LEED in a Nutshell

A Publication of the Orange County Bar Association

Inside this Issue:

March 2010 Vol. 78 No. 3

OCBA March Luncheon SpeakerLeon H. Handley 2010 William Trickel, Jr., Professionalism Award Recipient

LEED in A Nutshell David N. Torre

Negotiating Consent Orders and Settlement Agreements with Local Environmental Agencies Anna Long

One of OCBA’s Own “Goes Green” John Paré

www.orangecountybar.org the Briefs March 2010 Vol. 78 No. 3

Co-EditorsKimberly D. Healy & LaShawnda K. Jackson

Associate EditorsVivian P. Cocotas & Sarah P. L. Reiner

Side Bar ColumnistKristyne E. Kennedy

Hearsay ColumnistKimberly D. Webb

YLS ColumnistSunny A. Hillary

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OFFICERSDiego “Woody” Rodriguez, President

Frank M. Bedell, President-ElectThomas A. Zehnder, TreasurerKristyne E. Kennedy, Secretary

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EXECUTIVE COUNCILWiley S. BostonVivian P. Cocotas

Meenakshi A. HiraniElizabeth F. McCausland

Gary S. SalzmanPaul J. Scheck

Nicholas A. ShanninWilliam D. Umansky

William C. Vose Kimberly D. Webb

Esther M. WhiteheadTad A. Yates, Ex-Officio

Ryan E. Davis, President, YLSw

EXECUTIVE DIRECTORBrant S. Bittner

wCommunications Manager

Peggy Storch

Marketing ManagerMente Connery

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All contents ©2009 Orange County Bar Association. All rights reserved.

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©2010

the BriefsTable of Contents:

ISSN 1947-3968

President’s Message 3 A Call to Arms Diego “Woody” Rodriguez

OCBA March Luncheon 5 Leon H. Handley 2010 William Trickel, Jr., Professionalism Award Recipient

Editors’ Note 7 LaShawnda K. Jackson and Kimberly D. Healy

LEED in A Nutshell 8 David N. Torre

Barry Law School is Greening the Way in Legal Education 11 Judith E. Koons and Jane Goddard

Judicial News 12 The OJCC Orlando District Office – Extraordinary Judges of Compensation Claims Hon. David W. Langham

One of OCBA’s Own “Goes Green” 13 John Paré

Going Green: Social Responsibility 16 Riley Allen

Legal Aid Society News 20 Florida Supreme Court Honors Orange County Attorneys: Pro Bono Service Pins

Legal Aid Society News 22 21 Florida Lawyers Receive Pro Bono Awards

Legal Aid Society News 22 Holiday Project 2009 Darcy Fritz

Legal Aid Society News 23 What We Do… Lawyers without Briefcases: A Green Path toward Paperless Donna A. Graf

Managing Risks in Green Design Contracts: Sustaining the Bottom Line 26 Michael R. Gibbons, Esq.

Hearsay 27 Kimberly D. Webb

Law Week 2010 Volunteers Still Needed Catrina M. Chapin

YLS on the Move 28 Social and Service Events Sunny A. Hillary

Negotiating Consent Orders and Settlement Agreements 30 with Local Environmental Agencies Anna Long

Green is the New Gold – “Go Green” or Lo$e Green 35 Marshall Fletcher

Paralegal Post 36 FRP Grandfathered Paralegal Work Experience Eligibility Sunsets March 1, 2011 Carin M. Gordon

Presentation Skills for Lawyers 39 How to Read to Your Audience (Without Putting Them to Sleep) Elliott Wilcox

Rainmaking 41 Listening & Speaking Mark Powers and Shawn McNalis

New Members 42Announcements 44Classifieds 47Calendar 48


To begin, what in the world is LEED? LEED is an acronym for Leadership in Energy and Environmental Design. The LEED rating system has rating categories for specific types of projects.1 They cover all phases of building design, construc-tion, and operation. These categories include new construction, core and shell, schools, healthcare, and retail structures. Commercial and retail interiors are in-cluded in separate categories that cover interior design and construction. Finally, existing buildings are covered in categories that concern the operation and mainte-nance of existing LEED buildings.So what does it take to become a LEED building? To achieve LEED certifica-tion for a newly constructed building, for example, the project must earn a certain amount of points. For the LEED rating system Version 3 launched on April 27, 2009, a building must achieve at least 40 points from seven measurement cat-egories.2 Points are tallied up and build-ing projects are awarded a distinct level of LEED certification. For a Certified ranking, a project must attain between 40 and 49 points. Silver Certification requires between 50 and 59 points. Gold Certification requires between 60 and 79, with Platinum equaling 80 or more total points.3 Within each of the project’s categories are detailed items that a building project can do or refrain from doing and thus earn points. Some categories have prerequisites that every building project must comply with. For example, a new construction project can earn one point under the Sustainable Sites (SS) category for choos-ing to develop a site previously defined by a governmental entity as a brownfield site. The purpose of this credit is to encour-age the cleaning of already contaminated sites while also preventing the use of undeveloped land. However, all projects must take measures necessary to reduce pollution from construction activities by controlling soil erosion, waterway sedi-

mentation, and airborne dust generation.4 Another example is the use of rapidly renewable resources as construction mate-rials. A project can earn a point under the Materials and Resources (MR) category for using rapidly renewable building ma-terials and products for 2.5% of the total value of all building materials and prod-ucts used in the project (based on cost). Rapidly renewable building materials and products are defined as those products made from plants that are typically har-vested within a 10-year or shorter cycle.5

LEED GovernanceThe U.S. Green Building Council (USGBC) is a Washington, DC-based non-profit organization perhaps best known for its green rating system for the construction of buildings. The Council was formed in 19936 and has seen an in-crease in its influence over the last several years. The USGBC boasts a membership of more than 20,000 companies and orga-nizations with 78 local affiliates through-out the United States.7 There is also a local Central Florida chapter.8 The USGBC and its administrative affiliate, Green Building Certification Institute (GBCI), review applications for project certifica-tions and award the corresponding level of certification based on total points attained by the building project in question. They also administer the LEED Accredited Professional (LEED AP) program. The USGBC has an individual membership of over 100,000 accredited professionals.9 LEED APs must pass a thorough exami-nation covering the LEED building rating system. While use of a LEED AP is not required on building projects, the point system does award one point for projects that include an AP on the team.10 LEED in the Local HeadlinesMany of the biggest and most high profile building projects in Central Florida have sought out LEED certification. Some re-cent examples include:•The new Amway Center – Builders are

anxious to complete “one of the ‘greenest’ are-nas in the country.”11 The arena is designed to use 20% less energy and 40%

less water than an arena of similar size, which will re-

duce future operating costs as well.12 Design highlights include a reflective roof that will reduce building temperatures and cooling costs and systems to reduce storm water runoff before it makes its way to area lakes.13 Designers hope that the Orlando Magic’s new home will achieve at least the minimum LEED certification with the USGBC.14

•The Burnham Institute for Medical Research – It was recently announced that the largest private research facility in the state of Florida attained Gold level LEED certification.16 Design highlights of the Burnham Institute include use of recycled building materials. Burnham also states that more than 50% of the wood used in the building was from sustainably-har-vested forests and certified by the Forest Stewardship Council.17

•Darden Restaurants Corporate Headquarters – The headquarters of Orlando’s only Fortune 500 company was also designed to attain Gold level LEED certification. The Darden headquarters utilizes a 114,000 square-foot glass cur-tainwall exterior to increase use of natural light in its office space.18 Landscaping for the facility includes plants and trees native to Florida to reduce the amount of water needed for irrigation.19 Irrespective of LEED, the new Darden building also has a 5,000 square-foot fitness and wellness center for employees.20

•Orange County Morgue – Dr. Jan Garavaglia (a/k/a Dr. G: Medical Examiner) recently invited members of the public to view Orange County’s new morgue facility.21 The $14 million build-ing is seeking LEED certification.22 If successful, the building will be the state’s first LEED-certified morgue.23 Design highlights include flooring made of re-cycled beer bottles, energy-efficient mo-tion-sensitive lights, and a state-of-the-art air purification system.24

•UCF Physical Sciences I Building – This building successfully attained Gold level LEED certification.25 The building used native landscaping and was developed on a site that had been previously used as a parking lot.26

LEED in A Nutshell

There is so much talk today about going green. What does it mean? Well, it means different things to different people. One cannot help but

be confused over what is and what is not “green.” You may have noticed that many new construction projects boast about green building materials and techniques such as LEED. So, just what exactly does that mean?

David N. Torre

the Briefs March 2010 Vol. 78 No. 3 www.orangecountybar.org PAGE 9

•UCF Physical Sciences I Building – This building successfully attained Gold level LEED certification.27 The building used native landscaping and was developed on a site that had been previously used as a parking lot.28

•The Heavener Football Complex at the University of Florida’s Ben Hill Griffin Stadium – The $28 million addition to the stadium is the first building in Florida and the first athletic facil-ity in the nation to achieve Platinum level LEED certification. To put that into perspective, there are only 130 Platinum buildings in the United States and only 141 worldwide.

Legal Implications of LEEDWith any big construction project, there are many players and many moving parts. The task of attaining LEED certification undoubtedly adds a level of complexity to any project. Yet who is the responsible party if the building fails to achieve the desired LEED certification? The answer will most likely come from the string of litigation many observers feel is destined to come from the green building move-ment. Chris Cheatham is a DC-area attorney and LEED AP who writes an in-depth blog covering LEED issues.29 Cheatham contends that “LEEDigation” is inevitable as more local building codes begin mandating LEED compliance.30

Additionally, there is a multitude of op-portunities for a LEED project to go awry. “Builders roll their eyes at archi-tects who pen aesthetic (read: expensive) green designs. Architects grumble about contractors that procrastinate on the piles of green building application documenta-tion. Contractors worry about subcon-tractors that cut the costliest and greenest corners. LEED consultants say they get varied answers from a variety of Green Building Council reviewers. Tenants say their landlords control their buildings’ electrical gauges, while owners say tenants are the ones keeping the lights on and the energy-hogging computers running,” says Cheatham.31

A recent case out of Maryland has been dubbed the first LEED lawsuit.32 Shaw Development, LLC v. Southern Builders, Inc.,33 involved a dispute between a real estate developer and its contractor due to the inability of the building to attain LEED Silver status.34 The developer’s architectural contract and incorporated project manual for the multi-million dol-lar condominium project included lan-guage that the building was “designed to comply with a Silver Certification Level

according to the U.S. Green Building Council’s Leadership in Energy and Environmental Design (LEED) Rating System.”35 Suffice it to say, the project did not achieve LEED Silver status. The de-veloper sued under breach of contract and negligence.36 Damages were calculated according to lost tax credits the developer anticipated receiving under the Maryland green building tax incentive program.37 The plaintiff demanded $635,000.38

The case did not end up going to trial, but the tax incentive issue will probably ap-pear again in other jurisdictions as green building incentives are continually waived in front of building owners. For example in Shaw Development, Maryland offered state tax credits of up to 8 percent of a project’s total cost for buildings greater than 20,000 square feet,39 and only LEED projects were eligible to apply for the credits.40 However, tax credits for voluntary compli-ance with LEED requirements are not the only consideration. Many jurisdictions have begun incorporating green building requirements into mandatory building codes.41 Cities such as Washington, DC, Los Angeles, New York, and San Francisco now have adopted mandatory green building laws and codes that will require the incorporation of green building strate-gies into all construction projects.42

Locally, Mayor Buddy Dyer has insti-tuted the Green Works Orlando pro-gram, which seeks to protect our natural resources, encourage environmentally-friendly lifestyles and business practices.43 On its webpage, Green Works Orlando has posted a seven-point challenge for commercial businesses to reduce energy consumption and implement other green techniques for upcoming projects.44 Although still voluntary, the trend to-wards green building codes is evident.

Going Green and LEEDing the WayAs you can probably imagine, there is a whole lot more to green building in gen-eral and LEED certification in particular. Many nuances and details are beyond the scope of this article. However, one can easily see the day when green issues be-come commonplace for attorneys in many types of practice areas. “Going green” is a catchphrase and can mean vastly different things to different people. Yet, that is pre-cisely the reason why LEED certification has grown in popularity. The USGBC has standardized the concept and distilled it down to objective criteria. LEED has not only spread across the construction industry it has also created an identifiable

consumer demand. One can look to the example of Starbucks Coffee Company in comparison. Before Starbucks, cof-fee was the textbook commodity with wide-ranging standards for quality. Most people drank whatever coffee was served at their local diner and didn’t think twice about it. However, Starbucks defined a new standard, which lead to a real con-sumer demand. Now, almost anyone on the street knows the difference between getting a cup of coffee and going to Starbucks. Like espresso and cappuccino twenty-five years ago, most people had no idea what a green building was let alone LEED certification.45 That is changing. Building owners, spurred by consumer demand, will continue to seek out LEED certification for environmental, financial, and marketing reasons. It appears that LEED, like the grande mo-cha, is here to stay.

David Torre is the managing member of The Torre Law Firm, P.L., and a LEED AP. He has been a member of the OCBA since 2006. He can be contacted via email at [email protected].

1U.S. Green Building Council, http://www.usgbc.org/DisplayPage.aspx?CMSPageID=1970 (last visited Dec. 13, 2009).2These categories are: Sustainable Sites (SS), Water Efficiency (WE), Energy and Atmosphere (EA), Ma-terials and Resources (MR), Indoor Environmental Quality (IEQ), Innovation in Design (ID), and Re-gional Priority (RP). The Regional Priority category is a new addition for the LEED Version 3. It allows for local affiliates to award points to a construction project based as incentives for builders to address geographically specific environmental issues. See U.S. Green Building Council, LEED 2009 for New Construction and Major Renovation, http://www.usgbc.org/ShowFile.aspx?DocumentID=5546 (last visited Dec. 13, 2009).3Id.4Id.5Id.6U.S. Green Building Council, LEED For New Construction & Major Renovation Version 2.2 Reference Guide (2006).7U.S. Green Building Council, http://www.usgbc.org/DisplayPage.aspx?CMSPageID=124 (last visited Dec. 13, 2009). 8http://www.usgbc-cf.org/9The total was 131,724 LEED Professionals as of June 30, 2009. See Green Building Certifica-tion Institute, http://www.gbci.org/DisplayPage.aspx?CMSPageID=101 (last visited Dec. 13, 2009).

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10The point would count towards the Innovation in Design (ID) category. U.S. Green Building Council Reference Guide, supra note 1.11Mark Schleub, Orlando Touts Benefits of ‘Green’ Amway Center, Orlando Sen-tinel (Nov. 4, 2009), http://www.or-landosentinel.com/news/local/os-green-magic-arena-20091104,0,7502176.story12Id.13Id.14Id. 15Fernando Quintero, Burnham, UCF Receive Top Certification For Eco-Friendly Construction, Orlando Sentinel (Dec. 21, 2009), http://www.orlandosentinel.com/business/os-cfb-health-report-20091220,0,5292365.story.16Press Release, Burnham Institute for Medical Research, Burnham Campus “Green” Design Fact Sheet (May 15, 2009) http://www.burnham.org/default.asp?contentID=725.17Id.18Press Release, Darden Restaurants, Darden Restaurants Opens New, State-of-the-Art Corporate Headquar-ters (Sept. 30, 2009) http://investor.dardenrestaurants.com/releasedetail.cfm?ReleaseID=412691.19Id.

20Id.21Walter Pacheco, Dr. G Shows Off Shiny New ‘Green’ Morgue, Orlando Sentinel (Oct. 21, 2009), http://www.orlandosentinel.com/features/law/orl-dr-g-new-morgue-102109,0,230049.story.22Id.23Id.24Id.25Fernando Quintero, supra note 15.26Id.27WCTV.tv, UF’s Football Complex Receives Highest Green Building Certification, http://wctv.tv/sports/head-lines/45489947.html (last visited Nov. 13, 2009).28Id.29http://www.greenbuildinglawupdate.com/30Vandana Sinha, Greenprints: Who bears responsibility when a building fails to win LEED?, Washington Business Journal (Aug. 14, 2009) http://washington.bizjournals.com/washington/sto-ries/2009/08/17/tidbits7.html.31Id.32Real Life Leed, http://www.reallifeleed.com/2008/08/first-leed-lawsuit-great.html (Dec. 13, 2009, 15:33 EST).33Shaw Development, LLC v. Southern

Builders, Inc.; No. 19-C-07-011405 (Circuit Court of Somerset County, Md., filed Feb. 7, 2007).34Green Building Law Update, http://www.greenbuildinglawupdate.com/2008/10/articles/legal-develop-ments/southern-builders-v-shaw-devel-opment-green-building-claims/ (Oct. 3, 2008).35Green Building Law Update, http://www.greenbuildinglawupdate.com/2008/10/articles/legal-develop-ments/southern-builders-v-shaw-devel-opment-the-most-important-part/ (Oct. 1, 2008).36Green Building Law Update, supra note 27.37Green Building Law Update, http://www.greenbuildinglawupdate.com/2008/10/articles/legal-develop-ments/southern-builders-v-shaw-devel-opment-green-building-damages/ (Oct. 6, 2008).38Id.39gbNYC, http://www.greenbuilding-snyc.com/2008/08/20/the-anatomy-of-americas-first-green-building-litigation (Aug. 20, 2008).40Id.41Green Building Law Update, supra note 27.

42Id.43http://cityo-forlando.net/elected/greenworks/index.htm44Green Works Orlando, http://cityofor-lando.net/forms/greenworks/pledge_bus.htm (last visited Dec. 13, 2009).45Moreover, Starbucks recently an-nounced a goal of achieving LEED certification for all of its newly-estab-lished stores by late 2010. The coffee giant’s pilot program includes new retail locations in San Diego, California; Bell-ingham, Washington; Detroit, Michi-gan; Atlanta, Georgia; Fort Lauderdale, Florida; New York, New York; Toronto, Canada; Lisbon, Portugal; Manila, Philippines; Fukuoka, Japan; and Taipei, Taiwan. See Press Release, Starbucks Coffee Company, Starbucks Industry-Leading Design Initiatives Help Reduce Environmental Footprint of Global Store Operations (Nov. 12, 2009) http://news.starbucks.com/article_print.cfm?article_id=295.

LEED in A Nutshellcontinued from page 9

LEED in a Nutshell

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