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     By Gary L. Cole AIA, ALA, Esq.

     In 1990, President George H. W. Bush signed the Americans with Disabilities Act (ADA), which was followed by the ADA’s first publication in 1991.  On September 25, 2008, President George W. Bush signed into law the Americans with Disabilities Act Amendments Act of 2008, which became effective on January 1, 2009. 

     It was hoped that prior to leaving office President Bush would sign into law the much-awaited revised Americans With Disabilities Act Accessibility Guidelines (ADAAG), first issued for public comment on July 23, 2004, but, unfortunately, it didn’t happen.  The ADAAG includes, among other things, the core physical specifications for accessibility under the ADA and works in concert with many state and local accessibility laws.

     Upon taking office in January 2009, President Obama directed the Department of Justice to withdraw the final draft of the 2004 revised ADAAG from the Office of Management and Budget review process, pending a re-evaluation.

     Now, eighteen months into the new administration, there appears to be movement.

     From the Department of Justice’s website:

    “On Friday, July 23, 2010, Attorney General Eric Holder signed final regulations revising the Department’s ADA regulations, including its ADA Standards for Accessible Design. These regulations will be published in the Federal Register. The revised regulations will amend the Department’s Title II regulation, 28 C.F.R. Part 35, and the Title III regulation, 28 C.F.R. Part 36. Appendix A to each regulation includes a section by section analysis of the rule and responses to public comments on the proposed rule. Appendix B to the Title III regulation discusses major changes in the ADA Standards for Accessible Design and responds to public comments received on the proposed rules. The Department’s Final Regulatory Impact Analysis will be posted on this page as soon as it is available.

     In general, these final rules will take effect 6 months after the date on which they are published in the Federal Register. Compliance with the 2010 Standards for Accessible Design is permitted after that date, but not required until 18 months after the date of publication. The Department has prepared fact sheets identifying the major changes in the rules.”

     So, in late January 2011 the new rules are expected to take effect, though compliance will not be required until July 2012 – eight (8) years after first being published for public comment. 

     Over the upcoming months, I’ll be discussing changes to the ADA and the ADAAG here on LawArk – especially as relates to commercial real estate - with the hope of addressing the major changes by the time they’re expected to go online in January 2011. 

     I’ll also be discussing ways architects and other designers, contractors, developers and property managers can minimize their risk and exposure to ADA-related disputes, as well as take advantage of the ADA to generate business by not treating it as a burdensome building code deserving of only minimal compliance – a mistake made by many – but as an opportunity. 

© Copyright Gary L. Cole AIA, ALA, Esq. 2010

     By Gary L. Cole AIA, ALA, Esq.

     [The following is for informational purposes only and should never be constructed as legal or business advice – architects should seek advice only from own their legal counsel and business advisors in advance when considering whether to undertake any of the services discussed in this article.]

     The following is Part 2 of a two-part series dealing with new professional services for architects.  Part 1 can be found at http://www.lawarkbuilding.com/?p=742.  Both parts will appear in the September 2010 issue of “Licensed Architect,” published in print and online by the Association of Licensed Architects.

     A White Paper containing both Parts 1 and 2 can be viewed by clicking on this sentence.

3.         The Secretary of the Interior’s Standards for Rehabilitation – What They Mean and What They Really Mean

     Central to any project’s approval for Historic Rehab Incentives is its compliance with The Secretary of the Interior’s Standards for Rehabilitation (the “Standards”), which are published by the National Park Service (NPS) as a set of guiding concepts to ensure that properties retain their essential historic character during rehabilitation.  While complying with the Standards can mean qualifying for incentives, failing to comply almost always means denial.  In addition to denied Historic Rehab Incentives, locally landmarked projects that fail to meet the Standards may also fail to obtain permit approval from local historic preservation commissions.

     But despite the importance of a historic rehab project’s compliance with the Standards, and, despite some of the Standard’s interpretations having become a little calcified over the decades, they most definitely aren’t carved in stone.  The Standards are not prescriptive specifications; they’re performance guidelines that require interpretation on a case-by-case basis. 

     The NPS describes the Standards as follows: 

     “The Standards are a series of concepts about maintaining, repairing and replacing historic materials, as well as designing new additions or making alterations. They cannot, in and of themselves, be used to make decisions about which features of a historic property should be preserved and which might be changed. But once an appropriate treatment is selected, the Standards provide philosophical consistency to the work.” 

     “The Standards are to be applied to specific rehabilitation projects in a reasonable manner, taking into consideration economic and technical feasibility.” Read the rest of this entry »

     By Gary L. Cole AIA, ALA, Esq.

     This article will be posted in two parts and a version of both parts will appear in the September 2010 issue of “Licensed Architect,” published in print and online by the Association of Licensed Architects.  The following is for informational purposes only and should never be constructed as legal or business advice – architects should seek advice only from own their legal counsel and business advisors in advance when considering whether to undertake any of the services discussed in this article.

PART 1 – Historic Rehab Financial Incentives and Working with Governmental Entities

     Ask a roomful of architects what each thinks is the most important element of a successful project and you’ll likely receive as many different answers as there are architects answering.  But nearly everyone will agree that the single most indispensable element of any project is financing – no money, no project.  Real estate developers are always searching for two things:  quality projects and ways to pay for them.  For purposes of this article, the latter is where architects come in.

     Though helping developers find ways to finance projects isn’t typically defined in their scope of services, architects involved in historic rehab may be able to expand their services and enhance their marketability by helping clients obtain Historic Rehabilitation Financial Incentives (Historic Rehab Incentives).  In these challenging economic times of reduced demand for traditional architectural services, architects who retool their skill sets and embrace new practice opportunities may gain a competitive edge in the market by providing services with unique economic value which, unlike their traditional design and construction services, can be easily quantified and are always in demand.

1.         Historic Rehabilitation Financial Incentives – Benefits and Availability

What are Historic Rehabilitation Financial Incentives?

     Historic Rehab Incentives are financial incentives offered by local, state or Federal governmental entities for rehabilitating properties that are either locally landmarked and/or listed on the National Register of Historic Places, and are intended to encourage reinvestment in historic properties.   

     While in some ways these incentives represent found money to developers, found money isn’t exactly the same as free money – as in a pot of gold – and in this case the gold is often guarded by one or more local, state or Federal governmental entities.  But for all the administrative hoops and hurdles government sometimes imposes, the potential bump to a qualifying project’s proforma can make the difference between a successful historic rehab project, or – no project at all. Read the rest of this entry »

     By Gary L. Cole AIA, Esq.

     On July 8, 2010 at 12:00 p.m., Gary L. Cole AIA, Esq. will present before the Chicago Chapter of the American Institute of Architects Historic Resources Committee at 35 E. Wacker Dr., Suite 250 Chicago, IL “Expanding Your Services:  Become an Historic Rehabilitation Economic Incentives Consultant.”  See http://www.aiachicago.org/events.asp for the AIA Chicago’s announcement.

     The intent of the presentation is to expose architects to new ways of expanding their services by building on their core skills while acquiring new ones, based on Mr. Cole’s experiences in historic preservation as both an architect and an attorney.  Architects involved in historic rehabilitation projects may be missing out on significant opportunities to enhance their practices and boost their fees by assisting developers in obtaining historic development incentives.

     Many historic rehabilitation projects succeed or fail depending on their ability to maximize available development incentives, like the historic tax credits.  Yet, despite being integral to the process of obtaining those incentives, many architects shy away from helping clients qualify for them, often referring that work to “consultants” who lack their detailed understanding of these projects.  But the good news is that there’s no great mystery in obtaining the skills and knowledge necessary to become an expert in historic development incentives – most architects already have or can easily acquire them. 

     Architects who assist their clients in obtaining historic development incentives to pay for projects may expand their range of professional services, increase project compensation and enhance their reputations in the development community, thereby gaining a competitive edge over their competition.

     The Learning Objectives for the presentation are:

     1.  Understand what historic development incentives are and how they impact project economics.

     2.  Learn how to research and combine available historic development incentives for any project. 

     3.  Learn the basics of dealing with local, state and federal preservation agencies when applying for historic development incentives, including interpreting the Secretary of the Interior’s Standards correctly and in a project’s best interest.

     4.  Learn how to correctly describe the scope of these new professional services, structure fees, limit professional liability and identify other professionals and consultants who may be needed.

     Gary L. Cole AIA, Esq. is an historic preservation architect and an attorney, a former Visiting Associate Professor of Architecture at the University of Illinois, an expert in historic preservation law and has worked with many types of historic development incentives for the past eighteen years.  He publishes timely articles about a wide range of design, construction, historic preservation, green building and accessibility issues at www.lawarkbuilding.com.

     Architect/Attorney Gary L. Cole AIA, Esq. is now listed on the Expert Witness Network at http://www.witness.net/free-expert-witness-directory-search.php?keywords=Gary+Cole

     A summary of Mr. Cole’s expert witness and Dispute Consultancy Services from the Expert Witness Network is provided below, with a fuller description at http://www.lawarkbuilding.com/?page_id=552

     From the Expert Witness Network:

     Gary L. Cole AIA, Esq. is an Illinois and Florida-licensed attorney and an Illinois-licensed architect with over 20 years experience in design and construction, real estate development, historic preservation and accessibility matters. He is one of the few individuals in the U.S. to hold both architecture and law licenses and was a Visiting Associate Professor of Architecture at the University of Illinois for over a decade, teaching hand-on graduate courses in traditional construction methods, building investigation and forensics.

     Mr. Cole provides expert witness services in all aspects of design and construction disputes, commercial and residential real estate transactions, accessibility claims and landmarking and other historic preservation-related disputes. As a practicing attorney and licensed architect, his knowledge of the law and expertise in the construction and real estate development industries permits him greater insights into dispute causes and solutions and allows him to communicate his findings more effectively than experts unfamiliar with the legal process.

     His experience also allows him to provide consultancy services for identifying and vetting other potential experts, thereby saving attorneys and their clients time and money and ensuring that the right expert is match with the right type of dispute. More information on Mr. Cole’s Expert Witness and Dispute Consultancy Services may be found by clicking the title link above.

      By Gary L. Cole AIA, Esq.

     ConsensusDOCS, the construction industry’s leading standardized construction contracts and general analogue to the American Institute of Architect’s Contract Documents, recently unveiled a new contract addendum for “green building” projects – the “ConsensusDocs 310 Green Building Addendum.”  The two most interesting things about the new document are:  (1) that it exists at all; and, (2) that ConsensusDOCS has very cleverly taken steps to shield its member-users from what, to some, is the Achilles Heel of the entire green building movement:  that in any useful design, construction or legal sense, the term “green” has no reliably consistent meaning at all.  That the new ConsensusDocs 310 Green Building Addendum achieves its goals by contractually defining a project’s greenness through actions instead of words is perhaps its most admirable achievement.

     “Green Building” – “Green Living” – “We’ve gone Green!”  In any real design, construction or legal sense, exactly what does “green” mean?  And what does “green building” mean?  Ask a hundred people at the next green building conference you attend to define “green building” and I promise that the answers will range somewhere between “energy and resource-efficient humanistic  design and construction” to “a sacred calling to protect Gaia from rapacious bottom-dwelling Industrial-Capitalists.” 

     Don’t get me wrong – it’s not as if green building advocates don’t attempt to define “green” or “green building” – they do, with varying degrees of success.  And I’m not suggesting that a perfect combination of words and sentences that would satisfy everyone’s requirements ever could, or even should exist.  Flexibility can be a good thing and sometimes just stating a set of principles that are intended to achieve substance through actions is enough.  Sort of like the Ten Commandments, or the slightly lesser – to some – Secretary of the Interior’s Standards for Rehabilitation – it’s what you do with them that counts.

     Which is great when you’re preaching to the already-converted, but not so great when trying to convince everyone else, like say, a court of law, where skepticism and burdens of proof tend to run a little higher.  Sure, thanks to aggressive marketing, the term “green” has evolved enough general meaning in the public mind to be used on bumper stickers and t-shirts with reasonable definiteness – if by “definite” we mean “less vague.”  But for legal contracts involving the transfer of massive amounts construction-related capital, and all the legal liabilities that attach like barnacles to everyone involved – a slightly higher standard of clarity is probably in order.  

     Enter the new ConsensusDocs 310 Green Building Addendum, which doesn’t even attempt to define uncertain terms like “green” or “green building” with mere words – it does so through the actions of a project’s parties.  And as much as lawyers like words, when constructing contractual bulwarks for our clients, we like actions a lot too.  The new ConsensusDOCS addendum allocates the responsibility for defining what “green,” and therefore what “green building” means on any given project to the parties who should be responsible for defining it – the owner, its architect/engineering team and a third party referred to as the “Green Building Facilitator” (the “GBF” – who may, or may not be the contractor or construction manager).  After all, unless a contractor is part of a design/build team and/or intends to assume the role of the GBF, then absent shoddy construction, why should it be dragged under when green turns to brown and the finger pointing starts?   Its job is to build, not design.  And it’s certainly not to save Gaia.

     ConsensusDOCS was kind enough to provide me with a copy of the new addendum to review.  There are no less than ten (10) defined terms that use the word “green” – which at first made me wonder why they didn’t just define “green” for any particular project in the usual way, such as: “ . . . For purposes of this Addendum, the term “green” shall mean and refer to, etc., etc . . . .”  But a little closer look made that clear.  The 310 Green Building Addendum’s real purpose is to identify the roles of relevant parties and to define the methodology they’ll use to plan and implement a project’s sustainability goals.  It also serves to clarify that unless a contractor has specifically accepted the role of Green Building Facilitator, their job is to build – planet saving’s outside their scope of work – and an extra.

     Here’s a snapshot of how the ConsensusDOCS 310 Green Building Addendum goes about that:

     First, the GBF, working with the architect/engineering team, advises the owner on alternatives for achieving a project’s desired “Green Status” – such as a LEED designation goal;

     Second, how a project achieves its Green Status is defined by its “Elected Green Measures” (comprised of the “Elected Physical Green Measures” + “Elected Procedural Green Measures”) which arises from reports and discussions between the owner, its A/E team and the GBF; and

     Third, the details of the first two steps are incorporated with specificity into a project’s plans and specifications – again, not something for which a contractor is usually responsible.

     Of course, the above simplifies a fairly complex procedure, but unless a contractor wants to step into the center of the green action – such as becoming the Green Building Facilitator, or if the project is design-build – by using the ConsensusDOCS 310 Green Building Addendum, it may avoid being directly in the green legal liability line of fire by requiring a project’s greenness to be defined by the decisions, work product and actions of other parties.  And if that weren’t clear enough, the addendum wraps it all up with an entire final section on risk allocation.

     So, when a green roof leaks, or an HVAC system underperforms, or a project’s new, imported and unvetted “sustainable” materials off-gas toxic chemicals killing every parakeet within a square mile, or a project doesn’t achieve its LEED designation and the owner doesn’t obtain its proforma-required tax benefits and starts looking around for someone to blame – the contractor has something of a defense. 

     Will it provide absolute protection when the plaintiff’s attorney lets loose with both barrels of 12 gauge, no. 10 buckshot and names everyone who ever glanced at a project in a lawsuit?  Probably not – but the 310 Green Building Addendum, along with the many other documents produced during discovery that support it by substantiating the relative roles of a project’s parties, might make for a very nice place to start crafting a defense.

     The ConsensusDOCS 310 Green Building Addendum is an admirable end-run around the green building movement’s obvious shortcomings – defining what “green” really means.  But perhaps it’s time for green building advocates to convene their own Council of Nicaea and hammer out the canons and doctrinal orthodoxy of green building – take it to the next level – the one that recognizes the inherent legal dangers of vagueness.  It won’t be pretty or easy.  Or, here’s a thought – ditch the marketing slogans and just start calling green building what it is – maybe:  “energy and resource-efficient humanistic design and construction.”   Or something like that.

     Sure, it’s not as snappy as “green” and might not fit as well on a Prius’s bumper  – but what more do you really need to say?  Green Building has enjoyed a good run of public support over the past decade, but anyone with their ear to the ground lately has heard the approaching hoof beats of the inevitable pushback.  The time may be fast approaching when words and actions – not to mention results – must merge into one for green building to sustain its credibility as a valid design and building ethic.   

     Is it possible that’s what ConsensusDOCS recognized when it created its new 310 Green Building Addendum?

Gary L. Cole AIA, Esq. is a Chicago-based Illinois and Florida-licensed attorney and an Illinois-licensed architect with over twenty years experience in design and construction, real estate development, historic preservation and accessibility matters.  He’s worked for two of Chicago’s largest law firms - Winston & Strawn LLP and Seyfarth Shaw LLP,  and was in-house counsel for one of the largest retail developers in the southeast – The Sembler Company.  He earned his law degree at Loyola University Chicago and holds both Bachelor of Architecture and Master of Architecture degrees from the University of Illinois, where he was a Visiting Associate Professor of Architecture for over a decade.  Mr. Cole regularly publishes timely articles about design, construction and real estate development issues on his website “LawArk” at www.lawarkbuilding.com, and can be contacted by email at garycole@lawarkbuilding.com.

By Gary L. Cole AIA, Esq.

Retail Marketing in Taipei

     Shopping and retail development should be fun, right?  That’s what a client who approached me some months ago about a new retail concept believed.  It was based on a very simple premise:  that in the U. S. shopping – a most ancient of human activities – had become over the past couple decades dull, mass-produced, uninspired and cut off from its social foundation.  Understaffed with bored clerks, no energy and no fun.  I agreed – who really looks forward to shopping at the local power center anymore? 

     As we developed the concept’s business model, its legal structure and its architectural design concept – with me wearing both architect’s and attorney’s hats – I suggested we put together a travel blog to chronicle his upcoming two-month trip throughout Asia, India and Europe where he’s meeting with agents and manufacturers to promote his ideas.  That travel blog, launched in late January 2010, can be found at http://www.globalshoppingblog.com/

     Read the rest of this entry »