703
ALI-ABA Course of Study
Land Use Institute:
Planning, Regulation, Litigation, Eminent Domain, and
Compensation
Cosponsored by the Center for Urban Redevelopment
Education (CURE), Florida Atlantic University
August 17 - 19, 2011
Boston, Massachusetts
Land Use Incentives and Enforcement
in Government “Green” Requirements
By
Graham C. Grady
Nicole Mueller
K&L Gates LLP
Chicago, Illinois
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2
705
ALI-ABA LAND USE INSTITUTE
GOVERNMENT “GREEN” REQUIREMENTS
AND
“LEEDIGATION”
FRIDAY, AUGUST 19, 2011
______________________________________________________
LAND USE INCENTIVES AND ENFORCEMENT IN GOVERNMENT “GREEN” REQUIREMENTS
BY
GRAHAM C. GRADY†
PARTNER,
K&L GATES, LLP
CHICAGO OFFICE
AND
NICOLE MUELLER
NICOLE MUELLER IS A SUMMER ASSOCIATE AT K&L GATES, LLP AND IS A RISING THIRD LAW STUDENT AT
NORTHWESTERN UNIVERSITY SCHOOL OF LAW
______________________________________________________
Introduction
The purpose of this short paper is to provide you with a general overview of the myriad
Government “Green” Requirements which appear in federal, state and local land use regulations,
with specific focus on incentives available to developers of green buildings. In additional, this
short paper contains a summary review of case law concerning liability and enforcement against
architects, engineers, and contractors for failure to deliver green buildings. While there is a
†
Mr. Grady is grateful to Nicole Mueller for her excellent research and preparation of the first draft of this short
paper. However, I alone am responsible for any errors.
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surprisingly small number of lawsuits that have been filed on these topics, there has been a
wealth of discussion and speculation. This memorandum only touches the tip of the iceberg, so
to speak, with regard to what is commonly becoming known as “LEEDigation.
I. Incentives for Green Building
A. Leadership in Environmental Engineers and Design (“LEED”)
Myriad legislation, executive orders, resolutions, ordinances, policies and incentives are
found in 45 states, including 442 localities, 35 state governments, 14 federal agencies or
departments, and numerous public school jurisdictions and institutions of higher education across
the United States. LEED Initiatives in Governments and Schools, U.S. Green Building Council
(“USGBC”),
September
2010,
available
at
https://www.usgbc.org/ShowFile.aspx?DocumentID=7922. These incentives may be state, city,
or municipally-run, may be voluntary or mandatory. A highlight of incentives are listed below:
State-sponsored Incentives:
•
Fee reduction/waivers;
•
Free consultation/promotional services;
•
Free technical assistance;
•
Grants;
•
Low interest loans;
•
Other financial incentives;
•
Tax breaks; and
•
Tax credits.
County, Town and Municipal-Sponsored Incentives:
•
•
•
•
•
•
•
•
•
Id.
Density bonus;
Expedited permitting;
Fee reduction/waiver;
Free technical assistance;
Grants;
Municipal building or leasing requirement to achieve at least LEED Silver status;
Private construction over a certain size requirement to achieve LEED status;
Tax credits; and
Tax breaks.
B. The Better Buildings Initiative
The Better Buildings Initiative was announced by President Obama on February 3, 2011,
and seeks to make commercial buildings 20% more energy efficient over the next decade
through a series of incentives to upgrade offices, stores, schools, municipal buildings,
universities, hospitals and other commercial buildings. Press Release, The White House,
President Obama’s Plan to Win the Future by making American Businesses More Energy
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