for development incentives, such as a PFA, a designated Transit Oriented Development (TOD) area, or a designated BRAC Revitalization and Incentive Zone;
• whether the project is necessary to accommodate growth consistent with comprehensive plans; and
• whether bonding and/or financing has already been secured based on an approved development plan.

CONCLUSIONS:

I think this is a good compromise for all: it doesn't water down (pardon the cheesy pun) the intent of the Stormwater Management Act because all new projects will be required to comply with the new regulations - but it does give those projects that have made substantial progress fair footing in terms of allowing them to be constructed according to the rules in which they began the often costly and time intensive process of developing property. The next step, of course, will be the drafting of the emergency regulations implementing the terms of the compromise. I'll track the progress here to keep you posted.

For more information, check out this story in today's edition of the Baltimore Sun by Timothy B. Wheeler.  Hat tip also to the Maryland-National Capital Building Industry Association for their advocacy efforts on behalf of their members and the industry.

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Last week, I had the distinct pleasure of meeting with Brad Beeson, the Director of Marketing for Bethesda Bungalows, to discuss and tour their “Incredibly Green Home of Chevy Chase” before it went to settlement. This house is built to meet both LEED for Homes Platinum and NAHB National Green Building Standard Emerald level certifications. Excitingly, the very morning that I was set to visit the house, Bethesda Bungalows received their NGBS Emerald certification for 5133 Fairglen Lane (pictured at left). They are still waiting to hear whether they will attain their LEED for Homes Platinum certification.

Since Bethesda Bungalows has direct experience with both the LEED certification process and with NAHB’s National Green Building Standard certification process, I thought that they’d have some valuable insight to contribute to the LEED v. NGBS debate.

Here’s a synopsis of some of the things that I learned from my discussion with Brad:

1.       Documentation Processes: The time intensity required to complete the documentation process for pursuing LEED Platinum and NGBS Emerald certifications (both the highest levels of certification under both systems) is about equal.

2.       Pro for LEED: The Credit Interpretation Requests available under LEED are extremely helpful in resolving “gray areas.” The NGBS, on the other hand, is a little less flexible.

3.       Con for LEED: LEED performance path testing is more complicated and time-intensive than NGBS.

4.       Pro for NGBS: The online scoring tool for NGBS was very helpful in assessing point potential. There isn’t really a counterpoint to this service under LEED. Additionally, the home received its NAHB NGBS Emerald certification before receiving a final determination from USGBC regarding its LEED certification.

5.       Those pesky bonus points: On the other hand, the “bonus points” needed under the NGBS were hard to meet for Emerald level certification. (Like I mentioned in this previous post, the “minimums” needed for each certification level under the NGBS are NOT true minimums due to the “bonus point” requirement).

6.       Preparation, training and experience is key: Training sessions with their subcontractors to make sure that everyone knew the green goals for the project were fundamental to the project’s success. Additionally, Bethesda Bungalows selected subcontractors, suppliers, and manufacturers that were experienced in green building.  See their list of suppliers and manufacturers here.

7.       Dual certifications aren't easy: Although there are points that overlap between LEED and NGBS that would support a decision to pursue both certifications for the same project, it’s not likely that this builder will pursue both for the same project again due to the time and organization systems needed for both.

In addition to being an "incredibly green home," 5133 Fairglen Lane is an incredibly beautiful home. I think some people have the perception that green building isn't very attractive, but this home is a true luxury home whose green features are seamlessly interwoven into its overall design.

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