Best Best & Krieger News Feed

Joe Coomes: There at Creation

20 Oct 2016 00:00:00 -0800

Best Best & Krieger LLP attorney Joseph E. Coomes, Jr. was featured in Sacramento Magazine’s “New Era” publication, commenting on downtown Sacramento’s Golden 1 Center multi-purpose indoor arena and home of NBA’s Kings franchise.

Click here to read full article in the supplement.

New and Improved Funding Tools for Projects

14 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Seth Merewitz will serve on a panel discussing "New and Improved Funding Tools For Projects" at The Seminar Group’s one-day conference, Tools for Economic Development in California.

Seth's panel will discuss the effects of new economic and policy shifts in California on cities and developers interested in creating successful revitalization projects, and using new economic development tools to create successful real estate and infrastructure projects that help communities thrive.

When
Wednesday, Sept. 14
10:30 - 11:45 a.m.

Where
Aon Center
707 Wilshire Boulevard
Los Angeles, CA 90017

For more information or to register, click here.

BB&K Attorney Joseph E. Coomes, Jr., Pioneer of Redevelopment, Contributes to ULI’s Public-Private Partnerships Report

09 Sep 2016 00:00:00 -0800

For Immediate Release: Sept. 9, 2016
Media Contact: Denise Nix • 213-787-2552 • denise.nix@bbklaw.com

SACRAMENTO, Calif. - Best Best & Krieger LLP attorney Joseph E. Coomes, Jr., who pioneered the successful market-based use of redevelopment in California and other states, is a contributing author and editor of the newly released Urban Land Institute’s “Successful Public-Private Partnerships: From Principles to Practice.”

The report, which was overseen by ULI’s Public-Private Partnership Council and funded by the ULI Foundation, discusses the challenges and opportunities associated with creating successful P3s in today’s economic environment. It builds on ULI research originally published more than a decade ago that identified the core principles essential for effective joint development projects.

Coomes, a frequent and long-time contributor to ULI publications on P3s, redevelopment and development, is credited with creating the development and financing model, among other innovations, that enables major retailers to return to downtowns they once abandoned for the suburbs. He has negotiated some of the largest and most difficult urban mixed-use redevelopment projects in California, including San Francisco’s Yerba Buena Gardens and downtown San Jose’s Silicon Valley Financial Center. He was one of the first to negotiate closures and reuses of military bases, allowing for private developers to work with public agencies to create residential, mixed-use and urban redevelopment projects.

“Joe’s contributions to this important and practical report will be tremendously useful to both public agencies and private investors,” said BB&K Partner Seth Merewitz, chair of the firm’s Public-Private Partnership group.

The report identifies the top challenges to creating successful P3s and the three most common types of P3s. It also provides a toolkit of best practices, which includes several examples of successful projects.

To see the full report, click here.

###

Best Best & Krieger LLP is a national law firm that focuses on environmental, business, education, municipal and telecommunications law for public agency and private clients. With 200 attorneys, the law firm has nine offices nationwide, including Indian Wells, Los Angeles, Sacramento, San Diego and Washington, D.C. For more information, visit www.bbklaw.com or follow @BBKlaw on Twitter.

Sweeping Six-Case Win For Water District Helps Secure Orange County’s Water Supply

24 Aug 2016 00:00:00 -0800

California and water: the two always have been, [and] always will be, inextricably linked. No resource is as vital to California’s urban centers, agriculture, industry, recreation, scenic beauty, and environmental preservation as its liquid gold.
~ Ramon Llamas & Emilio Custodio, Intensive Use of Groundwater: Challenges and Opportunities 1, 280 (2003).

In early May, the Fourth District Court of Appeal took an important step toward helping to secure Orange County’s water supply. It issued several opinions in response to challenges to a proposed public-private partnership project that seeks to pump groundwater, which would otherwise evaporate, from an aquifer in the Mojave Desert to agencies throughout Southern California. The victory for the Santa Margarita Water District (the District) was the result of years of hard work, consultation, and cooperation among various private and public entities and interests throughout the environmental review process, which resulted in the approval of a beneficial public project (the Project) that will serve Southern California citizens for decades to come.

Project Background
Cadiz Inc. is a private corporation that owns approximately 34,000 acres of land in the Cadiz and Fenner valleys in eastern San Bernardino County. Despite the location in the heart of the desert, underlying the land is a vast groundwater basin that holds an estimated 17-to-34 million acre-feet of fresh groundwater. Within this closed basin system, groundwater percolates from higher elevations and eventually flows to Bristol and Cadiz dry lakes. Once the fresh groundwater reaches the dry lakes, it evaporates—first mixing with the highly saline groundwater zone under the dry lakes so that the water is no longer fresh, suitable, or available to support freshwater beneficial uses.

In the interest of preventing the waste of a beneficial water source, Santa Margarita Water District worked in collaboration with Cadiz to develop a creative, comprehensive, and long-term groundwater management program for the basin. Under the groundwater conservation and recovery component of the Project, an annual average of 50,000 acre-feet of groundwater would be pumped from the basin over a fifty-year period. The water would then be transported via a forty-three-mile underground water conveyance pipeline to the Colorado River Aqueduct, where it would be transported to the District and other participating agencies.

Environmental Review and Project Approval
In March 2011, the District posted a notice informing the public that a draft Environmental Impact Report would be prepared under the California Environmental Quality Act. In June 2011, San Bernardino County, Cadiz and the District executed a Memorandum of Understanding that provided that the District would act as the designated lead agency for purposes of completing the Environmental Impact Report (EIR). The District and its legal counsel (Best Best & Krieger LLP), worked to produce an EIR that analyzed the Project’s potential environmental impacts, while also ensuring that the EIR was legally defensible in all respects. On July 31, 2012, the District certified the final EIR and approved the Project.

The Lawsuits and Successful Defense in the Trial Court
Shortly after the District approved the Project, numerous lawsuits were filed challenging the Project.[1] The Center for Biological Diversity, the San Bernardino Valley Audubon Society, the Sierra Club and the National Parks Conservation Association, among other groups, filed several petitions for writ of mandate, challenging the Project under CEQA as well as compliance with county requirements. Some of the arguments that were raised by these groups included:

the District was improperly designated as the lead agency for the Project;
the EIR’s project description was inaccurate and misleading;
the EIR was misleading because it did not provide an accurate duration for pumping; and
the Project would pump more water from the aquifer than contemplated by the EIR.

A private party, Delaware Tetra Technologies, Inc., also filed legal challenges against the Project. Delaware Tetra operates brine-mining facilities at the dry lakes, producing calcium chloride brine and sodium chloride salt. Delaware Tetra filed several petitions for writ of mandate challenging, among other actions, the District and the County of San Bernardino’s execution of the MOU designating the District as lead agency, the adequacy of the EIR, and whether the county followed applicable county requirements.

The trial court ultimately denied all of the petitions and ruled for the District, the county and Cadiz on all causes of action. The petitioners appealed the trial court’s rulings.

The Court of Appeal’s Review and the District’s Victory
On May 10, the court of appeal affirmed the trial court’s rulings and denied all of the petitions in a series of partially published and unpublished decisions. In evaluating the claims, the court of appeal considered whether the designation of the District, versus the County of San Bernardino, as lead agency for the Project violated CEQA. Under CEQA, the “lead agency” for a project is usually the “public agency which has the principal responsibility for carrying out or approving a project.” Pub. Res. Code § 21067; Cal. Code Regs., tit. 14, § 15051(a), (b). Here, the environmental groups and Delaware Tetra argued that the County of San Bernardino should be the lead agency for the Project, in part because the groundwater would be pumped from the county.

Rejecting this argument, the court of appeal considered State CEQA Guideline section 15051, the guideline that governs the designation of lead agency under CEQA, and held that where an agency is contemplating partnering with a private entity, “the agency that will serve as lead agency for purposes of the environmental review . . . may be (1) the public agency that is part of the public/private partnership, or (2) the public agency with the greatest responsibility for supervising or approving the project as a whole.” Center for Biological Diversity v. County of San Bernardino, 247 Cal. App. 4th 326, 340 (2016).

Therefore, the District “was correctly designated as the lead agency for the Project under either prong of this test.” Id. The court reached this conclusion based on the District’s involvement in the cooperative partnership with Cadiz in implementing, overseeing, and carrying out the Project. In particular, the court emphasized the District’s day-to-day responsibilities for managing, operating, and maintaining the Project, as well as its obligation to obtain financing for the costs of operation.

In addition, the court held that the parties had appropriately designated the District as lead agency by agreement. Where two or more public agencies will be involved with a project and each has a “substantial claim” to serve as lead agency, CEQA provides that the parties “may by agreement designate an agency as the lead agency.” Cal. Code. Regs., tit. 14, § 15051(d). Here, the parties had entered into an MOU that designated the District as lead agency, which the court found appropriate given the District’s substantial authority over the Project “as a whole.” Center for Biological Diversity, 247 Cal. App. 4th at 343-44. As a result, the court held that the District had appropriately been designated as lead agency. The court also found that the EIR fully complied with CEQA. Id.

With regard to Delaware Tetra’s claims regarding the approval of the MOU, the primary claim related to whether the District and the county should have completed environmental review before approving the MOU. Resolving this issue turned on whether the approval of the MOU constituted a “project” under CEQA. A “project” within the meaning of CEQA is a discretionary activity by a public agency “which may cause either a direct physical change . . . or a reasonably foreseeable indirect physical change in the environment” Pub. Res. Code § 21065. As the impetus for several other necessary governmental approvals, Delaware Tetra argued that the MOU was a “core component” of the Project for which CEQA review was required. Delaware Tetra Technologies, Inc. v. County of San Bernardino, 247 Cal. App. 4th 352, 362 (2016).

The court of appeal disagreed, finding in part that the MOU expressly reserved “all discretionary authority to approve, deny, or condition the [Project]” pending the completion of environmental review. Id. Thus, environmental review prior to MOU approval would have been premature.

Finally, in related cases, the court of appeal found that the county had complied with its requirements prior to taking action on the Project.

Conclusion
As public agencies continue to search for drought resilient water supplies, this case represents a major victory for both the District and the citizens of Orange County. In addition, it provides an excellent example of how public and private entities may coordinate to ensure that public infrastructure projects are successfully navigated throughout the regulatory and litigation processes to completion.

ENDNOTE
(1) Center for Biological Diversity et al. v. County of San Bernardino et al., Orange County Superior Court Case no. 30-2012-00612947; Center for Biological Diversity et al. v. County of San Bernardino et al., Orange County Superior Court Case no. 30-2012-00633936; Delaware Tetra Techs., Inc. v. Santa Margarita Water District et al., Orange County Superior Court Case no. 30-2012-00636391; Delaware Tetra Techs., Inc. v. County of San Bernardino et al., Orange County Superior Court Case no. 30-2012-00594355; Delaware Tetra Techs., Inc. v. County of San Bernardino et al., Orange County Superior Court Case no. 30-2012-0056715; Delaware Tetra Techs., Inc. v. County of San Bernardino et al., Orange County Superior Court Case no. 30-2013-00635215.

Michelle Ouellette is a partner in Best Best & Krieger LLP’s Environmental Law & Natural Resources practice group. Her practice emphasizes the California Environmental Quality Act, the National Environmental Policy Act, and state and federal endangered species laws. She can be reached at Michelle.Ouellette@BBKlaw.com.

###

This article originally appeared in the August 2016 edition of Orange County Lawyer magazine, a publication of the Orange County Bar Association. Reprinted with permission.

Long Beach's New City Hall Will be Privately Owned Under Complex Deal

11 Jul 2016 00:00:00 -0800

Long Beach city officials broke ground for the construction of a new city hall and extensive new civic center Friday, one that will be designed, built, maintained and even owned by a private company.

With its $530 million price tag, Long Beach's new Civic Center is one of the largest of a growing number of major public construction projects in Southern California created via a public private partnership, or P3, deal.

Putting so much fiscal, design and long-term management in the hands of private companies is seen by advocates as shifting the financial uncertainties of big construction projects to the private sector, even though they don't necessarily reduce the cost of building.

Plenary-Edgemoor Civic Partners will front the money to build City Hall, a new library and a headquarters for the Port of Long Beach on property near the existing city hall. The project will remake the adjacent downtown Lincoln Park, and include parcels for profit-making enterprises including homes, shops and restaurants.

"Los Angeles has become the hub for public-private partnerships," said Los Angeles attorney Seth Merewitz, a partner with Best Best & Krieger whose practice represents developers and governments in P3 deals. Big agencies like the Los Angeles Metropolitan Transportation Authority and the city of Los Angeles are considering projects.

"The upside opportunity for the developer is monetizing the land that's in the deal for future development."

…

These P3 deals can help cities provide public buildings and important structures like convention centers, roads and water treatment plants without actually having to be in the business of operating buildings or complicated plants. That function is hired out to a for-profit entity.

Merewitz said a new wastewater treatment plant in Santa Paula in Ventura County was an example of a P3 that worked well. "That project was delivered ahead of schedule, below budget and was operated very efficiently."

Read the entire article, originally published July 9, 2016 by 89.3KPCC, by clicking here.

Public-Private Partnerships and Innovations in Placemaking

15 Jun 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Seth Merewitz will moderate a panel titled, “Public-Private Partnerships and Innovations in Placemaking,” during the Urban Land Institute's June StimULI breakfast. The panel will discuss the variety of ways public and private sectors are evaluating and utilizing various Public-Private Partnership (P3) models to deliver public projects in new and innovative ways.

The panel is comprised of:

Amy Bodek, Director of Development Services, City of Long Beach
Korin Crawford, Office of the City Administrative Officer, City of Los Angeles
Jeffrey Fullerton, Director, Edgemoor Infrastructure and Real Estate
Orion Fulton, Senior Manager, ARUP

When
Wednesday, June 15
7:30 – 9 a.m.

Where
Gensler
500 South Figueroa St
Los Angeles, CA 90071

For more information or to register, click here.

BB&K Secures CEQA Appellate Victory in Water Project

13 May 2016 00:00:00 -0800

A team of Best Best & Krieger LLP attorneys, led by Partner Michelle Ouellette and including Sarah Owsowitz and Jennifer Lynch, helped to secure a sweeping appellate victory against six lawsuits challenging a proposed water transfer public-private partnership project. The Fourth District Court of Appeal upheld the project on May 10, 2016, finding that challenges brought under CEQA and other laws lacked merit.

The attorneys represent the Santa Margarita Water District, which is partnering with private landowner, Cadiz, Inc., to pump fresh groundwater from an aquifer in the Mojave Desert. The water would otherwise become unusable after mixing with highly salinated brine water and evaporating. The project will prevent the waste of water and transport it to water customers in Los Angeles, Orange, Riverside, San Bernardino and Ventura counties.

Lawsuits alleged the project was improperly approved under CEQA, and claimed the District was wrongly designated as the project’s lead agency. San Bernardino County’s approval of the project was also unsuccessfully contested. In a detailed analysis, the appellate court rejected the challenges — thus bringing the project closer to fruition at a time when the region is desperate for innovative projects like these to boost water supplies.

Read More

Sweeping Six-Case Win for Water District

11 May 2016 00:00:00 -0800

A proposed public-private partnership project to pump fresh groundwater, which would otherwise evaporate, from an aquifer in the Mojave Desert was upheld by a California Appellate Court on Tuesday. The project, a partnership between the Santa Margarita Water District and a private landowner, is to prevent waste of the water in the aquifer, and ultimately to transport the water to customers throughout southern California.

The Fourth District Court of Appeal issued several opinions in response to challenges alleging the District was not the proper agency to carry out the project’s environmental review under CEQA and that the project’s environmental impact report deferred mitigation, failed to analyze the final version of the Groundwater Management Plan adopted by the County of San Bernardino and contained a misleading and inaccurate project description. The lawsuits also alleged that a memorandum of understanding between the District, the County and landowner Cadiz, Inc. executed before certification of the EIR violated CEQA and the County’s Groundwater Management Ordinance. The court held for the District, the County and Cadiz on each point.

In a robust analysis, the court determined that the District was the proper lead agency to oversee the project’s CEQA review. Setting forth a two-prong test for designating a lead agency when a project is undertaken through a public-private partnership, the court determined the District was the proper lead agency on two separate grounds. First, the District was jointly carrying out the project with the private property owner and, second, it was the agency with principal authority for approving and supervising the project as a whole.

The court also concluded the EIR accurately described the project as conserving water, given that the project will conserve water otherwise lost to brine and evaporation, and will improve water supplies throughout California. The court further found that the EIR did not defer mitigation, as the adopted mitigation measures adequately addressed the project’s significant impacts. It went on to rule that those portions of the Groundwater Management Plan that were not included in the draft EIR did “not constitute significant new information requiring recirculation of the EIR.”

Finally, the court determined that the MOU did not violate CEQA or the County’s Groundwater Management Ordinance because its approval was consistent with the Ordinance and was not a “project” under CEQA, as it did not commit the County to any activity with direct or indirect impacts on the environment.

Best Best & Krieger LLP attorneys were part of the legal team that secured this decision on behalf of the Santa Margarita Water District.

If you have any questions about this opinion or how it might impact your agency, please contact one of the attorney authors of this Legal Alert listed at right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @bbklaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Making the Partnership Work: Implementing P3s

08 Mar 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Seth Merewitz will moderate a panel discussion on "Making the Partnership Work: Implementing P3s" during the Public-Private Partnership Conference and Expo.

When
Tuesday, March 8
2:15 - 3:15 p.m.

Where
Sheraton Dallas Hotel
400 N. Olive St.
Dallas, TX 75201

For more information or to register, click here.

FAST Act Authorizes $305 Billion in Transportation Spending Over Five Years

17 Dec 2015 00:00:00 -0800

The Fixing America’s Surface Transportation Act, signed into law by Pres. Barack Obama, authorizes approximately $305 billion in federal highway and transit spending over the next five years for transportation projects. The Act provides much needed certainty for states, transit agencies and other local agencies to move forward with critical transportation infrastructure projects.

Below is a summary of some of the largest components of the approximately 1,300-page FAST Act, in addition to a more extensive breakdown of funding provided for in the Act.

Block Grants Surface Transportation Program: By converting the Surface Transportation Program to a block grant program, the Act seeks to increase state and local agency control over transportation decisions. The Act focuses a larger share of funding from the Surface Transportation Program toward more populated urban areas and establishes a Tribal Transportation Self-Governance Program under which Indian tribes may receive and administer transportation funds. Complementing the FAST Act, the Department of Transportation is also encouraging the use and development of advanced smart transportation technologies and transit-oriented development through grant programs and initiatives, as we recently discussed in a BBKnowledge post.

Funds Public Transit: It is estimated that $11.8 billion is authorized for programs administered by the Federal Transit Administration, with that amount rising to $12.6 billion in 2020. The FAST Act focuses on transit safety and ensuring a state of good repair for transit systems, in addition to providing funding for the Capital Investment Program administered by the FTA, which includes New Starts. However, the limitation that federal full funding grant agreements be limited to 60 percent is included in the Act.

Further, recognizing how costly vehicle procurements can be for transit agencies, the Act supports cooperative procurements. The FAST Act also establishes a pilot program for cooperative procurements to be administered by eligible nonprofit entities. In taking advantage of such opportunities, it will be important for agencies to review and understand the guidelines for such programs and make sure the necessary legal terms are included in any procurements and contracts.

Emphasizes Role of Rail and Freight Movement: The Act largely emphasizes the importance of our nation’s freight system and the existing strains that need to be addressed. The Act authorizes a new competitive grant known as the Nationally Significant Freight and Highway Projects program, which provides $800 million in funding for 2016, rising to $1 billion in 2020. Eligible applicants for the NSFHP grant include states or groups of states, municipal planning organizations for urban areas and public authorities with a transportation function, such as a port authority. Further, the Act provides resources for the continued update of the National Highway Freight Network.

Provides Clarity in Surface Transportation Project Financing: The Act encourages DOT to ensure all available funding mechanisms are being utilized for transportation projects. In furtherance of this goal, the Act establishes the National Surface Transportation and Innovative Finance Bureau to provide assistance and communicate financing and funding opportunities to eligible entities, and promote innovative financing best practices while reducing costs and risks to taxpayers in the construction and delivery of projects. With regard to large capital projects exceeding $1 billion, federal monies may not be obligated until an applicant demonstrates the ability to meet the non-federal share for the grant.

The Act also encourages the use of low-interest loans provided for rail projects through the Railroad Rehabilitation and Improvement Financing Program. Knowing the Act does not provide enough federal grant monies for all the projects necessary to provide the update and modernization needed to bring the country’s transportation infrastructure up to speed, we anticipate seeing an increase in use of such low-interest funding programs in the future, in addition to the increased use of public-private partnerships for the completion of future transportation projects.

Modernizes Project Delivery and Environmental Oversight: The Act continues the goals of streamlining the environmental review and permitting process, and eliminating duplicate reviews by allowing one lead agency to coordinate the environmental review process under the National Environmental Protection Act.

Embraces Continued Development of New Technologies: The Act continues to support research into the roll-out of autonomous vehicle technologies and requires the Department of Transportation to designate, within the next year, highway corridors where electric charging and hydrogen, propane and natural gas fueling stations and infrastructure should be built. The Act also adds the deployment of low- or zero-emission vehicles to the list of transportation projects eligible for research funding provided under the Act.

While there is always room for improvement and the need remains for a serious discussion on how to fund future transportation projects beyond 2020 (i.e. whether to raise the gas tax or implement a revenue creating alternative), the passage of the FAST Act is a welcome development for states, local governments, planning agencies and our transit providers.

Click here for more additional information on funding included within the Act.

Due to the size and breadth of the FAST Act, we look forward to providing more information on funding opportunities and issues that focus on the trends and best practices coming out of the many transportation and infrastructure projects that will be kicking off across the country. In the meantime, Best Best & Krieger’s transportation and infrastructure attorneys and Government Relations team look forward to assisting agencies in taking advantage of funding opportunities for transportation projects made possible by the FAST Act, assisting in successfully delivering projects, from planning and procurement to construction and project close-out, and helping communities prepare for the introduction of smart technologies, such as automated vehicles into our nation’s transportation network.
For more information, contact the author of this Legal Alert listed at right in the firm’s Government Relations Services group, or your BB&K attorney.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.