Green Building in the Sunshine State
Nicole C. Kibert, Attorney, Carlton Fields, P.A.
Hear from Miami-Dade County Mayor Carlos Alvarez and discover the legal implications of green initiatives in Miami-Dade County and Florida at large.
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Green Building in Florida
Nicole C. Kibert, Attorney, Carlton Fields, P.A.
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| Nicole Kibert |
In 2007, Florida Governor Charlie Crist signed three Executive Orders during the Serve to Preserve Florida Summit on Global Climate Change to “guide Florida to reduce greenhouse gases, increase energy efficiency and pursue more renewable and alternative energy sources, such as solar and wind technologies, ethanol and hydrogen.” Green building highlights included the following mandates: all new state buildings must be built in accordance with the U.S. Green Building Council’s Leadership in Energy and Environmental Design for New Construction (LEED-NC) standards and Leadership in Energy and Environmental Design for Existing Buildings (LEED-EB) standards must be implemented for all existing state buildings.
Florida’s 2008 Energy Act created a state definition of green building and adopted staged energy efficiency improvements in the Florida Energy Code. Specifically, Fla. Stat. 255.253(7) provides that a "sustainable building rating" means a rating established by the U.S. Green Building Council’s (USGBC) Leadership in Energy and Environmental Design (LEED) rating system, the Green Building Initiative's Green Globes rating system, the Florida Green Building Coalition standards or a nationally recognized, high-performance green building rating system as approved by the Department of Management Services. In addition, many Florida municipalities are adopting green building provisions into their codes. An index of Florida green building provisions in municipal codes is available here.
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Green Space Today: Do you and your team view the doctrine of LEED as sacred text?
Miami-Dade County Mayor Carlos Alvarez: LEED is important to us, but it isn’t a “sacred” text when it comes to our building standards. We view LEED as a standard that elevated the importance of integrated design and brought attention to a more holistic approach. It set a path of principles to follow, but there are other means of getting similar results today.”
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Certifying a project requires the registration of the project with the certifying organization and lining up the appropriate professional to credential the building. This will involve ensuring that all the required information is collected and retained for the certification. There is high utilization of national certification programs such as LEED for commercial, mixed use, institutional and high-rise residential buildings, and of local, decentralized certification programs for family housing and land development. For example, the Florida Green Building Coalition is the leading certifying agency in Florida with 2,026 homes, 10 developments and 3 commercial buildings certified to date1; compare these stats to only 136 LEED certified projects in Florida.2
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| Miami-Dade County Mayor Carlos Alvarez at the ground breaking for the General Services Administration’s (GSA) pre-LEED certified building. |
Green Building in Miami
Championed by Former Miami Mayor Manny Diaz, the City of Miami has adopted a green building program including expedited permitting and plan review. Miami-Dade County, which includes the City of Miami, has adopted a similar program for green building projects. In addition, several of the smaller municipalities in Miami-Dade including Miami Beach, South Miami and Surfside have also adopted green building provisions in their local codes.
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Green Space Today: What challenges have you & your team faced in regards to carrying out ‘green’ public policy?
Miami-Dade County Mayor Carlos Alvarez: The biggest challenges we’ve seen is the learning curve in the community and within the county operations. There has to be an awareness of the long-term benefits and long term positive results. Local governments, governments generally, think in the short term – this is generally due to terms of elected officials and the one year nature of the budget process. “Green” public policy is an investment in the future; and as with all investments you need to look at the long term benefit, not just the short terms or initial costs.
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| Mayor Alvarez in front of one of Miami-Dade County’s hybrid dump trucks. |
There are 120 projects currently registered with USGBC to pursue LEED certification in various stages in Miami3. Of those, the USGBC lists 5 certified projects in Miami to date4 (LEED Standard – Certification Level: Platinum, Gold, Silver or Certified): (1) a Staples Retail Store owned by MK Real Estate Group (LEED CS 2.0 - Gold); (2) The Knoll Miami Showroom (LEED CI 2.0 - Silver); (3) Gazit Group USA (commercial office space) (LEED CI 2.0 - Silver); (4) Pizza Fusion, North Miami Beach (LEED CI 2.0 - Certified); and (5) American Airlines Arena-arena for the Miami Heat-(LEED-EB - Certified). The arena’s certification is unique in that it is the first basketball arena to achieve LEED certification.5
Green Building Contracting
The pervasiveness of sustainable development and green building concepts is confirmed by AIA’s integration of these principles into the Standard Form of Agreement between Owner and Architect, AIA Document B101–2007 (“Form B101”). Form B101 requires the architect to discuss alternative approaches to the project’s design and construction, including the feasibility of incorporating environmentally responsible design principles.6 Form B101 makes this an affirmative contractual obligation on the part of the architect.
Additionally, Form B101 requires the architect to consider “environmentally responsible design alternatives,” while contemplating the project and the owner’s budgeted costs.7 Also notable in Form B101 is the addition of green building services to the list of optional additional services including LEED certification, commissioning, extensive environmentally responsible design and historic preservation.8
Furthermore, the Standard Form of Architect’s Services: LEED Certification, AIA Document B214–2007 (“Form B214”), which modifies or is incorporated into the Owner-Architect Agreement, details the procedure to be followed by the architect in order to obtain LEED certification for the project from the pre-design workshop with the owner, its consultants and the architect’s consultants through the preparation of the LEED Certification Plan and certification services through the contract administration stages to the preparation of the final LEED Certification Report.
Green Building Liability Concerns
Naturally as demand grows for green building, anxiety is growing among insurance underwriters and professionals concerned with the liability issues that have begun to surface in connection with green building projects. Building professionals must be careful to work within their technical expertise and hire specialists as needed just like they would on any other design or construction project. There are a wide variety of claims that can arise against building professionals with respect to these projects: failure to achieve the desired certification level, specified products with an unproven track record that end up having undesirable impacts on performance or even structural issues.9 However, for the most part these issues can be effectively dealt with by careful contracting up front.
Lawyers drafting design and construction contracts must explicitly inquire about the nature of the sustainable design elements of a project so that risk is allocated properly for experimental elements and that certification promises are clearly documented with responsibility for necessary data collection and reporting allocated up front. In addition, if a building requires special expertise, contracts need to be appropriately specified (IE for, a structural engineer to design the building systems to support a green roof, the contract should specify for that type of specialist to be required). Attorneys may even want to negotiate the penalties for delays in the certification process or for achieving lower certification levels than desired by the owner up front so there is no protracted dispute later on about the value of a Silver v. Platinum LEED certification.
For more information on Florida green building law please visit
http://floridagreenbuildinglaw.com/ hosted by the Green Building Subcommittee of The Florida Bar RPPTL Construction Law Committee.
Nicole C. Kibert, Attorney, Carlton Fields, P.A. can be reached via email at nkibert@carltonfields.com
