MONDAY, APRIL 27, 2009
by Sean Suder |
| Sean Suder |
As the U.S. Green Building Council embarks on certifying entire communities through its new LEED-ND (ND stands for Neighborhood Development) certification, the impact of such non-governmental decisions on the macrocosmic issues of community planning and the individual rights of property owners is not yet clear, and merits further exploration.
It is hard to predict what LEED-ND communities will look like or the actual influence they will have on the existing urban environment. Will they be as diverse as they are sustainable? Does a sustainable community have warehouses and manufacturing uses? Will LEED-ND turn urban areas into bedroom communities of the wealthy? How will non-LEED-ND urban communities fare when compared with LEED-ND communities? How will developers who do not specialize in in-fill development cope with the demand for LEED-ND certification?
Presuming that LEED-ND will become the new standard, as LEED certification has become for individual buildings, cities will become a patchwork of LEED-ND and non-LEED-ND neighborhoods. Property values will likely be affected and boundaries drawn. The socio-economic impact of LEED-ND communities also remains to be seen. What is known is that such influential decisions about the urban environment will be in the hands of the USGBC, a private non-profit organization. We also know that such decisions cannot be challenged through the normal channels of due process available to property owners.
New, new urbanismThe LEED-ND program is set to launch later this year. The pilot program is complete and urban in-fill developments across the country will soon be LEED-ND certified. The stated goal of LEED-ND certification is to "reduce the impacts of urban sprawl, or unplanned, uncontrolled spreading of urban development into areas outside of the metropolitan region, and create more livable communities." The USGBC envisions LEED-ND developments as "locations that are closer to existing town and city centers, areas with good transit access, infill sites, previously developed sites, and sites adjacent to existing development." In addition to reducing sprawl, LEED-ND communities are intended to "encourage healthy living" and "protect threatened species."
The proposed LEED-ND rating system sets forth 153 pages of requirements and standards regarding a wide variety of items including. It is possible for a project to earn up to a possible 106 points.
Similar to the experience with individual buildings, the likely practical effect of this latest addition to the "green" movement is that developers will market and sell an urban project by differentiating it as LEED-ND certified. LEED-ND certification is likely to become the ultimate stamp of approval in today's eco-consumer society, the ultimate prize for in-fill or brown-field developments. Someday, it is likely that living in a LEED-ND community will be just as prestigious as living in a certain school district. LEED-ND certification may become the primary factor in choosing a home or workplace. A project's lender may condition the development on LEED-ND certification. While zoning may be necessary to build a project, LEED-ND certification may be necessary to sell the project.
Not only will there likely be a certain cachet associated with LEED-ND neighborhoods, the USGBC foresees certain tangible benefits to developer, namely local governmental incentives such as reduced fees or shorter development permit waiting periods. Among the intangible benefits stated by the USGBC, "leaving a good impression on your neighbors" illustrates the desire of the USGBC to influence the surrounding urban fabric.
The tenets of LEED-ND are not new, however. A resurgence of interest in traditional urban design principles led to a movement in the 1990s that redefined urban planning in the United States - new urbanism and neo-traditional neighborhood development. The new urbanism and neo-traditional town planning concepts were heralded by influential members of the urban planning community, and such concepts were transformed into reality by aesthetically pleasing developments such as Seaside and Celebration in Florida, Kentlands in Maryland and numerous other variations and adaptations throughout the United States. New urbanism was a reaction to suburban sprawl and irresponsible development patterns of the previous 50 years. Its focus was largely on new self-contained green-field developments in exurban areas.
The overarching principle of new urbanism was simple: by incorporating historically attractive planning principles into new suburban and exurban developments, the housing consumer demands better designed and more sustainable communities.
The widespread proliferation of the "green" movement has made sustainability a necessary component, if not prerequisite, of livable communities. Sustainability in America's early cities was a way of life, and during the new urbanism movement it was an aspirational goal. In the 21st century, consumer demand for everything "green" will make sustainability a mandate. While such a mandate does not yet come from the government, it does raise questions about the role of government in the decisions about planning for this consumer driven trend.
Urban planning is more than zoning. It is thinking through the complexities of community to best plan for the present and the future. The question will invariably be raised, with the proliferation of LEED-ND certification and the decisions to be made about the urban environment by the USGBC, 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 USGBC contemplates third-party verification for LEED-ND certification. Who will be final arbiters of such decisions that influence and impact the planning of our cities? Those government planners and legislators currently responsible for imparting their value judgments will be forced to compete with those of the USGBC and the invisible hand of the market. Urban planning at the governmental level may become subordinated to these other forces. Some will see this as good news, while others will raise an eyebrow in skepticism.
As with LEED certified buildings, LEED-ND will also be a subjective process of interpreting and applying standards to real urban environments. The decisions made by the USGBC will not impact just one building, one developer or one tenant. Instead, LEED-ND has the potential to impact entire communities well beyond the development that is being certified. The USGBC has been charged to do so by the market, outside of the purview of elected officials or government planners and without any legal oversight or review.
The due process problemA 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. While the USGBC provides an internal process for appeals of its decisions, the USGBC does not provide for judicial review. In fact, the USGBC expressly disclaims any liability and opportunity for review.
Do not even think about looking to the USGBC if you disagree with, disapprove of, are affected by or are otherwise adversely impacted by any decision made by the USGBC with respect to LEED-ND. 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.
This legal scheme differs greatly form the due process rights an individual property owner enjoys with respect to governmental decisions about land use and zoning decisions. Under the typical scheme, it is known who is making government decisions - government planners, elected officials, board of zoning appeals and planning commission members, among others. Such officials are elected to advance the public interest and plan for the general health, safety and welfare of the community at large. They are held accountable to the public by the public and their decisions can be overturned if beyond the bounds of constitutionality.
The USGBC's realm is the private sector, and in the private sector liability can be disclaimed and parties can be released. In the private sector, decisions are final and non-appealable and accountability is only as agreed upon by the parties. As a result, certain responses will likely be taken in order to preserve the rights of property owners to check such decisions.
Possible responsesIf LEED-ND becomes the standard by which all urban in-fill developments are measured, then local governments will likely respond similarly to the way they responded to LEED certification of individual buildings. Certain cities such as Boston and Los Angeles have adopted building code regulations that mimic LEED standards for individual buildings. Likewise, local governments may incorporate the LEED-ND standards, or standards similar to them, into their existing zoning codes.
Infusing government into such decisions is one way to preserve individuals' due process rights and allow property owners their day in court to defend the use and value of their property. However, mimicking such standards will not resolve the issue of holding the USGBC accountable for land use decisions made purposefully or inadvertently through the LEED-ND certification process. Even if a government decision based on LEED-ND standards is challenged successfully, the USGBC can still deny LEED-ND certification. These parallel processes not only may have the effect of creating additional hurdles to urban in-fill development, but they do not solve the due process problem associated with the certification of neighborhoods by a private organization.
Additionally, developers may find it desirable to incorporate the LEED-ND standards into their restrictive covenants to ensure that their development will forever maintain such certification and conformity to zoning standards that mimic or incorporate LEED-ND standards. This may add yet another layer of private regulation for property owners.
It is clear that if urban neighborhoods are certified, local governments will no longer control all of the decisions about the urban built environment. The USGBC is the new sheriff in town and many decisions about development, the real estate market and land use will be impacted by the USGBC's determinations about whether a neighborhood is to be LEED-ND certified. The impacts of such decisions will have lasting effects on the community.
Where new urbanism was an aspiration to be incorporated by the market and governments alike, LEED-ND is a market driver that will undoubtedly compete with government for control of urban development. The controls in place to check the government are not in place to check this new type of market-driven regulation. Sustainable development is a worthy and necessary goal, but the due process associated with land use decisions should be preserved. LEED-ND certification represents the future of private market-driven self-regulation - much desired by many in the business community - however the result may be larger government involvement and additional layers of regulation. As with any regulation that impacts the larger community, the channels of due process and accountability should be incorporated and preserved so that those impacted also have influence over the decisions about their community.
Sean Suder is a real estate and land use attorney at Keating Muething & Klekamp PLL in Cincinnati, and is a founding member of the KMK Green Team.
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