Construction Law Signal - Insights & Information on Current & Emerging Developments affecting the Construction Industry

By: Lori Wisniewski Azzara and Jennifer M. Horn

As a follow up to its 2006 report, the Natural Resources Defense Council (NRDC) has issued a new report – Rooftops to Rivers II – that provides case studies for 14 geographically diverse cities that employ green infrastructure solutions to address stormwater challenges. These leading cities, which include Philadelphia and Pittsburgh, have recognized the beneficial uses to stormwater, thereby reducing pollution and overall costs.

The NRDC estimates that 10 trillion gallons of untreated stormwater runs off of roofs, roads, parking lots and other paved surfaces a year. By implementing a green infrastructure, cities can not only save money but also minimize stormwater pollution and sewage overflow problems. The report recognizes the multitude of benefits a green infrastructure provides over conventional infrastructures (i.e., underground storage systems and pipes), particularly its cost-effectiveness, flood resilience and augmented local water supply.

The report identified six key actions that cities should take to maximize their green infrastructure investment and become “Emerald Cities,” including:

• Developing a long-term green infrastructure plan;
• Enforcing a strong retention standard for stormwater;
• Requiring the use of green infrastructure to reduce and manage runoff;
• Incentivizing residential and commercial property owners to install green infrastructures;
• Providing assistance in accomplishing green infrastructure; and
• Ensuring that a long-term and dedicated funding source is available to support the green infrastructure investment.

Of the 14 cities, Philadelphia was the only city to achieve all six Emerald City criteria and is the nation’s first city to formally commit to using green infrastructure as the primary means to satisfy its sewer overflow obligations. Pittsburgh achieved one of six Emerald City criteria by passing an ordinance that establishes stormwater volume reductions standards, including a requirement that developments larger than 10,000 square feet retain the first inch of rainfall on-site.

Lori Wisniewski Azzara is an associate at Cohen Seglias Pallas Greenhall & Furman PC. Mrs. Azzara practices in the areas of construction and commercial litigation and has experience in contract negotiation, claims for delay and inefficiency, mechanics’ liens, and all types of contractual disputes.

Jennifer M. Horn is Senior Counsel at Cohen Seglias and a member of the Construction Group. She concentrates her practice in the areas of construction litigation and real estate.

The Philadelphia Zoo recently broke ground on the brand new Hamilton Family Children’s Zoo and Education Center. The Zoo website describes the center as a “joyful, engaging experience for children and families while promoting a lifetime of conservation action through hands-on learning activities.”

The Zoo plans to construct the new center according to LEED guidelines, making it the first zoo structure to include a green roof, cisterns to recycle waste water and geothermal heating.

The center, which is scheduled to open April 13, 2013 is estimated to cost $30 million and will cover 2.5 acres of land. To date, $18 million has been raised.

According to uwishunu.com, the center will occupy both indoor and outdoor space, and will include the following indoor and outdoor exhibits:

Indoor features include:

• Exhibits featuring fish, budgies, butterflies and frogs;
• A hatchery that allows children to observe newborn chicks; and
• Action stations focused on environmental issues such as water usage, energy consumption and recycling.

Outdoor features include:

• An 8-stall stables building to house horses, donkeys and other livestock;
• Overhead trails and bridge systems for monkeys and lemurs;
• Animal contact yards with rare breeds of goats, sheep and chicken; children can help with animal grooming, feeding and more;
• Parallel climbing ramps and towers for goats and children alike; and
• A toddler play area equipped with balance beams and spheres.

Two weeks ago, April 3-5, the 2011 PV America conference was held in Philadelphia. More than 3,000 attendees, including PV manufacturers, distributors and installers, industry financiers and project developers, converged upon the Pennsylvania Convention Center to receive the latest updates on PV technology, industry trends and business opportunities. Co-presented by the Solar Energy Industries Association (SEIA) and Solar Electric Power Association (SEPA), PV America is the premier solar photovoltaic (PV) industry conference and trade show in the United States.


According to the U.S. Solar Market Insight™ Year-in-Review 2010, released by SEIA and GTM Research in March 2011, the solar industry’s total market value grew 67% from $3.6 billion in 2009 to $6 billion in 2010. The report’s executive summary can be downloaded for free, or the full report can be purchased. Both are available here.

SEIA President and CEO Rhone Resch, further described the growth of the solar industry during his keynote address at PV America. Resch told conference-goers:

I am thrilled to announce that the solar energy industry is now the fastest growing industry in America. Let me repeat that. The solar energy industry is the fastest growing industry in America. We are growing faster than wind energy, faster than telecommunications, and, thank goodness, we are even growing faster than the mortgage foreclosure industry.

To capitalize on the networking opportunities that PV America provided, Cohen Seglias co-hosted with Independence Solar a post-conference reception on April 4 at the Le Meridien in Center City. The event offered a chance for conference attendees and non-attendees alike to make new connections and discuss information learned at the conference. Attended by more than 100 people, the reception was an expanded version of the regularly scheduled quarterly Philadelphia Solar Happy Hour which the Firm also hosts in conjunction with Independence Solar .

The Philadelphia Solar Happy Hour is a complimentary event to provide networking opportunities and strengthen the ties of the solar community in the Mid-Atlantic region.

If you would like to receive notification of the next Philadelphia Solar Happy Hour, please send an email to lkelman@cohenseglias.com.

Christopher P. Soper, LEED® AP contributed to this post.

To further the efforts to reduce the negative impact that buildings can have on the environment the International Code Counsel (ICC) created the International Green Construction Code (IGCC) to serve as a resource tool to be adopted and administered by governments at any level on a mandatory basis. Specifically designed to produce environmental benefits on a massive scale beyond voluntary rating systems, the IGCC allows governments to customize and shape the code to address that jurisdiction’s specific environmental concerns and goals. The IGCC was developed by the ICC in association with ASTM International and the American Institute of Architects and can be readily used by manufacturers, design professionals and contractors.


The IGCC applies to new and existing commercial buildings and addresses fundamental aspects of green and sustainable building, including:

• Site development and land use
• Energy
• Water and material resource conservation
• Indoor environmental quality

The ICC recently released Public Version 2.0 of the IGCC during the U.S. Green Building Council’s November 2010 Greenbuild conference. The most significant revision to the IGCC was in the area of energy efficiency, including a switch from Version 1.0’s total annual net energy use to a Zero Energy Performance Index. Further, Version 2.0 requires buildings to use no more than 51% of the mean energy used by similar buildings in the year 2000. Other notable changes in Version 2.0 include new asbestos removal requirements, a 20% water savings beyond U.S. federal standards for residential water closets, and a clarification of design professionals’ responsibilities to the owner to prevent conflicts with state and local requirements.

Code change proposals for Version 2.0 were received through January 3, 2011 and development hearings are scheduled for May 2011 in Dallas, Texas. The first edition of the IGCC is scheduled to be released in March 2012. Once the first edition is released, it will be updated every three years.

The IGCC was designed to be adopted as a code and establish the minimum requirements for green building design and performance. Once adopted, compliance with the code will be mandatory. The IGCC serves to complement, not replace, LEED, a voluntary rating system. While the IGCC creates the floor for green building requirements, LEED will continue to push the limits on what is possible in “voluntary above-code green building rating systems.”

IGCC Public Version 2.0 can be downloaded for free.

In terms of solar power, New Jersey is very progressive. New Jersey is a frontrunner in renewable energy production, and currently has the second highest capacity of solar power in the country - California is first. The Garden State’s successful implementation of rebate and incentive programs, as well as its commitment to renewable energy, have enabled it to reach this point.

Below are just a few of the solar projects happening in New Jersey.

Sheraton Hotels

The Sheraton Meadowlands Hotel & Conference Center has contracted with Distributed Sun, a solar power company, to bring solar power to the Hotel & Conference Center. The project will include a 1.1-megawatt solar panel system that will produce enough clean energy to offset a portion of the hotel's energy bills.

Cedar Solar Farm

The Mannington Township Planning Board unanimously approved a 10-megawatt Cedar Solar farm that will be built in Salem County. The project, set to begin in early 2011, is spearheaded by Lincoln Renewable Energy (LRE). . LRE will build the solar power facility on a 129-acre site. The $60 million construction project, said to take six months, will create approximately 100 jobs. LRE's chief executive, Declan Flanagan, thanked "the Planning Board and the community of Mannington for recognizing the benefits that solar farms can bring to rural communities."

Pilesgrove Solar Park

On October 20, 2010, developers broke ground on a $90 million South Jersey solar-energy farm, which will be the largest of its kind in the Northeast. Con Edison Development and Panda Power Funds are partnering to build the 71,400 panel solar farm in Pilesgrove Township, Salem County. The Pilesgrove Solar Farm will take about 6 months to complete, sit on about 100 acres of agricultural land, and is expected to create 100 construction jobs. The power produced by the solar farm will be purchased by Atlantic City Electric and is expected to provide power to 5,100 homes. The renewable power created by the solar farm equates to the removal of more then 3,500 cars from the road for each year of operation.

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The New Jersey state legislature recently approved A1084, a bill that would require solar panels to be included in the design and construction of all new public schools across the state. The Assembly Appropriations Committee is awaiting assurance from the Legislative Council that A1084 does not violate any New Jersey statutes. New Jersey’s school construction budget is one of the largest in the nation.

Controversy Over Solar Panel Mandate A1084

In addition to the benefits derived from switching to a clean, renewable form of energy, proponents of A1084, most notably Assemblyman Reed Gusciora, a well-known advocate of Green initiatives for New Jersey, argue that the mandate will also help create jobs, and help offset the rising costs of energy. According to the Statement section of A1084:

Installing a solar power system is equivalent to prepaying for 40 years of power at a fraction of the current cost. As energy rates increase this difference will only increase, leading to escalating savings for the school district over the life of the system.

Opponents of A1084 argue that the law would not be practical for all school districts in New Jersey, some of which are still struggling financially. The New Jersey Principals and Supervisors Association supports the legislation, but only as an “incentive based approach, rather than a mandate to meet our state’s school facilities’ needs.”

Pennsylvania School District Positively Impacted By Solar Power

Although Pennsylvania hasn't approved a similar mandate, one school district is reaping the benefits of its investment in solar energy. Soon after A1084 was approved, the Carlisle, Pennsylvania school district began using solar power. The district is now getting about a sixth of its energy from the sun. It is estimated that solar panels will provide 16 percent of the energy that the district needs. The project is also expected to reduce the school system's carbon footprint by offsetting more than 2 million pounds of carbon dioxide emissions annually.

We will continue to monitor mandate A1084 and update you on any developments.

This week is World Green Building Week, and today - September 23, 2010 - happens to be the Green Building Day. In honor of the increased international and national focus on green building initiatives, we wanted to provide a brief overview of green building and LEED certification.

One of the fastest growing aspects of construction today is green building. Due in part to American Recovery and Investment Act, also known as the federal Stimulus Act, and the adoption of environmental code requirements by local and state legislatures, green building continues to grow in both new construction and the renovation of existing buildings. As this industry continues to grow it is important that owners, developers, designers and contractors all understand what it means to be green.

So far, the focal point for the development of green building has been the Leadership in Energy and Environmental Design (LEED) rating system, developed by the United States Green Building Council (USGBC). The LEED rating system provides certification for new projects based upon earning points in key performance areas. For new construction projects, these areas include:

• Sustainable Sites
• Water Efficiency
• Energy and Atmosphere
• Materials and Resources
• Indoor Environmental Quality
• Innovation in Design
• Regional Priority

To break down the LEED system even further, there are different levels of LEED that can be achieved: Certified, Silver, Gold and Platinum. These levels correspond to the number of credits accrued in the green categories above.

Some incentives for constructing a building that qualifies for LEED certification are: 
            • anticipated tax breaks
            • energy savings
            • occupancy rates
            • sale price and rental rates

Once LEED certification has been achieved, it is important to maintain that status for the entire life of the building. The Green Building Certification Institute (GBCI) recently adopted a policy that allows parties to challenge the LEED certification of a building. Anyone can raise a challenge to the LEED certification and there is no time limit for doing so. This policy has the affect of forcing all those involved with a LEED rated project to maintain the LEED certification documentation long after the project is complete. A project de-certified by this policy will not receive a refund of any of the fees paid to the GBCI and could potentially have state and local incentives retroactively revoked.

Mayor Michael Nutter recently announced that construction will move forward on the proposed $70 million Mormon Temple. 

The temple is expected to open in 2013 and the proposed location is 18^th and Vine Streets.   While the temple’s opening will be historic moment for the Mormon community, its construction is significant to the Philadelphia community.  Once the temple gets zoning and other approvals, 300 new construction jobs will be associated with the project.

Also on deck, a number of Philadelphia projects that are part of the Pennsylvania Bureau of Revenue, Capital and Debt’s Redevelopment Assistance Capital Program have recently been approved by the state’s General Assembly.   Once approved by Governor Rendell, these projects will be a go. 

One of the projects awaiting approval is $5 million worth of capital improvements on the Independence Visitors Center.  Making the Center a green building is a priority.  “One of my goals is to make this a green building, if possible.  It could include solar panels, lighting, HVAC systems,” said Jim Cuorato, the director of Center, and former Philadelphia city Commerce Director.   Philadelphia has a long history of being green and the City of Brotherly Love is currently the 8^th-most sustainable city in the country.   The number of green construction opportunities both in Philadelphia and across the country is expected to grow in the future.  Accordingly, it’s no surprise that green construction is a topic that has been generating a lot of Buzz. 

To read more about green construction and LEED certification, click here.  Christopher P. Soper is an associate at Cohen Seglias and focuses his practice on construction law.  Mr. Soper is among the few attorneys in Philadelphia accredited by the U.S. Green Building Council as a LEED® Accredited Professional (LEED AP).