Best Best & Krieger News Feed

BB&K Earns “Metropolitan Tier 1” Best Law Firm Rankings

01 Nov 2016 00:00:00 -0800

For Immediate Release: Nov. 1, 2016
Media Contact: Denise Nix • 213-787-2552 • denise.nix@bbklaw.com

RIVERSIDE, Calif. – Best Best & Krieger LLP achieved several “Metropolitan Tier 1” designations from U.S. News-Best Lawyers in America® in its 2017 Best Law Firms rankings. “Tier 1” indicates that these practices were recognized for professional excellence with persistently impressive ratings from clients and peers.

The BB&K Metropolitan Tier 1 rankings are:

Los Angeles: Water Law
Oakland (Walnut Creek): Litigation – Environmental
Orange County (Irvine): Municipal Law
Sacramento: Appellate Practice, Land Use & Zoning Law, Litigation – Municipal, Municipal Law
San Diego: Land Use & Zoning Law

One of the hallmarks of BB&K’s services is the ability to offer our municipal and public agency clients a full range of legal services, which includes litigation support. We are well-known for our long-standing environmental law practice, which includes the leading authorities in water law. We advise clients on a wide variety of zoning, planning and land use matters. These practices work closely with each other, and others in the firm, to provide a one-stop-shop law firm for our public agency clients.

The Best Law Firms rankings are based on a combination of client feedback, information provided on surveys and Best Lawyers peer review. The 2017 rankings are based on the highest number of participating firms and highest number of client ballots on record, according to U.S. News-Best Lawyers. To be eligible for a ranking, a firm must have a lawyer listed in The Best Lawyers in America, which recognizes the top 4 percent of practicing attorneys in the U.S. More than 10,000 attorneys provided more than 800,000 law firm assessments, and more than10,000 clients provided more than 90,000 evaluations. Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for its abilities, its professionalism and its integrity. Learn more by clicking here.

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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.

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.

Practical Approaches for Defensible Cumulative Impacts Analyses Under CEQA

28 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP Of Counsel Sarah Owsowitz will serve as a presenter at AEP - San Francisco Bay Area Chapter's "Practical Approaches for Defensible Cumulative Impacts Analyses Under CEQA." The presenters will share practical approaches to drafting a defensible cumulative impacts analysis under CEQA.

When:
Wednesday, Sept. 28
5:15 - 6:45 p.m.

Where:
Ecology & Environment
505 Sansome St.
San Francisco, CA 94111

For more information or to register, click here.

IMLA’s 81st Annual Conference

28 Sep 2016 00:00:00 -0800

Join Best Best & Krieger LLP at IMLA’s 81st Annual Conference in San Diego, Calif.

BB&K Speakers

Greg Rodriguez and Steven DeBaun: "Autonomous Cars & the Future of Transportation: Not a Horse and Buggy, but Not Quite the Starship Enterprise…Yet"
Thursday, Sept. 29
10:45 - 11:45 a.m.

Shawn Hagerty (Tour Guide): "Code Enforcement & Land Use Tour"
Thursday, Sept. 29
2 p.m.

Andre Monette (Speaker) and Shawn Hagerty (Moderator): “The Safe Drinking Water Act and the Nation’s Aging Water Infrastructure & Liability for Lead Contamination of Water Supplies - Is It Covered by Insurance?”
Friday, Sept. 30
12:10 - 1:10 p.m.

Gene Tanaka: “Health and Environment Section Meeting”
Friday, Sept. 30
2:40 - 3:40 p.m.

Greg Rodriguez and Steven DeBaun (Leading Table Discussion): "WONK Breakfast"
Saturday, Oct. 1
7:30 - 8:30 a.m.

Gail Karish and Gerry Lederer (Speakers), Joe Van Eaton (Moderator): “Telecommunications - New Challenges for Local Counsel in a Broadband World: Why Public Safety, Economic Development, Planning and Zoning and Elected Officials Will Be Knocking On Your Door”
Saturday, Oct. 1
9 - 10:30 a.m.

When
Wednesday, Sept. 28 - Sunday, Oct. 2

Where
Hilton San Diego Bayfront
1 Park Blvd.
San Diego, CA 92101

For more information or to register, click here.

New Legislation Seeks to Expedite CEQA Administrative Record Process

26 Sep 2016 00:00:00 -0800

In a move that could have significant implications for public agencies and project proponents throughout California, Gov. Jerry Brown signed legislation intended to expedite litigation under the California Environmental Quality Act by allowing a lead agency to prepare an administrative record concurrently with the preparation of a CEQA document.

Traditionally, administrative records are prepared and certified only after litigation has begun. Senate Bill 122 seeks to expedite this process by allowing lead agencies to prepare the record while environmental review is ongoing. The administrative record is the documentation that an agency considers or relies upon during its evaluation of a project.

To trigger the concurrent preparation provisions, a project applicant must submit a written request to a lead agency within 30 days of the agency determining what type of CEQA document is required for a project. SB 122 also provides:

A lead agency can deny a project applicant’s request for concurrent preparation of a record, in which case traditional record preparation procedures would apply;
A project applicant seeking concurrent record preparation must agree to “pay all of the lead agency’s costs of preparing” the record, and the lead agency may charge a “reasonable fee” to recover any costs associated with record preparation;
All documents and materials that will be included in the concurrent record must be posted on, and downloadable from, a website maintained by the agency concurrent with the “release of [a] draft environmental document for [a] project.” Consistent with existing law under Public Resources Code section 21167.6, the record would include any written comments submitted to a lead agency, draft environmental documents and “all other documents submitted to, cited by or relied on by the lead agency” in preparing the CEQA document; and
The lead agency must certify the record within 30 days after its filing of a notice of determination.

While deciding whether to pursue this course will require project applicants and lead agencies to assess whether the risk of CEQA litigation is sufficiently high to merit expending the (often significant) costs necessary to prepare the record for a lawsuit that may never be filed, this legislation may serve as a tool for expediting litigation in the event it does arise.

If you have any questions about this legislation or how it may impact your agency, please contact the attorney authors of this Legal Alert listed to the 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.

CEQA Allows Developers to Recover Administrative Record Costs when Reimbursing Agency

21 Sep 2016 00:00:00 -0800

A developer can recover the cost of preparing a California Environmental Quality Act administrative record, even when the lead agency, not the developer, actually prepared it, an appellate court has held. This Fifth District Court of Appeal decision, issued last week, is a victory for public agencies and real parties in interest who prevail in CEQA litigation. So long as Public Resources Code section 21167.6’s procedures are followed, public agencies can be reimbursed by real party in interest developers for administrative record preparation costs, and developers can then seek recovery of those costs from unsuccessful challengers.

In the partially published opinion in Citizens for Ceres v. City of Ceres, the court found that a real party in interest, Wal-Mart, was not barred from recovering the costs it expended to reimburse the City for preparing the administrative record in litigation brought by Citizens for Ceres, so long as the record was prepared in one of three specific ways described in Public Resources Code section 21167.6. The administrative record is the documentation that an agency considers or relies upon during its evaluation of a project.

The case arose from Citizens’ challenge to the City’s certification of an environmental impact report and approval of a shopping center anchored by a Wal-Mart Supercenter. The trial court rejected the challenge and the Court of Appeal upheld it in the unpublished portion of the opinion. Pursuant to section 21167.6, Citizens elected to have the City prepare the administrative record, and the City directed its outside counsel to do so. An agreement between Wal-Mart and the City required Wal-Mart to reimburse the City for all the City’s litigation expenses, which necessarily included expenses arising from the City’s preparation of the record.

Citing past case law, the trial court noted that a party can be awarded the cost of preparing the administrative record only if it was prepared in one of the ways described in Section 21167.6: 1.) by the agency, 2.) by the plaintiff, or 3.) by another method agreed on by the agency and plaintiff. Based on this, the trial court found that Wal-Mart was barred from recovering the cost of preparing the administrative record because Citizens had requested that the City, not Wal-Mart, prepare the record.

On review, however, the Court of Appeal disagreed and found that Wal-Mart could recover the costs it paid to the City for the record’s preparation. Specifically, the Appellate Court found that the record was, in fact, prepared by one of the statutorily approved methods: the agency prepared it. Furthermore, nothing in section 21167.6 limits the identity of prevailing parties that can recover the costs expended for the record’s preparation. As such, the Court held that an award of costs to Wal-Mart would be consistent with section 21167.6.

If you have any questions about this opinion or how it may impact your agency, please contact the attorney authors of this Legal Alert listed to the 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.

NHTSA Releases Highly Anticipated Federal Automated Vehicles Policy

21 Sep 2016 00:00:00 -0800

With the goal of creating a path for the safe testing and deployment of autonomous vehicles on public roads nationwide, the U.S. Department of Transportation and the National Highway Traffic and Safety Administration have issued a much-anticipated and groundbreaking draft Federal Automated Vehicles Policy. Recognizing the difficulty of regulating this transformative technology at such an early stage in development, DOT makes it clear that this initial Policy is only guidance seeking to foster the development of a consistent and permanent national regulatory framework.

While most of the guidance is intended to take effect immediately, DOT issued a request for comment for all parts of the Policy, including the recommendations concerning implementation of a “Model State Policy.” Local public agencies should carefully consider the future implications of this Policy on local planning and development, and submit comments during the 60-day comment period. This is an important opportunity for local governments to ensure this first version of the Policy reserves local control and tools for local agencies to implement the safe roll-out and introduction of autonomous vehicles onto our local roads.

The Policy is broken down into four sections that lay out the intended federal approach to autonomous vehicles:

Vehicle Performance Guidance: Provides guidelines for the safe design, development, testing and deployment of autonomous vehicles. The guidance is intended for vehicles tested and deployed on public roadways. Issues such as data recording, privacy and cybersecurity are addressed, and NHTSA encourages data sharing on these topics.
Model State Policy: For now, the guidelines reserve traditional state authority to establish and maintain highway safety programs by regulating issues like driver education and testing, licensing, pedestrian safety, law enforcement, vehicle registration and inspection, and others. The Policy asserts federal authority over setting vehicle safety standards and enforcing compliance with those standards, investigating and managing any recall efforts, communicating with and educating the public on motor vehicle safety, and issuing guidance on how to achieve national safety goals. Perhaps tellingly, the guidelines “strongly encourage” states to allow DOT alone to regulate the performance of autonomous vehicles.
NHTSA’s Current Regulatory Tools: Outlines the current regulatory tools NHTSA can use to ensure safe deployment, including new interpretations of existing rules to promote flexibility and testing of nontraditional vehicle designs and the granting of exemptions.
Modern Regulatory Tools: Identifies potential new regulatory tools and statutory authorities that may be implemented or requested to help DOT meet the challenges and opportunities involving the safe and timely development of autonomous vehicles. Of note and examples of issues this new technology brings are references to post-sale authority to regulate software changes, additional recordkeeping and reporting requirements, and enhanced data collection tools.

The Policy, which is more than 100 pages, highlights the lifesaving potential of driverless cars to reduce traffic accidents and fatalities. In addition, it recognizes the potential for autonomous vehicles to transform personal mobility and offer efficient transportation options for seniors, the disabled and those who do not have the means to own a car. In a press conference, U.S. Transportation Secretary Anthony Foxx described it as the “most comprehensive national automated vehicle policy that the world has ever seen.”

NHTSA Administrator Mark Rosekind clarified the Policy was intended to regulate for fully autonomous vehicles “with different designs than what we have on the road today,” and added that the Policy provides an opportunity for a “uniform consistent framework for the country.” At the same time, the Policy also provides the following guidance to address new regulatory challenges that arise with autonomous vehicles:

States and local agencies should evaluate their current laws and regulations to address unintended impediments to the safe testing, deployment and operation of autonomous vehicles.
For traffic laws, the definition of “driver” may need to be updated to reflect the self-driving system as the “driver” when it conducts driving tasks and monitoring the driving environment.
States are encouraged to coordinate to establish uniform road infrastructure, including signs, traffic signals and lights, and pavement markings.
Clear requirements and application procedures should be developed for manufacturers and other entities to request to test autonomous vehicles on roadways, with law enforcement being involved in the approval process.
A warning that unsafe semi-autonomous systems may be an unreasonable risk to safety and subject to recall, which suggests federal policymakers are concerned about trusting human drivers to safely “take-back control” of a vehicle — an issue many states (including California) are debating.

With this guidance, DOT confirms its support for the deployment of this “inevitable” technology. DOT has announced an intention to update the Policy within the next year; however, this first Policy will establish the framework within which federal regulators view autonomous vehicles — making local participation in this process vital.

For more information regarding these new autonomous vehicle guidelines, questions concerning the public comment process, or legal and policy issues associated with advanced transportation technologies, please contact one of the attorney authors of this Legal Alert listed at the right in the firm’s Transportation, Municipal and Government Relations group, or your BB&K attorney.

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

California Supreme Court Clarifies CEQA’s Subsequent Review Rules and Standard of Review

20 Sep 2016 00:00:00 -0800

The substantial evidence standard of review governs a lead agency’s determination as to whether a previously approved project, as modified, requires additional environmental review under the California Environmental Quality Act, the California Supreme Court has held. The decision, issued Monday in Friends of the College of San Mateo Gardens v. San Mateo County Community College, resolves a long-standing division among the appellate courts concerning the degree of deference to be shown an agency’s determination as to whether additional environmental review is required when changes are proposed to a previously approved project.

At issue here is the San Mateo County Community College District’s 2011 revised addendum to a 2007 Mitigated Negative Declaration for a campus-wide facilities improvement plan on its College of San Mateo campus. The revisions included the demolition of a building initially intended to be renovated and the removal of a portion of that building’s gardens. The District concluded that the proposed revisions did not require preparation of a subsequent environmental impact report under Public Resources Code section 21166 and CEQA Guidelines section 15162, and approved the revisions pursuant to an addendum to the MND. Friends of the College of San Mateo Gardens filed a petition in court demanding that an EIR be prepared for the demolition because, it argued, the demolition was a “new project,” rather than a revision to the previously approved campus plan.

The Supreme Court first addressed the Court of Appeal’s “error in treating the new project inquiry as a question for the court’s independent determination under a de novo standard.” The Court held that it is improper to consider whether an agency’s proposed changes render a project “new” in an abstract sense and that such a “new project” test would invite arbitrary results. The Court further held that whether an initial environmental document remains relevant despite changed plans or circumstances is a predominantly factual question for agencies to answer by drawing on their particular expertise. A court’s responsibility on review, the Court added, is only to decide whether the agency’s determination is supported by substantial evidence.

The Court also addressed Friends’ argument that CEQA’s subsequent review provision, section 21166, applies only to projects for which an initial EIR was prepared. Friends contended that section 15162 is invalid in that it extends the section 21166 subsequent review framework to projects that were initially approved via negative declaration, like the campus improvement project at issue in this case. The Court disagreed on multiple grounds, ultimately holding that limiting agencies’ post-approval review obligations for projects that were initially approved via negative declaration is wholly consistent with a statutory scheme in which negative declarations, no less than EIRs, are entitled to a presumption of finality once adopted.

Next, the Court rejected Friends’ argument that the application of the substantial evidence standard to projects initially approved via negative declaration creates a loophole. Friends argued that so long as the potential environmental effects of a project are caused by changes in the project after a negative declaration had been approved, agencies could “evade” the preparation of an EIR based on the more demanding “fair argument” standard. According to the Court, however, a loophole would not be created. This is because section 15162 requires an agency to prepare an EIR whenever there is substantial evidence that the changes to a project for which a negative declaration was previously approved might have a significant environmental impact not previously considered in connection with the project as originally approved.

Under this holding, the Court clarifies that public agencies’ determinations as to whether proposed modifications to a previously approved project will result in new, previously unconsidered significant environmental effects are entitled to great deference. This decision thus assists both public agencies and private applicants, insofar as any need for subsequent CEQA review is one to be made based on the specific facts involved, and not an abstract legal standard.

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

MOUs, LPAs, NDAs, and Other Prenups: Can't We All Just Get Along?

16 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Seth Merewitz will serve as a panelist at the Southern California Association of NonProfit Housing Conference. The topic will be "MOUs, LPAs, NDAs, and Other Prenups: Can't We All Just Get Along?" The panelists will provide best practices and offer general suggestions.

When
Friday, Sept. 16
1:30 - 3 p.m.

Where
JW Marriott @ LA Live
900 W. Olympic Blvd.
Los Angeles, CA 90015

For more information or to register, click here.

California Land Use Law & Policy Conference

12 Sep 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the Argent Communications California Land Use Law & Policy Conference. The event, co-sponsored by BB&K and co-chaired by BB&K Partner Michelle Ouellette, will provide perspectives from top legal and technical professionals about effective ways to navigate California's regulatory landscape.

BB&K Speakers

Michelle Ouellette, "Welcome Remarks with Critical Detail"
8:30 - 8:45 a.m.

Charity Schiller: “CEQA and Sustainable Community Strategies - Making Sense of SB 375”
10:15 - Noon

Paeter Garcia: “Successful Land Use Planning and the Sustainable Groundwater Management Act - The Developer's Perspective”
1:15 - 2 p.m.

When
Monday, Sept. 12
8:30 a.m. - 5 p.m.

Where
DoubleTree Suites
1707 4th St.
Santa Monica, CA 90401

Friends of Best Best & Krieger can receive a $100 discount off of the regular conference price by using the code: Friend of Best Best & Krieger.

For more information or to register, click here.