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Retail Law Advisor

Happy Thanksgiving!

Posted in Holiday, Retail

Thanksgiving is a time when many of us pause to reflect. We value the trust you have put in us as a resource for the fast paced retail industry. Thank you for reading our blog, the Retail Law Advisor.

Our wish for you and your families this Thanksgiving is simple. May the good things in life be yours in abundance, not only at Thanksgiving but throughout the coming year.

Warm Wishes,
The Retail Law Advisor editorial board

Are Plastic Shopping Bags Being Sacked?

Posted in Compliance, Green, Retail

No plastic bagsIn earlier blog posts, we reported on the growing trend in U.S. cities to pass bans on single-use plastic shopping bags and impose fees for traditionally free bags provided in store checkouts, including the status of legislation proposed by Los Angeles, Chicago and New York to ban free shopping bags as of last November.

A year later, we are pleased to report that the trend continues. While Los Angeles’s single-use plastic shopping bag ban went into effect as of January 1, 2014 for large supermarkets and big box stores that sell groceries (such as Target and Wal-Mart), it was expanded to include drug stores, convenience stores, as well as all markets and groceries on July 1, 2014. In LA, both large and small grocery markets and other affected stores can no longer offer free plastic carryout bags to customers, and recycled paper bags may be offered at a cost of $0.10 per bag.

Last April, with “self-congratulation but no debate,” Chicago also passed legislation banning single-use plastic shopping bags, with exceptions for restaurants and small “non-franchise” independent retailers. In Chicago, the timing of the law’s effective date depends on the size of the store. Stores larger than 10,000 square feet have until August 1, 2015 to comply, while stores 10,000 square feet or less have until August 1, 2016. Unlike LA, the Chicago legislation does not require a 10-cent per bag charge for paper bags.

A group of New York City Council members continues to push a bill, introduced last March, which would impose a mandatory 10-cent per bag charge for single-use plastic and paper bags provided by grocery stores and restaurants. As of September, supporters were six votes shy of passing this proposed legislation. This legislation was slated for review by the New York City Council again on November 19th, but was laid over by the Council’s Committee on Sanitation and Solid Waste Management for further consideration, so stay tuned.

Earlier this fall, California became the first U.S. state to pass legislation prohibiting stores from providing free, single-use plastic shopping bags. The new law goes into effect for large grocery chains and pharmacies starting July 1, 2015, and will be extended to convenience stores and liquor stores July 1, 2016. Similar to LA’s shopping bag ban, under the state law, affected stores will be required to offer customers recycled paper bags or bags made of compostable material at a cost of at least 10 cents.

If this current legislative push continues, single-use plastic shopping bags may soon achieve the same status as lead paint or McDonald’s polystyrene foam sandwich containers – they will become a product of our past.

A “New World” of Fashion and Food

Posted in Landlords, Real Estate, Restaurants, Retail, Retail sales, Tenant

In a world of Instagram, Facebook and SMS text marketing, being fleet of foot in an ever-changing world of retail advertising and sales is the name of the game. As retailers and restaurateurs navigate the treacherous waters of effective advertising, an amplified sense of haste has motivated these proprietors to explore additional means of creating a buzz around their products and food. These days, retailers are embracing and realizing the value of pop-up stores in providing a fresh and exciting approach to reverse the trend of retail ennui among consumers. Like a jack in the box, pop-up stores burst on to the scene – typically in small retail spaces – for a few days, weeks or months and sell merchandise with an ephemeral shelf-life. In many respects, pop-up stores serve as a prudent and business savvy way to test a product, a special dish, or a new clothing line in hopes of making a cannon ball like splash in a particular retail market.

Coupled with a well-tailored marketing campaign on social media, retailers and restaurateurs can generate fanfare and excitement around their brand. Given the palpable and increasing thirst among consumers to readily learn about and stay on top of in vogue brands, pop-up stores are a cost-effective means to build brand awareness and check the pulse of consumers. The concept of pop-up stores has evolved over the past few years. What was once considered a desperate attempt at advertising has now been widely accepted as the “New World” of retail marketing, bridging the gap between the “Old World” of big brick and mortar stores and online retail. One of the main virtues of pop-up stores is that they are much less expensive than your run of the mill television ads, which do not engage the customer in the same fashion and can fall on deaf ears. Pop-up stores, however, inject a certain spark into the brand and allow consumers to interact with the brand and its products in an innovative manner.

But before we sing paeans in full support of pop-up stores, we should mention that it’s not necessarily easy to set up a pop-up store. First, the lack of unoccupied retail stores in vibrant markets can be one of the biggest impediments for retailers looking for viable locations. Another inherent issue is finding landlords willing to lease space to retailers on a short-term basis. To assuage these concerns, there is a burgeoning market of online start-ups – for instance, Storefront – that connect store owners and landlords who wish to rent retail space for short terms to retailers, restaurateurs and artists. The true beauty of Storefront is that it allows retailers to dip a toe in a particular location without the pressures that come with a long-term lease. The other potential benefit of pop-up retail is that it may provide first-hand proof that a vacant space can become viable and profitable again. This certainly proved to be true in Buffalo and Detroit where numerous pop-up stores have sprung up and revitalized these once deserted downtown areas.

For small retailers who are just getting started, opening a pop-up store is an innovative approach to growing the business and increasing brand awareness. Although big box department stores will forever have a place in the retail market, these large retail spaces may be better suited for more established brands. For the up and coming retailers and restaurateurs, who must count every penny that comes in, leasing too much space may be fundamentally inefficient and too onerous from an inventory standpoint. A pop-up store is a happy medium that gives retailers and restaurateurs an opportunity to operate a retail or restaurant establishment, gauge future demand, and engage their customers with an intriguing approach.

A Five-Point Checklist for the Holiday Shopping Season

Posted in Employment, Holiday, Retail, Technology

The Halloween costume pop-up stores are gone, and they’re starting to be replaced by other seasonal attractions. Before long the snow will by flying, and shoppers will be ready to hit the stores before work, on their lunch hours, and late into the evening. The very brave will hit the doorbusters. Is your business ready for the onslaught?

By now you’ve already employed your seasonal hires and the inventory is waiting in the warehouse. But just in case you haven’t reviewed your to-do list lately, our Retail Practice Group has assembled a five-point checklist to help your operation run smoothly at year end, whether you’re a retailer, landlord or service provider. And it may just give you a head start on 2015.

Technology and Infrastructure

IBM predicts a record year for mobile shopping, in some cases replacing the rush to stores on Thanksgiving. If the trend continues, companies will need to invest in ongoing infrastructure upgrades to support the increased online traffic. This is a good time to check with your IT department to ensure that all necessary vendor agreements are in place and that you have sufficient capacity and data security measures. In addition, learn what measurement systems are in place so you can monitor the traffic and plan ahead for necessary upgrades.

Employing Seasonal Workers

The outlook is good for seasonal workers and not just in retail. Many companies seeking to close out the year will look to bolster their permanent staff with temporary resources. If your company has extra hands on deck this winter, check to be sure that your human resources policies and procedures for this category of employee are up-to-date. Also, with the elections just behind us, be sure you are prepared to comply with state minimum wage increases and any other changes to employment laws.

Supply Chain Management

As frazzled retail workers try to keep the warehouses full of the “it” toy every year, check on your supply chain. How tight is it? Be sure that all goods – whole or component parts – are legitimate. Ensure that all your business partners commit to genuine, top-notch service and supplies, just as you do.


Although we know foot traffic continues to wane, there are still places shoppers will frequent during the season. Some outlets, such as quick-service restaurants and coffee shops, are using mobile applications to drive foot traffic. If the ground floor of your office tower or the corner of your mall has that all-vital java stop for tired shoppers, be sure that your IT infrastructure can handle the mobile technology. Once shoppers are in the store, provide a safe and secure customer experience by making sure your facilities team complies with all health and safety requirements. Busy season is no time to slack on these items.


And finally, there’s nothing like a disgruntled customer during the holiday rush. It puts stress on the floor employees, burdens your customer support department, and damages your brand. So take a moment to make sure your advertising claims (not just advertisements, but fliers and direct mail too) are not only compliant but easy-to-understand and welcoming to the customer.

You may have addressed most if not all of our checklist items much earlier in the year. But it’s not too early to think about 2015 and make sure that the foundations you have in place now set you on an even better path for next year. Happy retailing!

ICSC 44th Annual US Shopping Center Law Conference Recap: Something for Everyone

Posted in Retail

Last week, the International Council of Shopping Centers hosted its 44th annual U.S. Shopping Center Law Conference in Orlando, Florida from October 22nd – 25th. It saw an incredible turnout of approximately 1,430 attendees and included over 75 sessions and 100 roundtables, along with several networking opportunities and receptions. The sessions covered a wide range of topics from financing to joint ventures, mixed use projects and risk management. While the retail industry remains in a state of change, topics focused on issues related to the impact of the internet on bricks and mortar retailing, redeveloping or de-malling, and creative re-use of anchor boxes. Saturday featured the leasing symposium, which included many hot topics in the retail leasing world.

ICSC tapped over 155 industry speakers, from in-house counsel to consultants in the industry to practitioners in private law firms. Many of the sessions offered opportunities for discussion with the panelists. In particular, the peer to peer sessions present a more in-depth look at a topic and are therefore attractive to the more experienced practitioner. Another favorite for most attendees are the breakfast roundtables-too bad they start so early!! This year the roundtables covered practical topics, such as issues in conforming leases, as well as more general topics on SNDAs and exclusives. Because the roundtable format is conducive to group discussion, it offers a great opportunity to meet and learn from other attendees’ experiences.

The conference also featured a number of sessions and networking opportunities for first time attendees and younger practitioners. While the conference is large, one of its primary goals is to present opportunities to meet others working in the industry. With most communication happening through email and other forms of social media, the opportunities to meet opposing counsel, co-counsel and other players in the industry can be few and far between. While all these methods of communication can bring deal efficiency, there is often nothing more helpful to a difficult issue than a personal relationship. The law conference makes those kinds of connections possible.

Overall, the mood at this year’s conference was very upbeat. Gone were the sessions on troubled deals, foreclosure and rent relief. Sessions were filled to capacity focusing on new construction, re-purposing centers and moving forward in this new economy. This year’s law conference was a huge success, and anyone involved in the business of shopping center leasing and development understands that this venue offers a one of a kind opportunity to stay abreast of the hot-button topics in the industry, as well as allowing a wonderful environment to facilitate new and existing relationships among those that attended.

Next year’s law conference will be October 28-31 in Phoenix, Arizona. Mark your calendar. It is sure to be another great event.

What’s The Buzz Over Drones?

Posted in Retail, Technology

Technology has rendered irrelevant the longstanding debate over whether good fences make good neighbors. Authorities in New Jersey recently arrested a man after he shot down a neighbor’s drone that was flying above his property and recording pictures of his home. The law frowns on self-help, however, especially when it involves the discharge of a firearm in a residential neighborhood.

Although the Garden State all too often finds itself at the forefront of legal and cultural controversies, the growing debate over Unmanned Aerial Vehicles (UAVs)—better known colloquially as “drones”—is a nationwide phenomenon. The New Jersey incident followed an odd effort by a Colorado town to authorize drone-hunting licenses with bounties; a Montana Congressional candidate’s campaign video featuring him shooting down a government drone; and a Utah firearms company’s promotional video featuring the exploits of the eponymous “Johnny Dronehunter” character. The growing popularity and sophistication of UAVs all but guarantees future collisions of property, criminal, and privacy law issues with the application of Second Amendment rights.

These unanswered legal questions parallel the legal ambiguities with commercial UAV use. The ability to operate a relatively inexpensive aerial vehicle mounted with powerful cameras and sensors has unlimited business applications. Drones have been deployed for filming marketing and advertising videos; for inspecting land, construction sites, buildings, and other infrastructure; for agricultural purposes; for news media coverage; and for short-range deliveries of medication. Mega-retailer Amazon.com made news last year with plans to develop a drone-delivery service, and a start-up in San Francisco is working on a taco drone-delivery service called the TacoCopter. Even Martha Stewart has joined the ranks of drone owners.

Despite the growing commercial interest in UAVs, the Federal Aviation Administration (FAA) maintains the position that commercial uses of UAVs are prohibited. At the moment, so-called “Civil Operators” are limited to using UAVs for research and experimental purposes. Mostly academic institutions and defense contractors have obtained permission from the FAA under this exemption, although some commercial businesses have sought permission as well. For example, ConocoPhillips received permission to fly UVAs for mammal surveys, for ice surveys, and to aid oil-spill response teams in Alaska. This limitation to research and experimental purposes greatly limits the permitted uses of UAVs and limits the growth of innovative businesses that could otherwise incorporate UVA capabilities into their products and services.

All is not lost, but merely delayed. The FAA is working on proposed regulations for the commercial use of UAVs. These regulations were required by September 2015 under the FAA Modernization and Reform Act of 2012, but reports indicate that the FAA will miss that deadline. In the meantime, the FAA has issued cease-and-desist letters to businesses using UAVs. The FAA’s limited personnel and resources means that many businesses have decided to take the risk of using UAVs for commercial applications despite the uncertain legality.

There is an interesting case pending that may provide grounds for immediate commercial use. The FAA fined a well-known commercial UAV operator for recording aerial footage of the University of Virginia for an advertising campaign and the operator decided to fight the fine. An administrative law judge agreed with the operator’s arguments and dismissed the FAA’s enforcement action. The judge found that the UAV in question did not qualify as an “aircraft” under FAA regulations. The judge also found that the FAA did not have regulatory authority to prohibit commercial UAV use because the FAA had not followed the required rulemaking process. See Administrator v. Pirker, FAA Case No. 2012-EA-210009, NTSB Docket No. CP-217 (2013). The FAA has appealed this decision to the National Transportation Safety Board (NTSB). A decision from the NTSB in the Pirker case may provide interim permission to operate UAVs until the FAA issues formal regulations.

It seems only a matter of time until companies are permitted to make commercial use of the exciting capabilities that UAVs offer. For the time being, however, retailers and other businesses are cautioned against using UAVs for commercial applications until the FAA issues commercial-use regulations.

Who Is Alice and Why Is She Invalidating Patents?

Posted in Intellectual Property, Retail, Technology

On June 19, 2014, the Supreme Court issued its decision in Alice Corporation Pty. Ltd. v. CLS Bank International, clarifying what it means to be patentable subject matter. With one stroke of the pen, the Supreme Court effectively invalidated thousands of patents that claim a known business method implemented by a computer. The effect of this ruling is already having a significant impact on online businesses. In the retail industry in particular, the affected patents can be found everywhere—from software running an online purchasing platform, to tracking inventory and shipping, to enabling detailed virtual product viewings, to online shopping cart functionality. Moreover, the retail industry is a target for Patent Assertion Entities (PAEs), also known as “Patent Trolls,” which own many of the patents Alice may have invalidated. In the few months since the Supreme Court’s Alice decision, courts have been invalidating patents and the number of patent cases filed compared to this time last year have decreased.

Alice Takes Aim at “Abstract Ideas”

In Alice, the Supreme Court held that a patent claiming a previously known method implemented by a computer, without more, is merely an “abstract idea” not entitled to patent protection under 35 U.S.C. § 101.

Alice Corp., a PAE, sued CLS Bank, which developed and utilized a computer system Alice Corp. claimed infringed its patents claiming a method of investment trading utilizing an intermediary to mitigate risk. The Supreme Court held that “the claims at issue amount to ‘nothing significantly more’ than an instruction to apply the abstract idea of intermediated settlement using some unspecified, generic computer,” noting that, “[u]nder our precedents, that is not enough to transform an abstract idea into a patent-eligible invention.” The Supreme Court added that “[s]imply appending conventional steps, specified at a high level of generality, to a method already ‘well known in the art’ is not enough to supply the ‘inventive concept’ needed to make this transformation.”

The Impact of Alice

Less than a week after the Supreme Court’s decision, the USPTO issued patent examination guidelines instructing patent examiners how to evaluate computer-implemented method patents in light of Alice.

Less than a month after the Alice decision, the U.S. Court of Appeals for the Federal Circuit (CAFC)—the federal court that hears appeals of all patent cases—began invalidating patents in light of Alice. On July 11, 2014, the CAFC affirmed a California federal court’s decision to invalidate digital camera patents asserted by a subsidiary of Acacia (the most litigious PAE in 2013) against several retailers, noting that “[a] process that employs mathematical algorithms to manipulate existing information to generate additional information is not patent eligible.” On August 26, 2014, the CAFC affirmed a Michigan federal court’s decision invalidating patents claiming computer management of bingo games, noting a “straight-forward application of the Supreme Court’s recent holding in Alice” mandated invalidating the patents. One week later, the CAFC affirmed a Delaware federal court’s decision to invalidate patents claiming “methods and machine-readable media encoded to perform steps for guaranteeing a party’s performance of its online transaction,” noting “[t]hat a computer receives and sends the information over a network—with no further specification—is not even arguably inventive.”

In a striking example of Alice’s impact, Lumen View Technology (a heavily litigious PAE), voluntarily dismissed an appeal on September 12, 2014 from a judgment invalidating its patent claiming a “system and method for facilitating bilateral and multilateral decision making,” noting that Alice “has provided greater clarity on patentability.” Additionally, reports indicate that the number of new patent cases filed in September 2014 dropped 40% from September last year.

Audit After Alice

The retail industry utilizes and often owns computer-implemented method patents. While audits of owned and licensed intellectual property portfolios should be a routine part of any retail business, now is a good time to conduct such an audit. Any patents being licensed by retail businesses, especially online business method patents, should be reviewed to determine whether continuing to license such technology remains a worthwhile investment in light of Alice. Moreover, any computer-implemented method patents that are currently or are being considered as part of a lawsuit or settlement should be re-evaluated in light of Alice.

Building Brand Equity: Crowdfunding and the Retail Industry

Posted in Finance, Retail

Ask anyone who follows innovation what topics are hot and it is likely most of them will say “crowdfunding.” By now, sites like Kickstarter and IndieGoGo have created thousands of loyal followers. In recent months even the real estate industry has entered the scene.


What is Crowdfunding?

Crowdfunding involves the use of the internet and social media to raise equity or debt capital, typically from a large number of investors, each of whom chooses to invest a relatively small amount. Typically crowdfunding can take two forms: private crowdfunding, through which private entities seek to raise capital from individuals who qualify as “accredited investors” under regulations of the Securities and Exchange Commission (SEC); or public crowdfunding, through which public offerings registered with the SEC are marketed primarily to retail investors.

Crowdfunding has potential to change the way a lot of industries work. In real estate crowdfunding, providers and consumers of equity or debt capital can join to finance specific investments or investment entities. (See our recent post on crowdfunding in real estate.)

Its impact will undoubtedly be felt across the retail industry. In a selective pool of crowdfunding sites culled by Entrepreneur magazine contributor Sally Outlaw, four of the top ten crowdfunding sites have some type of retail industry application.


Crowdfunding’s Ripple Effects Through Retail

Why does crowdfunding have such potential to impact retail?

First, crowdfunding otherwise democratized the process for entrepreneurs who may not be able to make their way into the Shark Tank. Rather than dipping solely into personal savings or a securing a line of credit, anyone looking to lease larger space, hire more staff, purchase equipment or create more inventory can now raise capital from more than just friends and family. It also allows midsized brands (of which there are many in retail) the opportunity to grow more quickly. Vehicles like CircleUp help mid-market companies too small for private equity and too large for commercial banks the opportunity to flourish.

Next, since crowdfunding opens the doors to anyone as a potential investor, it allows participants to target money to businesses in which they truly believe. The success of the brand will not just generate a profit but offer the investor a deeper level of engagement with the brand. Crowdfunding turns that pool of “interested parties” or “loyal customers” into valuable stakeholders who can really become brand ambassadors.


Where are We Headed?

While gaining in popularity, as with any new platform, there’s more validation to be done. An article in The New York Times recently described some ethical issues raised by asking already-paying customers for more money. There is a potential big reward, but some risk too, in using crowdfunding to boost brand equity. Entrepreneurs and business owners will need to assess the readiness of their potential investor base and their own willingness to assume that risk.

Regardless of industry, crowdfunding is here to stay. Whether you’re an investor looking for a worthy cause or a passionate purveyor of unique goods, growing a business could be as close as a click of the mouse or a swipe of the tablet.


Release of the iPhone 6 — Is Apple Riding the Security Wave?

Posted in Banking, Retail, Retail sales, Risk Management, Technology

Another month brings another reported massive data breach. On September 8, 2014, Home Depot confirmed that its payment data systems had been breached, potentially impacting customers using payment cards at the retailer’s US and Canadian stores beginning in April 2014. The breach was purportedly aided in part by a new variant of the malicious software program that stole card account data from Target last December. Analysts immediately hypothesized that the breach could be much bigger than the attack on Target, which resulted in the reported theft of 40 million payment card numbers and another 70 million customer records. On September 18, 2014, Home Depot confirmed that hypothesis and announced that 56 million cards may have been put at risk as a result of the breach.

As the system of exchanging sensitive data through the use of payment cards has proven to be more and more vulnerable to security breaches, it is timely that Apple recently announced an addition of Apple Pay to the next version of the iPhone. Apply Pay, which will be launched in October, reportedly will enable iPhone 6 and 6 Plus users to leave their credit cards at home and make purchases by using their cell phones via a “tokenization” scheme endorsed and recognized by major financial services companies. Through this process, instead of storing a cardholder’s actual credit card number on the device, another account number will be generated by the device to identify the user. This account number (i.e. token number) is then stored on an encrypted chip within the iPhone called the “Secure Element” and is transmitted during a transaction through a Near Field Communication (NFC)-enabled credit card terminal to the merchant and bank to identify a user for payments.

Analysts and bloggers anticipate that Apple Pay will make the breakthrough as not only a more efficient method of shopping, but as more secure than today’s credit card process. Unlike in a conventional credit card transaction where a user’s identity and credit card information are visible to merchants processing the payment, a user’s actual credit or debit card numbers are not shared with merchants or transmitted with payment through Apple Pay. Apple states that it does not store users’ credit card information on the Apple servers or retain any transaction information.

In an interview with Bank Innovation, Jorn Lambert of Master Card said that Apple has additionally erected “some Chinese walls” to prevent Apple from gaining access to payment data. As an added layer of protection, consumers will also be required to authenticate their identity through the Touch ID fingerprint sensor of their devices against the fingerprint copy stored like the credit card information on the Secure Element of each iPhone – effectively the same two-step process used in chip-and-PIN credit card transactions in Europe and Canada.

Notwithstanding the promising security features of Apple Pay, questions naturally remain about the ability of hackers to get around the unique Apple Pay security features. Moreover, it is unknown whether merchants — who may already be spending money on upgrading to EMV –enabled point of sale terminals in anticipation of the liability shift in October 2015 when merchants will be more exposed to liability for fraudulent transactions if they cannot accept a customer’s EMV chip card –will equip themselves with the NFC terminals. While only time can tell whether Apple Pay will offer consumers a truly “more secure” method of shopping, the hype around this payment platform combined with the public’s excitement about Apple products will certainly test the level of consumer loyalty to the conventional routine of swiping a credit card at checkout.

Adaptive Reuse: Boom or Bust?

Posted in Development, Environmental, Green, Real Estate, Retail

Adaptive reuse of older, unused, or under-used buildings is considered by many to be an important component of sustainable and environmentally-friendly development. Also, adaptive reuse is a concept that governmental officials, many developers, and some communities have embraced to revitalize older neighborhoods suffering from abandonment or general decline. Adaptive reuse may be the draw for residents and patrons as an inviting use of a cultural or historic resource, but it also may be a costly endeavor that outweighs the benefits. Regardless, renovating and re-using older buildings can be much more expensive than razing them and constructing new, even if there are significant environmental benefits from adaptive reuse. On the other hand, some evidence shows that it pays to reuse existing buildings because of the building character, the location, the savings from using an existing structure, and the government incentives for adaptive reuse. Therefore, the concept of adaptive reuse presents a complex array of questions about cost, urban character, history, and the environment that governmental officials, developers, communities, and potential new residents/tenants must consider. One of the largest questions that may confront any developer is that of regulation: adaptive reuse may present many challenges different from new construction.

One of the primary regulatory challenges that any developer contemplating adaptive reuse may encounter is historic preservation. Historic preservation laws are intended to ensure protection of historic buildings from unregulated alteration or demolition. Historic preservation laws and regulations, in some form, exist in every state in the United States, but they are typically administered at the local level. Historic preservation laws can range from providing incentives to encourage reuse of historic buildings to a strict review process for any developments that plan to alter historic buildings. The federal government offers tax incentives to developers that rehabilitate historic properties. Many local jurisdictions, like Boston, New York, and Washington, D.C. have robust historic preservation laws that establish regulatory bodies and allow for the designation of individual historic landmarks and historic districts. These jurisdictions also have regulations for the alteration and/or demolition of historic buildings. Because of their location or character, many buildings targeted for adaptive reuse are protected under historic preservation laws, so a developer may have to invest additional time and money into the process for allowing a building to undergo renovations consistent with applicable historic laws and regulations.

While adaptive reuse may promote many environmental benefits, a developer converting an old building into a modern and useable structure may confront multiple environmental regulatory challenges. Old buildings may contain hazardous materials that must be removed to comply with modern environmental standards. Each jurisdiction has laws about how hazardous materials must be handled when renovating an existing building for adaptive reuse. In addition, jurisdictions may have “green” or sustainable development laws that apply to reuse of existing buildings. In Washington D.C. for example, the extensive renovation of an existing building may trigger requirements for on-site storm water retention and a required minimum amount of on-site vegetation or green roof.

Finally, adaptive reuse of a building may invoke additional regulatory consideration concerning building structure and systems. Renovating a building for adaptive reuse may require compliance with modern building and fire codes, and the Americans with Disability Act.

Nevertheless, adaptive reuse has the potential to help revitalize neighborhoods and to promote sustainable development. The appeal of the unique character and history of adaptive reuse may be a worthwhile investment for a developer. However, these benefits have to be weighed against the regulatory costs associated with re-purposing existing buildings. Developers should consult counsel when deciding whether the benefits of adaptive reuse outweigh the potential regulatory costs and challenges.