Rebuilding can be more important than building.

Does the Responsible Developer volunteer to help rebuild communities? 

Absolutely, and you can get involved too.  It really makes a huge positive impact on the homeowners that get this kind of help.  RTS (Rebuilding Together Seattle) has now made it easy to get involved with one of these amazing feel good volunteer projects.

Recently, well known South Lake Union Developer Vulcan Real Estate, teamed up with Foster Pepper and RTS, to spend some quality time making a difference in someone's life.  The homeowners, Buford and Evelyn Neal, were a gracious older couple and Buford is a veteran of both WWII and the Korean War (where he lost his legs to frostbite while serving his country).  Why not work hard for people like that!

So RTS set us up and gave us the ground rules.  We had numerous precon meetings to define the scope of work, the materials and tools needed, what actual "contractor volunteers" would be involved and how many laborer volunteers would be needed.  The hard working foursome of Margie Thirlby and Sarah Ihrie of RTS, Vulcan Project Manager extraordinaire Kyle Weeks, and Foster's own angel of organization, Joanna Plichta-Boisen, kept us all together and well prepared.   

Prior to full mobilization, some of the actual contractors started on tasks like interior demo of walls and floors.  Then on the day of, 30-40 Vulcan and Foster volunteers descended on the site.  The weather gods were smiling as the volunteers were treated to the then warmest, sunniest day of year.

At end of long day the volunteers has transformed the home inside and out, new floors and coverings, appliances, enlarged door ways to better accommodate wheelchairs, and repairs to outbuildings, gutters, patios, walkways, landscaping and removal of lots of accumulated "stuff."

This RTS event transcended rank and title, where Vulcan Senior Directors were working side by side with Foster lawyers, staff, and their family and friends.  It was a wonderful day for a wonderful cause.  During the day several times curious passersby stopped wanted to know what was going on and when they found out, wanted to know how to get involved.

To cap a truly meaningful event, KOMO news reporter Theron Zahn appeared with a camera crew to interview the Neals (watch the interview) and capture the images of the many people who took time from their lives to be part of Rebuilding Together Seattle.

Get involved with RTS, you'll be glad you did.  It is the responsible thing to do.  See you next year.

2012 Continuing Construction Education

Does The Responsible Developer take advantage of construction industry opportunities for continuing education?  Absolutely!

Here are some great local and national seminars to attend that provide the most current news and information on public and private development and construction:

1.   For the developer or contractor interested in public schools, here is a great opportunity, on two dates in two cities:

The Washington Association of School Business Officials
Capital Project & Facilities Workshop
March 14, 2012 in Yakima and March 20, 2012 in Renton:

  • Bidder Responsibility Criteria and GC/CM & Design Bid Build
  • Legal Tools for Effective School Construction Contracting
  • Construction Budgeting & Accounting and State Match 

Foster Pepper's own Greg Guedel will be speaking on the first topic. 

2.   For the developer or contractor involved in bidding government projects, there is the Seminar Group's Construction Bidding on March 15, 2012 in Seattle: 

  • The Bidding Process
  • Alternative Public Project Procurement Process
  • Insurance Considerations in the Bidding Process
  • Contractor and Municipality Perspectives on Bidding Construction Projects
  • Strategies for Bidding Claims

 Foster Pepper's own Tom Ahearne will be speaking on the third topic. 

3.   For the developer or contractor looking for a comprehensive national construction seminar on both public and private projects, this annual event is not to be missed:

The ABA Forum on the Construction Industry Midwinter Meeting on February 2-3, 2012 in Houston:

  • Design Control and Delegation
  • Current Issues Facing Complex Project Funding
  • Open Book Accounting in Cost Reimbursable Contracts
  • A Study of Issues Posed by Schedules on Complex Cases
  • A Review of Good and Bad Assurance/Quality Contract Case Studies
  • Practical Tips in Navigating Project Labor Disputes
  • Others 

This Editor looks forward to seeing you there. 


Irony Alert: Washington State's fundamental environmental law is being used to block the construction of the State's most sustainable building

This year, the Bullitt Foundation planned to construct the Cascadia Center for Sustainable Design in Seattle's Central District, designed to be the world’s most efficient office building built to date, and the nation’s first mid-rise commercial building to achieve “Living Building” certification. "Living Building" certification requires the Cascadia Center to achieve 20 benchmarks, including the on-site production of 100% of the building's energy and water needs (100% is not a typo). The center would also be evaluated after one year of the building's operation (a response to the criticism that LEED-certified buildings fail to perform to green design standards over time). Ultimately, the Bullitt Foundation envisioned developing the Cascadia Center to be a local and national model for innovative sustainable development. However, the Cascadia Center is quickly becoming a model that demonstrates the barriers to innovative sustainable development in Washington State.

Recently, a nearby building owner filed an administrative appeal challenging the Cascadia Center because the project’s developer did not prepare an Environment Impact Statement ("EIS") under the State Environmental Policy Act (Chapter 43.21C RCW, "SEPA"). The building owner (whose building's views would be blocked) argues that an EIS is required because of the purported environmental impacts by the departures to the land use code provided in the City’s design review process and provided in the City’s Living Building Pilot Ordinance (now codified at SMC 23.40.060). The departures were needed to design the building to meet Living Building certification standards. Because of the building owner's collateral attack, the project is now stalled in litigation for the foreseeable future.

Ironically, one of the largest barriers to innovative sustainable development is the State Environmental Policy Act, a law originally intended to be a protective shield for the environment.

Generally, development projects that do not meet a City's SEPA threshold exemptions are subject to the SEPA review process, which may or may not include the preparation of an EIS (which, is costly to prepare and takes many months or even years to complete). As demonstrated by the Cascadia Center, the SEPA review process is vulnerable to legal appeals, providing a tremendous amount of uncertainty for urban development, especially innovative sustainable development that may require departures from established code requirements. Regardless of SEPA's initial environmental intentions, in reality, the SEPA process increases the uncertainty and cost of urban development, providing a disincentive for innovative sustainable development.

To encourage urban development, the Washington Legislature has amended SEPA to dispense qualifying projects from SEPA review at the project level if a non-project EIS has been previously completed at the planning level. This is what many call "upfront SEPA," and several cities in Washington State have effectively used upfront SEPA to encourage urban development. Washington State has authorized several forms of upfront SEPA, including planned actions, optional local infill exemptions (RCW 43.21C.229; WAC 197-11-800(1)), utilization of regulatory requirements in lieu of SEPA review, and RCW 43.21C.420. The City of Seattle did not complete a non-project EIS for the Cascadia Center project area, and, as a result, the Cascadia Center remained vulnerable to SEPA-based appeals.

The Cascadia Center's legal woes demonstrate that sustainable development remains vulnerable to SEPA-based legal challenges. It is likely that sustainable development will remain vulnerable to “environmentally-based” challenges unless cities complete upfront SEPA or SEPA itself is dramatically amended. Until then, sustainable developers should consult with a SEPA attorney to develop a strategic plan to minimize the cost and delay of defending their project should a SEPA-based challenge arise.

Cascadia Center Details:

Project owner: Bullitt Foundation
Project developer: Point32
Architect: Miller Hull

The City of Sustainability, also known as the City of Destiny

Recently, the City of Tacoma announced Sustainable Tacoma Grants, awarding up to $5,000 to any non-profit or educational institution planning a project related to sustainable development and climate change mitigation. The grant encourages applicants to “be creative!” and to connect the grant proposal to Tacoma’s Climate Action Plan. Key strategies of the action plan include transportation/fuel reduction, energy reduction, waste reduction/recycling, and smart land use/livable neighborhoods.

This grant is another concrete step that the City of Tacoma has taken to integrate sustainable principles into the City’s daily operations. Previously, the Tacoma City Council passed a comprehensive upzone for several of Tacoma’s mixed use centers. This upzone is intended to accommodate projected population growth inside the City, rather than outside the City (such as on Puyallup Valley farmland). Recognizing the City’s determination to encourage urban infill, the Washington State Department of Commerce awarded the City with a $100,000 grant to fund an upfront environmental analysis of a recently upzoned mixed use center. The upfront environmental analysis will encourage new development by removing one of the biggest barriers to infill development, that is, project-based appeals under the State Environmental Policy Act. The Responsible Developer’s Blog previously discussed the importance of “upfront SEPA.”

Of course, not all of Tacoma’s residents are excited about the idea of new (and more) neighbors. To assuage neighborhood concerns, the City is taking proactive steps to engage residents in a conversation about growth. Last month, the City sponsored a lecture titled Density, Gentrification, & Other Dirty Words. Upcoming lectures are on Sustainable Transportation and Adapting Old Buildings to New Uses. A list of upcoming lectures is available here.  The City of Tacoma’s Sustainability Calendar is available here.

Expect to see Tacoma taking a lead on urban infill in the years to come. The micro-grants, upzones, upfront environmental review, and public outreach are just the beginning.

Responsible Developer's Blog Launches on Earth Day

In celebration of Earth Day 2010, Foster Pepper has launched its third legal blog, Better Building: The Responsible Developer's Blog, devoted to legal issues and information related to responsible building practices in the construction and real estate industries.

Sustainability and climate change are reshaping the land use, real estate, and construction environments, and extend to municipal, business, energy/utility, and litigation practices. Foster Pepper has used its extensive reach and experience in these areas to craft sustainable solutions for its clients. will serve as an extension of these activities and be a resource for clients and other interested parties providing legislative updates, industry news, and other relevant information.

According to Greg Clark, Foster Pepper construction litigator and lead blogger,

“As the green/sustainability industry evolves and more and more legislation is introduced, we wanted to ensure our clients have the information they need as they plan and develop their projects.” He continued, “We intend to broadly cover news and trends and provide legal information related to both public works and private projects, and become a valuable resource for those striving to be responsible builders.”

With offices in Seattle and Spokane, Foster Pepper PLLC provides a full range of legal services to businesses, municipalities and individuals. In 2005, the firm entered its second century of service to clients and communities across the country and internationally.