City Council delivered a thorny and foul-smelling Valentine to the green community Monday night. Council introduced an amendment to the City’s Green Building Ordinance, enacted with much fanfare in the fall of 2009 but as yet never applied to any development. The ammendment, if passed, would allow a developer to skirt the law by demonstrating “economic infeasibility” to the City’s Planning and Development Committee.

A further amendment, added Monday night, would double the size of a development to which the ordinance applies from 10,000 to 20,000 square feet.

The Green Building Ordinance, or GBO, currently requires all new developments in Evanston in excess of 10,000 square feet to meet “Silver” level standards set by the United States Green Building Council’s LEED (Leadership in Energy and Environmental Design) standards.

The Ordinance, though passed in October 2009, has yet to be officially included in the City’s ordinances (“codified”). In proposing to codify the ordinance, the City decided to propose amendments as well, including removing the “Silver” standard and replacing it with the easier to obtain “LEED certified” standard.

City Manager Wally Bobkiewicz made the conscious decision to exclude the environmental community from the process of drafting the proposed amendment, opting instead to shroud the amendment in secrecy behind closed doors and in Council’s executive session. The City’s new sustainability coordinator, Catherine Hurley, was not permitted to inform the Environment Board, Citizens for a Greener Evanston, or the Mayoral-appointed committee formed to draft the original Green Building Ordinance until the Thursday before Monday’s meeting.

Evanston’s Director of Community and Economic Development Steve Griffin introduced the proposed amendment at the Planning and Development Committee by saying, “Because of the economy the way it is, there haven’t been any projects that would fall under this Ordinance.”

But recently, he added, a number of retail developers have threatened to locate elsewhere rather than comply with the Green Building Ordinance or GBO.

One business in particular said it could not meet the financial burden of the ordinance and would move to a neighboring community unless the Ordinance was waived. “We’re not undoing the Green Building Ordinance,” he said.

“We’re providing, under specific, unique circumstances” an alternative path for a business to take. 

At issue, said Alderman Coleen Burrus, 9th Ward, is “one location, one business.” The particular retail project was and remains “confidential” and was not revealed to environmental stakeholders or the public Monday night. Alderman Ann Rainey, 8th Ward, said, “We’re not talking about 100,000 square feet here…We’re not talking about a big box. This is not a big building. It is under 20,000 square feet.” Staff had earlier described the project as a “national retail” outlet. 

Al. Rainey then proposed an amendment that would exclude all developments, not just retail developments, under 20,000 square feet. The current threshold of 10,000 square feet therefore doubled. The Amendment passed 4-1 with Ald. Wilson voting no. 

Two issues brought an air of urgency to council’s deliberations. Mr. Bobkiewicz indicated that the Unidentified Retailer wanted to make a decision as to where to locate before the end of February. Secondly, several Council members characterized the problem with the GBO as a shortcoming in the LEED standards when applied to retail space. In balancing the prospect of losing potential businesses against the goal of creating a sustainable community now and into the future, the Council clearly chose economic development. 

The debate centered upon three themes: first, the process by which this amendment came into being. Second, the content of the amendment and the alleged development versus the environment balance. Third, the manner in which the amendment would work in practice. 

Objections to the Process

“It was my decision not to consult with the Citizens for a Greener Evanston and the Environment Board before drafting the amendment,” said Mr. Bobkiewicz, adding that he thought Council should see it first. The City has some 40 boards and committees, he said, and should not consult each relevant board or committee when making policy determinations. In this case, he said, the issues regarding economic development were significant enough to keep the environmental stakeholders out of the initial discussions. 

The result, according to Alderman Mark Tendam, 6th Ward, was “a bit of an embarrassment for all of us.” The GBO was drafted by a mayoral-appointed committee made up of businesses interests, developers, green building experts, and environmentalists. Paige Finnegan, co-chair of the City’s Environment Board, said the City should revisit the work done by the “expert citizenry” on that committee before radically altering the ordinance. Instead, the City showed a willingness to overhaul that expert work, behind closed doors, at the first whisper of a business objection. 

Ald. Burrus said she was “not happy with how this transpired.” The path “the City Manager has chosen to take has not been transparent and I am very disappointed.” She said the amendment was being railroaded through council without consulting experts in the field who worked for literally years to create a workable ordinance that to date has not been tested even once. How can the City ask volunteers for so much time and effort and then toss it aside when one single business complains and threatens not to come to Evanston, she asked. 

Ald. Burrus also found it ironic that one of the first acts Mr. Bobkiewicz asked new sustainability coordinator Hurley to undertake was to lower environmental standards. 

Content of the Amendment

Council members, with the exception of Ald. Burrus, lined up behind carving out an exception that would apply to the Unknown Retailer. Some voiced problems with LEED when it comes to retail uses. Other seemed to argue the economic development should always trump the goal of sustainability. 

Alderman Don Wilson, 4th Ward, said, “My impression is that this project [the Unknown Retailer] is really an issue of the lack of availability if LEED credits at a reasonable price point.” The problem is not unique to this particular project, he added, but instead a problem that will recur with retail uses. 

Mayor Elizabeth Tisdahl expressed a similar view, saying that she dealt with LEED “in my other life” and “it has flaws. One of the flaws is showing up at this time.” She praised the environmental community’s “groundbreaking effort [which] was I think a terrific effort,” but said “this is a time when LEED does not fit.” 

Alderman Delores Holmes, 5th Ward, said, “Folk, we have to wake up and know we need economic development in this community.” Alderman Lionel Jean-Baptiste, 2nd Ward, said that while he welcomed community input, it could not be “a veto power. We have to protect the economic development of the City.” 

The Process Going Forward

The proposed amendment would allow a developer to show by “clear and convincing evidence” that complying with the GBO would be economically unfeasible. Several alderman and community members expressed concern over how this process would work and whether it meant a return to “ad hoc” decision making rather than the standard and predictability the City had been trying to impose. 

Alderman Melissa Wynne, 1st Ward, said the proposed language would lead to situations in which, “It just becomes who has the best lawyer and who makes the best case to the council.” Alderman Jane Grover, 7th Ward, expressed similar concerns. 

Jeff Smith, a board member of Citizens for Greener Evanston but not speaking on behalf of that organization, said the proposal would lead to “ad hoc decision making on projects.” The City had been trying to get away from “the idea that everything is in play.” The GBO provided predictability and standards, he added, whereas the ability to plead a case to Council does the opposite. 

The codified and amended Green Building Ordinance passed Monday night by an 8-1 vote, with Ald. Burrus the lone “no.” The Ordinance will return in two weeks, but there is not much time before the Unknown Retailer’s stated “end of February” deadline for the City to get this right.