Archive for January 2012 Government Incent

January 10, 2012 Government Incentives Lead to Private Investment in Green Buildings:           In early 2011, President O…


Government Incentives Lead to Private Investment in Green Buildings

January 10, 2012

          In early 2011, President Obama announced a plan to make commercial buildings twenty percent more energy efficient within ten years, known as the Better Buildings Initiative (“BBI”).[1]  The BBI proposed a series of initiatives designed to spur energy efficiency, including:

  • changing a tax deduction for commercial building upgrades to a tax credit;
  • increasing loan size limits for energy efficiency retrofit loans;
  • providing competitive grants to states and local municipalities to streamline standards and encourage upgrades; and
  •  challenging CEOs and university presidents to make their organizations more energy efficient.[2]

          Significant progress has been made since the announcement of BBI.  In June of 2011, the Obama Administration debuted the Better Buildings Challenge (“BBC”) to provide $500 million in private sector financing in energy efficiency projects, upgrading some 300 million square feet of space.[3]  This was later increased to a $4 billion investment from the public and private sectors- $2 billion dedicated to the energy upgrades of federal buildings and $2 billion committed by CEOs, mayors, universities and labor organizations for energy efficiency projects in 1.5 billion square feet of office, industrial, municipal, hospital, university and school building space.[4] 

          In addition to reducing businesses’ energy costs by nearly $40 billion over the next decade, the increased investment through the BBC is estimated to create tens of thousands of jobs in the construction industry.[5]  The energy savings and job creation has won the praise of both business and labor groups, and a number of CEOs, municipalities, universities and labor organizations have committed to the BBC. 

          With the energy savings so significant and the organizations participating in the BBC so diverse, the next ten years should be prove to be a renaissance in green building development and, hopefully, for many years beyond. 

[2] Id.

[4] Id.

Zoning Out Fast Food Restaurants

January 4, 2012

Towns typically use zoning laws to ensure that their communities develop in well-thought –out and perhaps even sustainable ways. Like uses are grouped together.  Buffers are placed between high density and low density uses.  Space is set aside for recreation, industry, natural resource extraction.  Uses that trigger special concerns, like adult book stores, are kept a minimum distance away from schools.

So how does fast food zoning fit into all this?  The Ontario County Supreme Court addressed this issue in Mead Square Commons LLC v. Village of Victor.  Mead Square Commons  bought commercial property on Main Street in the historic Village of Victor and proposed to replace the existing building with  a mixed use building featuring commercial uses downstairs and upscale residential upstairs.   One of the proposed downstairs tenants was a Subway restaurant.

The Village Zoning Code prohibits “Formula Fast Food Restaurants” in the Central Business District.  It defines a Formula Fast Food Restaurant as “any establishment, required by contract, franchise or other arrangements, to offer two or more of the following:

[i] Standardized menus, ingredients, food preparation and/or uniforms.

[ii] Prepared food in ready to consume state.

[iii] Food sold over the counter in disposable containers and wrappers.

[iv] Food selected from a limited menu.

[v] Food sold for immediate consumption on or off premises.

[vi] Where customer pays before eating.”

Mead Square Commons challenged the “Fast Food Ban” as illegal and unconstitutional under New York state law and the United States Constitution. Ontario County Supreme Court disagreed.

The Court first noted that the Fast Food Ban was a Village law entitled to a presumption of constitutionality. The Court did not articulate what compelling public purpose it advanced.   Reading between the lines, it appears the Court agreed with the Village’s claim that §170-13 had a legitimate purpose “to maintain the unique village character and vitality of the commercial district.”   However, the Court did not connect the dots as to how an absolute Fast Food Ban advanced this purpose. Many communities address this concern through the site plan review process.

The Court disagreed with Mead’s argument that the Fast Food Ban illegally zoned based on property ownership, not use because it found that the Fast Food Ban treated all Fast Food owners the same and was based on “neutral planning and zoning principles.”

Finally, the Court rejected Mead’s claim that the Fast Food Ban was an invalid over-regulation of business operation detail because such restaurants were prohibited, not micro-managed.