Best Best & Krieger News Feed

Ontario Goes to Court to Remove Abandoned Shipping Containers

29 Nov 2016 00:00:00 -0800

Representing the City of Ontario, Best Best & Krieger LLP Partner Richard Egger is helping the City in its effort to remove shipping containers from agricultural areas, where they are not allowed, the Inland Valley Daily Bulletin reports.

Richard gave an update on the litigation process, including some settlements that are in the works.

To see the full article, which was posted to dailybulletin.com on Nov. 26, 2016, click here.

Drought Policies, Price of Water Lands in Court

17 Nov 2016 00:00:00 -0800

A group of Hillsborough residents is suing the town over water rate hikes during the drought. Best Best & Krieger LLP attorney Kimberley Hood, representing the town, told the San Mateo Daily Journal: “I think agencies are trying to do the best they can to recoup their costs of service while complying with Prop. 218 and also trying to deal with an unprecedented period of drought.”

“The goal is just to make sure that you’re covering your cost of service and it’s always been clear since Prop. 218 that you can’t be making a profit,” she said. “But the courts have allowed some flexibility in how they [cover costs].”

Click here to read the entire article, which originally appeared in the San Mateo Daily Journal on Nov. 16, 2016.

Billboard Regulations: Cities and Counties

10 Nov 2016 00:00:00 -0800

The Outdoor Advertising Act does not preempt local regulation of billboards, a California appellate court has ruled. In a decision that carries major implications for the California billboard industry, the Second District Court of Appeal clarified in Arthur D’Egidio v. City of Santa Clarita that municipalities may enact billboard regulations that are more stringent than the Act and that a city may abate billboards in an annexation area where those billboards did not conform to county laws prior to annexation.

The billboard in question had originally conformed to the Los Angeles County sign ordinance as on-site advertising for a residential housing project. However, the sign was subsequently purchased by owners who committed the sign to general commercial advertising unrelated to on-site home sales. This new use did not conform to the County regulations at the time or to Santa Clarita’s regulations after the area was annexed. The sign’s owners argued that its non-conformance was irrelevant because section 5270 of the Act preempts all local regulation of freeway signs by providing that it is “exclusive of all other regulations . . . .”

The trial court granted summary judgment to the City in its billboard abatement lawsuit, finding no preemption of the City’s sign regulations. In a decision handed down Oct. 24, the Court of Appeal found that courts have interpreted this statutory provision inconsistently over the years. However, after an exhaustive review of section 5270’s legislative history and the Act’s overall structure, the D’Egidio v. City of Santa Clarita court held that “[d]espite [section 5270’s] statement of exclusivity, the Act also contains several provisions that authorize counties and cities to enact regulations or ordinances affecting the placing of billboards, imposing restrictions on advertising displays adjacent to any highway, or requiring permits and/or licenses for the placing of billboards in view of any highway.” Thus, section 5270 preempted neither the County’s nor the City’s billboard regulations.

The court also held that the City was not prevented from enforcing local sign laws against a non-conformity that began nearly 20 years ago, and it awarded the City attorney’s fees for its abatement efforts.

Here are three takeaways from this case:

Municipal billboard regulations may be more restrictive than those found in the Act.
Cities annexing billboards may apply city regulations to the billboards, subject to rules for amortization and related Constitutional constraints.
A billboard’s legality may depend on its conformance to county regulations at the time of its placement.

Regulations may take the form of zoning ordinances or sign permits, for example. Cities and counties should pay close attention to the conformity of signs to regulations at the time they are constructed, when new ordinances are adopted and at the time annexations occur.

Best Best & Krieger LLP advises numerous public and private entities on these and related issues throughout California and other states. If you have any questions about this case and how it may impact your agency or project, please contact the attorney author of this Legal Alert listed to the right in the firm’s Municipal Law 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.

Agua Caliente v. Coachella Valley Water District, et al.

29 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP Of Counsel Roderick Walston will discuss Agua Caliente v. Coachella Valley Water District, et al. at CLE International's Tribal Water Law's 5th Annual Conference.

Rod will discuss differing perspectives of this case with Mark Reeves of Kilpatrick Townsend & Stockton of Washington, D.C.

When
Thursday, Sept. 29
11 a.m. - 12:15 p.m.

Where
Caesars Palace
3570 S. Las Vegas Blvd.
Las Vegas, NV 89109

For more information or to register, click here.

BB&K Successful in Post-Redevelopment Case for City Client

28 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP partners Victor L. Wolf, Iris P. Yang and Danielle G. Sakai successfully represented the City of Fontana in challenging the California Department of Finance’s refusal to approve payments owed under a long-standing Owner Participation Agreement following the dismantling of redevelopment agencies. The decision, handed down in August, preserved the City’s ability to receive settlement payments under the OPA amounting to an estimated $50-$70 million over the next 15 years.

The legislation that dissolved redevelopment agencies in 2012 requires successor agencies to periodically file a Recognized Obligation Payment Schedule listing payments that are owed on the obligations that the successor agencies inherited from the dissolved redevelopment agencies. The ROPS must be approved by the successor agency’s oversight board and, ultimately, by the Department of Finance. The DOF disapproved the payments to the developer due under the OPA, preventing the developer from making settlement payments due to the City, on the grounds that the OPA violated public policy and other provisions of the Dissolution Law.

The OPA and its amendments were previously validated by the San Bernardino County Superior Court in four separate judgments pursuant to Code of Civil Procedure Sections 860, et seq. Despite these judgments and despite approving the OPA payments on seven previous ROPS, the DOF suddenly changed course. Following the precedent set in the recent ruling that Victor and Danielle secured in Macy v. City of Fontana 244 Cal.App.4th 1421 (2016), the trial court found that, because the OPA had been validated, it could not be challenged based upon the later-enacted Dissolution Law. As a result, the court held that the OPA constitutes an enforceable obligation and the DOF abused its discretion in refusing to approve the OPA payments.

The case is City of Fontana v. Michael Cohen, Director of Department of Finance, Sacramento County Superior Court Case No. 34-2015-80002138.

County Counsel Teamwork: The Exide Story

23 Sep 2016 00:00:00 -0800

By Robert Ragland

Justice: (1) the principle or ideal of just dealing or right action; (2) conformity to this principle or ideal

The concept of environmental justice is straightforward, the pathway to practical solutions are often circuitous. In the case of Exide Technologies, the road ahead looked tortuous. Exide was a battery recycling facility in the City of Vernon that had operated for 33 years on a temporary permit issued by the State of California. Because of its location and exclusive regulation by the State, it was outside the County’s jurisdiction. After it was determined that the Exide facility had been emitting a significant amount of hazardous waste into the air, including lead, arsenic, and benzene, the State notified Exide that it would not issue another operating permit. Exide, which had previously declared bankruptcy in Delaware, closed its doors in March 2015. The County was then faced with a particularly intractable problem of how to bring relief to the residents living near the facility.

Although Exide was no longer emitting dangerous chemicals, years of damage had already significantly impacted the surrounding communities, including Maywood and Boyle Heights. “The Exide chemicals have raised the cancer risk of tens of thousands of people around the Exide facility,” said Dr. Cyrus Rangan, Director of the County’s Toxics Epidemiology Program.

State and County officials determined that environmental testing of all residential properties within a 1.7 mile radius of the facility was needed. This area includes approximately 10,000 homes. Initial soil testing revealed that lead levels in soil around some of the homes were found to be high enough to characterize the yards as hazardous waste sites. Total cleanup costs were estimated to be as high as $400 million. Based on the State’s bankruptcy claim, Exide paid $9 million for cleanup with an obligation to pay just another $5 million in 2020. The State was able to assess and clean 170 homes before it ran out of funds. State assessment and cleanup efforts slowed to a trickle. The residents were outraged, as the State allotted only $8 million for cleanup in the 2016-17 budget. The problem was straightforward: How could the County and First District Supervisor Hilda Solis — acting as concerned citizens — bring relief to the impacted residents in a timely manner, while supporting the State in its efforts to hold Exide responsible for this environmental catastrophe?

The pathway for resolution was not straightforward. It involved the coordination of litigation strategy, public testimony before the Assembly, community messaging, legislative initiatives, and environmental field testing.

Early on, our County Counsel, Mary Wickham, realized the complexity of the issues presented. She assembled a team to support Supervisor Solis’ efforts to bring relief to the affected communities. The team was comprised of members of the Department of Public Health (DPH), the Chief Executive Office’s Legislative Advocates Office in Sacramento, outside counsel from Best Best & Krieger, representatives from the First District, and County Counsel attorneys. Each group contributed its experience and expertise to solve the continual and evolving challenges met by the team on its path.

The first challenge was to increase the pace of residential home assessment to determine the scope and severity of the contamination. In November 2015, the Board approved a $2 million funding request to hasten the assessment and cleanup of the contaminated soil in the 1.7 mile radius around Exide. This effort required the coordination of DPH’s outreach to residents to permit access to their properties, creation of a rapid soil testing protocol, and teams of certified lead specialists contracted to perform the testing.

Between February 29 and March 9, 2016, DPH assessed lead in soil on 500 residential properties. The testing was carried out by 12 three-person teams in Maywood, Commerce, and East Los Angeles. The teams tested properties at a rate of approximately 48 per day.

The next challenge was how to obtain more dollars for residential cleanup. The $8 million earmarked in the Governor’s budget was simply not enough. This key development took us to Sacramento. The Exide team needed to hold meetings with legislators, involve community members, strategize with its partners, and create public advocacy messaging in support of this goal. In January, Supervisor Solis, along with members of County Counsel’s Exide team, traveled to Sacramento to testify before the Legislative Committee on Environmental Safety and Toxic Materials. The Supervisor’s heartfelt testimony relayed the troubling stories of residents living with debilitating and permanent medical conditions. She and other legislators advocated for $70 million for accelerated residential cleanup efforts. The testimony of DPH Interim Director Cynthia Harding supported this “ask”, as DPH was providing access to care and specialized health screenings for the early identification and treatment of potential health problems caused by the Exide facility’s environmental contamination.

Shortly after the team’s return, Governor Brown proposed $176.6 million in spending to remediate the Exide contamination. In recognition of this extraordinary result, before the Exide team’s next meeting Supervisor Solis provided red velvet cake and expressed her gratitude for all of the extensive work that kept the County on its path. At the meeting, John Holloway of Best Best & Krieger, observed “Each member of the team assembled by the County Counsel’s office played a key role in planning and executing the work that helped secure this phenomenal result. The progress on the Exide matter demonstrates that the County has tremendous resources to get big things accomplished when different divisions of the County work together in a coordinated manner.”

In April 2016, the Legislature approved this funding to expedite and expand testing and cleanup around the former Exide facility. Contaminated soil from places where lead levels are highest will be removed from residential properties, schools, daycare centers and parks within a 1.7-mile radius of the Exide plant. This hard-fought victory was a direct result of our Exide team’s coordinated effort to bring this issue to the forefront of the State’s priorities, and it provided a light at the end of the tunnel for residents.

Ben Polk, Justice Deputy for the First District, described the Exide team’s continuing journey: “Having our cross-County Exide team meet each week to discuss key decisions has been invaluable in developing our strategy and navigating new developments. Our team has succeeded, time and again, in integrating legal, political, and operational priorities.” When asked about the Exide team, County Counsel Mary Wickham commented that “it is a very exciting time to be an attorney in the Office of County Counsel. Our current Board is socially proactive and is tackling the issues of our day. This engaged and active Board deserves an equally engaged and committed Office of County Counsel with lawyers that communicate across divisional and departmental lines to provide the best legal analysis and work product. And that is what has occurred with the Exide team.”

The Exide team soldiers on. It will continue to support the State’s efforts to clean the homes of those affected by 30 years of environmental contamination by Exide.

This article was originally published in the August 2016 edition of The County Counsel Newsletter. Reprinted with permission. The original article can be found by clicking here.

BB&K Represents City in Successful Recovery of Redevelopment Loans

19 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Iris Yang represented the City of La Habra in its successful effort to recover millions of dollars in redevelopment financing.

The legislation that dissolved redevelopment agencies in 2012 provided that, in general, agreements between a redevelopment agency and the city (or county) that created it were invalid with a couple of exceptions. One exception was agreements executed in connection with a financing.

To receive property taxes to be able to make payments on their various obligations, successor agencies (the entities created after redevelopment agencies were dissolved) must periodically file a Recognized Obligation Payment Schedule. The ROPS must be approved by the successor agency’s oversight board and, ultimately, by the California Department of Finance. The DOF can overrule an oversight board’s determination.

In 1998, La Habra issued Certificates of Participation to refinance bonds issued several years earlier by the former Redevelopment Agency. The City and Redevelopment Agency made a loan agreement whereby the Agency agreed to make payments to the City that were equal to the payments that the City had to make under the COPs documents.

The Successor Agency listed the loan agreement payments on its various ROPS. DOF approved payments under the loan agreement for several cycles, but then began disapproving them. DOF did not like the fact that the Agency had to pay accrued interest on payments that it was unable to make for a period of time, so it determined that the entire loan agreement was invalid.

The trial court agreed that the penalty provision was a standard provision in any loan agreement, and that DOF had abused its discretion in denying that the loan agreement was a valid enforceable obligation. For example, if one doesn’t make a mortgage payment, interest will accrue on the unpaid amount until both the accrued interest and unpaid amount are fully repaid.

For La Habra, this represents being able to recover about $9 million, which includes about $5.5 million in accrued interest and principal payments that were advanced by the City General Fund to make payments on behalf of the former Redevelopment Agency.

The case is City of La Habra and City of La Habra Successor Agency v. Michael Cohen in his Capacity as Director of the Department of Finance, et al., Sacramento Superior Court Case No. 34-2015-80002208.

Ninth Circuit Upholds Ban on Mobile Ads in Los Angeles, Other California Cities

24 Aug 2016 00:00:00 -0800

Best Best & Krieger LLP attorney Victoria Hester was interviewed by Legal Newsline on the U.S. Ninth Circuit Court of Appeal’s decision to uphold ordinances that ban mobile billboards.

“The court determined that in targeting 'advertising,' the ordinances regulated the manner (not the content) of the affected speech, and were narrowly tailored to achieve significant government interests," Victoria told Legal Newsline.

“The policymakers cite traffic control, public safety, and aesthetics as reasons for adopting the ordinances,” Victoria said.

To read the full article, which was posted Aug. 1, 2016 to Legal Newsline, click here.

Public Agency Not Subject to 60-Day Limit

22 Aug 2016 00:00:00 -0800

Claims by a public agency seeking a court’s help in undoing a contract, because one of the parties to the agreement had a conflict of interest, are not time barred, a California appellate court has ruled. The 60-day validation statute does not apply, but, rather, the Government Code section that authorizes a four-year period for an interested party to bring suit to void a contract made in violation of the law does.

Two public agencies and a water company in Monterey County entered into a series of agreements to collaborate on a water desalination project. As the final agreement was being considered for approval by the Monterey County Water Resources Agency, one of its directors revealed for the first time that he had had a consultant agreement with the business that was selected as the project General Manager and was paid to advocate for the agreements. The director resigned and was later convicted of a felony violation of Government Code section 1090, a willful violation of the law.

More than two years later, California-American sued Monterey and the other water agency, Marina Coast Water District, to have the contracts declared void under section 1090. Eventually, Monterey filed a cross-complaint also seeking to have the agreements declared void under section 1090. Marina, alone, sought to “defend” the contracts by contending that the section 1090 claims were time barred because no party had sought to have the contracts declared void within 60 days of their execution as required by the validation statutes.

Government Code section 1090 is the powerful anti-conflict of interest statute that declares that any contract made by a government entity in which a member of the board or council of the entity has a financial interest is void. A related statute, section 1092, authorizes an interested party to bring suit to have a contract made in violation of the law voided, and provides a four-year period to bring such a lawsuit from the time of the discovery of the conflict.

A quite separate group of statutes create a process known as “validation.” Under these validating proceedings (CCP § 860 et seq.), a public agency may file a legal action to have a court determine the validity of any matter enacted by the agency. The validation process has a 60-day window and, even if the agency does not file an action seeking validation, a challenge must be filed within that same 60-day period or the validation is deemed to occur.

The tension, if not outright conflict, between section 1092’s four-year statute of limitations and the validation statutes’ 60-day window is evident. The First District Court of Appeal held that the validation statutes do not apply to a government entity who is a party to the contract. Therefore, Monterey’s lawsuit was timely because it was filed within the four years statute of limitations provided for in section 1092. The court went on to find that the director clearly had a prohibited financial interest in the contracts and they were accordingly void.

Of greater significance to future section 1090 litigation is what the court had to say about the conflict between section 1092 and the validation statutes, even ignoring its express language exempting a public agency. The court suggested, without deciding, that the validation statutes’ 60-day window should not apply to any action under section 1090.

Why does this matter? Two reasons. First, any party to a contract made in violation of section 1090 may bring suit within four years to have it declared void. Thus, a private entity who is a party to a contract, like the private water company in this lawsuit, may bring an action under section 1092 seeking to have a contract declared void. However, only a public agency contracting party is exempt from the validation statute, and its 60-day window, by the express terms of the statute. So, if the validation statutes do not apply to a section 1090 lawsuit, the private entity may seek to sue outside the 60-day window. Second, and more significantly, some appellate courts have recognized that taxpayers or citizen taxpayer groups have standing to sue under section 1092 to have a contract declared void, and even to name the public entity as a defendant. Here again, if the short validation 60-day window does not apply, these parties may sue within four years and this will serve to foster and promote this type of litigation.

If you have any questions about this opinion or how it may impact your agency, please contact the attorney author of this Legal Alert listed to the right in the firm’s Municipal Law 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.

20 BB&K Attorneys Make Best Lawyers in America 2017 List

15 Aug 2016 00:00:00 -0800

For Immediate Release: August 15, 2016
Media Contact: Denise Nix • 213.787.2552 • denise.nix@bbklaw.com

RIVERSIDE, Calif. -- Best Best & Krieger LLP congratulates the 20 attorneys who were selected by their peers for inclusion on The Best Lawyers in America© 2017 list. In addition, Partner Edward J. Quinn, Jr. and Of Counsel Joseph Coomes are being recognized as Lawyers of the Year for their contributions to the legal industry, and their professional achievements. This is the second year in a row that Joe has earned this prestigious honor.

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For the 2017 edition, more than 83,000 leading attorneys globally were eligible to vote, and 7.3 million votes were analyzed. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. To learn more about Best Lawyers, click here.

Below are the BB&K attorneys included on The Best Lawyers list, by office, along with the practice areas they were recognized for:

Irvine

Sonia R. Carvalho, Municipal Law

Los Angeles

Eric L. Garner, Litigation – Environmental and Water Law

Ontario

John E. Brown, Municipal Law
Stephen P. Deitsch, Land Use and Zoning Law and Municipal Law

Riverside

Arthur L. Littleworth, Energy Law, Environmental Law, Litigation – Environmental, Natural Resources Law and Water Law
Michelle Ouellette, Energy Law, Environmental Law, Litigation – Environmental and Natural Resources Law
George M. Reyes, Corporate Law

Sacramento

Joseph E. Coomes, Jr., Land Use and Zoning Law and Municipal Law
T. Brent Hawkins, Municipal Law
Gary F. Loveridge, Health Care Law
Edward J. Quinn, Jr., Land Use and Zoning Law and Municipal Law
Ann Taylor Schwing, Appellate Practice
Harriet A. Steiner, Litigation – Municipal and Municipal Law
Iris P. Yang, Land Use and Zoning Law, Litigation – Municipal and Municipal Law

San Diego

Robert J. Hanna, Commercial Litigation
Shawn D. Hagerty, Land Use and Zoning Law
Arlene P. Prater, Employment Law - Management
Gary Schons, Ethics and Professional Responsibility Law

Walnut Creek

Gene Tanaka, Litigation - Environmental
Roderick E. Walston, Natural Resources Law and Water Law

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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 Los Angeles, Sacramento, San Diego and Washington, D.C. For more information, visit www.bbklaw.com or follow @BBKlaw on Twitter.