News Room : Archives : January 2011

 

Posts Tagged ‘lawsuit’

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Sordid Green Bulding Litigation Arises in Minnesota

Sunday, January 9th, 2011

This is as confusing and sordid as any green building dispute I have seen.  Consider yourself warned.

Over the holidays, Michael Anschel informed me that the the Builders Association of the Twin Cities (BATC) had sued Minnesota GreenStar and filed a restraining order against using a green building standard.

Despite that simple statement, there is a lot more to this story.  Here is the best summary I can come up with after reviewing the lawsuit filed by the BATC and a blog post by Anschel on the subject.

The BATC worked with other associations to create a green building standard, called the Green Homebuilding Guidelines.  BATC and the other entities then created a new entity, Minnesota GreenStar, to run the green building standard (much like the Green Building Certification Institute runs LEED).  At some point, BATC became disenchanted with either Minnesota GreenStar and/or the Green Homebuilding Guidelines, and decided to file a lawsuit to essentially take over administration of the Guidelines.  If you believe the complaint, the reason for BATC’s disenchantment was Minnesota GreenStar’s failure to repay a loan and GreenStar’s intent to license the green building standard to other states.  If you believe Anschel’s post, BATC’s reasons are more sinister and have to do with weakening the Green Homebuilding Guidelines.

Lets start with the lawsuit itself.

On December 9, 2010, the BATC filed a restraining order and lawsuit against Minnesota GreenStar.  BATC claims that in 2006, it developed the Green Homebuilding Guidelines and further asserts it owns the intellectual property rights to the Guidelines.  BATC also points out it that it contributed $50,000 to develop the Guidelines.

In 2007, BATC, along with two other entities, formed Minnesota GreenStar, which began using the Green Homebuilding Guidelines.  At some point in 2008, GreenStar filed registered copyrights for the Green Homebuilding Guidelines, which would give GreenStar intellectual property rights to the Guidelines.

This is where events get a bit confusing.  BATC alleges that in 2010, it provided an additional loan to GreenStar.  Despite this additional loan, BATC claims that GreenStar ran into financial trouble:

“On September 15, 2010, GreenStar conducted a meeting of its Board of Directors and disseminated its Business Plan . . . in which GreenStar relied on continued sponsorships, a one-year deferment on its Promissory Note obligations to BATC, and significant additional funding from BATC. . . . GreenStar also indicated its intent to license the Green Homebuilding Guidelines developed and owned by BATC to other states to raise revenue for GreenStar.”

BATC goes on to ask the Court for four things:

1.  Judgment of $50,000 for an alleged breach of the loan;
2.  Judgment declaring that BATC owns the intellectual property rights to GreenStar and GreenStar is restricted from using or licensing the Guidelines;
3.  Temporary and permanent injunction against GreenStar from using the Guidelines; and
4.  Attorneys fees.

Taken at its face, the complaint suggests that BATC is concerned about the prospect of licensing the Green Homebuilding Guidelines to other states.  But why would a builders association be concerned about this?

According to Anschel, BATC’s motives are more complicated.  In a blog post at Construction Law Musings, Anschel explains that BATC actually intends to develop a new green building certification program that allows for self certification.  Anschel believes BATC’s move is a step backwards for green building in Minnesota.  If BATC intends to create a new green building standard in Minnesota, then it certainly makes sense why it would want to take over and limit Minnesota GreenStar and the existing Green Homebuilding Guidelines.

Original Post by Chris Cheatham, Green Building Law Update.

Reading the Green Building Tea Leaves

Saturday, November 6th, 2010

I am trying to make sense out of a number of different events that will be shaping the design, construction and green building industries for the foreseeable future.  Maybe you can help me make sense out of it all.  Here is what I am seeing:
Something is going on with LEED

The number of LEED registrations appears to be down substantially this year.  To learn more, I would suggest you register for this upcoming webinar hosted by Greener Buildings and Rob Watson.  The decline in registrations is not surprising given the decline in the design and construction of new commercial buildings.

What is surprising is the anger that I am hearing by those frustrated with the LEED rating system.  Many of these frustrations are now being publicly expressed in reaction to the Henry Gifford lawsuit against the US Green Building Council.  Environmental Building News ran a fascinating article on the reaction to the Gifford lawsuit:  “In the years that I’ve been reporting for Environmental Building News, I can’t think of another news story that has drawn as much immediate and widespread interest.”  The article goes on to survey the reactions to the Gifford lawsuit.  I have always feared a green backlash would occur, but I never expected it so soon and so abruptly.  I wonder if the decline in registrations and certifications is tied to the green building community’s frustration with LEED?

Update:  Also, check out this article written by Lloyd Alter regarding LEED bashing.

We need a solution for our infrastructure needs

And speaking of anger, the Tuesday elections will most definitely affect the future of the construction industry.  The shutdown of the New York-New Jersey tunnel by Gov. Chris Christie is a perfect example of what I believe will be a reining in of public works spending.  The Republicans resoundingly won 60 seats in the House based in large part on a message of fiscal austerity; fiscal austerity means less federal investment in large construction projects.  And yet, our infrastructure needs significant rehabilitation.  When I mention our infrastructure, I like to include the inefficient buildings that could be retrofitted.  Next week, at the Construction User’s Roundtable convention, I will be speaking about the country’s aging infrastructure, the current political climate and one potential solution:  public-private partnerships (PPPs).  As federal and state green building projects are cut in the name of fiscal austerity, hopefully PPPs will provide an answer to a very complicated issue.

I am in the process of creating my business strategy for 2011.  I see American Recovery and Reinvestment Act projects dropping off, federal and state construction projects being abandoned, and public-private partnerships being touted as the savior for our infrastructure and green building needs.  The next two years will also be very important for the future of green buildings and the LEED rating system.  How quickly the Gifford lawsuit is resolved will be important, but just as important is what the US Green Building Council does to address the anger underyling the lawsuit.

Original Post by Chris Cheatam, Green Building Law Update.

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