Rebuilding the West: Construction Considerations After the Smoke Clears
December 21, 2020 —
Richard Glucksman & Ravi Mehta – Chapman Glucksman Dean & RoebWildfires have always been a part of life in the western United States, but, in recent years, the frequency and size of wildfires have become staggering. Oregon, Washington, and—in particular—California face drier conditions, making wildfire season longer and more intense.
In these states, among others, prescribed burns (designed to reduce wildfire ignition sources and spreading potential) have been limited or cancelled altogether as the air pollution emitted by these burns may worsen the impact of COVID-19, a respiratory illness in its essence, as noted recently by
Science magazine. These circumstances, further compounded by the severe shortage of housing, have created a “perfect storm” in California, which has seen new and denser construction deeper within wildfire-prone areas, prompting a number of key legislative proposals that will impact the rebuilding process after the smoke clears.
The infamous 2018 Camp Fire in northern California made international headlines for decimating the town of Paradise. While the cause of the Camp Fire was determined to be faulty electrical transmission equipment, unusually dry conditions allowed the fire to spread to just over 150,000 acres, and the fire took 17 days to contain.
Then, five of the 20 largest wildfires in California history occurred during the 2020 wildfire season, according to the California Department of Forestry and Fire Protection (Cal Fire). The Camp Fire was eclipsed by the August 2020 Complex Fire, which is the largest wildfire ever recorded in the state, growing to just over one million acres in size until it was finally contained on Nov. 15.
Legislative Response
The Camp Fire and other 2018 wildfires displaced hundreds of thousands of people from their homes throughout California. The unprecedented scale of both the 2018 and the 2020 wildfire seasons in California has spurred legislators in Sacramento to draft a number of important bills that will undoubtedly impact rebuilding efforts.
California AB 38 was prompted by the 2018 California wildfire season and was signed into law by Gov. Gavin Newsom in October 2019. It requires the state fire marshal, the Office of Emergency Services, and Cal Fire to work together to develop and administer a comprehensive wildfire mitigation program, including "cost-effective structure hardening and retrofitting to create fire-resistant homes, businesses, and public buildings."
Unfortunately, the well-intentioned program has yet to be funded, and may be relying on federal hazard funds from the Federal Emergency Management Agency at a future date. In light of the crippling economic impact of the COVID-19 pandemic, federal funding is likely the only viable source for this important item of legislation.
California SB 182 would enact new building regulations in high fire-risk areas (as determined by the state fire marshal), including new standards for fire-resistive construction, evacuation routes, defensible space, and available water and firefighting resources. It would also prohibit municipalities from approving new construction in high fire-risk areas unless wildfire reduction standards are satisfied. In effect, the bill would discourage new construction in high fire-risk areas.
After passing through both legislative houses, Newsom vetoed the bill, citing its negative impact on the state's strained supply of affordable housing. However, the bill is likely to be revisited in the 2020-2021 legislative session.
California AB 1516 is a comprehensive bill that would:
- Create new defensible-space requirements for both new and existing construction in high fire-risk areas.
- Create a grant-assistance program for fire-prevention education, inspections, and technical assistance.
- Direct Cal Fire to develop vegetation management recommendations to minimize flammability.
Additionally, the bill would allow insurers providing course of construction coverage for a project to request, from the owner, municipal certification that the structure to be built complies with existing and new building standards. Newsom vetoed this bill, cautioning that a "one size fits all" approach to wildfire management may not be appropriate, given that each individual community's needs differ.
California AB 2380 focuses on the development of standards and regulations for a relatively new and growing phenomenon: the rising use of private firefighting personnel, particularly by wealthy homeowners. Several prominent and well-known carriers offer homeowners-insurance policies that provide for private firefighting personnel, as well as preventative services (wildfire hazard inspections and clearing defensible space), and expected post-incident services (clean up and removal of fire retardant and similar substances).
AB 2380 was signed into law by Newsom at the tail end of the 2018 wildfire season, and it now requires Cal Fire, the governor's Office of Emergency Services, and the board of directors of the FIRESCOPE Program (designed to coordinate firefighting resources among different agencies) to develop standards and regulations for privately contracted fire fighters.
Housing Shortage and New Construction
These legislative efforts are underscored by the worsening housing crisis, which has both strained existing supply and increasingly pushed new construction into areas known as the Wildland Urban Interface (WUI).
WUI areas are designated as either "interface" or "intermix:” Interface WUI areas have little to no wildland vegetation, but are near large wildlands. By contrast, in intermix WUI areas, structures are mixed with wildland vegetation.
A recent study by the U.S. Forest Service found that, as expected, WUI areas are the hardest hit by wildfires. However, the study also found that, contrary to popular belief, wildfires cause greater damage in interface WUI areas than intermix WUI areas- in other words, wildfire damage is greatest where there is little to no wildland vegetation. The study concludes that wildfires in WUI areas are fueled more by human-made fuels as opposed to natural vegetation. These human-made fuels include building materials and landscaping.
It may not come as a surprise that a growing body of scientific literature has ascribed more severe and frequent wildfires to climate change. However, what may be less appreciated is the profound impact of building in the WUI. By 2050, an estimated one million new homes are projected to be built in California WUI areas.
In light of this, as well as the recognition that wildfire risk is determined, in large part, by construction standards and the fire resistivity of materials as opposed to natural vegetation, California has developed a special building code for WUI areas: Chapter 7A of the California Building Code- Materials and Construction Methods for Exterior Wildfire Exposure. California is one of the few states to have a unique building code for WUI areas, and, in light of the recent wildfires, California officials are developing stricter WUI building standards.
The constituents of State Sen. Bill Dodd in Napa County and surrounding areas have faced some of the state's most devastating wildfires. Dodd is at the forefront of significant fire-related legislation, and was responsible for the passage of the Insurance Adjuster Act of 2019, which sets regulations for insurance-claim adjusting in emergencies.
Dodd also spearheaded the passage of SB 190, which was enacted in late 2019. The law requires, among other things, the state fire marshal to develop suitable materials and products for building in WUI areas with respect to exterior wall siding and sheathing, exterior windows, doors and skylights, vents, decking, treated lumber and ignition-resistant materials, and roofing materials. The state fire marshal's office found that roofing material is among the most important factors in a structure's fire resistivity, and slate, metal, and tile roofs have the highest fire resistance rating of "A:”
As of July 1, 2021, wood-shake roofs will no longer be allowed by the California Fire Code. The state fire marshal also cites non-combustible siding as an important building element.
Wildfire-Resistant Construction
A recent study prepared by Headwaters Economics and commissioned by the U.S. Forest Service, WR Foundation, and Insurance Institute for Business & Home Safety analyzed cost differentials between traditional construction and wildfire-resistive construction as they relate to the four most fire-critical assemblies of a structure: roofs, exterior walls (including windows and doors), decks, and landscaping. Wildfire-resistant roofing, vents, fascia, and gutters were estimated to cost about 27 percent more than traditional components. However, the wildfire-resistant roofing materials feature lower maintenance requirements and longer lifespans.
Wildfire-resistant exterior walls were estimated to cost 25 percent less than traditional components, due in large part to the substitution of true wood siding with fiber cement siding.
Wildfire-resistant decking involves the use of composite boards, foil-faced bitumen tape on support joists, and the creation of non-combustible space beneath decking. This type of construction was estimated to cost approximately 19 percent more than traditional decking construction. Wildfire-resistant landscaping has the most significant cost difference as compared to traditional landscaping construction, with the former costing about double the latter. Landscaping fabric can minimize the growth of weeds and thus reduce fire hazard, as does the use of rocks instead of mulch.
While certain components of fire-resistant construction may have increased costs, the benefits far outweigh these increases: longer life cycles and less maintenance of the components, and, most importantly, greatly increased fire resistivity of the structure itself and thus its life cycle.
As construction in WUI areas is expected to grow substantially in the coming years, so too are fire-resistive construction standards and material requirements. These standards and requirements are part and parcel of a more comprehensive and deliberate set of land use planning, vegetation management, and emergency-response regulations and policies that California will develop by necessity to meet the growing demand for housing in WUI areas, and also to rein in the staggering costs of wildfire suppression. Thus, construction in WUI areas, and, to a lesser degree, in non WUI areas, will be subject to more exacting standards in the years to come.
As the science of wildfire prevention and suppression advances, so too will the technological innovations that will allow for safer, longer-lasting and ecologically sensitive construction. As in many other fields, California is expected to emerge as a leader in wildfire resistant building and material requirements, and will undoubtedly play a key role in shaping fire policy throughout the United States.
Richard Glucksman is a partner, and Ravi Mehta is senior counsel, at Chapman Glucksman Dean & Roeb. rglucksman@cgdrlaw.com; rmehta@cgdrlaw.com
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Four White and Williams Lawyers Recognized as "Lawyer of the Year" by Best Lawyers®
September 19, 2022 —
White and Williams LLPWhite and Williams is proud to announce that Chuck Eppolito, Michael Kassak, Anthony Miscioscia and Christian Singewald have been recognized by U.S. News – Best Lawyers® as a “Lawyer of the Year” in their respective practices. "Lawyer of the Year" recognitions are awarded to individual lawyers with the highest overall peer-feedback for a specific practice area and geographic location.
Chuck Eppolito was named in the area of Litigation - Heath Care in Philadelphia, PA. His practice consists primarily of medical malpractice defense as well as other insurance-related defense, including general negligence, electrical engineering and product liability issues in utilities cases. Chuck's clients include hospitals and physicians throughout Pennsylvania, utility companies and insurance carriers, including primary, excess and reinsurance, throughout the nation.
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White and Williams LLP
Construction Delays for China’s Bahamas Resort Project
October 01, 2014 —
Beverley BevenFlorez-CDJ STAFFThe Wall Street Journal reported that the $3.5 billion resort and casino China’s building in the Bahamas is being undermined by delays and labor crashes, which is “dulling the buzz surrounding the venture and threaten to undermine China's future business.”
Once finished, the project “will include 2,200 new hotel rooms, luxury condominiums priced as high as $12 million, a 100,000-square-foot casino and an 18-hole golf course. Singer Lenny Kravitz is designing the nightclub.”
Baha Mar, the developers, told the Wall Street Journal that they will not be meeting their December 2014 deadline, and instead are “focused on late spring 2015.”
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Conflict of Interest Accusations may Spark Lawsuit Against City and City Manager
February 07, 2014 —
Beverley BevenFlorez-CDJ STAFFCasper, Wyoming Councilman Craig Hedquist—who is also owner of Hedquist Construction—has been “accused of violating state and local conflict-of-interest laws,” according to the Star-Tribune. In response, Hedquist “is threatening a lawsuit against City Manager John Patterson, the city of Casper and ‘possibly others,’ according to a letter obtained by the Star-Tribune.”
The letter, which was sent to City Attorney William Luben by Hedquist attorney John Robinson, “demands the city preserve, from Aug. 1, 2012, on, all records of communication and consultation with attorneys and investigators, along with minutes, notes, recordings, executive sessions and digital data regarding Hedquist and Hedquist Construction.”
City Manager John Patterson told the Star-Tribune that “he was unaware of the letter and didn't know what the lawsuit might be about.”
Hedquist maintains that there was never a conflict of interest: “The general and expected practice for the Casper City Council members is to not vote on matters in which a council member may have a personal interest and record this recusal in the public record,” Hedquist said, as reported by the Star-Tribune. “I have done this on all contract matters regarding Hedquist Construction.”
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Now Available: Seyfarth’s 50 State Lien Law Notice Requirements Guide (2023-2024 Edition)
December 23, 2023 —
Seyfarth Shaw LLPSeyfarth’s Construction team is pleased to announce the release of our 2023-2024 edition of the 50 State Lien Law Notice Requirements Guide. The Guide provides the general time requirements for filing lien notices in each state, plus Washington, DC.
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Seyfarth Shaw LLP
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Kahana & Feld P.C. Enhances Client Offerings, Expands Litigation Firm Leadership
March 22, 2017 —
Kahana & Feld, P.C.SANTA ANA, Calif., March 9, 2017 – Celebrating 10 successful years of practice, Managing Partner
Amir M. Kahana, Esq. , of Kahana & Feld P.C. (formally Kahana Law), is pleased to announce he has added as name partner
Jason Daniel Feld, Esq., expanding client offerings to include insurance defense and bolstering its construction defect and real estate law practice.
Feld joins the AV Preeminent firm that for the past decade has become known for its prowess in general business litigation matters, including cases involving employment, construction, real estate and intellectual property law. The firm is home to a group of proven trial attorneys who are among Southern California’s top rated counsel.
Feld brings 18 years of experience, with his practice focusing on defending homebuilders, contractors and developers in Arizona, Texas and California. He primarily chooses to represent smaller, family-owned and operated clients, providing the unique opportunity to also assist with overall best practices and risk prevention. In addition, Feld serves on several prominent insurance carrier panels, allowing him to cultivate valuable relationships with the builder and contactor community. A resident of Tustin Ranch, Feld received his juris doctor cum laude from Whittier Law School and a bachelor’s degree from University of Houston.
“Jason’s breadth of experience, leadership and work ethic are qualities I have admired throughout the many years of our friendship. He embodies the integrity and admirable character that are at the core of our firm’s fabric,” said Kahana, a resident of Irvine. “I am thrilled to have Jason join forces with our firm as we enter our second decade and are poised for significant growth. Our clients will benefit from our expanded areas of practice, allowing us to provide counsel and litigation support in a variety of areas.”
Under Kahana’s leadership, the firm has become known for holding its client relationships in the highest regard while providing premier quality legal services and sound risk assessment at a reasonable cost. With integrity always coming first, the firm’s record of success extends well beyond the office as each associate is proudly involved in his or her community, donating time and resources to a variety of worthy community organizations.
“I feel honored to join Amir and this talented and energetic firm,” said Feld. “I feel fortunate to have found a new home with partners and associates who share the same values and commitment to serving the community. I look forward to helping grow the firm in the years ahead.”
About Kahana & Feld, P.C.
Kahana & Feld, P. C. focuses on general business litigation and insurance defense, with particular emphasis on employment, real estate, construction defect and intellectual property litigation. The AV Preeminent firm is led by attorneys who have been named among Southern California’s Top Rated. The firm was founded with the goal of providing high-quality legal services at fair and reasonable rates. The firm believes that what defines attorneys is not their billing rates, but their record of success, and Kahana & Feld’s track record speaks for itself. For more information, please visit: http://www.kahanafeld.com
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Tenants Who Negligently Cause Fires in Florida Beware: You May Be Liable to the Landlord’s Insurer
May 13, 2019 —
Rahul Gogineni - The Subrogation StrategistIn Zurich Am. Ins. Co. v. Puccini, LLC, 2019 Fla. App. LEXIS 1487, 44 Fla. L. Weekly D 383, Florida’s Third District Court of Appeals considered whether a landlord’s carrier, Zurich American Insurance Company (Zurich), was precluded from pursuing a subrogation claim against the landlord’s tenant, Puccini, LLC (Puccini), for fire-related damages. After the fire, Zurich paid its insured, Lincoln-Drexel Waserstein, Ltd. (Lincoln), over $2.1 million. Zurich then proceeded with an action against Puccini. Puccini filed for summary judgment arguing that it was an additional insured under the Zurich policy. The trial court agreed with Puccini and dismissed the action. Zurich then appealed the case to Florida’s Third District Court of Appeals. Finding that the lease contemplated both liability on the part of the tenant and indemnification in favor of the landlord, the court held that the tenant was not an implied co-insured under Zurich’s policy. Thus, the court allowed Zurich’s subrogation action.
The Sutton Doctrine Extension of the Anti-Subrogation Rule
In the United States, most states have adopted an anti-subrogation rule either by statute or through common law. Under an anti-subrogation rule, an insurer may not pursue its insured for monies paid to the insured. While some states limit their anti-subrogation rule to apply only to the named insured, other states have expanded the rule to include parties listed as additional insureds, and even, in some instances, implied insureds (those parties not specifically listed, but still considered an insured under the applicable policy).
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Rahul Gogineni, White and Williams LLPMr. Gogineni may be contacted at
goginenir@whiteandwilliams.com
Construction Defects Are Occurrences, Says South Carolina High Court
December 20, 2012 —
CDJ STAFFThe South Carolina Supreme Court has left the legislature’s new, expanded definition of “occurrence” in place, declining to declare it unconstitutional. South Carolina included faulty workmanship as an occurrence in response to a Supreme Court decision, which the court later reversed. One of the parties in that earlier decision, Harleysville Insurance, challenged the new law, claiming that the legislature didn’t have the power to pass a law to overturn a court ruling. The court did not concur.
However, the court did determine that the law was not retroactive and covered only claims filed after the law became effective in May 2011. The Chief Justice of South Carolina noted that “insurance coverage for construction liability lacks clarity, particularly with respect to whether construction defects constitute ‘occurrences’ under construction general insurance policies.”
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