LPDD Model Law: Model Ordinance on Green Building Construction

This model ordinance would require that new non-residential and certain multifamily buildings with a gross floor area above 10,000 sf (or other size chosen by the municipality) be constructed to a standard that could achieve LEED Gold certification, Green Globe certification level 3 or a comparable level from another rating program approved by the municipality.  It also applies to substantial alteration or rehabilitation of buildings as well as additions exceeding the size threshold. Alterations are considered substantial if construction costs exceed 50% of the assessed value of the existing building. Although the ordinance incorporates the standards of the rating program, the municipality oversees compliance and enforcement. Thus, the building developer does not need to obtain certification under the rating program.  The project only must be “certifiable” rather than certified.

The building developer must engage a qualified architect or engineer (called a Green Building Professional) throughout the design and development of the project to ensure that it is designed to meet the requirements of the ordinance and achieve the necessary level of certification.  The municipality must appoint a Green Building Compliance Official, who may be an employee in the building or planning department with training or experience in sustainability, to oversee implementation of the ordinance. The municipality may not issue a building permit until satisfied that the required standard will be met.  Similar requirements apply prior to issuance of the certificate of occupancy.

The ordinance allows for some flexibility by authorizing waivers for certain historic buildings and in situations where compliance with the Green Building program requirements poses a substantial hardship.  Aggrieved parties may appeal decisions of the Green Building Compliance Official.  If the ordinance is incorporated into an existing zoning or building code, then the municipality may want to use the waiver or variance process already in place in that code, and the appeal process within that existing code should be followed.  For a standalone ordinance, an appropriate appellate body will need to be identified.  This could be a zoning board of appeals or some similar entity.  The model ordinance provides for a delayed effective date so that projects that are in advanced stages of design do not incur costs and delay to re-design.

This model was drafted by Victor Baltera, a partner at Sullivan and Worcester, with assistance from attorney Ashley Tan, both of the firm’s Boston office.  Peer reviewing was provided by Amy Turner, Director of the Cities Climate Law Initiative at the Sabin Center.