The “Leading from the Middle” Fellowship Program Now Offered to Landscape Architects

New Jersey Start Dates

Start Date: March 06, 2009
End Date: July, 2009
Price: $1500.00

New York Start Dates

Start Date: January 23, 2009
End Date: June 26, 2009
Price: $1500.00

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Sustainable Design and the Hazards of Specifying Novel
or Proprietary Building Components

            It used to be that new building component technologies appeared as frequently as Halley's Comet. Today, with the advent of sustainable design and the pressure to rack up LEED points, they appear on an almost daily basis. New technologies which appear to open up new and exciting design possibilities sing a siren's song which is often hard to resist. Everyone wants to be on the cutting edge of sustainable design technology. Unfortunately, without a proven track history, new technologies often open up new and limitless vistas in design liability. How can design professionals limit their liability for unforeseen product defects in both materials and field application?

            First and foremost, they must resist the temptation to browse the internet or to leaf through Sweet's Catalog like it is a menu, picking and choosing green building component systems or materials which appear to be a panacea for difficult sustainable design problems.

            As a general rule, if the answer to a particular design problem were that simple, someone else would have thought of it already. New technologies which diverge greatly from proven technologies should be viewed with a certain level of circumspection. Rather, look for new technologies which, while new to your geographical location, are technologies which represent advances built upon proven existing technologies. While a product may not have a proven track history in your area, it may have a good track history in another area of the country, a foreign country, or a totally unrelated industry. Examples of technologies which have been warmly embraced without critical review, and then proven to hold deep pitfalls include green roof systems, EPDM membrane roof systems, geothermal and solar energy systems, polyurethane foam roofing systems, and proprietary exterior insulation and finish systems.

            Do your homework. Read professional publications and trade journals to determine whether or not the building component of choice has been successfully utilized for any given period of time in applications similar to your prospective application. When dealing with manufacturers and distributors, do not be shy to ask for references. Most design professionals would not hesitate to check the references of a potential new mechanical consultant. They should be no less cautious when selecting a new building component or system. Your fellow design professionals will give you the best feedback regarding the durability, utility, and installability of such components or systems.

            When you do specify a new technology building component, resist the urge to prepare detailed drawings for proprietary type systems. If the manufacturer of the proposed proprietary system or component warranties the product, it is a safe bet that they have strict requirements regarding the proper installation of that product, right down to standard details and licensure for installers. If you are comfortable with specifying a proprietary system, incorporate the manufacturer's specifications verbatim. Make sure to call for detailed shop drawings to be prepared, reviewed and approved, not only by the distributor/installer but by the warrantor manufacturer. Require specific approval of non-standard details by the manufacturer.          

            Prior to commencing the construction phase of a project utilizing a novel or proprietary green building system, require the submission of samples and the construction of mock-ups. Then, require explicit approval of the samples and mock-ups by the warrantor/manufacturer. Photograph and videotape the details of the mock-up in the field. Make a record of where the mock-up is in the field if, ultimately, it is to be incorporated into the construction. This writer has been involved as litigation counsel in many a project where a mock-up was built and approved and, later, when a review of the same would have made the client’s case, has been told that no one could remember where it was constructed.

            Require regular job-site visits by the warrantor/manufacturer. In those instances where the warranty to be issued contains exceptions, i.e., no coverage where the roofing substrate is wet or irregular, request explicit confirmation from the warrantor/manufacturer that none of the conditions giving rise to the exceptions were observed during their on-site visits. Also, require such testing as will be necessary to confirm the non-applicability of the exceptions.

            Last, but not least, require field testing to confirm conformance with the manufacturer's performance criteria. Testing of a mock-up and a randomly selected sample is a good insurance policy. Many windows and curtain wall systems have performed admirably in the laboratory and then failed miserably after rough handling and careless installation in the field.  A little healthy cynicism when specifying new or unproven building technologies and components is a powerful tool in reducing professional liability claims. Like Ronald Reagan and Mikhail Gorbachev in the early 80s, subscribe to the old Russian axiom, "Trust but verify." 

Lawrence Powers, Esq. is the Co-Partner in charge of the Construction Law Group at the New Brunswick, New Jersey based law firm, Hoagland Longo Moran Dunst & Doukas, LLP.  Mr. Powers is also counsel to AIA-NJ, NJSPE and NJASLA.

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COMMENT ON THE SUSTAINABLE SITES INITIATIVES DRAFT, NOW!!!

On December 10, a discussion amongst a few NJASLA members pointed out the diverse concerns of a cross section of the profession regarding the first draft of the Sustainable Sites Initiative Guidelines and Performance Benchmarks. It quickly became apparent that more landscape architects should voice their concerns and assist in refining this document.

The Sustainable Sites Initiative is an interdisciplinary effort by the American Society of Landscape Architects, the Lady Bird Johnson Wildflower Center and the United States Botanic Garden to create voluntary national guidelines and performance benchmarks for sustainable land design, construction and maintenance practices.

NJASLA encourages members to comment on the Sustainable Sites Initiatives, now, while the public comment period remains open (See Below). We also ask that you copy your responses to ntufaro@Earthlink.net so that the Chapter can send a compilation of constructive criticism under its letterhead, noting contributors.

The Sustainable Sites Initiative Guidelines and Performance Benchmarks – Draft 2008 is now available! Public comments are accepted until January 20, 2009.  Click here to download the report.

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