Christopher Hill (no relation to yours truly) is a longtime construction law attorney and mediator practicing out of Richmond, Virginia. His blog, Construction Law Musings, has always been one of my must-read sources of news and insight pertaining to construction law ever since he started it in late 2008. Be sure to follow @constructionlaw on Twitter for the latest updates from a true thought leader in the art and science of resolving construction disputes. Without further ado, I am proud to present Mr. Hill’s guest post on a topic that I couldn’t agree with more — the business case for why the mediation process is so critical to the A/E/C industry.
This is a guest post from Mike Collignon, Executive Director and Co-Founder, Green Builder Coalition. As Executive Director and Co-Founder of the Green Builder® Coalition, Mike engages in national and state-level advocacy, co-produces quarterly research reports, and publishes both a bi-monthly e-newsletter and a monthly feature in Green Builder® Magazine. This article was originally published at Construction Law Musings.
As we start to see signs of a housing recovery, slow as it may be, I feel the industry is in a great position. All the effort put in by so many to improve our energy codes, green building programs & rating systems will finally be able to bear fruit. We can start to build homes that are much more environmentally responsible. Sure, we can have a lengthy debate about implementation and adoption rates, but you’ve got to walk before you can run. Unfortunately, I can see that progress getting shackled by an unexpected impediment: the architectural review committee (ARC; sometimes called “architectural committee” or “architectural control authority”) and the covenants of a homeowners’ association.
When things were going gangbusters in the early to mid-2000s, builders couldn’t buy land/build homes fast enough. But when the bubble burst, a lot of developments were left incomplete. Lots have sat in waiting for years. We’re starting to see activity on some of those lots, but a neighborhood covenant that is sadly outdated awaits those projects. Yes, it might only be a 10 year-old document, but think about the monumental shift in required energy performance, or the increased interest in sustainable building practices, or the proliferation of product choices since 2002.
One of the main reasons for an ARC’s existence is “policing” architectural integrity/consistency. It’s a bit of hyperbole, but it helps prevent someone from constructing a sheet metal shack in a neighborhood of mid-level homes. Where it gets tricky is when a homeowner wants to use a material of equal or better quality, but because said material is not one explicitly specified in the covenants, the ARC deems it unacceptable.
For instance, metal roofs can utilize recycled content and have a much longer lifespan than asphalt shingles. An executive from a rainwater catchment manufacturer recently said, “A metal roof… is ideal for collecting rainwater. The slicker the surface, the better since the less contaminants will stick to it.” However, some ARCs will not allow metal roofs. They make their decision based solely on aesthetic reasons, and not on the merits of the upgraded roof.
Same goes for log homes, though log home manufacturers are sorely familiar with such restrictions. I have seen neighborhood covenants explicitly banning log homes. Rather than allow an above-code home to be built, some developments would rather keep the standard of construction down in order to, in some people’s eyes, keep the neighborhood more aesthetically pleasing. As energy efficiency becomes more and more valued, either voluntarily or through formal programs like those proposed in the SAVE Act, the rationale behind these clauses will become even more asinine.
Another example of covenants not being able to adapt to the changing times is the topic of gardens. Some covenants will not allow the homeowner to have a garden. Others allow a very small one, and then only if it’s hidden from public view, as if it’s something shameful and hideous. I’m not suggesting anyone and everyone be allowed to plant small production crops in their yards (though urban farming is a movement having much success in the Detroit metro area). But why treat the growing of one’s own food with such disdain?
The ARCs consist of a handful of the respective neighborhood’s residents. Often, there is no requirement to have a background in the building industry. In fact, I recently asked a second-generation builder with 40 years of experience if he had ever encountered an ARC with any level of building industry experience. He quickly answered, “No.” That means you could have a caterer, or a school teacher, or a shoe salesman making decisions that influence (or even change) someone else’s six-figure investment. Does anyone else find this absurd?
Do these committees have any real legal authority, or are their actions merely recommendations? To find out, I asked two attorneys whose focus is real estate and/or construction. Neal Wallace, a real estate attorney from Illinois, explained there are two facets to the question:
When it comes to an association committee enforcing subdivision covenants, there are both legal and practical considerations. From a legal standpoint, generally if 1) the covenants are properly recorded, 2) the deeds are made subject to existing covenants, 3) the issue in question is specifically addressed in the covenants, and 4) the covenant does not violate public policy, then the association can enforce those covenants in court. If the covenants do not specifically address the issue, but address a related issue, then the court would need to interpret the covenants to determine if the issue is governed by the recorded document.
As a practical matter, judges have little patience for petty issues. So if the association is going to take up court time and resources, it would be wise to make sure this is truly a battle worth fighting. In most circumstances, an interpretative slant in favor or against one party can have a major impact on the outcome. You can “prove” a technical point and still lose, particularly if the judge can be confident that no one would bother to appeal. Furthermore, an association would need to be represented by counsel, incur court costs, obtain the necessary votes (unless the developer is still in charge), etc.
Virginia construction attorney Christopher Hill added, “Given the general enforceability of ARC actions pursuant to neighborhood restrictive covenants, we should be moving toward amending the basic neighborhood covenants to allow for more sustainable building techniques, particularly in light of the more and more aesthetically pleasing “green” materials that exist today.”
Thankfully, some states have passed laws that protect the homeowners’ rights to generate their own solar and wind power, meaning HOAs have little to no governance over private renewable energy sources. Common sense has prevailed in certain areas of the country.
But what happens to those who want to utilize certain sustainable products or techniques, but are prevented from doing so? After all, Merriam-Webster defines neighborhood as “a: the people living near one another; b: a section lived in by neighbors and usually having distinguishing characteristics”. Families are faced with making a choice between doing the right thing for the environment or their family. If they want to build their environmentally-friendly dream home, their choices include finding an infill lot in an older neighborhood that no longer has an ARC, or building on land not in a neighborhood (usually in a rural setting), contributing to urban sprawl while, in essence, treating them as outcasts. If they choose an available lot in an existing neighborhood, perhaps to be closer to their family or friends, then they have to compromise their desire for a responsible structure in order to conform to a narrow aesthetic expectation. It’s an unfair choice, and one that homeowners shouldn’t be forced to make.
Thanks again to Mike for this guest post. Please be sure to leave a comment below.
Image courtesy Rob Young
This is a special guest post from Kathi Frelk, Marketing Coordinator at Anderson Lock – “a total door opening supplier with an emphasis on doors, frames and electronic access controls.” I’ll admit I hadn’t known much about the company before they contacted me. Anderson Lock has been a family-owned business since 1960, with locations in Des Plaines and Schaumburg, Illinois. Two things that immediately set them apart in my opinion: the fact that Anderson Lock is a certified Women’s Business Enterprise (rare in this industry), and the company’s rigorous quality standards, as you’ll read about below.
If we haven’t tested it, we don’t sell it.
For access control products, that foundational company philosophy is increasingly difficult to adhere to. New electronic security products are being introduced to the commercial / institutional marketplace with futuristic features that can’t even be seen or touched! IP (Internet Protocol) Networks are rapidly replacing hard-wired systems. IP and RF (Radio Frequency) are both wireless, but they don’t always work together. And, taking away wires is only one facet of multi-faceted electronic security products. New system configurations require new locking hardware. And each new device needs to be tested before we specify or install it.
Since 1960, Anderson Lock has earned respect from door hardware industry leaders by consistently providing quality products and services. Because we install the products we sell, some readjusting occurs on jobsites, when a customer calls with a problem. We’ve provided beta testing for many kinds of door hardware, giving valuable feedback to manufacturers.
An ever-changing variety of electronic door hardware products are installed on multiple doors on the Electronics Lab within our main office. Additional security products are installed inside the glass-walled lab, which is used for product testing as well as for training for both our lock technicians and our customers.
Anderson Lock spends at least two weeks testing each new product. “We run them through the courses,” says Jeff Parcell, our Access Control Manager, who thoroughly inspects each new device with forensic precision. He reads through all the product literature before taking it into Anderson Lock’s Electronics Lab, where he and his colleague, Jeff Asta, hook it up to other system components.
Keypads, key fobs, card readers, biometrics and pushbutton transmitters are all tested with locking devices. Ease of operation and installation are important considerations when deciding which products Anderson Lock will specify. Confirming product claims is an essential element of the testing process.
One product claim that didn’t “check out” in the real world “built environment” was for a networked access control lock that came with a claim for being able to work up to two hundred feet away from the control box. It worked if the distance was completely unobstructed, like in an open hallway. However, most of the existing hospitals and schools that would be interested in that particular lock would not have enough unobstructed “pathways” to make the product cost-efficient.
And cost is a key consideration for institutional, commercial and industrial customers. They expect high quality, heavy-duty, reliable security hardware, at a price that fits into their budget. They don’t seek fancy as much as functional.
When our experienced hardware sales representatives “troubleshoot” on the phones for products we’ve sold, they observe that the “problems” are frequently caused by “not following installation instructions” carefully. Electronic products require more attention during installation than traditional mechanical locks. Wires need to be carefully handled, and must not be pinched, cut or improperly connected.
Product testing is hands on. It is thorough. It is as objective as possible. We try to prevent “call-backs” …unless it is from a satisfied customer calling us back to do additional work!
Thanks again to Kathi Frelk and the Anderson Lock team for this great guest post. We welcome your comments below.
- Image via Wikipedia
This is a special feature for More From Less – a Guest Post! This article was written by Rosalind Dall, who writes for the Ductless Split System Air Conditioner Blog, her personal hobby blog related to tips to help people consume less energy and purify indoor air.
Researchers at Purdue University are working on a new research project that promises the possibility to reduce heating bill in half for folks who reside in very cold climates. The study, funded by the U.S. Department of Energy, builds on previous work that began about 5 years ago at Purdue’s Ray W. Herrick Laboratories.
Heat pumps provide heating in winter and cooling in summer but are not efficient in extreme cold climates. The published research involves changes to the way heat pumps operate to make them more effective in extreme cold temperatures.
The normal vapor-compression cycle has four stages:
- Refrigerant is compressed as a vapor
- Condenses into a liquid
- Expands to a mixture of liquid and vapor
- Then evaporates
The project will investigate two cooling approaches throughout the compression process.
In one approach, relatively large volumes of oil are injected into the compressor to absorb heat generated throughout the compression stage.
In the second approach, a combination of liquid and vapor refrigerant from the expansion stage is injected at various points during compression to provide cooling.
The newest heat pumps can be half as expensive to operate as heating technologies now utilized in cold regions where gas is unavailable and residents make use of electric heaters and liquid propane.
In the meanwhile here some suggestions to improve you home air quality and save energy:
- Be sure your thermostat is located in a place that’s not too cold or hot.
- Install an automatic timer to keep the thermostat at 68 degrees during the day and 55 degrees during the night time.
- Use storm or thermal windows in colder areas. The layer of air between the windows acts as insulation helping to keep the heat inside where you are interested.
- If you haven’t already, insulate your attic and all outside walls.
- Insulate floors over unheated spaces such as your basement, any crawl spaces and your garage.
- Close off the attic, garage, basement, spare bedrooms and storage areas. Heat just those rooms that you use.
- Seal gaps around any pipes, wires, vents or other openings that could transfer your heat to areas that aren’t heated.
- Dust is a wonderful insulator and tends to build up on radiators and baseboard heat vents.
Most people don’t know that common indoor air quality practices reduce home air heating costs too:
- Rain and high humidity may bring moisture indoors, creating dampness, mold spores — big problems for healthy indoor air. Check your roof, foundation and basement or crawlspace once a year to catch leaks or moisture problems and route water away from your home’s foundation.
- Help keep asthma triggers away from your property by fixing leaks and drips as soon as they start. Standing water and moist encourage the growth of dust mites, fungus — some of the most common triggers that can worsen asthma. Make use of a dehumidifier or air conditioner if needed, and clean both regularly.
- High levels of moisture in your home increase dampness and the growth of mold, which not only damage your property but threaten health. Install and run exhaust fans in bathrooms to get rid of unhealthy moisture and odors out of your home.
- Ventilate your kitchen stove directly outside or open a kitchen window when you cook. Keeping exhaust — including cooking odors and particles — outside of your home prevents dangerous fumes and particles from harming you or your family.
Related articles by Zemanta
- New system to reduce heating costs in cold climates (eurekalert.org)
- No Air-Conditioning, and Happy (nytimes.com)
- From the forums: Air conditioner conversations heat up (blogs.consumerreports.org)
- New heat pump could cut heating costs in cold climates (gizmag.com)
- New System To Reduce Heating Costs In Cold Climates (lockergnome.com)