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Koontz v. St. Johns River Water Management District, 570 US ___ (June 25, 2013) involved discussions between plaintiff applicant and defendant Water Management District which had jurisdiction over permits to dredge or fill Florida wetlands.  The District had specific authority under state law to offset environmental damages, including “creating, enlarging, or preserving wetlands elsewhere.”  In 1972 plaintiff’s father had purchased a 14.9 acre parcel that included wetlands.  Plaintiff succeeded to that parcel and proposed to develop 3.7 acres in 1994, agreeing to dedicate approximately 11 acres to the District for wetland preservation.  Defendant found this action to be inadequate and proposed alternatives including development of just one acre (which would require a dedication of 13.9 acres to the District) or development of 3.7 acres so long as plaintiff would help restore wetlands on District-owned property within the same basin several miles away or pay an equivalent amount to do so. 

Plaintiff refused to undertake or propose other alternatives; thus the permit was denied. Plaintiff sued for a taking.  The trial court found actions above and beyond the 11-acre dedication proposal violated both the nexus and rough proportionality requirements of Nollan v. California Coastal Comm. 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), respectively.  The Florida Court of Appeals affirmed but the Florida Supreme Court reversed, finding no taking as there was no condition on which to predicate a Nollan/Dolan violation and because the claim involved a demand for money which it found not subject to a takings claim under those cases.  The United States Supreme Court granted certiorari.

The U.S. Green Building Council is currently accepting public comments until December 10, 2012, on its draft of LEED v4 that will aim to establish LEED certification for the hospitality industry, as well as data centers, retail, and healthcare uses. This post discusses a few of the categories that will be considered for applicants seeking to obtain LEED certification for such uses.

LEED (Leadership in Energy and Environmental Design) is a voluntary, consensus-based, market­-driven program that provides third-party verification of green buildings. For commercial buildings and neighborhoods, to earn LEED certification requires that, a project must satisfy all LEED prerequisites and earn a minimum 40 points on a 110-point LEED rating system scale. The main credit categories are sustainable sites, water efficiency credits, energy and atmosphere credits, materials and resource credits, and indoor environmental quality credits.

Here is a brief overview of some of the credits that are proposed for hospitality, data centers, retail, and healthcare uses.

Planning for green vehicles will gain you points on your application for LEED certification. As currently draft, here’s how:

The days of stopping by a roadside stand to buy a few ears of corn or a flat of strawberries from the local farmer have changed. 

In West Linn Corporate Park LLC v. City of West Linn, the 9th Circuit issued an unpublished opinion agreeing with the Oregon Supreme Court’s conclusion that the rough proportionality analysis required by Nollan and Dolan does not apply in situations where the government conditions development to construct off-site improvements with personal property (money, piping, sand and gravel, etc.), but did not involve dedication of any interest in its own real property. 

The U.S. Supreme Court’s decision in Kelo v. City of New London and its aftermath is the subject of a very interesting commentary in the February issue of the Planning & Environmental Law Journal, entitled “All Sound, No Fury? The Impacts of State Based Kelo Laws,” by Harvey M. Jacobs, a professor at the University of Wisconsin-Madison and Ellen M. Bassett, an assistant professor in the School of Urban Studies at Portland State University. 

William Kabeiseman (“Bill”) and Carrie Richter have become “Leadership in Energy and Environmental Design” (“LEED”) accredited professionals.  The LEED accreditation is part of Garvey Schubert Barer’s ongoing commitment to sustainability and complements the professional services that Bill and Carrie offer their clients in guiding them on land use and permitting issues. 

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