building in maryland and washington dc

BUILDINGIN MARYLAND AND WASHINGTON, DC

EXCLUSIVE MAGAZINE OF THE MARYLAND-NATIONAL CAPITAL BUILDING INDUSTRY ASSOCIATION MARCH/APRIL 2010

Fighting the Regulatory Battle

ALSO IN THIS ISSUE:2009 Community Service Awards

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406386_Vintage.indd 1 11/25/08 10:26:39 PM

BUILDING IN MARYLAND AND WASHINGTON, DC | MARCH/APRIL 2010 3

FEATURES5 Regulation Rush

The Regulatory Battle Begins

7 2010 Leadership Team Takes

Offi ce

Another Challenging Year Ahead

8 MNCBIA Winter Ball

Gowns and Galoshes

9 2009 Community Service

Awards

The Industry Gives Back

DEPARTMENTS

4 A Message from the President of

MNCBIA

10 The Legal Pad

11 The Engineer’s Angle

12 MNCBIA Membership News

14 Index of Advertisers

14 Advertiser.com

Published for:

Maryland-National Capital

Building Industry Association

1738 Elton Road, Suite 200

Silver Spring, Maryland 20903

301 445-5400

Fax: 301 445-5499

E-mail: [email protected]

Website: www.mncbia.org

Published by:

Naylor, LLC

5950 N.W. 1st Place

Gainesville, FL 32607

800 369-6220

352 332-1252

Fax: 352 332-3331

Website: www.naylor.com

Publisher: Christopher Hodges

Editor: Catherine Jones

Project Manager:

Jason Dolder

Publication Director:

Jason Ruppert

Marketing: Heather Zimmerman

Advertising Art: Gregg Paris

Layout and Design: Bill Kitson

Maryland-National Capital Building Industry Association

1738 Elton Road, Suite 200Silver Spring, MD 20903

Phone (301) 445-5400 Fax (301) 445-5499E-mail: [email protected]

Website: www.mncbia.org

2010 Executive Committee Edward (Guy) R. Curley, III

President

Jim KettlerVice President/Calvert Co.

Doug MeekerVice President/Charles Co.

Robert J. Spalding Vice President/Montgomery Co.

Marty Mitchell Vice President/Prince George’s

Co.

John B. Norris, IIIVice President/St. Mary’s Co.

Brian (A.J.) JacksonVice President/Washington, DC

Frank Bossong, IVP.E., Associate Vice President

Steve NardellaTreasurer

Dave LundenVice President, State Legislative/

Secretary

Robert A. Jacobs Life Director

Thomas M. Farasy Immediate Past President

Stephen P. Elmendorf Legal Counsel

Diane K. Swenson CAE, Executive Vice President

2010 Board of DirectorsBill Bilo

Hillary Colt CahanMike ConleyTony Crane

Timothy DuganKen Dunn

Andrea Leahy-FucheckRobert HarrisHoward Katz

Gary KretDavid Little

Charlene F. Parker-ThayerStephen Paul

Nanci Porten

Karen Radisch

Marc Rose

Andy Rosenthal

Gary Rubino

Ronald Rymer

Ted Smart

Ray Sobrino

Clark Wagner

Peggy White

Bryan Whittington

Carter Willson

MNCBIA StaffExecutive Vice President - Diane K. Swenson, JD, CAE

Communications Manager - Kelly H. Grudziecki

Financial Services Manager - Linda Groft

Director of Government Affairs - F. Hamer Campbell, Jr.

Associate Director/Government Affairs - Raquel Montenegro

Associate Director/Regulatory Affairs - Annette T. Rosenblum

Membership Manager - Debi Turpin

Member Services Manager - Samantha Ager

Program Manager - Builders Development Guaranty Group - Debi Turpin

Program Manager - Home Builders Care Foundation - Patricia B. Kane

Published February 2010 /MNC-S0210/9844

Cover photo Credit: www.dreamstime.com

IN MARYLAND AND WASHINGTON, DCBUILDING

MARCH/APRIL 2010

Representing Calvert, Charles, Montgomery, Prince George’s and

St Mary’s counties in Maryland and Washington, DC

9

8

5

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4 MARCH/APRIL 2010 | BUILDING IN MARYLAND AND WASHINGTON, DC

For decades the three most important words in the

real estate business were LOCATION, LOCATION,

LOCATION. In 2010, it appears the name, game

and playing fi eld have changed and the newest threat

to the local and regional housing industry’s security

is – REGULATION, REGULATION and REGULATION! It

appears we are now being penalized for owning prop-

erty in the right LOCATIONS.

The industry has had its fair share of negative regu-

lation in the past, but the sheer number of regulations

we face this year is mind-boggling. I am extremely trou-

bled that in an election year the elected offi cials are not

concentrating on creating jobs and solving the housing

crisis. The housing market must be an integral part of

the economic recovery and that is the message we need

to send to each and every elected offi cial. The county

and state budgets will not improve until new housing

starts increase.

While there are some signs of housing recovery

around the Beltway, the market is extremely fragile. Any

one or two of the proposed changes being put forward

could stop the progress we have made over the past

year.

Two powerful associations, MNCBIA and HBAM,

have joined forces to help mitigate the effects of the

proposed legislation and regulations, and together

are highly focused on the impacts of the May 2010

implementation date for the Storm Water Regulations.

Specifi cally, MNCBIA and its partners are lobbying for

changes in the Storm Water Regulations in three broad

areas – Grandfathering, Redevelopment and areas

where the regulation went beyond the 2007 Storm

Water Act.

As a member of MNCBIA YOU CAN HELP! First,

you can brush up on your local building industry stats

by reading through NAHB’s latest study, The Economic

Impact of Homebuilding in Maryland. A summary, along

with the full report, can be found on the “Housing

Research” page at www.mncbia.org. Then you can call,

email and talk to all your elected offi cials and let them

know we need relief now, not more regulation. You can

take time to respond to all future MNCBIA legislative

alerts during this session. You can write a personal let-

ter to all your Delegates and Senators letting them know

how many employees you had two years ago and how

many you have now.

One of my top goals this year is to have every mem-

ber bring in at least one new member. When you read

this message today please call one non-member you do

business with and encourage him or her to join. If we

can achieve this simple goal then we will have the mem-

bers and monies to win most of the battles for the year.

F R O M T H E P R E S I D E N T

Regulation, Regulation, Regulation!

Is The Housing Industry Under Siege By Our

State And Federal Elected Offi cials?

You Be The Judge!

Proposed Maryland Regulations

❑ Storm Water regulation implementation

❑ Storm Water redevelopment policy issues

❑ Erosion and Sediment Control draft regulation/technical

standards

❑ Maryland NPDES re-opener modifi cations

❑ Controlled Hazardous Substance draft regulations

❑ State Highway Administration entranceway draft

regulations

❑ New Home Third Party Warranty draft regulations

❑ Advanced energy effi ciency construction requirements

Maryland Legislation

❑ Storm Water transition

❑ Storm Water user fees

❑ Impervious surface tax

❑ Statewide advanced septic system requirement

❑ Visitability requirement for single-family homes

❑ Green Building Standards for residential construction

❑ Broader application of wind standard building codes

❑ Variances/waivers for 30-inch tree forest conservation

❑ Permit tolling extension and possible expansion

❑ VMT (Vehicle Miles Traveled) transportation planning

❑ Rehabilitation tax credit

❑ Combined reporting corporate tax expansion

❑ Smart Growth Task Force extension

❑ Smart Growth transportation initiative

❑ Community Land Trusts

Federal Regulation

❑ EPA Effl uent Limitation Guidelines (state

implementation)

❑ EPA Baywide TMDL

❑ Federal Executive Order Initiative

Federal Legislation

❑ Cardin/Cummings Bay Clean up and

Reauthorization Act

Be sure to read this column in each issue for our

regular update indicating what has been enacted, with-

drawn or amended, and most importantly, what you can

do to help!

Cheers! & Sláinte! /slaan-cheh/ “To Your Health!”

Edward R. Curley, III


REGULATION RUSHHomebuilders Brace for the Onslaught of New RegulationsBy Michael Fickes

Are you ready? Come May 4 of this year Maryland’s new stormwater management regulations

as amended by local governments take effect along with new erosion and sediment control

regulations. Soon after, federal regulations aiming to manage the cleanup of the Chesapeake

Bay will show up in a draft ready for comments. “We have two state issues and one federal issue

clamping down on our industry all at once,” says Guy Curley, president of Liberty Home Builder and

2010 president of the Maryland-National Capital Building Industry Association.

Combined with increasing impact fees, land use limits, other environmental restrictions and

the “Great Recession,” the region’s homebuilders are facing huge challenges.

Here’s a rundown of key provisions in the new regulations.

Stormwater Management Regulations

The new stormwater management regulations will overthrow a number of best management

practices — such as retention ponds —that builders have incorporated.


“The new regulations call for retention above ground instead of

underground,” says Raquel Montenegro, MNCBIA’s associate director

of government affairs overseeing Montgomery County and Washington,

DC. “The rules also require the use of small stormwater facilities spread

around properties.”

The upshot is that stormwater management must by and large

occur on site employing, in the words of the statute, “environmental

site design (ESD)” to the “maximum extent possible.”

Montenegro suspects that the new rules will produce more designs

with green roofs or collection systems below downspouts that fi lter the

water and prepare it for reuse. More such systems means higher costs

for managing stormwater.

“The new stormwater rules could reduce development densities by

as much as 20 percent,” says Curley.

Builders receiving fi nal approval of stormwater management plans

before May 4 will not feel this effect. Those without fi nal approval will;

they will have to start from the beginning.

Worse, no grandfathering provision will enable phased develop-

ments already under construction to escape the new rules. “Suppose I

have installed an approved site-wide stormwater management system

during Phase I construction,” says Montenegro. “If by May 4, however,

I haven’t begun Phase II or III, the entire site becomes subject to the

new regulations and I have to redo the stormwater management plan

and bring it into compliance.”

In addition, the new rules require more stormwater facilities, which

eat up square footage and reduce density.

“That can affect your loan,” Curley says. “If you have a construc-

tion loan, and your property is suddenly worth 20 percent less, your

banker may ask for more equity. If you can’t pay, the bank could pull

the loan.”

“And even if the bank continues to provide credit, you are still look-

ing at a project promising 20 percent less in revenue. That may make

it unfeasible.”

The new rules will affect redevelopment too. When redeveloping a

property, developers must control 50 percent of the stormwater runoff

while adhering to new regulations.

“This will restrain redevelopment especially around transit stations,”

says Tom Farasy, president of Terra Verde Communities and the 2010

president of the Maryland State Builders Association in Annapolis.

Erosion And Sediment Control

As builders struggle to understand the impact of the new storm-

water management rules, they are also trying to grasp revisions being

made to existing erosion and sediment control regulations, which are

being pushed through the system quickly so they can accompany the

stormwater rules going into effect on May 4. “There was little vetting

of these rules, which came out last October and provided about three

weeks for comments,” Farasy says. “This is a 340-page document that

makes extensive revisions to existing rules.”

Separately, the U.S. Environmental Protection Agency (EPA) issued

a pre-publication version of new effl uent limitations guidelines (ELGs)

and new source performance standards (NSPS) late last year. These

Late last year, the National Association

of Home Builders (NAHB) in Washington, DC,

issued a two-part impact study: The Eco-

nomic Impact of Home Building in Maryland:

Income, Jobs and Taxes Generated and Com-

paring Costs to Revenue for State and Local

Governments.

Both studies conclude that the home build-

ing industry generates substantial economic

benefi ts for Maryland — and would generate

substantial benefi ts for the state even without

impact fees.

The fi rst study estimates the impact of

building 100 single-family homes in Mary-

land. In the fi rst year, the results would include

$33.7 million in new income and 438 new jobs

for Marylanders. In addition, state and local

governments would receive about $7 million in

taxes and other revenue.

In each succeeding year, that 100-home

development would generate $5 million in in-

come for Marylanders and 72 jobs. State and

local governments would receive $1.3 million

in taxes and other revenue.

The second part of the study compares

state and local government revenues and costs

and calculates the benefi ts that the homebuild-

ing industry offers governments.

In it, the authors adjusted the state and

local government revenue generated by 100

single-family homes from $7 million, which

the fi rst study reported, to $7.7 million to es-

timate a reasonable occupancy rate for the

new houses.

The authors estimated costs totaling about

$3.7 million in the fi rst year. Subtracting the

costs from revenues of $7.7 million would net

about $4 million for state and local govern-

ments in the fi rst year.

On a recurring basis for the next 14 years,

state and local revenues of $1.343 million would

leave net revenues of just over $139,000 — ex-

cept for year 11, when a capital investment of

$30,500 would reduce the net to $108,900.

After 15 years, total revenues would reach

$26.5 million compared to $20.6 million in to-

tal costs, leaving a net benefi t for Maryland’s

state and local governments of $5.9 million.

“One key lesson offered by these studies

is that impact fees are not necessary,” says

Marty Mitchell, CEO of Rockville-based Mitchell

& Best Homebuilders, LLC. “The study used an

average impact fee of $11,000 per unit. If you

multiply $11,000 by 100, impact fees would to-

tal $1.1 million. If you subtract $1.1 million from

the net benefi t noted above, Maryland’s state

and local governments would still net $4.8 mil-

lion over the 15 year period.”

But in fact Maryland builds many more than

100 houses per year. According to the U.S. Cen-

sus Bureau, the state on average issues 22,000

homebuilding permits per year. If 100 houses

built without impact fees nets $4.8 million over

15 years, then 22,000 houses will net 220 times

$4.8 million or just over $1 billion over 15 years.

That’s substantial.

On the basis of these studies, Mitchell

and other builders are suggesting that Mary-

land lawmakers develop a state tax credit and

eliminate impact fees as a way to stimulate the

housing industry, create jobs and boost local

government revenues.

What If There Were No Impact Fees?


federal regulations deal with erosion and sediment control measures to

be implemented at construction sites.

According to Farasy, consulting engineers associated with resi-

dential construction are pouring over the state erosion and sediment

control changes and trying to divine how they may affect homebuilding

companies.

The next step will be vetting the federal regulations and comparing

them to the state’s take on the issue.

Chesapeake Bay Cleanup

Last fall, Maryland Senators Benjamin L. Cardin and Barbara A.

Mikulski proposed a bill that would extend $1.5 billion in new fi nanc-

ing to clean up the Chesapeake Bay while enacting legislative controls

over the cleanup process. Maryland Congressman Elijah Cummins has

introduced companion legislation in the House of Representatives.

Farasy and other developers have attended the hearings held on

the Bay Cleanup bill so far, and along with the Maryland State Builders

Association, have submitted extensive comments on the legislation.

The industry expects the Senate version to be the subject of a Senate

hearing soon.

The legislation will affect homebuilders through a section dealing

with total maximum daily load (TMDL). According to the legislation,

the “TMDL may not include any net increase in pollutant load from

new/increased impervious surfaces and septic systems, such as those

found in housing developments in Maryland.” The U.S. Environmental

Protection Agency (EPA) is developing regulations that will govern

TMDL as it relates to the housing industry.

Pushback

The industry is pushing back hard against these new regulations.

While the state stormwater management and erosion and sedi-

ment control may be set in stone, Curley, Farasy and many others on

the MNCBIA board, along with concerned members, have been holding

regular meetings with state and federal offi cials in connection with all of

these issues: the stormwater management grandfathering and renovation

problems; the lack of transparency in the erosion and sediment control

rules being worked up; and what the industry bills as unfair to homebuild-

ers in the Bay cleanup legislation. In addition, the BIA hired analysts to

review EPA’s data and determine specifi cally the impact of nitrogen from

new developments compared to the impact from existing homes with

increased fertilizing, and what they are doing to the Chesapeake Bay.

“There are three main categories of pollutants that the Bay Cleanup

bill focuses on: phosphorus, nitrogen and sediment,” Farasy says. “The

only contribution that homebuilders make to phosphorous pollution is

when we turn over ground with heavy equipment and expose phosphorus

to run off. But this is a minor amount.”

Farasy went on to say that nitrogen pollution comes from fertilizers

used by farmers and homeowners that employ professional landscaping

services, with literally no contribution coming from homebuilders.

“We do contribute to sediment,” Farasy says. “And we want to do

our share in cleaning up the B ay, especially what we contribute to pollu-

tion. But we want everyone involved paying a proportionate share of the

cleanup cost.

“Our biggest concern today is that the bills introduced to clean up the

Bay do not treat those responsible in proportion to their contribution of

pollutants. That’s not fair to us.”

And that is the right place for the industry to pushback.

2010 Leadership Team Takes Office

Edward (Guy) R. Curley,

III, president of Liberty

Home Builder, Inc.,

was installed as the 49th

President of the MNCBIA at

the Association general mem-

bership dinner on January

28 by Anthony J. O’Donnell,

Minority Leader, Maryland

House of Delegates. Maryland Delegate John F. Wood, Jr. installed the

Executive Committee and Board of Directors.

Guy’s goals as he heads into what is shaping up to be another tough

year for our industry, encompass a number of important factors includ-

ing continuing to advocate on the big state issues, ensuring that our

grassroots lobbying efforts are maximized at the local and county levels

and building our membership base. Assisting with those efforts are the

men and women of our leadership team along with those dedicated

members who make up our committees and councils, who are already

hard at work strategizing on how to grow our membership numbers,

developing new and exciting education programs and generating ideas

for enjoyable networking events.


Snowstorm Does Not Stop Winter BallT

he fi rst snowstorm in the Washington

Metro area started early in the morn-

ing of Saturday, December 5, the day of

MNCBIA’s Winter Gala and Silent Auction. By

7:00pm that night there were three to six inches

covering the ground. But rather than scaring peo-

ple into staying home, the wintery mix put people

in the holiday spirit and the party went on, bring-

ing out a cozy crowd of nearly 130.

An important part of BIA’s winter gala is Home

Builders Care Foundation’s silent auction, from

which all proceeds go to support HBCF’s ongoing

shelter-related community service projects. More

than 35 items were up for bid this year, and with a

little something for everyone. There were football

and hockey tickets for the sports fan and unique

jewelry for the well adorned. For the techies there

was a Kindle, a Wii, an iPod Nano and a Bose dig-

ital music system. For those aspiring musicians

there was a Gibson acoustic guitar (congrats

Ian Larkin). And there were gift baskets galore

for gardeners, movie lovers, wine connoisseurs,

home decorators and chefs. Thanks to the gener-

osity of MNCBIA members, the auction brought in

nearly $6,000 for Home Builders Care.

A highlight of the evening was the presen-

tation of the Joseph C. Rodgers Sr. Award for

outstanding associate member of MNCBIA and

the Milton E. Kettler Award for lifetime achieve-

ment. This year’s recipients were David L. Little,

Gutschick, Little & Weber, P.A. taking home the

Rodgers Award and Don Pleasants, Pleasants

Development, Inc. winning the Kettler Award.


2009 Community Service Award Winners Honored T

he Home Builders Care

Foundation (HBCF), the

non-profi t community

outreach program affi liated with

the Maryland National-Capital

Building Industry Association

(MNCBIA), announced its winners

of the 2009 Community Service

Awards at the association’s

January dinner meeting. The

awards are presented annually

to individuals or companies affi li-

ated with the local home building

industry in recognition of signifi -

cant contributions to the commu-

nity through unselfi sh efforts and dedication in support of projects that help

the poor and disadvantaged in our communities.

Awards were presented in the following categories: The Community

Builder Award—presented in recognition of a builder or associate mem-

ber who helps raise awareness of the industry’s spirit of giving; The

Directors Award—presented in recognition of leadership and advocacy

for the mission and purpose of Home Builders Care; and the Tom Sawyer

Award—presented in recognition of signifi cant in-kind donations to HBCF’s

shelter-related projects.

GE Appliances was the fi rst to be honored with a Community Builder

Award and recognized for its support of HomeAid Washington DC’s fi rst hous-

ing project at the Dunbar Apartments in NW Washington DC. Once vacant

and abandoned, this renovated two-story building, owned and operated by

Open Arms Housing, is now home to 16 mentally-ill and once chronically

homeless women. In the spring of 2009, GE Consumer & Industrial supplied

and delivered more than 90 of its kitchen appliance products to the Dunbar

at a hefty discount. With a total retail value of just under $40,000, the total

cost savings to HomeAid Washington DC was about 60 percent for a total in-

kind donation of $22,000. GE’s Dana Heideman attended the grand opening

of the Dunbar and also gave of his time to help educate Open Arms staff on

their new equipment.

The second Community Builder Award was presented to Ruppert

Nurseries. For the past four years, Ruppert has been a key sponsor of the

annual Life is Good Pumpkin Festival in Clarksburg Town Center and has

donated its resources and expertise. For the past three years, the Festival

benefi ted HBCF’s own HomeAid Washington, DC chapter and its ongoing

efforts to help families in need. This past June, Ruppert also stepped up

to help on the HomeAid DC project

at the Dunbar Apartments. With

only a few weeks to go before the

project’s grand opening, Ruppert

swooped in to transform the bare

and neglected inner city yard

space into a beautiful urban gar-

den, donating delivery, labor, soil,

fertilizer and mulch for the instal-

lation—an in-kind donation valued

near $7,000.

The Directors Award was pre-

sented to The William S. Abell

Foundation, who in 2009 pro-

vided an $88,000 grant to launch

the HomeAid Washington DC chapter. The Foundation was established in

1985 by William S. Abell and Patricia O’C. Abell to support qualifi ed organiza-

tions in providing aid to people in need in the District of Columbia and nearby

Maryland counties. The Abell Foundation’s grant to HomeAid Washington DC

was earmarked specifi cally for permanent supportive housing projects as

part of the foundation’s Strategic Initiative to End Homelessness. With this

support Home Builders Care/HomeAid has been able to lend its expertise

and resources to help create a total of 46 new units of permanent supportive

housing chronically homeless persons with special needs in the District.

Finally, the Tom Sawyer Award was presented to Mr. Ron Keefer in rec-

ognition of his nearly year-long, daily hands-on leadership and commitment

to the addition project at the Home Builders Care Assessment Center, for-

merly called the Men’s Emergency Shelter in Rockville. The original 5,800 sq.

ft. shelter was built by HBCF in 2000 to accommodate 100 beds. Since then,

demand for shelter and comprehensive services for homeless individuals has

increased dramatically. The new 3,700 sq. ft. addition provides space for 35

more beds and a range of new onsite services. Throughout construction, Mr.

Keefer served as the project manager for Builder Captain Winchester Homes.

Ron’s kindness, consideration and fl exibility in working along side and with

shelter staff and residents was admirable. As the project moved beyond fi nal

completion and Ron, unfortunately, separated from Winchester Homes, he

continued to stay involved throughout the warranty period. We are honored

by his ongoing commitment to serve.

The cooperation, dedication and spirit of our 2009 Community Service

Award Winners are excellent examples of why the Home Builders Care pro-

gram succeeds in helping end homelessness by improving the lives of poor

and homeless individuals and families in our communities.


The Green Scene in 2010By Michelle R. Daley, Shulman, Rogers, Gandal, Pordy & Ecker, P.A.

The Legal Pad

Although the home building industry has been struggling, the green

building industry evolved and grew by leaps and bounds in 2009.

Consumer interest in greening their lives has led to Energy Star

homes accounting for nearly 17 percent of all homes built in 2009, and

although the green building industry is still focused primarily on commercial

construction and retrofi tting—driven by government, private industry, and

educational facilities—statistics show that the residential sector will begin to

see more demand for environmentally-conscious construction. As a result of

this “green” movement, much “green” legislation has surfaced in an attempt

to quickly regulate this booming and profi table industry. Early last year, the

Obama Administration and Congress passed the $787 billion American

Recovery and Reinvestment Act with more than $25 billion dedicated to

“green” programs and the United States Green Building Council introduced

the new LEED v. 3.0 rating system which, among other changes, introduced

the concept of project de-certifi cation. With many changes in a new frontier

come uncertainty and a minefi eld of new liabilities.

This year, green interests set their sights on storm water. The

Environmental Protection Agency has announced that it will implement new

storm water management requirements for homebuilders, which will not

only place more signifi cant burdens on the industry by requiring that storm

water run-off from a construction site after a rainfall be nearly free of soil

or sediment, but it will raise costs, while not effectively addressing water

quality and environmental issues, according to the National Association of

Home Builders. The Maryland General Assembly will be addressing storm

water user charges for impervious surfaces—a fl at fee for homeowners that

would be based on the area of paved surface. This legislation is part of a

program called “Maryland 2010: Legislation for a Green Economy Protecting

Maryland’s Water, Land and People.”

Because of the onslaught of both federal and state “green” legislation,

homebuilders must be extremely careful during contract drafting and keep a

keen eye on risk avoidance; practice prudent marketing to avoid Consumer

Protection Claims as the Federal Trade Commission, among others, are

quickly promulgating environmental marketing guidelines; and weigh the

return on investment through tax incentives. “Going green” is no longer a

feel-good activity and new legislation and litigation prove it truly isn’t so easy

to be green. Unless homebuilders carefully navigate this new frontier, they

will quickly fi nd themselves entrenched in disputes that will only be fodder for

litigators as very little legal precedent exists at this time. Maryland is at the

forefront of “green” litigation as the seminal LEED case, Shaw Development

v. Southern Builders, was tried on our own Eastern Shore. Shaw Development

was a dispute involving claims of breach of contract and negligence as a

result of the alleged failure by Southern Builders to meet the LEED Silver

certifi cation level required under its contract with Shaw Development for a

$7 million condo project. Shaw Development claimed that it lost $635,000

in tax credits from the State. The case is a good primer for some of the con-

tractual pitfalls involved in green building. Other recent cases have addressed

construction defects that result from using “green” materials. As such, con-

sider closely what your contract promises to deliver, the long-term durability

and vitality of materials used in construction when providing warranties to

buyers, and the consequences that may result if your project fails to meet a

certain green certifi cation or, worse yet, faces de-certifi cation.

What you should remember:

• Green building is growing, but is increasingly more regulated—check city

and county ordinances and codes, as well as the Maryland Code, and

monitor new legislation

• Storm water regulations are a hot “green” topic in 2010

• Consider all of the risks and consequences, especially issues under

express and implied warranties, before making guarantees in contracts

• After Shaw Development, how you make a guarantee is vital—guar-

anteeing that a project will conform with, comply with, meet, adhere to,

and/or be designed or constructed according to a certain standard or

certifi cation can and will be interpreted in different ways

• Guarantees of certifi cation and energy effi ciency in contracts are risky,

especially since de-certifi cation is now possible if projects don’t maintain

minimum requirements—don’t increase your liability

• Be careful when marketing any “green” activity or product

• Pay attention to tax incentives that may be available on the federal,

state, and/or county levels

Michelle R. Daley, LEED AP, is a real estate attorney and commercial litigator

with Shulman, Rogers, Gandal, Pordy & Ecker, P.A. representing local and

national home builders and developers in contract and dispute resolution mat-

ters. She may be reached at [email protected] or 301-230-5240.

360939_Fastsigns.indd 1 12/13/07 12:07:03 PM


Proactive Dry Utility CoordinationBy Stephen E. Richter, Richter and Associates, Inc.

The Engineer’s Angle

It comes as no surprise that development and construction activities in

the District of Columbia and in suburban Maryland are becoming more

and more challenging. This is true for many reasons including fi nancing

issues, zoning issues, permitting issues and increasing construction costs

to name a few.

In addition a builder/developer must also carefully consider the instal-

lation of the dry utilities. This is necessary because as a project is planned

to maximize the building density on a site, space for the dry utilities is often

minimized. A number of utility companies have identifi ed this as a problem

as they believe they are being “squeezed out” of space they need to safely

and effectively provide service to a site.

Consider a typical multifamily project of townhouses or garden apart-

ments. As the building density is maximized for the greatest number of

units, the design team and the zoning and permitting agencies focus on

site amenities such as streets, parking, sidewalks and landscaping. The

wet utilities and the storm water management facilities are also considered

since these items are often the responsibility of the civil engineer that is

dealing with the site plan and amenities. The dry utilities are often over-

looked, however, since the dry utility companies have traditionally prepared

their plans after the site plan and wet utilities are designed. Thus on many

dense projects there may be little or no space available for electric, tele-

phone, natural gas or cable-TV facilities.

Over the years some dry utility design has been shifted away from the

utility companies to the builder/developer. This is specifi cally true of the

utility infrastructure for multifamily and commercial projects where onsite

conduit for electric and telephone facilities is the builder/developer’s respon-

sibility. Regardless of whether the dry utilities are on private property or in

public space, however, some space must be allocated for their installation.

In recent years, the local agencies and utility companies have come to

expect early dry utility coordination. Specifi cally, in the District of Columbia,

developers are expected to make a project presentation at a Preliminary

Development Review Meeting (PDRM). At a PDRM, the developer and his

Architect/Engineer (A/E) team present plans to various District of Columbia

offi cials that address site usage, density, street trees/landscaping, street

lighting, vehicular and pedestrian movement and a concept for the wet and

dry utility lines that will serve the site.

In Montgomery County and Prince George’s County similar planning

takes place through the Maryland-National Capital Park and Planning

Commission (MNCPPC). At various Development Review Committee (DRC)

meetings a developer and his A/E team will present plans to M-NCPPC

staff as well as to Montgomery or Prince George’s County personnel. Often

the dry utility companies are in attendance at the DRC’s meeting. The util-

ity companies will offer comments on the utility service plan as well as

address the need for public utility easements.

In order to obtain site plan approval in DC, Montgomery County or

Prince George’s County the savvy developer will necessarily have had his

team of architects and engineers develop a master utility plan. This plan

includes the basic site plan and landscaping items, as well as the wet utili-

ties, storm water management facilities and the dry utility infrastructure.

The master utility plan will later be used to prepare construction drawings

for the utility work.

For some projects it may seem diffi cult to develop the master utility plan

due to the inability to obtain information from the dry utility companies. In

other words often the utility company is looking for a master utility concept

from the developer while the developer is looking for guidance from the utili-

ties in order to prepare a master utility plan.

This “catch 22” situation has often been overcome through good team-

work between the developer, architect, civil engineer and dry utility engineer.

The dry utility engineer will, of course, have completed suffi cient research

into the existing dry utility networks that are adjacent to the site. This is

important in order to understand the type of utility service that is available to

the site. The dry utility engineer then incorporates the existing and proposed

dry utility information into a master utility plan.

It goes without saying that the more complete the master utility plan the

more likely the developer is able to achieve utility approval and eventually

agency approval. Also, experience has shown that a well-thought-out master

utility plan can provide savings in time, coordination and money when com-

pared to a project where the dry utilities are considered as an afterthought.

Stephen E. Richter is the President of Richter and Associates, Inc. special-

izing in the engineering and project management of the dry utilities for resi-

dential, commercial and neo-classical developments. He may be reached at

[email protected] or 301.548.7475.

437640_Shulman.indd 1 7/16/09 7:41:36 PM


New Members (as of January 1, 2010)

STARS Club (as of February 1, 2010)

MNCBIA Membership

BUILDERSVision Design Build, LLC

Remodeling

Vicky Weaver

Ph: 703-779-8189

[email protected]

ASSOCIATESA.S&P. Co.

Masonry Contractors

Paul Turska

Ph: 301-252-7011

[email protected]

Aspen Enterprises, Inc.

Carpentry-Rough, Remodeling

Casey Murphy

Ph: 240-375-2311

[email protected]

First Place Bank

Financial Services

Brian Farasy

Ph: 301-279-5145

[email protected]

Integrated Transportation

Solutions

Traffi c Consultants

C. Hadberg

Ph: 410-740-8784

[email protected]

Lighthouse Property

Management, Ltd

Property Management

Ibrahim Dukuly

Ph: 301-578-4041

[email protected]

Potomac Basin Group

Associates

Insurance & Employee Benefi ts

John Deem

Ph: 301-458-2171

[email protected]

Ventresca Enterprises, Inc.

Utilities Contractor

David Ventresca

Ph: 301-474-2171

[email protected]

GOLDAcacia Federal Savings Bank

BB&T

DGG-MC

Hanley Wood Market Intelligence

Linowes and Blocher, LLP

PEPCO

Pleasants Development, Inc.

SILVERGeorgetown Insurance Service, Inc.

Loiederman Soltesz Associates, Inc.

McMillan Metro, P.C.

Miles & Stockbridge, P.C.

Rodgers Consulting Inc.

BRONZEBallard Spahr

Bank of America

Elm Street Development

Gutschick Little & Weber, P.A.

Holland & Knight, LLP

Lerch, Early & Brewer, Chtd.

Liberty Home Builder, Inc

Reznick Group, P.C.

Sandy Spring Bank

Winchester Homes Inc.

FRIEND1st Mariner Bank

Baker Tilly

Bowman Consulting

Bozzuto Group

Burgess & Niple, Inc.

Charles P. Johnson & Associates

Christopher consultants, ltd.

Columbia Bank

Craftmark Homes

Dewberry

DICO

Furey, Doolan & Abell, LLP

GE Appliances

Geo-Technology Associates Inc.

Greenhorne & O’Mara Inc.

IDI-MD, Inc.

K. Hovnanian Homes

Kim Engineering

M &T Bank

Macris, Hendricks & Glascock, P.A.

Michael Harris Development

Mid-Atlantic Builders, Inc.

Miller & Smith Homes

Mitchell & Best Homebuilders LLC

Shulman Rogers

Steuart-Kret Homes, Inc.

Terra Verde Communities LLC

Washington Gas

MNCBIA’s Most Wanted ListListed here are fi rms whose membership in MNCBIA has

lapsed in recent months. WE WANT THEM BACK! Please

encourage these companies to reinstate their membership.

Abrams Design Build, LLC

Advertising Your Way, Inc.

American Infrastructure,

Block Builders

Capital Design Group, Inc.

Chase Residential Development Co. Inc.

Crown Stairs & Rails

Dad’s – Discount Appliance Distributor

Denison Landscaping Inc.

District Properties.Com, LLC

Flooring America

HLS Architects, PC

Int Trans Sols (ITS)

Kentlands Company

M & M Appliance Sales and Service

Majestic Homes, Inc.

Mann & Marshall

Merrill Lynch

Murphy & Maguire, LLC

O’Brie & Gere

Pinnacle Construction LLC

Rexel Electrical & Datacom Products

Schindler Elevator Corporation

Signature Multimedia, LLC

Sun Services, LLC

Swann Construction

The L&L Company

The Ryland Group Inc.

Ventresca Enterprises, Inc.

Vision Design Build, LLC

Woodfi eld Investments

422306_Macris.indd 1 3/16/09 11:32:54 AM


MARCH

1State Government & Legislative Affairs Committee meeting

2Custom & Small Builders Council meeting

3Development Review Process Subcommittee (DRPS)

Environmental Committee meeting


9Real Estate/Finance Committee meeting

Codes & Standards Committee meeting

FIL (Future Industry Leaders) Happy Hour

10Commercial Builders Council meeting

Green Building Committee meeting

11Home Builders Care Foundation board meeting

WSSC Liaison Committee meeting

MNCBIA Executive Committee meeting

12DC Liaison Committee meeting


17St. Mary’s County Liaison Committee meeting

Charles County Liaison Committee meeting

18Celebrity Chefs Meets March Madness

19Montgomery County Liaison Committee meeting

22 State Government & Legislative Affairs Committee meeting

24Dry Utilities Committee meeting

Prince George’s Development Process Subcommittee

25MNCBIA Board of Directors meeting

29State Government & Legislative Affairs Committee

Prince George’s County Liaison Committee Meeting

30Record Plat Committee

31P&P Ad Hoc Committee

APRIL

2Prince George’s County Liaison Committee meeting


6Custom & Small Builders Council meeting

7Development Review Process Subcommittee (DRPS)

Environmental Committee meeting

Calvert County Liaison Committee meeting

8Home Builders Care Foundation board meeting

WSSC Liaison Committee meeting

9DC Liaison Committee meeting

10A Day at the Races - co-hosted by HBCF & FIL (Future Industry Leaders)


13Codes & Standards Committee meeting

14Commercial Builders Council meeting

Green Building Committee meeting

15MNCBIA Executive Committee meeting

17NAHB Spring Board of Directors/NAHB Legislative Conference




Real Estate Finance Committee meeting


Montgomery County Liaison Committee meeting

St. Mary’s County Liaison Committee meeting

Charles County Liaison Committee meeting


MNCBIA Board of Directors meeting

27Record Plat Committee meeting

28P&P Ad Hoc Committee meeting

Events Calendar

440397_Hocksteins.indd 1 9/29/09 4:53:22 PM


ADVERTISER.COM

INDEX OF ADVERTISERS

Appliance Distributors Unlimited ............................................................. www.adu.com ................................................................. Inside Back Cover

CV Security Inc. ......................................................................................... www.cvsecurity.com ....................................................... Inside Back Cover

Fastsigns of New Carrollton ..................................................................... www.fastsigns.com ................................................................................. 10

GE Appliances............................................................................................ www.ge.com ................................................................ Outside Back Cover

Hockstein’s Wholesale Floorcovering...................................................... www.dhockstein.com .............................................................................. 13

Macris Hendricks & Glascock, PA ............................................................ www.mhgpa.com .................................................................................... 12

Shulman, Rogers, Gandal, Pordy & Ecker, P.A. ....................................... www.shulmanrogers.com ........................................................................ 11

Vintage Security ........................................................................................ www.vintagesecurity.com................................................Inside Front Cover

APPLIANCES

Appliance Distributors

Unlimited ................... Inside Back Cover

GE Appliances ........... Outside Back Cover

ATTORNEYS

Shulman, Rogers, Gandal,

Pordy & Ecker, P.A. ............................11

AUDIO/VIDEO

CV Security Inc. ............ Inside Back Cover

ENGINEERING

Macris Hendricks & Glascock, PA .........12

RESIDENTIAL & COMMERCIAL

FLOORING PRODUCTS

Hockstein’s Wholesale Floorcovering ....13

SECURITY SYSTEMS

Vintage Security ...........Inside Front Cover

SIGNS

Fastsigns of New Carrollton ..................10

Please support

the advertisers

who have

helped make

this publication

possible.

SMPA_EDITORIAL_AD.indd 1 2/1/10 8:08:44 AM

www.cvsecurity.com

a division of CV Security, Inc.CV Systems

800-974-8030 / Toll Free

Meet HomeShare™ home system - a very big idea in the enjoyment of your home. It’s Sony’s multi-room entertainment solution that will keep everyone entertained, wherever they are in the home. High definition video in any room. Access to your iPod® music throughout the house. An intercom so you can call the kids down for dinner without ever raising your voice. Access a security camera that lets you see who’s at the front door from the master bath. All at the touch of a button. All in perfect balance.

Whether installed in the living room, kitchen or bedroom, HomeShare™ delivers your entertainment needs and enhances the way you live throughout your home. It’s never been easier to enjoy all your music and video, wherever you are in the home!

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425964_CVSecurityInc.indd 1 5/1/09 7:55:19 AM

Tomorrow’s Appliances Today...since 1982

KnowledgeOver 25 years

ExperienceFactory Trained

Selection18 Major Brands

InspirationBeautiful Showrooms

Washington Sales Division Takoma Park, MD 301 -608-2600Virginia Sales Division Chantilly, VA 703 -263-2300Baltimore Sales Division Linthicum, MD 410-789-8000York Sales Division York, PA 717-845-6500

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404757_Appliance.indd 1 11/25/08 9:42:03 PM

341786GE Appliances

p. 16

captivatingTo learn more, visit monogram.com

GE Monogram

For your local Sales Representative call the GE Regional office at 410.737.7065.

Only GE Monogram offers the breadth and depth of design options to enhance any home. To learn more, visit monogram.com.

341786_GE.indd 1 1/20/10 8:52:11 AM

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