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Arlington seeks to LEED the way

How far can Virginia local governments go in requiring developers to build environmentally-friendly buildings? At least one Virginia county is deliberately pushing the legal limit to force builders to “go green.”

Arlington County officials now require every developer seeking planning approval to provide a “sustainable design” scorecard with its application. The scorecard would use the criteria of the “Leadership in Energy and Environmental Design” or “LEED” program established by the U.S. Green Building Council, a checklist of design elements that has become the world standard for sustainability. Developers also can earn profitable incentives by meeting green building standards.

The county had to tread carefully as it undertook green building requirements. Under Virginia common law, local governments are subject to strict limits on their powers. The so-called “Dillon Rule” gives localities only those powers specifically granted in legal documents or powers that are implied or necessary. “The Dillon Rule is a profound limit on local governments, a brake on local powers,” said Arlington County Attorney Steve MacIsaac.

Nevertheless, MacIsaac is working with other Arlington officials to implement a green building program where developers are “coaxed and cajoled” and “incentivized in some way” to build environmentally friendly projects.

He cited what he calls the corollary to the Dillon Rule: “You can do what you can get away with.”

In remarks to lawyers at the Virginia State Bar annual meeting in June, MacIsaac noted the irony of fighting a global environmental problem with local regulation. “Despite the compelling evidence in support of action, there has been a failure at the federal and state level to provide comprehensive, coordinated strategy for addressing greenhouse gas emissions and related environmental concerns,” he commented in an outline. “This leaves serious action to motivated local governments.”

Arlington County clearly is one of those motivated localities. The county zoning ordinance requires applicants to submit a LEED Scorecard or comparable report on sustainable design elements. The county’s special exception site plan program requires that every site plan project have a LEED-accredited professional on the development team, that reports are submitted to track the progress of LEED components, that a recycling plan is submitted for construction waste, and that Energy Star appliances are used.

Moreover, LEED-certified building projects may qualify for “bonus” density and height allowances. County environmental planner Joan Kelsch said that there are about a dozen projects that have been allowed extra density in exchange for LEED certification.
Kelsch explains that, while Arlington was a trend setter in encouraging green building, all Washington area governments now are promoting sustainability, urged on by the Metropolitan Washington Council of Governments. “In a way, it’s a matter of keeping up with the Joneses,” said Kelsch.

Kelsch notes that the different DC-area governments sometimes take different approaches because of distinct legal requirements, such as Virginia’s Dillon Rule. She said that sometimes one jurisdiction will “leapfrog” over others with a new requirement, and the other then play catch up.

“It’s been an interesting and, I think, very functional dynamic,” she said.

Deborah Elkins contributed to this article.

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