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Las Vegas Energy Code for Retrofit Projects

Posted by Mike Collignon

May 9, 2014 4:48:00 PM

If you don’t like the energy codes, just get your buddy on the city council to help change them. Is this business as usual in Sin City?

Trouble in Vegas

Executive Summary
Las Vegas has a long history of passing off the unconventional—and even nefarious—as perfectly ordinary. From that perspective, this story is just another chapter in the colorful narrative of the city: a Councilman’s business partner doesn’t like certain building regulations. The council changes the regulations by the narrowest of margins and over the objections of actual building professionals.

Mingo’s
If you drive down 1st Street in downtown Las Vegas, you’ll discover Mingo’s Kitchen & Lounge. It’s a fairly non-descript little restaurant & bar, but the controversy it created is far from mundane.

Mingo’s used to be a repair garage, and is part of a larger building. (The larger building is separately owned.) Mingo’s owner, George Harris, wanted to convert the garage into a restaurant/bar and outdoor patio. A Nevada-licensed architect (from Texas) was retained to draw the plans. When the plans were submitted, a plan review could not be conducted because there was too much missing information. Notification was sent to the architect, requesting the needed information. Shortly thereafter, city building department management asked Don White, leader of the downtown development team of plan reviewers for renovations, “What did you do to George Harris?”

Apparently, department management was catching heat because Harris was upset that his project was stalled. All the plan reviewers involved agreed that the plans were insufficient; they failed to comply with the city’s energy code and ADA requirements. The Texas architect resubmitted the plans three weeks later, but they contained the same (lack of) information. Not surprisingly, the plans were rejected once again.

One day on the jobsite, an insulation contractor hired by the larger building’s owners (a group of California architects) was installing insulation. Harris told the insulation contractor to “leave that crap off my walls” and then kicked him off the job. The insulation contractor called the California architects about the incident, and thankfully they altered the contract so as to leave him whole. The owners then called Harris and stated, “We have to do this per code.” Harris said he wanted the insulation removed and that he would take care of the code. Due to the lack of insulation, the plan had to be revised and subsequently failed a plan review.

Harris demanded a meeting with the plan reviewers. During the meeting, Harris told White in no uncertain terms that he was going to build how he wanted and that he didn’t care about the codes. Harris went on to say he was going to take his concerns to the city council. While this is not an uncommon assertion in building departments, Harris was probably betting on the political aid of his business partner, City Councilman Bob Beers. Furthermore, Harris didn’t want to adhere to the handicapped accessibility requirements, saying, “This isn’t a place for them. I’m not going to be waiting on any of those handicapped people.”

White had tried repeatedly to contact the Texas architect, to no avail. He reasoned that a conversation would help clear up any misunderstandings related to the missing information. Shortly after the Harris meeting, White filed a complaint with the Nevada state architect’s board against the Texas architect. Just a few hours after the complaint was filed, the Texas architect contacted White. It was during that conversation that critical details were learned.

According to White, the Texas architect stated that he had never spoken to Harris. The architect was hired by a subcontractor, and it was the subcontractor who communicated with Harris. Through his relationship with the subcontractor, the architect knew that Harris was unreceptive to any advice. The architect was also aware that there were plumbing and electrical problems. After expressing further frustration with his contractual situation, the architect told White, “Do whatever you have to do to get it to pass.” The plans were then red-lined, which means the building department takes the submitted plans, whites out the discrepancies and draws the corrections in red.

Political Pressure
City building department management came into White’s office and inquired about the project and Harris’s concerns. White explained the rationale of the team. It was then revealed that Beers threatened to re-examine the codes in light of his project’s difficulties with approval. White defended both the codes and their development process, of which he had been highly involved.

Unfortunately, the pressure didn’t end there. White served on the energy code committee of the Southern Nevada Building Officials group. This particular committee had conducted a review of the 2012 IECC. White presented the committee’s findings, as well as their proposed amendments, to the entire group. During the discussion, the group was warned that Beers was hoping to make major changes to the then-in-place 2009 IECC. The city council was also expressing concerns over the accessibility code, particularly with regards to bathroom requirements. The code officials obviously viewed this as disconcerting.

A few days later, White was asked to prepare for a defense of the city’s energy code. It was also suggested that colleagues and industry should be alerted for possible testimonials. After conducting a little research on Beers’s voting record and Councilman Bob Coffin’s eerily similar voting record, White reached out to environmental groups and energy efficiency advocates.

White, his manager and his manager’s manager then met with the city attorney. The ADA requirements were discussed, but the city attorney said it had been addressed with the concerned parties and was no longer an issue. Then, the conversation shifted to the energy code and the state’s ARRA commitment. It was explained that Nevada was not a home rule state, and that whatever the state fire marshal and building official adopted and approved was the legal minimum. The irony of Beers’s disregard for the well-established process was that he was a former state senator.

In a follow-up meeting, Beers and his office manager met with the city manager, White and the city’s director of building officials, Chris Knight. White started to explain that any attempt to alter or delete portions or all of the city’s accessibility code (ANSI 117.1) would bring federal wrath down on the city, with an indefensible law suit as the probable outcome. Beers cut off White, saying he knew ADA was a requirement. Beers didn’t want to hear from an underling, so the explanation continued from the director and the city manager. According to White, Beers still expressed ambivalence.

The City Council
During preliminary city council hearings, both Harris and Beers claimed that all these added costs had been burdensome for Mingo’s and would surely stifle future development. The reality of the situation was that only the renovated elements of a project had to comply with the 2009 IECC. For example, if a window was replaced, only the window had to be up to code, not the entire building. Specific to Mingo’s, Harris initially claimed $40,000 in additional costs for code compliance, though he would later shift that figure down to $30,000. White and his team deduced that the extra expense probably fell in a range of $8,000 to $12,000. The irony of the insulation story mentioned earlier is that the California architects, owners of the property that included Mingo’s, had already committed to that work for the entire building, so it wouldn’t have cost Harris any extra money.

Beers found an ally on the city council in Bob Coffin. Like Beers, Coffin is a former state senator and their voting records are nearly aligned. Coffin co-sponsored (with Beers) a proposal that would rescind the city’s energy code for remodels and renovations only. Originally, the legislation included residential buildings. But since the Southern Nevada HBA members all build to either the Energy Star or Environments for Living programs, they opposed the proposal. To avoid political ramification, they declined to testify publicly but privately convinced Beers to remove residential from the measure.

White researched the number of permits issued by the building department since the 2009 IECC was adopted by the city. They totaled 1,800, but only three of those 1,800 (0.16 percent) required a complete overhaul/energy code renovation. Harris’s project was one of them, though the larger building’s owners already knew the rules and hadn’t complained.

The city council review committee examined the viability of the proposal. Consisting of three people, two were Beers supporters, but probably didn’t fully understand the issue. Harris and a realtor (and friend) spoke in favor. Many spoke against the measure. A 2-1 vote (in favor) brought it to the city council for a full vote. (An important footnote: In a letter sent to the city council, the local AIA and USGBC chapters cited a conflict of interest in regards to Beers’s business connection to Harris, the owner of the disputed project, Beers’s position as a councilman and any code changes or ordinances that would directly benefit said project. The city attorney didn’t agree with their assertion, as the code change wouldn’t benefit Mingo’s or any other past projects.)

On June 19, 2013, it was posed to all seven city council members. A number of people (state arch board, local AIA chapter, local USGBC chapter, SWEEP, state energy office, Las Vegas Glazers Association and energy auditors) spoke against the idea of exempting renovations to all pre-2009 buildings from the city’s energy code. Building owners were also opposed to the measure, as they wanted a level playing field. Harris didn’t speak at the city council meeting, but the aforementioned realtor friend did. Beers did not abstain, based on the city attorney’s aforementioned judgment. The topic was revisited in testimony delivered by the local USGBC chapter president. Councilman Coffin considered the notion baseless and said so at length.

During his testimony in support of the proposal, Beers chose to loosely compare the energy code to Nazi Germany:

“Having not heard of any problems, having not received any opposition to the concept when it was being formulated is not always a good indicator of propriety. We need look back no further than World War II Germany, although we can look back much further and see it repeated over and over and over again, where government not hearing any opposition believes that it has a good idea at hand.”

He also exalted his service in the state legislature, and then moments later agreed that a state-level appeal process was overly burdensome and undesirable, citing costs as much as 10 times that of a city-level process.

Speaking against the motion was Councilman Ross. He uttered such sentiments as: “I’ve heard no reports of problems from any business,” “Are we here having this discussion over one business?” and “Why are we even having this discussion of going backwards?”

City staff, including Chris Knight, director of Building & Safety, raised the possibility of applying for a DoE or city waiver for any project that feels it is suffering such a hardship. The city’s energy code didn’t need to be revised for what amounted to one project. The phrase, “Don’t throw the baby out with the bathwater” was voiced more than once.

Ultimately, the vote was split 3-3. That left Mayor Goodman to cast the deciding vote. Throughout the debate on this proposal, she repeated she was torn between the city’s reputation as a leader in sustainability and her desire to re-energize downtown development. She asked her city staff several times for their opinion. While she did not receive a direct answer, staff in attendance sent the subtle message that they did not see the need for the measure. Despite that, Mayor Goodman voted in favor of the proposal.

(It should be noted that, according to the Las Vegas Sun, Mayor Goodman’s “biggest contributors were casino honchos and gaming executives, many of whom do business downtown.” Her husband, Oscar Goodman, was the former mayor of Las Vegas, and both spouses made it a priority to re-energize the downtown area.)

The Unresolved Mess
In the three-month time period after the city council’s decision, all plans submitted to the building department continued to comply with the energy code provisions. Meanwhile, the state board of architects, interior designers and residential designers sent a letter to all its members. It reminded them that they are required to follow state law, regardless of a municipality’s decision.

Along those same lines, the state energy office sent a public letter questioning the legality of the decision. The state attorney general sent a letter to the city of Las Vegas stating the measure was in violation of state law and should immediately be rescinded. Since there are no consequences written into the law, the city basically thumbed their nose at the letter. The state attorney general could not pursue legal action in the short term, opting instead to work through state legislature to strengthen the law before bringing a lawsuit. Unfortunately, there doesn’t appear to be much appetite among legislators to give the law any teeth.

In addition, the city manager looked to terminate White for his public comments to the media and outside groups. White was a union employee, so there would have been legal challenges surrounding such a punitive action. As it was, White had made it known, well before the Mingo’s project ever started, that he planned to retire in mid-October 2013.

Commentary
As anyone who has visited Las Vegas knows, it’s the northern section of the Strip extending to the downtown area (i.e., the City’s section of the tourist area) that has a much greater need for redevelopment. But many still wonder why this code change needed to happen. Research showed that it would only be germane to three tenant improvement projects between the code’s adoption and October 1, 2013. Councilman Ross questioned whether it was really about one project. The waiver process was already an option.

Meanwhile, let’s take a look at what has happened since the summer of 2013. The State of Nevada has adopted the 2012 IECC unamended, and it will go into effect on July 1, 2015. The City of Henderson and Clark County have taken a leadership position, adopted the 2012 IECC and made it effective on July 1, 2014. It’s a little-known fact that most of the famous Las Vegas Strip is not in the City of Las Vegas, but in the City of Paradise, NV. Since they don’t have a large building department, Paradise relies heavily on Clark County for code enforcement.

On the other hand, the City of Las Vegas has decided not to enforce the 2012 IECC, preferring to stay at the 2009 level (along with their needless exemption. Interestingly, the 2012 was the very code White and the Southern Nevada ICC chapter was analyzing when this saga started.) The City’s stance creates an inconsistent business environment on one of the most famous streets in the world. That seems strikingly odd for a city that has recently won the 2014 Mayors’ Climate Protection Award, as well as a city council that has leaned very pro-business.

The 2013 decision by the city council, combined with their intention to stay at the 2009 IECC, creates a problem for some local businesses at the same time it allegedly “solves” a problem for others. Architects can’t retain their state license if they design to anything less than law (i.e., the state code). We spoke with a Nevada architect who has had to turn away projects in the City of Las Vegas because the owner didn’t want to comply with the statute. In fact, his very pointed comments are a great way to end this entry:

"The ordinance has effectively cut out those who want to play by the rules. There are many of us who have spent a lot of time over the years developing good working relationships with the building officials; relationships that require us to play by the rules and adhere to the (code officials’) interpretations to the best of our abilities. I feel it is counterproductive to have non-building officials changing the rules.
I want to see growth and development in Las Vegas as much as anyone. I think the downtown redevelopment is great. I want all areas of the city to be thriving. But I don't think that ordinance helps any of us and would greatly welcome its repeal.”

Resources

Article: “Las Vegas councilman concerned about costs of downtown projects” (Las Vegas Review-Journal) http://tinyurl.com/lzfth3l

Article: “Proposal would cut energy standards” ” (Las Vegas Review-Journal) http://tinyurl.com/olo4afu

Article: “Old downtown buildings exempt from newer energy codes (Las Vegas Review-Journal) http://tinyurl.com/moa2mqz

Article: “Las Vegas wins U.S. Conference of Mayors award for green initiatives” (Las Vegas Sun) http://tinyurl.com/of2gwpx


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