Effective September 1, 2008 building Green is a requirement for most new construction and renovation in Montgomery County, Maryland.

Green, Greener, Greenest. Local governments across the country are racing to be the Greenest of them all.

The Efficacy of Green

The efficacy of Green building is premised on the fact that buildings in the United States account for 70% of the nation’s electricity consumption, which is 39% of the country’s total energy use, and buildings cause 39% of all carbon dioxide (CO2) emissions. At a time when increased energy costs are increasing operating expenses for buildings and the marketplace is demanding environmental stewardship, Montgomery County is joining a cadre of local governments making Green building compulsory.

Compulsory Green

While already in effect for County government built or funded projects, any private “newly constructed or extensively modified non-residential or multifamily residential building that has or will have at least 10,000 square feet of gross floor area” that has applied “for all necessary building permits” prior to September 1, 2008, must achieve a LEED Certified rating.

By defining “multifamily residential building” in the regulations as “any multi-family residential or mixed use building that is taller than 4 stories” many new buildings in the County will be exempted from the new mandatory Green building requirements. Also, by defining “extensively modified” in the regulations as only structural modification which alters more than 50% of the buildings gross floor area, many major renovations will also not be subject to the law’s mandates.

While Montgomery County’s Green building mandates have not, generally, been controversial, concerns have been raised that the public policy of energy efficiency and environmental stewardship have trumped affordable housing. Green buildings do cost more up front and the increased soft costs in new construction make the impact more burdensome on a small 10,000 square feet multi-family residential building when the costs can be more easily spread over a 200,000 square feet commercial building.

LEED Certified Green

The U.S. Green Building Council’s Leadership In Energy and Environmental Design (LEED) program is by far the most widely accepted not for profit Green building certification program. LEED is a point based system where buildings earn points for satisfying specific Green building criteria. The number of points determines the level of certification. Points are available in four progressive levels from Certified for 26 to 32 points, Silver for 33 to 38 points, through Gold for 39 to 51 points, and Platinum for 52 to 69 points. That Montgomery County’s new law mandates only a Certified level of certification, the lowest of the levels, and such has been key in this new initiative creating little opposition.

The New Procedures

New procedures being implemented provide that when a property owner makes application for “the first regulatory approval” relating to a regulated building, a Green Building Concept Plan must be submitted. That plan must detail the anticipated Green building features in the following areas: sustainable sites, water efficiency, energy and atmosphere, materials and resources, indoor environmental quality, and innovation and design process.

When an application is made for the first building permit for a covered building, the applicant must also submit “documentation of LEED or approved equivalent rating system project registration and credit information.” And prior to construction start a “mandatory green building meeting” is required to demonstrate that a process is in place to implement the LEED submittal.

Before a Use and Occupancy Certificate is issued, the County must inspect the building and verify that “the required number of design and construction phase credits have been obtained.”

If a building has not obtained the applicable LEED certification, the County “must not issue a Use and Occupancy Certificate.” A mechanism exists for issuance of a temporary Use and Occupancy Certificate while the LEED approval process is pursued.

Request for modifications from the Green building law or the regulations, including modifications for proposed use of alternative energy and efficiency rating systems (i.e., other than use of the USGBC ‘LEED’ rating system), will be available through the existing Building Code Modification Committee.

In promulgating the regulations, the County declined to list any acceptable alternative rating systems. For a small or modest size building, the out of pocket costs for a Green Globes rating are roughly ten percent of the costs for a LEED rating. That cost differential is significant and will pressure attorneys and design professionals to make application, on a project by project basis, to the Building Code Modification Committee to allow Green Globes and other alternative rating systems to be accepted.

Montgomery County may be striving to be the Greenest of them all, but in joining the small cadre of local governments that are making Green building compulsory for private land owners (as opposed to the majority of governments programs across the country that provide voluntary incentives for building Green), the County is arguably misusing the privately controlled LEED rating system that was never designed or intended to be legislatively mandated.

Conclusion

In its quest to be Greener, any new or extensively modified non-residential or multifamily residential building in Montgomery County that has or will have at least 10,000 square feet and has not made application for all necessary building permits before September 1, 2008, must be Green (i.e., achieve a LEED Certified rating).