Stark & Stark’s Renewable Energy group environmental attorneys serve project developers, project financiers, equity investors, purchasers, and sellers of energy supply, utility corporations, as well as the various governmental/regulatory bodies in all aspects of the development, financing, acquisition, and operation of renewable energy projects. Our team of experienced attorneys is dedicated to responsiveness while maintaining a thorough grounding in both the business and legal aspects of this quickly growing industry. Drawing upon a team of lawyers from a diverse practice discipline, we provide valuable, strategic legal advice to serve our clients’ business goals.
The introduction of renewable energy projects to the real estate industry has increased the need for attorneys knowledgeable in renewable energy construction, planning, design, and marketing. There is host of new considerations and due diligence checklist items to be considered when developing a renewable energy project. Business lawyers who possess an understanding of these principles will prove to be an invaluable resource for developers in reducing costs and maximizing the efficiency of their projects.
A driving force behind many of these projects is the desire to create a building that consumes less energy than earlier constructed buildings. The heightened interest in energy efficiency and cost savings has begun to influence the negotiation and operation of commercial leases and the build-out of tenant improvements. Because of the relative newness of the renewable energy industry, there will certainly be litigation in the future for a variety of debt and professional liability claims. Dedicated professionals such as architects, builders, and suppliers can help themselves by keeping informed of the new and constantly changing legislation impacting the renewable energy industry.
Zoning Approvals and Permitting
When a construction agreement requires that a building satisfy a particular green standard or protocol that has been adopted by a municipal governing body as a precondition to a density enhancement, the failure to meet the requirements of such standard or protocol on the part of the builder may be evidence of negligence, in addition to constituting a breach of contract. Indeed, New Jersey courts have held that although the violation of a statutory duty of care is not usually conclusive on the issue of negligence, it is a circumstance that a jury should consider.
When a builder seeks to enter into a contract for the construction of a high performance building, the builder should take care to set realistic performance goals that are within the builder’s reasonable control and establish a mutually agreeable method for measuring building performance after construction is complete. As such, a builder should never represent in a contract that an energy efficient structure to be constructed by the builder will produce specific energy costs or savings when the truth of such claims is dependent on factors outside of the builder’s control, such as fluctuating utility costs and homeowner use patterns.
Zoning and land use approvals under the Municipal Land Use Law, such as a site plan or variances, are ordinarily not required for the construction of interior tenant fit-out improvements, where changes are made to property and/or the improvements situated thereon to improve energy efficiency or convert to renewable energy land use approvals may be necessary. Fortunately, as a result of amendments to the Municipal Land Use Law in 2009, “a wind, solar or photovoltaic energy facility or structure” shall be deemed to be an inherently beneficial use irrespective of whether such facility or structure constitutes “a principal use, a part of the principal use or an accessory use or structure.” This change in the law should make it easier to obtain approvals for and install alternative energy facilities or structures where they are not permitted under local zoning regulations and require a use variance.
The growing interest in the construction and operation of energy-efficient lease spaces has created a demand among both landlords and tenants to rethink how they build out, use, and occupy space in commercial buildings. For instance, a landlord may wish to promulgate and memorialize building-wide policies that promote energy conservation measures and to incorporate them into the landlord’s rules and regulations that apply to all tenants. On the other hand, a tenant may seek to require the landlord to provide comprehensive operating and maintenance services that are both energy-efficient and responsive to the tenant’s needs. Special needs may include implementation of a special recycling program, use of specified green cleaning products or adherence to a certain standard of building performance, such as ANSI/ASHRAE 55-2004, Thermal Environmental Conditions for Human Occupancy.
A landlord who has constructed or renovated a building to meet a given green building certification protocol, such as the U.S. Green Building Council’s Leadership in Energy and Environmental Design (LEED) Green Building Rating System, should develop interior fit-out guidelines for incoming tenants to achieve and sustain energy efficiency goals and preserve the integrity of the building. These guidelines might specify, for example, that construction in tenant spaces shall conform to LEED for Commercial Interiors and must be performed by persons on a pre-approved list of green contractors and subcontractors. A landlord might also want to include in the interior fit-out guidelines for the building product and material specifications and a requirement that tenants employ a construction manager who is a LEED accredited professional. In any event, the owner of a green commercial building, who is planning to rent it out, should carefully think though and plan the interior fit-out guidelines.
Stark & Stark’s Litigation attorneys have extensive experience in renewable energy litigation appearing before federal, state, and local administrative bodies. Our litigators work with multinational corporations throughout the country in various aspects of renewable energy litigation including disputes involving renewable energy sources and solar power installations and disputes arising from the sale and construction of industrial technologies. Our Litigators regularly consult with members of the firm’s Real Estate group in order to address the myriad of legal needs of our clients.
*Results may vary depending on your particular facts and legal circumstances*
Some of our representative renewable energy litigation experience includes:
- Our litigation team has represented the interests of a large industrial host customer in a dispute surrounding a Power Purchase Agreement. The solar power project consisted of 15 acres of photovoltaic tiles, yielding 3,300 megawatt hours of electricity. At the time, the project constituted the largest solar power installation of its kind in the United States and the twelfth largest in the world. Messrs. Hart and Schrama successfully defended combined potential claims in excess of $18.5 million.
- Recently, our attorneys represented a multinational corporation involved in the sale and construction of emissions cleansing technology. The client was the subject of extensive claims, arising from the retrofitting of a major East Coast coal-burning power-plant with a Selective Catalytic Reduction system. Messrs. Hart and Schrama successfully defended the combined claims emanating from multiple arbitration and court proceedings, which exceeded $50 million.
- Additionally, our attorneys represented a multinational corporation involved in the sale of industrial, bioreactive air and odor control technology and were involved in an action to protect the intellectual property rights of the clients against pending infringement by a domestic corporation.
*Results may vary depending on your particular facts and legal circumstances*