Monday, March 9, 2009

Incorporating Third Party Standards into "Green" Legislation

In my March 1, 2009 post, I discussed the Town of Blooming Grove Zoning Ordinance provision that gives a:

"Ten-percent increase over the base lot count for adherence to New York State Energy Star guidelines, low-impact development guidelines, or U.S. Green Building Council Leadership in Energy and Environmental Design (LEED) standards as they may be amended from time to time." (§ 235-14.1)

When a local law incorporates the standards or guidelines of a private association, in this case USGBC LEED standards, the municipality runs the risk of violating the NYS constitutional prohibition against relinquishing its legislative function. In other words, the legislative body would give up its delegated power to adopt laws and the standards contained therein.

Two factors may affect the validity of the legislation:

1. The Blooming Grove Ordinance provision is "incentive" based; it is not punitive and does not require any conduct except as to obtain the benefit of the density bonus. This type of legislation will be less susceptible to constitutional challenge than an ordinance that requires all construction to be to LEED or other third party standards.

2. An ordinance that requires compliance with a third party standard "as they may be amended from time to time" is problematic. By approving a future amendment to a private standard, the municipality improperly delegates its sovereign and legislative power, to a third party. The legislature loses control over its laws, and improperly empowers private entities, which may gain a benefit in the marketplace from its control of the legislation.

Towns, Villages and Cities considering "green" legislation should be careful to either adopt its own standards or incorporate with specificity third party standards that exist at that time. If thoses standards are amended by the third, the municipality should be prepared to amend the law to include the changes in the standards, if it so chooses.

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Being a land use attorney brings a unique perspective to the many interests at play in the making of land use decisions. In the course of any application, you encounter public policy and private property issues that require both advocacy and compromise in hopefully attaining the goals of your client while serving the common good.

Recently, I have been immersed in issues involving "green building" and sustainable development. I have researched the "legislating" of "green building", familiarized myself with "LEED" and other "green building" certification models, and studied the science of environmental impacts on commercial, industrial and residential development to gain an overview of what might be accomplished by bringing concepts of sustainable development to the forefront in our planning processes.

My goal with this blog is to create a dialogue between towns, villages, cities, their planning boards and ZBA's, counties, developers, engineers, designers, surveyors, attorneys, IDA's, empire zones, building associations, and the like, in order to set a course in which "green building" and sustainable development become primary in the decisionmaking on all land use matters. This is a "from the ground up" endeavor. Let's make things happen!

Jay R. Myrow