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Archive for the ‘Development’ Category

     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 Parts 1 and 2 of the article 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.

     LawArk’s March 14, 2010 article by Gary L. Cole AIA, Esq., “The New ConsensusDOCS 310 Green Building Addendum:  Avoiding Green Building Liability With Actions Over Words” has been republished by ConsensusDOCS at http://consensusdocs.org/news/

     ConsensusDOCS publishes industry-standard construction agreements endorsed by twenty-three leading construction industry trade organizations.  Further news and information about ConsensusDOCS can be found on their website at http://consensusdocs.org/.

     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.

The American Association of Insurance Services recently published “Assessing the Impact of Green Construction on Commercial General Liability Exposures,” by Joseph Harrington, which follows two prior articles dealing with the impact of sustainable building practices on property insurance and builders risk coverage. 

The current article contains links to the earlier green insurance-related articles as well as quotes from LawArk’s author, Gary L. Cole AIA, Esq.

By Gary L. Cole AIA, Esq.

          Online virtual worlds, also called metaverses, have been around for some time now, all the while growing in complexity and sophistication, first in gaming and then as online 3D social networking sites.  But the majority of these are fantasy worlds – like the well-known role-playing game World of Warcraft  for sword-swinging gamers, and Second Life  (SL) – a metaverse where social interaction between avatars, not troll bashing, is the primary objective.  

          Freed of annoyances like structural engineering and material specifications, building and zoning codes, weather and oh, yes – gravity – anyone willing to shell out a few Second Life Lindens (SL’s virtual currency), can purchase virtual real estate on Second Life and build a house, a commercial building, a Harvard lecture hall, a floating museum – just about anything.  And businesses are taking note as quite a few corporations and educational institutions have opened virtual operations in Second Life and extended their marketing to the virtual world.

          But as imaginative constructs, fantasy virtual worlds will probably be limited to pretty much what they are now – fun, a little business and education maybe, but mostly a pleasant distraction.  Not that there’s anything wrong with that. 

          Enter now the mirror world – a virtual replication of an actual world – not a fantasy world.  While Second Life members have reproduced certain real world buildings within its servers, mirror worlds take it even further and replicate actual cities.  And these cities are populated with avatars – 3D virtual representations of their users (or who their users want to be) who walk, talk and fly about with other avatars, any one of whom might be a real person sitting at their keyboard on the other side of the world, or your neighbor next door.

          One of the best of these mirror worlds is Berlin-based Metaversum GmbH’s Twinity which currently features mirror versions of Singapore, London and Berlin – with more cities in the works.  After creating an account and downloading their software, Twinity members can beam their avatars to just outside Berlin’s Brandenburg Gate as it looks today – or, back to 1989 as it looked before the fall of the Berlin Wall.  Or teleport to London and stroll around Piccadilly Circus or Trafalgar Square (no virtual pigeons that I could see).  The visuals are very good and the sense of place real within the limitations of today’s computer technology – and we all know how long that stands still.   Read the rest of this entry »

By Gary L. Cole AIA, Esq.

            Note:  Despite its title, this article in no way advocates scrapping the current practice of local landmarking, though it does propose that serious upgrades are not only desirable, but probably unavoidable. 

            Part 1 of this two-part series argues that a combination of possible changes in the historic preservation legal landscape and the certainty of a dwindling supply of properties worthy of landmarking may force the current practice of government-controlled local landmarking to evolve. 

            Part 2 of this series proposes modifying the current practice of local landmarking in a way that addresses both problems raised in Part 1 by shifting landmarking from a government-only practice to one that shares responsibilities with the private business and investment sectors, i.e., those with the capital and the appetite for risk needed to invest in historic rehabilitation – a plan I’m calling here Local Landmarking v2.0.

Part 1 – Possibly –  Maybe – Depends.

“If, one day, for some mysterious reason, all the buildings, settlements, suburbs and structures built after 1945 – especially those commonly called “modern” – vanished from the face of the earth, would we mourn their loss?   Would the disappearance of  the prefabricated tower blocks, mass housing estates, commercial strips, business parks, modular production halls, university campuses, schools and new towns, damage the identity of our favorite cities and landscapes?

If, on the other hand, some parallel phenomenon destroyed in one fell swoop the whole of out pre-World War II architectural heritage, namely all “historic” buildings, hamlets, villages, bridges, and cities, what would be the significance of such an event?  What would be a greater loss?  Replacing all pre-1945 buildings with post-war buildings, or the reverse?”

Leon Krier – Introduction to “The Architecture of Community”

            Since the enactment of the National Historic Preservation Act in 1966, preservationists, including local, state and federal agencies, have been busy promoting the preservation of our nation’s built environment through a number of means, including, legally designating both individual properties and districts as historic via local preservation ordinances, sometimes state landmarking programs, and by listing on the federal National Register of Historic Places. 

            Initially created as a response to the widespread destruction the country’s pre-WW II built environment during the mid-century halcyon days of urban renewal, government-run landmarking has become one of preservation’s most effective tools for achieving its goals.  However, four decades and more into it, historic preservation as a movement is roughly middle-aged and changes generally unnoticed by the preservation community are starting to manifest that could mark the winding down of an era of largely unfettered government-controlled landmarking. 

            The usual justification for local governments to convey landmark status on privately owned property is for the “protection” of the property for the “public good” via restrictive ordinances which, in a broader legislative scheme, are somewhat balanced by various financial incentives for private investment – private investment being the only truly sustainable method of preserving historic properties.  The incentives are tagged, of course, with the usual government oversight and controls during their term.

             But does a recent Illinois case herald the twilight of changes in the public’s taste for government-enforced “protection” of private property, and will this condition become more dire as the ready supply of good candidates for landmarking begins to dry up, forcing preservationists to nominate less-worthy properties, which, of course, would make government-controlled landmarking more vulnerable to successful legal challenges as well as undermine the credibility of local landmarking? Read the rest of this entry »

[NOTE]: The voice employed in Law/Ark posts is intentionally non-legal. Herein, you will find no wherefores. And, while I welcome and warmly appreciate the readership and comments of my fellow attorneys, these posts are written mostly with Law/Ark’s other readers in mind – those of you out there responding to your passions and answering your callings by designing, building and developing green projects.

And, despite the sometimes playfully polemical tenor of these posts, they’re not intended to discourage you from that pursuit, but, rather, to encourage you to pursue them with the proper forewarning and forearming.

Part 2.1 (Part 1 was posted May 18, 2009)

This is Part 2.1 of the “Green Goblin” Series, of which Parts 2.2 and 2.3 will follow shortly. The series will wind it all up with Part 3, which will address specific legal and design/construction practice approaches for avoiding the pitfalls discussed in the series.

The Green Goblin series can be summarized in one statement: “unsupportable claims about the performance of “green” design and construction may inspire a new understanding of the American legal system by those who make such claims – as defendants.”

 Part 1 of this series touched on something I called “unfulfilled expectations” in green design and construction – essentially, what was expected did not occur, and/or what occurred was unexpected. Unfulfilled expectations is a simplified way of referring to some manifestation of a “breach of contract.” Breaches of contract can arise by violations of express terms – as in writings, or, even by implied terms. Either way, someone’s not happy with an outcome – in this context, most likely a client who believes they were deliberately mislead by the representations of their design and construction professionals about the performance and/or value of their new green project.

But wait! – some readers are thinking indignantly – I would never misrepresent a design! And, as an architect, I agree, you would probably never do that intentionally. Architects and other designers are many things, but charlatans only very rarely – it’s just not in their DNA. But, as this series of posts explores, green design and construction is particularly vulnerable to claim-making on a whole new level –a global level. And, as an attorney, I also know that when the finger pointing starts, what was done intentionally or unintentionally can sometimes matter only slightly under the hairy eyeball of the law. Or, it’s the crux of everything, depending on the facts. But what is deeply encoded in the double helix of most architects and other designers is a yearning to create something wonderful – a longing to make something from nothing and delight the world. And therein lurks the slumbering danger for green design and construction professionals – the desire to please an authority higher than the client and the project’s program – which higher authority may, or may not exist.

It starts in school. Design schools have their shortcomings – most notably in business education – but failing to imbue their acolytes with a sense of unbridled idealism and religious certainty and then cursing them with cynicism isn’t generally among them. That comes later – when rosy idealism runs headlong into the hard, sharp corners of business reality. And when that happens, designers have a choice: retreat into the warm and cathartic refuge of imagination (and blissfully ignore the risk), or, accept that the design profession is like many things – pleasant enough if done right, but always subject to the tedious business of balancing idealism and risk. And, at least as far as construction law is generally concerned – also subject to the requirements of the client and the project first, and other callings second, if at all.

And this is the dilemma for some green design and construction professionals – the ones who are most vulnerable to legal liability – how to achieve a balance between serving the client and the project, while still serving a higher, even global calling?

The problem is in the creative process itself – a way of thinking utterly alien to most in the legal profession – but key to understanding both the problem and its solution.

By necessity, design is often conceived in the haze of the half-waking dream – the fertile ground between mythology and science where nearly anything is possible and the realities of engineering, building codes and especially the law, stand pale and ghostlike in the background, patiently waiting to be acknowledged. By virtue of their academic and professional training, those who enter the design professions have been culled from the many applicants who found this Phantom Zone a bit too, well – ephemeral, for their way of thinking. In over-simplified terms, conceptual building design is a right brain activity, with just enough of the left brain kicking in to make sure that designs can be built, stand up and preferably not kill anyone along the way. All of this, of course, ignores the long-simmering civil war within the design professions – especially in architecture – between the pure designer and the others – those who have sought peace between their warring cranial hemispheres and achieved a sort of balance and détente between the rational and romantic synaptic impulses crackling away in their melons like a tree full of blackbirds. Or, less metaphorically, the conflict between those who regard architecture as merely a poetic thought exercise that sometimes results in buildings, and those who see architecture as a building art necessarily expressed by, you know – real buildings. For purposes of green design and construction legal liability, it’s the former who are most at risk, but in the current state of the green building industry, even the latter need to navigate with caution.

At the same time, speeding along in their different, but often intersecting orbits, and generally unconcerned with romantic sentiments, design theories and ideology – are the lawyers. Much-maligned and often underappreciated, they suffer from a long history of popular distain as evidenced in movies and books populated by two-dimensional stereotypes that only someone who’d never set foot in a court room or who’d maybe spent their first year out of law school as a litigation whipping boy at some hard-charging mega-firm – before fleeing to a less stressful career hauling crab pots in the Bering Sea – would think bore any resemblance to real lawyers and the real practice of law. But, for this series’ purpose, lawyers are just like other people and hardly any fit any of the popular stereotypes – except, of course, in one very important way.

By necessity, the law requires a full-on, highly caffeinated, linear way of thinking by individuals who, from cradle (or law school anyway) to grave are culled from society’s broader and less focused thinkers, and trained to apply their powers of unemotive logical reasoning with the precision of an excimer laser and a rigor that could bring a tear to even Mr. Spock’s stoic eyes. The beautifully creative and impressionistic notions of designers are as incomprehensible to most lawyers’ fast-firing, sixteen-cylinder minds as a description of the aurora borealis would be to someone unsighted from birth. And when, as discussed in Part 1 of this series, that green roof turns from a much-lauded butterfly refuge to a sopping mess in the offices below, any green design or construction professional whose defense is proudly based on idealistic and heroic notions of saving the planet instead of tedious due diligence and observance of a standard of care, may abruptly find themselves in a new line of work. Measuring the Cheshire Cat grin of the plaintiff’s attorney who hears that defense in a deposition or at trial would be done in feet, not inches – as beautiful in its expression of victory as the defense counsel’s involuntary gagging is sudden and violent.

This then, is the essential conflict that can lead to career-ending legal liability: unfulfilled expectations which arise because green design and construction professionals, in their desire to imbue their work with more then mere programmatic compliance, choose – unwisely – to advocate questionable solutions to uncertain problems in a quest for the salvation of the planet – all of which runs headlong into the snapping jaws of a legal system which is generally unimpressed with messianic notions and world-saving idealism, and more concerned with whether proper professional duties and standards of care were observed. In this way, the popular stereotypes of lawyers and the legal profession are not the amusing stuff of popular entertainment – but of a reality that green design and construction professionals either willingly appreciate at the beginning of their projects – or may unwillingly at the end.

[END PART 2.1, PART 2.2 TO FOLLOW SOON]

NEXT: For green design and construction professionals – and green building advocates in general – the following parts of this series may sting a little. But fully addressing the root causes of emerging green legal liability isn’t done through a typical, dry legal discussion about traditional causes of action and contract defenses. It’s done by understanding – really understanding – the reasons why green design and construction professionals passionately (though, perhaps unwittingly) risk their practices to advocate a theory of design and building that relies as much on a currently legally indefensible ideology of global salvation as it does on traditional notions of high-efficiency building design.

But is green design and construction really based just on ideology, theology or even superstition as some have claimed? Or, is energy efficient and human-centered design just the most sensible way for a technologically advanced civilization to design buildings and cities in the 21st century? Have humanistic values finally returned to our way of thinking, living and designing our communities? Do traditional legal causes and effects even apply here or are we into new territory that will require attorneys to reach deep into their right brains and create new defenses to address a new way of designing and building, rather than simply relying on traditional, possibly outdated and even ineffective approaches developed for a different design/construction/law paradigm? Is it time for everyone to bring their A-game to develop a whole new way of thinking about how our values are reflected in the way we design and build and the law’s response to those changes?

Maybe – or not. Maybe green design and construction is just the same old – with a new paint job to match a new vernacular.

But the answers to these questions will not be found by cringing behind delicately minced words and the occasional grand jeté between half-truths – but will be found tackling the issues head on with an unapologetic and sometimes polemical directness that brings the matter into full light for a much-needed objective rational discussion. Even so, it’s likely, as is often said in the law, that reasonable people may disagree – and probably will.

© Copyright Gary L. Cole AIA, Esq. 2009