What happens when erosion, rising sea level and powerful storms make coastal housing a high-risk venture?
 

Delaware is one of a number of states with oceanfront property. While this gives some people the opportunity to have scenic views from the comfort of their own homes, recent studies suggest the ocean may soon be an unwanted guest in those homes. The challenge that lies ahead is how to continue capitalizing on those views while taking precautionary steps for those who either want to—or already do—live in a potential flood zone.

Where’s the Line in the Sand?
A Global Problem and Its Effect on Delaware

A recent report by the National Oceanographic and Atmospheric Administration (NOAA) estimates that the world could experience sea-level rise greater than 6 ½ feet by the end of this century. Such a scenario would directly affect hundreds of millions of people around the world. Some of the planet’s great cities (New York, Los Angeles, Rio de Janeiro, Buenos Aires, Sydney, Cape Town, Amsterdam, Jakarta, Tokyo, Hong Kong, Mumbai, etc.) are situated on or very near coastlines. NOAA’s estimates, which exceed Delaware state government and United Nations estimates, are garnering extra attention because water levels are already rising faster than the world average due to topographical considerations.

Prior to the release of the NOAA report, Delaware was developing a plan to address rising sea levels and the effect on new and existing structures. The Sea Level Rise Advisory Committee (SLRAC), which falls under the auspices of the state’s Department of Natural Resources and Environmental Control (DNREC), had been evaluating a variety of climate change reports from the past 20 years. The committee is considering “a proposal to make future sea-level rise a factor in land-use planning and on decisions governing wells and wastewater systems.”a They might also require estimates to appear on buyer disclosure statements. The state has two major motivators: the health and safety of residents and protecting the state’s investment in roads, schools and other municipal entities.

The committee’s proposal plans for a rise of 5 feet by 2,100 feet. The state’s assessment found that “7 percent of the state’s land under development, and 20,000 residential addresses, already [lie] within areas facing permanent flooding of sea-level rise by 5 feet. Significant percentages of the state’s parks and wetlands, farms, highways, rail lines and industrial sites are at risk, among other resources.”(a)

Taking into account sea-level rise is a new—and controversial—policy. Currently, flood maps and flood plain boundaries are set by FEMA. This affects new development as well as flood insurance programs. If Delaware were to consider something, such as NOAA’s report, which went above and beyond the current methodology, it could set a precedent for other coastal states.

Introduce the very real possibility of storm surge, and things get incredibly messy. All that extra water will reach that much farther inland, compromising structures that previously never had to take flooding into consideration. The repair costs can reach staggering heights. That’s why some view mitigation or prevention as the smarter plan. “You have two choices in a flood zone,” says Julie Rochman, president of the Insurance Institute for Business and Home Safety. “One is to elevate and the other is to move.”(b)

Some communities within Delaware have already seen the effects of [small scale] sea-level rise, and have since taken measures to plan for future water and surge levels. These measures may include building flood walls, creating natural barriers offshore, building future bridges higher and purchasing boats for local fire & rescue crews.

Stakeholders’ Perspectives
Support:

Adam Parris, one of the authors of the NOAA report, advocates for the safest approach when it comes to power plants, wastewater treatment plants and other critical public infrastructure. He believes the worst-case scenarios should be the policy guide.

DNREC Secretary Collin P. O’Mara said of the NOAA report, “I think it reinforces the idea that the same places are vulnerable, whether you’re talking about 4 or 6 feet of storm [flooding] today or sea-level tomorrow,” O’Mara said.

Damaged by storms, the town of Slaughter Beach has suffered a breach in its protective dunes. As a result, flooding occurs more often, and nearby marshland has more pockets of standing water. Saltwater, specifically plant-killing brine, is damaging fields and crops as it rushes inland.

“The breach is definitely affecting everybody,” said Slaughter Beach Mayor Amy Reed-Parker. “You’re not going to convince me that sea-level rise is affecting only that breach.”

Oppose:

Rich Collins, of the conservative group Positive Growth Alliance, said he is skeptical of the committee’s efforts. “Coordinate is code. That means: Get organized, get so big and so dense and so far away that the citizens can’t influence it,” Collins said. “Property owners will have no influence, and their interests will submerge.”(a)

Kevin Whittaker, a representative of the Home Builders Association of Delaware, would probably agree with Collins’ assessment. “This could be an infringement on private property rights. That’s a big issue for the homebuilders, as well as realtors,” said Whittaker. “You’re affecting a broad base of people—thousands of people who don’t have ability to move or shift, and possibly won’t even be able to sell their property because some maps say it will be under water years from now. It’s one thing to say that I’m in a flood plain. It’s another to say that sea level is going to rise a meter and a half around the property. That’s not science. That’s not a factual thing. It’s based on what you think sea-level rise will do, and it impacts a person’s private property rights.”(a)

Seaford-area resident Annette Silva, a member of the conservative 9-12 Delaware Patriots, said that her group is deeply suspicious of the expansion of public land-use control at the state and federal levels. “All of this overreaching by agencies is growing across the country,” said Silva, whose group seems to subscribe to the idea that Agenda 21 will become a major influence in Delaware. “The thing that I find ironic is the fact that, at the same time that the states want to bring in all these rules about what people can and can’t do with their land, they’re using taxpayer money to bring in tons and tons of sand so we can have a tourism industry.”(a)

Political Probabilities

Rarely are such committees autonomous. Their ability to effect change is in the hands of someone else. Consider the situation in Delaware with the SLRAC. The Delaware Department of Transportation cannot act on anything the SLRAC might recommend until the governor, or other elected officials, endorse their recommendations.

“Until we can get something like that, some communication from over our heads, we can’t support going forward,” DelDOT planner Michael Kirkpatrick said. “The governor needs to make a statement that this group [Sea Level Advisory Committee] is acting on my behalf, and has come up with options. We’re out on a limb here, as state agency representatives. We don’t make policy. DelDOT has no official sea-level rise policy.”(a)

Receiving that support can be easier said than done. As we’ve seen with the topic of climate change, a politician’s actions can be influenced by an election cycle, campaign promises, political backers, other priorities, etc. Often, the committees have informed members and can even be subject-matter experts. Once the recommendation leaves the committee though, it’s anyone’s guess on the ultimate decision. gb
 

Resources
a. The News Journal, Jeff Montgomery
& Molly Murray, 12/8/2012.
http://tinyurl.com/bcz4r38
b. The New Jersey Monthly, Leslie Garisto Pfaff, 12/11/2012. http://tinyurl.com/cakr46o
c. The Times-Picayune, Mark Schleifstein, 12/7/2012. http://tinyurl.com/awcx6vo
 

The first national green building program specifically developed for affordable housing, EGC is third-party verified, and some municipal affordable housing organizations are already requiring it.

The intent of creating EGC was to provide a clear, cost-effective framework for all affordable housing development types anywhere in the country. An organization called Enterprise Community Partners (www.enterprisecommunity.com) headed up the effort, with a team comprised of many different stakeholders within the sustainable community. Some of the program criteria were actually based on portions of LEED for Neighborhood Development, LEED for Homes and Energy Star. The development types that could be considered include new construction and rehabilitation of multi-family projects, as well as single-family homes.

For 2011, EGC had $480 million invested in 5,640 affordable green homes. This dollar amount comprises almost 45% of the total for Enterprise loans, grants and equity in 2011 alone. Since 1982, EGC projects have received over $1.8 billion in grants, loans and equity invested for a total of 27,000+ affordable green homes overall.

How It Works
Before we delve into the particulars of the EGC program, it is important to note that the certification and registration of projects is free. However, only certain projects are eligible. It is open to all entities engaged in the development of qualified affordable housing. Enterprise defines qualified affordable housing as the following:

- Projects serving residents at or below 60 percent AMI for rental projects and at or below 80 percent AMI for for-sale projects. For NSP-funded projects, this definition extends to 120 percent AMI.

- Projects must designate a minimum of 80 percent of the units for affordable housing (e.g., no more than 20 percent can be market-rate housing).

- Projects must designate a minimum of 80 percent of the square footage of conditioned space for residential use (e.g., no more than 20 percent can be commercial or common space).

There are two steps to the EGC certification process. The first step, also called pre-build, involves applying online during the design phase, but before construction starts. The second step, also called post-build, calls for submitting the final documentation online within 60 days of completing construction.

Prebuild—Step One
EGC heavily emphasizes integrative design and beginning the program long before construction starts. A charette must be conducted as part of this process. Integrative design means bringing as many of the project stakeholders as possible together at the same time to discuss sustainable strategies, their implementation and financial impact. Typical participants are:

• - Housing development professionals
• - Residents (may not be typical for projects that are being developed as rental properties)
• - Technical experts (architects, engineers, etc.)
• - Funders
• - Policymakers
• - Community stakeholders

Enterprise can provide grants for either the Charette or Pre-Development Design. The Charette grant, of up to $5,000 per project, is meant to help fund the charrette, which can incur costs for advertising, meeting space, attendance, etc. The Pre-Development Design grant, of up to $20,000, is only for 501(c)(3) community development corporations (CDCs), community housing development corporations (CHDOs), tribally designated housing entities and for-profit entities participating through joint ventures with qualified organizations. The grant is meant to cover only the following reimbursable costs:

• - A fixed fee for each of the four architects to develop and present an approach and design ideas related to the development project. The grant cannot be used to cover technical feasibility studies or full schematic design.
• - A consultant fee and travel costs for the facilitator to collaborate with the grantee on the pre-development design process: this includes developing a design brief, reaching out to architecture firms, moderating the presentation day, and completing progress reporting.
• - Program support costs incurred by the CDC for the pre-development design process and the progress reporting.
•  

Once the charrette is completed, the called a “Green Development Plan.” This is a document that chronicles the credits being attempted and their subsequent strategies as discussed during the charrette. Along with the “Green Development Plan,” the project team will submit a context map, appropriate energy-modeling information and a site plan online to apply for the program before construction begins. Additionally, the project team will fill out the online registration form. A 30-day review period is needed by Enterprise before they can grant approval to move to step 2.

Interestingly enough, the initial four documents that are submitted for pre-build are more than sufficient documentation for quite a few of the mandatory credits. The “Green Development Plan” should be completed during or right after the charrette. The context map essentially just shows the project site in relationship to the rest of the community, along with transit and amenity locations. The energy modeling would have to be done by a qualified outside consultant. Also, it should be noted that a site plan would typically be required as a part of a project’s construction drawings, and would not be a special expense to meet EGC requirements.

Postbuild—Step Two
Within 60 days of construction completion, the project team will need to complete the online final certification form and submit the final documentation. This includes a revised and finalized “Green Development Plan” that documents any changes from any of the intended methods of compliance that were originally submitted as a part of step 1.

Additional final documentation includes: a utility release form, project photos with a subsequent image release form, the Energy Star certificate and cost reports. A final energy performance report is also required, unless the project is following an approved prescriptive energy performance path. Many of the specific items provided as proof of criteria compliance are portions of the project documents, which would typically consist of construction drawings, specifications or scopes of work. The project team only needs to indicate where in the project documents a particular strategy for criteria compliance is located. Enterprise then reviews and determines whether the project will be certified, and issues notification via email within 30 days.

EGC Program Particulars
All projects must achieve compliance with the mandatory measures applicable to their construction type as defined in the 2011 Enterprise Green Communities Criteria. Overall, for a project that’s classified as new construction, there could be potentially 41 mandatory measures that must be implemented. Additionally, new construction projects must achieve an additional 35 optional points.

Substantial rehab projects would have approximately 36 mandatory measures and moderate rehab projects would have approximately 31 mandatory measures. Mandatory measures may also only be applicable based on the scope of work. Both substantial and moderate rehab projects must achieve an additional 30 optional points beyond the mandatory measures. Substantial rehab or gut rehab is defined as a project that includes the replacement and/or improvement of all the major systems of the building including its envelope. A moderate rehab is defined as a project that does not include major systems or building envelope work as described for a substantial rehab.

EGC relies heavily on Energy Star directly for the Energy Efficiency category and indirectly for the Healthy Living Environment category. In addition to completing the “Thermal Enclosure System Rater Checklist,” the project will also need to complete the following:
- HVAC System Quality
- Installation Contractor Checklist
- HVAC System Quality
- Installation Rater Checklist
-Water Management System Building Checklist (or the Indoor airPlus Verification Checklist)

Standard inspections and testing must be performed. Sampling protocols are also allowed for large volume projects. For a brief synopsis regarding the current version of Energy Star, please refer to the Coalition Quarterly Industry Report from March 2012.

Market Effect and Relevance
Some developers see the value in certifications, especially when it’s tied to funding. There is also value in certifications, as they have the ability to create market differentiation. Consumer awareness has been translated into consumer demand, since consumer awareness of green homes has increased dramatically over the past five years. (See: “The Green MLS”—CQIR Q1 2011)

Because the EGC program relies heavily upon Energy Star standards, product manufacturers may want to consider establishing or maintaining a partnership with the Energy Star program. Providing products that clearly fit within the Energy Star program make it easier for green developers to build green. The Energy Star label has high recognition and through the Energy Star website, a product can receive excellent exposure since it is well known to both consumers and developers.

Resources
www.EnterpriseCommunity.com
Low Income Housing Tax Credit (LIHTC): http://tinyurl.com/awyvcl8
New Markets Tax Credits: http://tinyurl.com/bcqn8fk
Enterprise 2011 Annual Report: http://tinyurl.com/askgf4m
2011 Enterprise Green Communities Criteria guidebook: http://tinyurl.com/aepcbbx

It’s no secret that energy and building codes are in flux. The Green Builder Coalition has an ear to the ground, and shares a segment of their quarterly report with us. Here’s the latest installment of what they consider the ten most important changes and trends, from around the nation.
 

1. ALASKA

GENERAL CODE INFORMATION:
A free online checklist is available for Alaskan homebuyers that would help them determine if their new homes meet important energy efficiency standards. Additionally, the tool helps owners of existing homes. Using the checklist, they can view a list of efficiency improvements they can achieve through renovation.

“You wouldn’t think something as simple as a checklist would be such a valuable resource,” says Dan Fauske, CEO of Alaska Housing Finance Corporation (AHFC). “But this tool provides peace of mind, and can identify energy savings that total in the thousands of dollars.” Combining the checklist with participation in the Home Energy Rebate Program offered by AHFC, homeowners can earn up to $10,000 in reimbursement for energy efficiency investments.

The checklist was developed by the Building Codes Assistance Project (BCAP) and supported by the AHFC and Cold Climate Housing Research Center. It is available at http://tinyurl.com/a96glxl.

OBSERVATION(S):
Alaska’s energy code, known as the Alaska Building Energy Efficiency Standard (BEES), is based on the 2009 IECC, with some state specific amendments. Since the state is in climate zones 7 and 8, it’s completely understandable that they would make modifications to an energy code written mostly for the lower 48 states. They don’t have a set code update cycle, but they last updated in March 2011, so they’re doing just fine, compared to the rest of the United States. Understanding that the codes are a baseline from which to work, it’s great to see this tool in combination with a sizable incentive to improve the energy efficiency of all homes.
FYI: BCAP has created a state-specific checklist for eight other states: AL, ID, KY, MI, MO, NE, PA & TX.

2. ALABAMA (update)

HISTORY
In March 2010, the Alabama Energy and Residential Codes (AERC) Board was given authority to adopt mandatory residential and commercial energy codes for the entire state and residential building codes for jurisdictions that had not implemented a residential building code prior to March 2010. At that time, the state had a voluntary code for residential, based on the 2000 IECC. Additionally, since December 2008, the 2006 IECC was encouraged (though not mandated) for private commercial buildings. Finally, the state building commission enforces the 2007 version of ASHRAE 90.1 for all state municipal buildings.
GENERAL CODE INFORMATION:
Alabama’s first mandatory statewide energy code went into effect on October 1, 2012.
Approved by the AERC Board, the commercial code is based on the 2009 IECC.
The residential energy code is based on Chapter 11 of the 2009 IRC, but with amendments. These amendments include:
– Deleted the section on exposed foundation insulation
– Substituted Table 402.1.1 Insulation & Fenestration Requirements by Component from the 2009 IECC
– Deleted the section on slab-on-grade floors
– Deleted the section on programmable thermostats
– Ducts in unconditioned space must be insulated to a minimum R-6 until July 2013 when it increases to minimum R-8.
– Duct leakage test is not required prior to July 2013. Acceptable leakage rates vary from 4 cfm/100 s.f. to 12 cfm/100 s.f., depending on a number of variables. However, there is an exception within this amendment. It reads: “Duct tightness test is not required if the air handler and all ducts are located within conditioned space.”
– Deleted the mandatory section on pools
– Deleted the section on pool heaters
– Deleted the section on time switches
– Deleted the section on pool covers

OBSERVATION(S):
If you recall, Alabama was hit by five tornadoes sized EF-4 or higher during a four-day span in April 2011. Dozens perished and over 1,000 people were injured. The property damage incurred was massive, and the recovery process will take quite some time. These updated energy codes will affect thousands of structures, and help the citizens of Alabama recover in a much more sustainable fashion.

3. DALLAS, TX

GENERAL CODE INFORMATION:
The City Council of Dallas, Texas has mandated the use of the International Green Construction Code (IgCC) for all new construction starting in 2013. Additions will also be governed by the newly adopted code, though renovations are exempt. The City Council acted on the recommendation of the Green Building Task Force, which is comprised of industry stakeholders and registered City of Dallas voters, who serve as a third party.

OBSERVATION(S):
There is a green wave moving through the major municipalities in Texas. In our last issue, we highlighted Austin and El Paso’s movement to the 2012 IECC. By adopting the IgCC, Dallas is in effect adopting the 2012 IECC, as well as introducing provisions for sustainable construction. It is a bold and welcome stance from a major US city.

4. CHATTANOOGA, TN

GENERAL CODE INFORMATION:
The city recently adopted a number of I-Codes, including the 2012 IRC, 2012 IBC and the 2009 IECC, with strengthening amendments and provisions for both residential and commercial construction. Starting on January 2, 2013, the city will no longer accept plans drawn to the 2006 IBC and 2006 IECC, which was the previous code.

OBSERVATION(S):
It seems odd that the city would adopt a lower energy code than their building codes. We suspected the usual HBA resistance, so we called the city’s building code department. We were told it was a combination of two things: the HBA of Greater Chattanooga was opposed to the 2012 IECC and “common sense.” The gentleman who spoke to us said the homebuilders claimed that moving from R-38 to R-47 attic insulation would have caused them to build their homes differently. He also felt that homes in Chattanooga “didn’t need the same amount of insulation in the attic as Detroit.”

For what it’s worth, based on their website, the HBAGC does not have a Green Building Committee and does not appear to be advancing the ICC 700, either. (They do, however, list a Golf Committee on their chapter’s website.)

5. CLAY COUNTY, MO

GENERAL CODE INFORMATION:
Located northeast of Kansas City, Clay County recently became the first county in the KC metro area to move to the 2012 I-Codes. They adopted the 2012 IRC and the 2012 IBC, but made weakening amendments to Chapter 11 (energy efficiency) such that it will be roughly equivalent to the 2009 IECC. “The ICC rightfully wanted to ramp up the standard on minimum energy-efficiency measures in a single-family house. It needs to be done,” said Matt Tapp, Planning and Zoning Department director.

Clay County (est. pop. 221,000) follows Kansas City and Overland Park, Kan., as the third jurisdiction in the area to adopt some of the 2012 I-Codes and had previously been operating under codes set in 2003. “We took what Overland Park did and formatted it for Clay County,” Tapp said. “They really blazed the trail.”

In addition to improved codes, the county created a “Green Build Incentive Program.” It appears to incentivize builders to use the NAHBGreen Program (also known as the ICC 700), as it provides building permit rebates. Rebate percentages are assessed on where a project scores on the program’s four levels. Fifty percent of the rebate is repaid at the Bronze level, up to a 100% rebate at Emerald. “It’s our way of helping out and trying to promote and foster a higher level of green build(ing),” Tapp says.

OBSERVATION(S):
Similar to Arizona, Missouri is a home rule state and does not have a statewide building or energy code. However, there seems to be momentum on both the western and eastern sides of the state to adopt (at least) the 2009 IECC.

Of particular interest here is the incentive program that “endorses” NAHB’s green building program. There’s been much discussion at the national level of improved codes and their effect on the proprietary green building programs. Clay County is an example of the two co-existing and benefiting the homebuilding industry.

6. GLENDALE, AZ

GENERAL CODE INFORMATION:
On October 23, Glendale, Arizona’s city council voted to adopt the 2012 IECC. Glendale became the 20th jurisdiction in the state of Arizona to move to the 2012 IECC (with minor amendments). The city adopted all the 2012 I-Codes, along with the 2011 National Electrical Code, with an effective date of December 1, 2012. They had been operating under the 2006 I-Codes, with amendments, since June 26, 2007.

The City Council shared the code adoption proposal with many industry groups, including the local HBA and AIA chapters. Suggestions for minor amendments were made and incorporated, but the city did not receive any opposition or negative feedback.
Due to the update, the city’s Building Safety Department will maintain its compliance with the Insurance Service Office criteria by adopting current and nationally recognized standards, ultimately lowering insurance rates and assisting in attracting new businesses to the city.

OBSERVATION(S):
This is just another example of the energy efficiency wave sweeping through Arizona. We’re happy to report that all involved were on board with the update, and there wasn’t the usual resistance, prolonged debate and watering down of the code. Hopefully communities like Glendale can serve as a model for many other jurisdictions in the state and beyond.

7. NEW YORK

GENERAL CODE INFORMATION:
Long Island, New York was the site of major damage following Hurricane Sandy. As the long recovery process gets underway, nine communities will have a new compliance option for their energy codes. The following towns have incorporated the HERS Index into their building energy codes: Brookhaven, Babylon, Hempstead, Huntington, Islip, North Hempstead, Oyster Bay, Riverhead and Southampton.

OBSERVATION(S):
With the amount of reconstruction needed, building code departments will be overwhelmed with the need for inspections. By extension, this permits HERS raters to speed the recovery process along, while maintaining the integrity of the energy code and ensuring that energy efficiency will not be overlooked.

8. VAIL, CO

GENERAL CODE INFORMATION:
The town adopted the 2012 IECC in early November after holding public hearings over a nine-month span to review changes and updates from previously adopted building codes. Vail’s Building and Fire Appeals Board, who hosted the hearings, added provisions to the code that address construction practices unique to the community. Their new energy code will go into effect in January 2013. Vail updates its building codes every three years.

OBSERVATION(s):
Similar to Hawaii, Vail’s economy is dependent on tourism. By regularly updating their building and energy codes every three years, they are doing what they can to preserve their most precious asset: nature.

9. COLORADO

MARKET INFORMATION:
The Colorado Department of Housing recently upgraded from the 2006 IECC to the 2012 IECC for newly manufactured modular housing in the state. Since modular housing is built in a factory to the respective state’s adopted building and energy codes, it falls outside the qualifications for HUD housing.

As we stated in our last report, most Colorado building codes are adopted on the local level, with a few exceptions. Modular housing represents one of those exceptions. The Department of Local Affairs adopts building codes for manufactured and modular housing in all jurisdictions, in addition to hotels, motels and multi-family housing in jurisdictions without building codes in place.

OBSERVATION(s):
Modular housing only represented 2% of all new single family housing starts in 2011. A factory setting should, and usually does, contribute to higher quality control. Still, it’s good to see Colorado expecting a high standard for these homes.

10. HAZELWOOD, MO

GENERAL ENERGY CODE INFORMATION:
The City of Hazelwood, Missouri adopted the 2009 IECC and the 2009 IRC in early November. A single amendment was made, changing basement insulation requirements to only apply if there are four feet or more of above-ground exposure. Hazelwood, which is a suburb of St. Louis, had been enforcing the 2003 code.

OBSERVATION(S):
Basements are common and, frankly, expected in the St. Louis area. There’s a mix of traditional (completely below-grade), lookout and walk-out basements in the region, with an occasional slab-on-grade or crawlspace. Their lone amendment will apply to the lookout and walk-out foundations. With frost lines in the region ranging from 18-30”, the rationale for the amendment may be that there’s too much exposure that is not insulated by soil a vast majority of the year.

But this amendment is really a bad idea. A fair amount of people finish their subterranean space, so it’s disappointing that insulation isn’t called for on the entire wall. It would greatly increase the comfort of those bonus spaces, as concrete has a very low R-value. For example, in winter, the air temperature might be 20˚F. The exposed portion of that wall would be of similar temperature. The first foot of the wall below grade would be warmer, but might still be in the 30-40˚F range. One could feasibly have a basement wall where the top four feet are transferring temperatures of 30˚F or less. There’s either a substantial heating load needed to offset that, or else the homeowner lives with a cold basement. Conversely, during the cooling season, there is the potential for condensation to form as humid air condenses on the cool surface. Unmanaged moisture in a home is a great way to implement mold growth.

The ARCs consist of a handful of the neighborhood's residents. Often, there's no requirement to have a background in the building industry.

As we start to see signs of a housing recovery, slow as it may be, I feel the industry is in a great position. All the effort put in by so many to improve our energy codes, green building programs & rating systems will finally be able to bear fruit. We can start to build homes that are much more environmentally responsible. Sure, we can have a lengthy debate about implementation and adoption rates, but you’ve got to walk before you can run. Unfortunately, I can see that progress getting shackled by an unexpected impediment: the architectural review committee (ARC; sometimes called “architectural committee” or “architectural control authority”) and the covenants of a homeowners’ association.

When things were going gangbusters in the early to mid-2000s, builders couldn’t buy land or build homes fast enough. But when the bubble burst, a lot of developments were left incomplete. Lots have sat in waiting for years. We’re starting to see activity on some of those lots, but a neighborhood covenant that is sadly outdated awaits those projects. Yes, it might only be a 10-year-old document, but think about the monumental shift in required energy performance, or the increased interest in sustainable building practices, or the proliferation of product choices since 2002.

One of the main reasons for an ARC’s existence is “policing” architectural integrity/consistency. It’s a bit of hyperbole, but it helps prevent someone from constructing a sheet metal shack in a neighborhood of mid-level homes. Where it gets tricky is when a homeowner wants to use a material of equal or better quality, but because said material is not one explicitly specified in the covenants, the ARC deems it unacceptable.

For instance, metal roofs can utilize recycled content and have a much longer lifespan than asphalt shingles. An executive from a rainwater catchment manufacturer recently said, “A metal roof is ideal for collecting rainwater. The slicker the surface, the better, since fewer contaminants will stick to it.” However, some ARCs will not allow metal roofs. They make their decision based solely on aesthetic reasons, and not on the merits of the upgraded roof.

Same goes for log homes, though log home manufacturers are sorely familiar with such restrictions. I have seen neighborhood covenants explicitly banning log homes. Rather than allow an above-code home to be built, some developments would rather keep the standard of construction down, in order to (in some peoples’ view) keep the neighborhood more aesthetically pleasing. As energy efficiency becomes more and more valued, either voluntarily or through formal programs such as those proposed in the SAVE Act, the rationale behind these clauses will become even more asinine.

Another example of covenants not being able to adapt to the changing times is the topic of gardens. Some covenants will not allow the homeowner to have a garden. Others allow a very small one, and then only if it’s hidden from public view—as if it’s something shameful and hideous. I’m not suggesting anyone and everyone be allowed to plant small production crops in their yards (though urban farming is a movement having much success in the Detroit metro area). But why treat the growing of one’s own food with such disdain?

The ARCs consist of a handful of the respective neighborhood’s residents. Often, there is no requirement to have a background in the building industry. In fact, I recently asked a second-generation builder with 40 years of experience if he had ever encountered an ARC with any level of building industry experience. He quickly answered, “No.” That means you could have a caterer, or a school teacher, or a shoe salesman making decisions that influence (or even change) someone else’s six-figure investment. Does anyone else find this absurd?

Do these committees have any real legal authority, or are their actions merely recommendations? To find out, I asked two attorneys whose focus is real estate and/or construction. Neal Wallace, a real estate attorney from Illinois, explained there are two facets to the question:

“When it comes to an association committee enforcing subdivision covenants, there are both legal and practical considerations. From a legal standpoint, generally if 1) the covenants are properly recorded, 2) the deeds are made subject to existing covenants, 3) the issue in question is specifically addressed in the covenants, and 4) the covenant does not violate public policy, then the association can enforce those covenants in court. If the covenants do not specifically address the issue, but address a related issue, then the court would need to interpret the covenants to determine if the issue is governed by the recorded document.
As a practical matter, judges have little patience for petty issues. So if the association is going to take up court time and resources, it would be wise to make sure this is truly a battle worth fighting. In most circumstances, an interpretative slant in favor or against one party can have a major impact on the outcome. You can ‘prove’ a technical point and still lose, particularly if the judge can be confident that no one would bother to appeal. Furthermore, an association would need to be represented by counsel, incur court costs, obtain the necessary votes (unless the developer is still in charge), etc.”

Virginia construction attorney Christopher Hill added, “Given the general enforceability of ARC actions pursuant to neighborhood restrictive covenants, we should be moving toward amending the basic neighborhood covenants to allow for more sustainable building techniques, particularly in light of the more and more aesthetically pleasing ‘green’ materials that exist today.”

Thankfully, some states have passed laws that protect the homeowners’ rights to generate their own solar and wind power, meaning HOAs have little to no governance over private renewable energy sources. Common sense has prevailed in certain areas of the country.

But what happens to those who want to utilize certain sustainable products or techniques, but are prevented from doing so? After all, Merriam-Webster defines neighborhood as “a: the people living near one another; b: a section lived in by neighbors and usually having distinguishing characteristics.” Families are faced with making a choice between doing the right thing for the environment or their families. If they want to build their environmentally friendly dream home, their choices include finding an infill lot in an older neighborhood that no longer has an ARC, or building on land not in a neighborhood (usually in a rural setting), thus contributing to urban sprawl while, in essence, being treated as outcasts. If they choose an available lot in an existing neighborhood—perhaps to be closer to their family or friends—then they have to compromise their desire for a responsible structure in order to conform to a narrow aesthetic expectation. It’s an unfair choice, and one that homeowners shouldn’t be forced to make.
 

Manufacturers want the USGBC to back off what they see as excessive regulation of certain chemicals used in buildings.

We frequently write about the barriers to the energy code and green code adoption. Resistance can be attributed to “push back” from the homebuilders and/or state legislatures, or, in this case, manufacturers.

In LEED Version 4, USGBC has taken more aggressive steps to move the market away from harmful chemicals. Pilot Credit 2, the first iteration of this type, appeared back in July 2010--but that credit was limited to a few chemicals. In March 2012, Pilot Credit 54, “Avoidance of Chemicals of Concern,” expanded the list (available at buildinggreen.com) to many more chemicals. What this translated to, in the LEED point lexicon, was that if a project elected not to use a chemical of avoidance, they would earn 1 or 2 points. This credit still appears in (what is now) the 4th draft, though the list now references the EU’s REACH Protocol.

According to a manufacturing industry rep we spoke with, 100 ppm was the level chosen for a litany of chemicals. Depending on the chemical, the consequence of exposure could result in anything from a sneeze to hospitalization. The rep felt there wasn’t a solid rationale for the blanket application of the 100 ppm level, and would have preferred more research into specific levels for specific chemicals.

Dozens of manufacturers, many of whom are also members of USGBC, are so worried about the proposed restrictions that they have banded together to help form the American High Performance Buildings Coalition (AHPBC). Their mission reads: “Support and promote green building codes, standards, rating systems and credits that are developed in conformance with full ANSI or ISO-type consensus processes, are data-driven, supported by science, and performance-based.” This advocacy group consists of 32 members, all industry groups who could be financially harmed by LEED’s potential incentives to avoid certain chemicals.

USGBC contends that having people seek out alternatives to these chemicals will help spur the market for more environmentally friendly materials. The AHPBC counters that the alternative options either do not exist or are not feasible. There are many other points of contention, regarding chemical avoidance, between USGBC and the AHPBC. They range from allegations of decreased energy efficiency, to the politically popular phrase, “job killing.” It appears most of the concerns by the manufacturing industry are not supported by facts.

That has not stopped either side from taking calculated steps to further their perspective. The AHPBC’s first action was to help persuade 73 Congressional members to send a letter to the GSA, demanding they drop the green building program if the newest version passes. USGBC responded by sending their own letter, containing over 1,200 signatures, to the GSA. Predictably, this was a letter of support for the LEED program and its continued use by the federal government.

It should be pointed out that the issue of “Avoidance of Chemicals of Concern” pertains to an elective, not a requirement. LEED certification can still be achieved without earning the contested credit(s). It is also prudent to remind everyone that LEED is a voluntary program, not a building code.

There are many facets to this controversy, but this chemical dispute has enormous financial repercussions. On the one hand, government projects represent the largest percentage of LEED projects. If LEED is removed from their protocol, that could mean a substantial loss of revenue for USGBC, an organization that experienced a $25 million decline in revenue from 2009 to 2010.  Conversely, if the building industry starts to support alternative markets in order to earn more LEED credits, those alternatives will enjoy increased market share revenues and legitimacy. Meanwhile, many manufacturing giants might experience less revenue in the short term, or be forced to adapt to a changing marketplace by changing their own processes. Either of those scenarios represents a significant cost they'd rather avoid.

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