Better Building: The Responsible Developer's Blog : Northwest Construction Lawyers & Attorneys : Foster Pepper Law Firm : Sustainable Building & LEED Projects in Seattle & Spokane, WA

Some of our prior posts included information about new energy efficient “Net Zero” Homes and California’s landmark decision to mandate a Green Building Code (CALGREEN). However, there may be unintended financial consequences when code officials mandate green and more energy efficient homes. 

Concern about these consequences caused the Building Industry Association of Washington (BIAW) to file a lawsuit on behalf of its members.  The complaint alleges that the end result of new provisions in the Washington State Energy Code that go into effect in July 2010 will be that fewer homes will be built and sold because consumers cannot afford to buy the homes that would be built under the new code requirements.  BIAW alleges that the cost to comply with these code requirements would increase the cost of an average home by $4,000-$15,000.  Probably a tough sell to first time buyers in recession. 

According to the Washington State Building Code Counsel (SBCC) in the long run these code requirements will result in lower energy costs over the life of the homes.  However that may be small consolation to buyers who cannot afford these energy efficient and code compliant homes in the first place.

This possible energy and code conflict would not be the first of its kind in Washington.  In the 1990s building and energy codes mandated tighter insulated buildings that featured exterior fire resistive gypsum sheathing.  The problem was that in wet climates like western Washington, when rain penetrated behind cladding, the result was mold, a loss of structural capacity and hundreds of millions of dollars in property damage.  This conflict also dramatically increased the cost of insurance on residential construction projects and hence increased the cost of homes.

So apparently major changes in building and energy code requirements may need to be tested by the courts and mother nature before code officials, builders and consumers all realize the intended benefits.

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Growing up with my engineer father introduced me at an early age to Murphy’s Law: “Anything that can go wrong, will go wrong.” Although initially confined to the challenges of raising a large family and home repairs to an older home, my experience as a lawyer has confirmed the validity of the law. Green building is no exception, and as the world wide push to more and more sustainable lifestyles and buildings propels the growth of green building, many new things can and most assuredly will go wrong.

Indeed, the emerging nature of green design and construction will likely increase the liability of design and construction professionals for two major reasons. First, green building lacks universally accepted standards for exactly what qualifies as green or sustainable construction. Second, there is the risk of heightened (and unrealistic) expectations on the part of the end users, to whom green building might mean “defect free” or less maintenance.

For now, the best way to prepare for what to do when things inevitably go wrong is to understand the basic concepts in green building systems to better anticipate issues that may arise in drafting agreements and conducting construction and design activities. We recently presented an article that looks at the background of green building systems and examines ways to deal with new risks in both public and private construction.

In anticipation of both legislative and industry wide demand for green building, the American Institute of Architects modified its B101-2007 Standard Form of Agreement Between Owner and Architect to provide some guidance on green building:

§ 3.2.3 The Architect shall present its preliminary evaluation to the Owner and shall discuss with the Owner alternative approaches to design and construction of the Project, including the feasibility of incorporating environmentally responsible design approaches. The Architect shall reach an understanding with the Owner regarding the requirements of the Project.

However, this provision contains very little responsibility and anticipates that any “extensive environmentally responsible design” or “LEED Certification” services will only be provided as Additional and not Basic services (meaning more money). So, if such services are needed, care should be taken to draft contract clauses requiring the services and specifying whether the services will be paid for as a part of, or in addition to, the original compensation to the Architect.

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