Hawaii Green Building Law

Historic buildings in downtown Honolulu have been getting face lifts. As previously discussed, Group 70 achieved LEED-CI Platinum certification for the second floor renovation of the McCandless Building. Earlier this week, the Nature Conservancy announced that it achieved LEED-EB Silver certification for its headquarters in the 132 year-old historic Wing Wo Tai building.

Greening a historic building in Hawaii presents unique challenges. A
“historic property” is defined as any building, structure, object, district, area, or site, including underwater site, that is significant in the history, architecture, archaeology, or culture of Hawaii, its communities, or the nation.

Under Hawaii law, before any construction, alteration, disposition or improvement of any nature, by, for, or permitted by a private landowner may be commenced which will affect privately owned historic property, the owner must notify the Department of Land and Natural Resources (”DLNR”) of the proposed construction and the DLNR must give its concurrence to the owner’s plan.

Within ninety days being notified of the owner’s plan, the DLNR shall:
(1) Commence condemnation proceedings for the purchase of the historic property if the department and property owner do not agree upon an appropriate course of action;
(2) Permit the owner to proceed with the owner’s construction, alteration, or improvement; or
(3) In coordination with the owner, undertake or permit the investigation, recording, preservation, and salvage of any historical information deemed necessary to preserve Hawaiian history, by any qualified agency for this purpose.

If the historic building is more than fifty years old, no demolition, construction, or other alteration of the building shall occur until after the owner has transmitted to the department, archival quality photographs of the building. In addition, historic properties must comply with the Hawaii Environmental Policy Act for any proposed use under HRS § 343-5.

The review process does not apply to the ordinary maintenance or repair of any feature in or on an historic property that does not involve a change in design, material, or outer appearance or change in those characteristics which qualified the historic property for entry onto the Hawaii register of historic places.

The Nature Conservancy installed photovoltaic panels and low-flow plumbing fixtures and completed a HVAC renovation that reportedly realized a 40% reduction in building energy use. The Nature Conservancy also implemented a green cleaning policy promoting the use of environmentally friendly cleaning products and a sustainable purchasing policy.

While hurdles exist in navigating the design and permitting red tape involved with greening a historic building, these projects prove that implementing sustainable technologies and attaining LEED certification are achievable.

Hawaii now boasts its first LEED-CI Platinum certified project.

Group 70 International renovated the interior of the second floor of Honolulu’s 102-year-old McCandless Building. The second floor project includes several of Group 70’s staff offices, common areas and recently opened sustainable design center.

Renovating a historic building, such as the McCandless Building creates unique hurdles for a LEED project team, including compliance with historic preservation laws which often include limitations on obtaining building permits and restrictions on reusing building materials. Nationwide however, increasing numbers of historic buildings are being renovated to achieve LEED certification.

According to Group 70’s press release, the project reused 60% of existing materials, including portions of the walls, exterior windows, flooring, lights and the air-conditioning system. Group 70 reduced electrical and water usage by retrofitting fixtures and replacing 90 percent of the office equipment with Energy Star versions. The firm also furniture and carpet made from recycled materials, and used materials made from reeds and bamboo.The renovation of the 5,700-square-foot second floor space took approximately seven months, completed at a cost of $84 per square foot.

Congratulations to Hui o Ko’olaupoko for being one of five national finalists for the Intelligent Use of Water Leadership Award sponsored by Rain Bird irrigation products company, as reported by BussinessWire. Hui o Ko`olaupoko implements projects in O`ahu’s Windward side (Makapu`u to Kualoa) that address land-based pollution/watershed health that impact this part of the island.

The importance of water efficient landscaping, innovative wastewater technologies, and water use reduction in the building arena has been recognized by the U.S. Green Building Council and form the basis for credits under the LEED rating system. Green building projects seeking LEED certification under LEED v3 will be required to report water usage to the USGBC, which raises the point that designing and planning for Water efficiency is to be distinguished from operating and maintaining a water efficient building.

If the actual water usage of a building does not comport with the projected water usage under the building design, will a building be subject to LEED decertification? How does this shortfall in anticipated water efficiency savings impact the building owner who paid a premium for state of the art waste water systems and uber-efficient fixtures anticipating a savings that is not being realized?

Water use reduction for the sake of saving water is a laudable goal. Water use reduction for the sake of saving money or achieving LEED certification is something else, and if a project owner includes water savings as part of a cost analysis in the planning process and anticipated savings don’t materialize, somebody is going to be hit with added costs or the possibility of LEED decertification. Who will bear this risk? Risk allocation along with building performance expectations need to be spelled out in relevant project contracts and other legal documents.

U.S. Department of Energy Secretary Steven Chu announced that the Department of Energy is providing more than $66 million in funding from the American Recovery and Reinvestment Act to expand weatherization assistance programs in Alaska, Colorado, Connecticut, and Hawaii.

Hawaii was awarded $1,616,984 to weatherize more than 650 homes across the state over the next three years. The Hawaii Office of Community Services (OCS) will administer the program through two local community action organizations, Honolulu Community Action Program, Inc. and Maui Economic Opportunity, Inc. The Hawaii OCS will provide training and technical assistance for the local agencies to ensure that the weatherization workforce is able to reduce energy consumption and utility bills for low-income families, while creating and retaining jobs across the state. After demonstrating successful implementation of its plan, Hawaii will receive an additional $2 million.

According to the Department of Energy, nationally for every $1 invested in the program, weatherization returns $1.39 in energy-related benefits. Low-income families in Hawaii who previously received assistance from the Hawaii OCS saved an average of $400 on their annual energy bills.

Some communities that have received stimulus funding have hit roadblocks in implementing weatherization projects in fear of running afowl of violating the Davis-Baker Act. The Davis-Baker Act is a federal law requiring the payment of prevailing wages on public works projects. All federal government construction contracts, and most contracts for federally assisted construction over $2,000, must include provisions for paying workers on-site no less than the locally prevailing wages and benefits paid on similar projects. Federal officials are working on determining the prevailing wage for a “weatherization worker.” However, groups receiving stimulus funding cite to federal officials who have previously been unclear on whether existing wage levels for certain occupations would apply to weatherization work.

The family of a construction worker killed last year in a construction accident at MGM Mirage’s CityCenter are suing over his death.

The family reportedly attributes the death to unrealistic deadlines for the project’s completion and “shoddy” safety practices. In addition, the lawsuit alleges that the developer (MGM Mirage), the general contractor (Perini Building Co.) and the company operating the crane that killed the worker (Dielco Crane Service) all were negligent in their “hiring, training and supervision of employees.”

CityCenter is a 68-acre, $11 billion project aiming to achieve a combination of LEED silver and gold certifications across the various hotels, residences and commercial buildings making up the project.

Dielco, the crane operator has been investigated for multiple safety violations and was fined $12,000 by the Nevada Occupational Safety and Health Administration for a series of violations, including failing to instruct employees to sound a horn before swinging the crane.

As previously discussed, LEED credits are not awarded for the implementation of safety training programs under the current version of LEED. Nevertheless, safety training is an integral part of developing a skilled green collar workforce (the Wall Street Journal reports that CityCenter introduced more than 10,000 construction trade and craftsmen to green building techniques).

Unsafe working conditions exposes stakeholders to liability. This is a risk in all construction projects, not only green developments. In green projects, however, additional factors come into play. For instance, often new technologies and construction materials are being implemented, which untrained workers may not be accustomed to applying. Also, incentives such as tax credits could create time pressures to meet certain deadlines and to complete construction. The combination of these factors makes green buildings particularly open to risk. Properly evaluating such risk and planning for potential liability is essential before breaking ground on the construction project.

Forest City Military Communities, the venture developing military housing in Kaneohe has been certified as having a LEED for Neighborhood Development Certified Plan. The certification marks the second phase toward gaining a green designation for the planned 388-home Wailuku neighborhood at the Kaneohe Marine Corp base.

The United States Green Building Council touts the LEED for Neighborhood Development Rating System as integrating “the principles of smart growth, urbanism and green building into the first national system for neighborhood design.” It “emphasizes the creation of compact, walkable, vibrant, mixed-use neighborhoods with good connections to nearby communities.”

A recent post on REJournals.com proposed that the LEED-ND system creates a due process problem asking “who are the regulators, planners, keepers and stewards of our communities? Is it the government or is it the private sector non-profit USGBC?” The article argues that:

A zoning decision is a government decision, whether it is legislative or administrative. An administrative zoning decision is typically appealable to a governmental appeals board, whose decision is appealable to a court of law under the applicable zoning laws and/or state or federal administrative procedures acts. In some instances a legislative zoning decision is appealable to the body politic by referendum vote or is subject to constitutional challenge.

The due process that is inherent in governmental decisions is noticeably absent from the LEED-ND process.

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…unlike with government planning and zoning decisions, urban property owners will not have any ability to challenge any decision about LEED-ND certification with respect to neighboring or adjacent properties. Also unlike government planning and zoning decisions, which must be reasonable and supported by evidence, the USGBC is permitted by law to act unreasonably and arbitrarily if it so chooses.

The private decision-making capacity of the USGBC can be alarming. However, the developments are still subject to land use regulations established by governmental entities.

With respect to the internal decision making of planned communities, Shari Shapiro points out that planned communities are market driven and the USGBC’s principles will be incorporated by developers into covenants and restrictions.

Safety issues are not specifically referenced in LEED. Volkswagen, however, is emphasizing worker safety in the development of a new plant in Chattanooga, which it expects to attain LEED certification.

Every person setting foot on the Volkswagen construction site for business purposes must go through a safety orientation. Volkswagen’s safety rules reportedly go beyond those prescribed by OSHA.

Once on site, workers continue safety training, reviewing a job hazard analysis daily to prevent mistakes, getting together three times a day to share safety-related observations and learning about recycling. Workers must score 100% on a quiz at the end of their safety orientation, in order to work on the job site. So far 488 workers have passed the orientation program.

Although LEED credits are not awarded for the implementation of safety training programs under the current version of LEED, safety training is an integral part of developing a skilled green collar workforce. Substandard work conditions and inadequate safety training can lead to adverse publicity, as in the matter of the roofers alleging unsafe working conditions while installing the Target Center’s green roof.

In addition, accidents can increase the costs of construction and cause delays. If not addressed properly in the construction contract, a contractor could face liability for delays in project completion.