1. Going Green in North Carolina: Implementing Green Building Ordinances and Other Sustainability Initiatives Eric M. Braun, Esq. Charlotte A. Mitchell, Esq. NCAPA Annual Planning Conference September 24-26, 2008

2. 2 OVERVIEW  Green Building Movement  Government Involvement Generally  Government Involvement in North Carolina  Examples of Local Government Involvement  Future Directions

3. 3 GREEN BUILDING MOVEMENT  Paradigm shift  Environmental impacts of buildings  What is a green building  LEED and other certification programs

4. 4 From the US Green Building Council

5. 5 GREEN BUILDING MOVEMENT  Elements of “green” building:  Energy and water conservation  Waste reduction, recycling, and use of "green“ building materials  Responsible stormwater management  Improved indoor air quality  Site selection

6. 6 GREEN BUILDING MOVEMENT  Leadership in Energy and Environmental Design  Other certification programs  Green Globes  Home Builders Association – Green Building Program  Earthcraft  Audubon International

7. 7 GREEN BUILDING MOVEMENT  Forces driving movement:  Market Demand  Government  Investor Demand  Public Sentiment?  Economics?

8. 8 GOVERNMENT INVOLVEMENT GENERALLY  Greening government operations:  All new publicly-financed construction must achieve “green” certification  Incentives and mandates:  Development and financial incentives  Development mandates

9. 9 GOVERNMENT INVOLVEMENT GENERALLY  Government leading by example:  Federal energy management program  Triangle J Council of Governments - High Performance Guidelines: Triangle Region Public Facilities

10. 10 GOVERNMENT INVOLVEMENT IN NORTH CAROLINA  “ Dillon’s Rule”  Local governments “are creatures of the General Assembly and have no inherent legislative powers. They are instrumentalities of state government and possess only those powers the General Assembly has conferred upon them.” Craig v. County of Chatham, 356 N.C. 40, 44, 565 S.E.2d 172, 175 (2002) (internal citations omitted).

11. 11 GOVERNMENT INVOLVEMENT IN NORTH CAROLINA  N.C. Gen. Stat. §§ 153A-4 and 160A-4  “Grants of power shall be construed to include any additional and supplementary powers that are reasonably necessary or expedient to carry them into execution and effect....”

12. 12 GOVERNMENT INVOLVEMENT IN NORTH CAROLINA  Liberal Construction  Section 160A-4 should be viewed “as a legislative mandate that we are to construe in a broad fashion the provisions and grants of power contained in Chapter 160A.” River Birch Assoc. v. City of Raleigh, 326 N.C. 100, 109, 388 S.E.2d 538, 543 (1990).

13. 13 GOVERNMENT INVOLVEMENT IN NORTH CAROLINA  Strict Construction  “When the language of a statute is clear and unambiguous, there is no room for judicial construction, and the courts must give it its plain and definite meaning.” Smith Chapel Baptist Church v. City of Durham, 350 N.C. 805, 811, 517 S.E.2d 874, 878 (1999).  Sections 153A-4 and 160A-4 should be a part of the Court’s interpretative process only when there is an ambiguity in a statute. If “the statute is clear on its face, the plain language of the statute controls and section 153A-4 remains idle.” Durham County Landowners Ass’n v. County of Durham, 177 N.C. App. 629, 634, 630 S.E.2d 200, 203 (2006).

14. 14 GOVERNMENT INVOLVEMENT IN NORTH CAROLINA  Session Law 2007-381  Authorizes the use of reduced permitting fees or partial rebates for LEED, Green Globes or other nationally-recognized rating system-certified projects

15. 15 GOVERNMENT INVOLVEMENT IN NORTH CAROLINA  Session Law 2007-241/2008-22  Authorizes development incentives if project standards “make a significant contribution to the reduction of energy consumption”  Applies only to Cabarrus County, Asheville, Charlotte, Concord, Durham, Kannapolis, Locust, Wilmington, Carrboro, Cary, Chapel Hill, Harrisburg, Midland, Mount Pleasant, and Stanfield

16. 16 GOVERNMENT INVOLVEMENT IN NORTH CAROLINA  Development Agreements and “Green” Elements  N.C. Gen. Stat. § 160A-400.20, et seq., authorizes a city to enter into development agreements with developers.  Developer assured that the applicable land use regulations will not change during the life of the agreement  Municipality achieves greater flexibility and avoids hurdles associated with impact fees, exactions and takings

17. 17 GOVERNMENT INVOLVEMENT IN NORTH CAROLINA  Keys to implementing a “green” ordinance:  Must identify express statutory authority to mandate  If none, then must decide if incentives are permitted under the General Statutes  If not, then must consider local legislation

18. 18 GOVERNMENT INVOLVEMENT IN NORTH CAROLINA  Other mechanisms for achieving sustainable development goals:  Conditional Use Zoning  Possibility for landscaping, buffers, and water conservation measures  Development agreements  May be best option in the absence of express authority

19. 19 LOCAL GOVERNMENT EXAMPLES  Town of Chapel Hill  LEED-based ordinance for publicly-financed projects  Renewable energy planning in rezoning applications and special use permit applications  Sustainability Committee (standing committee)  Local bills under consideration – water conservation, authority to require energy efficiency and use of renewable energy

20. 20 LOCAL GOVERNMENT EXAMPLES  City of Raleigh  Working toward LEED-based ordinance for publicly- financed projects  Recommendation from Environmental Advisory Board to incentivize in private sector

21. 21 LOCAL GOVERNMENT EXAMPLES  City of Asheville  LEED-based ordinance for publicly-financed projects  Building permit fee reduction/rebate program  Plan review fee reduction

22. 22 LOCAL GOVERNMENT EXAMPLES  Charlotte/Mecklenburg  Building permit fee reduction/rebate program

23. 23 LOCAL GOVERNMENT EXAMPLES  Chatham County  Green Building Task Force  LEED/Green Globes-based ordinance for publicly- financed projects  Energy Star requirement for publicly-financed projects

24. 24 LOCAL GOVERNMENT EXAMPLES  Town of Cary  Working toward energy efficiency incentives  Turf buy-back program  Re-use water system for irrigation

25. 25 FUTURE DIRECTIONS  Mandates for private development?  Washington DC  Dallas  San Francisco and Los Angeles  Carbon footprint limitations?  Overhaul of North Carolina Building Code?

26. 26 QUESTIONS? Eric M. Braun, Esq. Charlotte A. Mitchell, Esq. K&L Gates LLP 4350 Lassiter at North Hills Avenue Suite 300 Raleigh, North Carolina 27619 919.743.7300