Hospitality developers making plans for compliance with with new ADA accessibility requirements may now have something else to consider.  Last month, the International Code Council released the Synopsis of the International Green Construction Code, with the full version of the model building code expected to be released in March 2012.  The IGCC has a goal of establishing a baseline standard of green building design and performance for all new and renovated commercial buildings and residential structures larger than three stories.   

Unlike LEED, the IGCC is not a rating system.  Rather it would establish specific "green" standards for construction that are to be adopted by local governments, integrated into existing building codes, and administered by local code officials.  The "floor" established by the IGCC may be varied in two ways:

• Each local jurisdiction may decide to accommodate issues relative to that area, such as sprawl, heat island effects, stormwater runoff and water and energy minimum performance thresholds.
• Each jurisdiction may require the project developer to choose and implement one or more "electives," which are intended to encourage "the construction of higher performance buildings than would be produced by conformance with the minimum requirements of the code, just like rating systems do."  Examples of electives include whole-building life-cycle assessement, enhanced site restroration, and more stringent recycled content options.    

While the approach advocated by the ICC may answer some concerns put forth by critics of the LEED ratings system, that doesn't mean the process will be painless for developers.  Among other things, the IGCC requires:

1. Significant restrictions on greenfield development and construction in flood hazard areas.
2. That at least 50% of construction-phase waste materials be diverted from landfills.
3. That at least 55% of building materials are salvaged, recycled content, recyclable, biobased or indigenous.
4. For all buildings and tenant spaces greater than 5,000 sq. ft., development of a greenhouse gas inventory to calculate the applicable carbon footprint.
5. Capabilities for energy measuring, monitoring and reporting, or to incorporate features that readily facilitate those capabilities in the future.  

When I first visited Jericoacoara in 2002, hotel development and international tourism were just starting to boom. The Brazilian government had recently designated the surrounding landscape as a national park, protected from development and limited in use.

Located about 200 miles from the city of Fortaleza on the northeast coast of Brazil, Jericoacoara was originally a tiny village of fishermen and their families living in a small cluster of simple brick buildings situated in a breathtaking natural setting. The Atlantic Ocean embraces the town on two sides, with a sandy half moon beach soaring from town for over ten miles. Behind the beach and the town lie gigantic sand dunes interspersed with lagoons and mangroves, filled with birds, fish, and crustaceans, plus the occasional roaming donkey or dune buggy packed with visitors. All of the ways into town involve driving several miles over sand.

I concluded back in 2002 that the natural environment would be sufficiently protected by the status as a national park, but that the original inhabitants of the fishing village would be driven out by high land prices, since the national park boundary limits the area of land in the town that can be developed. I believed that in the not-too-distant future, the only residents of Jericoacoara would be North Americans and Europeans, both as owners of, workers in, and visitors to the new hotels and restaurants.

I recently returned to Jericoacoara and discovered, happily, that my conclusions of ten years ago were wrong. The original residents of Jericoacoara and the surrounding fishing villages, as well as Brazilians from around the country, have found ample opportunity to work in and own businesses, capitalizing on the influx of foreign and domestic visitors. In addition to the hotels and guest houses that line the beach and fill the center of town, there is a new neighborhood full of Brazilian families, who all appear to have a quality of life that would be the envy of millions of residents of Brazil’s biggest cities.

The resort development and environmental preservation in Jericoacoara over the past fifteen years have created pareto optimal results. The unique landscape is protected as a national park, so development cannot destroy the scenic beauty that fuels the town’s tourist industry; the economy of the town has expanded exponentially, creating economic opportunity for locals that were unimaginable a generation ago; international hotel developers have the opportunity to build state-of-the-art hotels in a fantastic location; and tourists can visit a majestic place, stay in comfort, and support a vibrant part of the local, national, and international economy.

Given its scope of authority, we have been providing hospitality companies with a semi-regular update on the Consumer Financial Protection Bureau.

Today, the CFPB goes live with a nominated, but far from confirmed, director.  President Obama named Richard Cordray as his choice to lead the Consumer Financial Protection Bureau last Sunday evening.  Although we provided some brief insights on the former Ohio attorney general in our January and March CFPB posts, we are fairly certain that more detailed information on the nominee's positions will be forthcoming.  Senate Minority Leader Mitch McConnell (R-KY) made that much clear when he delivered this message to the president from the Senate floor the next day:

I would remind him that Senate Republicans still aren't interested in approving anyone to the position until the president agrees to make this massive new government bureaucracy more accountable and transparent to the American people.

The concern?  It’s not so much how the CFPB has handled revising mortgage disclosure forms, which the financial services industry says it backs.  It is what happens next.  As stated by Jaret Seiberg, a policy analyst at MF Global's Washington Research Group:  

There's no foregone conclusion. The agency doesn't have to fulfill the nightmares that the banks have, but until we start to see concrete actions, those nightmares are still going to keep bankers up at night.

For the hospitality industry, the “nightmares” could involve a whole host of rules, including (but in no way limited to) the Telemarketing Sales Rule, the Rule Concerning Cooling-Off Period for Sales Made at Homes or at Certain Other Locations, and the Real Estate Settlement Procedures Act (RESPA).

Take, for example, the Interstate Land Sales Full Disclosure Act.  On July 14, Peggy Twohig hosted a teleconference discussing the transition issues related to the CFPB’s assumption of enforcement responsibility for that law.  As part of the transition, Ms. Twohig said the CFPB will take a "fresh look" at the ILSFDA with an eye toward modernizing processes.  At the end of the call, Ms. Twohig was asked how the "fresh look" would apply to the Guidelines for Exemptions Available Under the Interstate Land Sales Full Disclosure Act.  The answer - the Guidelines will go dormant.

Rosemary O'Shea and I often work together on helping our hospitality clients understand and resolve issues involving the Americans with Disabilities Act ("ADA") accessibility requirements.  While the deadline has already passed for complying with those provisions of the new ADA regulations relating to accommodating service animals and a variety of power-driven mobility devices, another key deadline is quickly approaching.  As discussed by Rosemary in an article published in the July 2011 issue of ARDA's Developments Magazine, March 15, 2012 is the deadline for complying with the new ADA accessibility construction standards ("2010 Standards") and reservation requirements.  Here is some key information to consider as this deadline approaches.

2010 Standards

• The 2010 Standards contain a limited exception for existing facilities that comply with the 1991 Standards.  Those elements that comply with the 1991 Standards will be "grandfathered" under the new regulations and will not need to meet the 2010 Standards until such time as renovations or alterations are made.  It is, however, still necessary to comply with those portions of the 2010 Standards that address elements not covered by the 1991 Standards (i.e., pools, amusement rides, fishing piers, boating ramps, spas, golf courses, children's play areas, and other amenities).  If your facility is not in compliance with either standard, you should take this time to make modifications (to the extent readily achievable) to comply with either the 1991 or 2010 standard before March 15, 2012.
• The 2010 Standards specifically exempt guest rooms in timeshares and condo hotels when such rooms are not owned or substantially controlled by the entity that owns, leases, or operates the overall facility.
• Any new construction or alterations occurring on or after March 15, 2012 must comply with the 2010 Standards.  This means that if you are in the design process now, but construction is not expected to start until on or after March 15, 2012, your project must be designed to comply with the 2010 Standards (or the local building code to the extent it is more restrictive than the 2010 Standards).  The construction start date is determined by the date of certification of plans for a building permit, or if a jurisdiction does not issue building permits, the "start of physical construction."

 Reservation Systems

• By March 15, 2012, reservation systems must be modified to enable disabled customers to make reservations in the same manner as non-disabled customers.  This requires a detailed disclosure of the accessible features of each accessible room, as well as the accessible features of the amenities.  Commentary from the Department of Justice indicates that facilities complying with either the 1991 Standards or the 2010 Standards must, at a minimum, provide information on: (i) the size and number of beds, (ii) the existence of a tub or roll in shower, and (iii) the available communications features.  Facilities that do not meet the 1991 Standards must disclose variations from the 1991 Standards, such as: (i) issues with accessible entries, (ii) issues with paths of travel to check-in desks or restaurants, (iii) door widths, and (iv) the turning radius in the restroom.

• Accessible units must be held back as the last rented unit to guarantee the availability of an accessible unit to a disabled customer.  This requirement does not apply to units or rooms in timeshares and condo hotels, when such units or rooms are not owned or substantially controlled by the entity that operates the overall facility. 

Implementation

It is advisable to hire consultants who understand these new ADA requirements to confirm that not only the physical aspects of your facility are compliant, but also that your website and reservation system satisfy these new requirements.  Taking such steps in advance of the March 15, 2012 deadline will help to avoid litigation.

Hotel developers are increasingly being encouraged, and in some cases required, to comply with the LEED rating system, a creation of U.S. Green Building Council (USGBC).  The General Services Administration and the New York City Council provide just two recent examples of LEED-endorsement.  

But what if LEED compliance didn’t actually yield any energy savings?

That’s the contention in a $100M lawsuit brought by Henry Gifford, owner of Gifford Fuel Saving.  The claims include monopolization through fraud, unfair competition, deceptive trade practices and false advertising.  Gifford’s class action may have a difficult time proceeding in court, but that may not be his ultimate purpose.  Instead, Gifford may be content with publicizing his critique of the New Building Institute’s study, which concluded that LEED certified buildings are, on average, 25-30% more energy efficient. 

Gifford’s lawsuit alleges that the NBI study compared 121 cherry-picked LEED certified buildings against a control set made up of 5,215 buildings included in a 2003 energy consumption survey performed by the US Energy Information Administration.  While all the LEED buildings were constructed after 2000, 70% of the buildings in the government survey were built before 1990.  To put that into some perspective, Gifford's complaint states that the:

Bias in the NBI study sample is so obvious, it is about as useful as studying blood alcohol levels of drivers who volunteer to be tested. 

But even with that selection bias, Gifford claims that an apples to apples comparison would show that LEED certified buildings were, on average, significantly less energy efficient.  On this point, it looks as though Gifford may have some independent support:

• The National Research Council Canada conducted a re-analysis of the NBI study and found that LEED certified buildings, on average, used 18-39% less energy per floor area.  But the NRCC also found that 28-35% of LEED certified buildings actually were less energy efficient, and that the measured energy performance of LEED buildings had little correlation with the LEED certification level.   

• When asked about Gifford's lawsuit, Roderic Bunn, the principal consultant at Britain's Building Service Research and Information Association, opined that:

  We are piling in often unmanageable complexity into these buildings, so the consequence is unmanageable complexity. It's the enemy of good performance.

• And who would question the unbiased opinions of anonymous architects?