Best Best & Krieger News Feed

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.

Evaluating a Project’s “Exacerbation” on Existing Environmental Hazards

10 Nov 2016 00:00:00 -0800

A significant decision interpreting the scope of the California Supreme Court’s ruling in California Building Industry Association v. Bay Area Air Quality Management District was handed down earlier this week by a state appellate court. While the Third District Court of Appeal set aside an environmental impact report for a residential project on grounds that it lacked an appropriate significance threshold for evaluating traffic impacts, it also rejected a claim that the EIR failed to consider the “exacerbation” of existing environmental hazards.

In CBIA v. BAAQMD, the Supreme Court held that the California Environmental Quality Act does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users and residents. But, the Court also opined that lead agencies should consider whether a project could exacerbate existing environmental conditions.

The Court of Appeal has now applied the Supreme Court’s reasoning in considering whether an EIR for a 328-unit residential development adequately analyzed the alleged “exacerbation” of environmental impacts associated with a nearby freeway, a former landfill and railroad tracks. In East Sacramento Partnership for a Livable City v. City of Sacramento, challengers asserted that the EIR failed to analyze the increased cancer risk to the project’s future residents associated with the airborne pollutants from the freeway and railroad tracks. They also claimed it did not consider the risk of methane gas migration from the former landfill. They alleged that the additional vehicles, residents and visitors coming to the project site would “undeniably” exacerbate the health risks already associated with the existing environmental conditions. The court rejected this argument on grounds that the project opponents pointed to no substantial evidence to support their claim, and instead asserted mere conclusions and unsupported opinions.

While the court directed the lead agency to correct the EIR’s threshold for traffic impacts, it upheld the EIR in all other respects. Indeed, this case can be viewed as a victory for lead agencies and project proponents throughout the State. Prior to this decision, many lead agencies questioned when they must analyze a project’s potential to exacerbate existing environmental conditions. As shown here, the mere existence of multiple hazards near a project site is insufficient to require an EIR to consider the question of “exacerbation;” instead there must first be substantial evidence showing that a project could exacerbate existing hazards.

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.

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.

Best in Law: Want to Cut Legal Costs? Avoid Litigation

10 Oct 2016 00:00:00 -0800

The best strategy to minimize the cost of litigation is to avoid it altogether.

Many businesses, trustees or individuals put off hiring a lawyer until a lawsuit is filed. At this stage, potentially preventable damage is already done. Engaging a lawyer who is invested in your success from the outset is the best and most cost effective way to reduce litigation costs.

If you do find yourself in the expensive arena of litigation, here are several ways to reduce costs without sacrificing quality or compromising results.

Involve Counsel Early. If it is too late to avoid litigation, the earlier you involve an attorney, the better. Experienced counsel can streamline the path, and work with you to mitigate damages, organize evidence, limit discovery expense, or steer the matter to early settlement.

Mediation. Studies demonstrate that early mediation significantly reduces litigation costs. An early mediation with limited and focused discovery can avoid the significant costs of depositions, motion practice, retention of experts and trial preparation.

Limit Discovery. Written discovery, depositions and experts can be some of the most costly aspects of litigation. Limiting depositions and seeking an agreement with opposing counsel regarding the scope of discovery can drastically reduce costs.

Decision Tree Analysis. Litigation should be guided by understanding and evaluating the best and worst possible outcomes, and the likelihood of each. This structured analysis allows clients to make better decisions in the face of uncertainty and complexity.

A Professional Relationship with Opposing Counsel. A strained or contentious relationship between attorneys on both sides almost always increases costs. Although it is not always possible, reasonable conversation and professionalism with the opposing party’s counsel can streamline the litigation process.

Focus on the Key Issues. Litigation often involves a main claim with many small side claims. Although it is important to be cognizant and responsive to all claims, concentrating on the main issue that is the crux of the dispute is an effective way focus the litigation without getting distracted by side issues.

Recognize Emotional Decisions. Litigation is straining and emotional. Often litigants are angry, sad or frustrated. When emotions are high, litigation escalates and people tend to make decisions based on emotion rather than ration. Diffusing the emotion on both sides, and viewing decisions from a business perspective instead of an emotional perspective, often results in a better and more cost effective outcome.

This article first appeared in The Press-Enterprise on Sept. 28, 2016. Republished with permission.

Partner Shannon Brubaker Named to SD Metro’s 40 Under 40 List

30 Sep 2016 00:00:00 -0800

For Immediate Release: Sept. 30, 2016
Media Contact: Denise Nix • 213.787.2552 • denise.nix@bbklaw.com

SAN DIEGO, Calif. – Best Best & Krieger LLP Partner Shannon Brubaker is the recipient of a San Diego Metro 40 Under 40 Award. Recognizing the “best and brightest minds of San Diego County,” the list includes business professionals in a range of industries.

Brubaker’s work as a litigator, as well as her pro bono advocacy on behalf of asylum seekers, earned her the recognition. The article, along with the full list of winners, can be found on SD Metro’s website.

Brubaker represents a wide array of clients, including corporations, government and religious organizations, banks and individuals in all aspects of litigation from case intake to resolve. In addition to her caseload, Brubaker dedicates her time to represent clients pro bono through Casa Cornelia Law Center — a public interest, San Diego-based law firm that provides free legal aid to victims of human and civil rights violations, including asylum seekers, survivors of domestic violence, survivors of human trafficking and unaccompanied children fleeing violence, abuse, abandonment and neglect.

Earlier this year, Brubaker was named to the San Diego Daily Transcript’s annual list of Top 40 Under 40 Attorneys.

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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.

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.

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.

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.

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.