Best Best & Krieger News Feed

California Supreme Court Sides with Public Agencies on Precondemnation Access Issue

26 Jul 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Kendall MacVey filed an amicus curiae brief with the California Supreme Court in a critical eminent domain case. The Court ruled that numerous statutes grant public entities the authority to enter and engage in official activities on private property, including activities related to precondemnation. The brief supported upholding the right-of-entry statute at issue in the dispute.

The ruling and the brief, filed on behalf of the Riverside County Transportation Commission, stem from Property Reserve, Inc. v. Superior Court, S217738. In a unanimous opinion issued July 21, 2016, the Court upheld the State’s precondemnation right of entry statutes as constitutional, reversing a March 2014 appellate court ruling. The Court’s opinion referred to the Third District Court of Appeal’s ruling as “counterintuitive,” and evades the need for extensive statutory changes in how agencies access properties for necessary inspections and testing prior to commencing eminent domain actions.

The ruling is important to public agencies like RCTC and the California Department of Water Resources, which was seeking access to private properties to conduct environmental and geological studies for a possible water transportation tunnel.

Appellate Court Again Sides with BB&K Client in Groundwater Rights Dispute

14 Jul 2016 00:00:00 -0800

On behalf of the City of Santa Maria, Best Best & Krieger LLP Managing Partner Eric Garner and Partner Jeffrey Dunn secured an appellate victory in a long-running groundwater rights dispute. In an opinion certified for publication by the Sixth District Court of Appeal, handed down June 24, 2016, the court held that a lower court was correct to quiet title to a groundwater basin for a group of landowners.

The landowners unsuccessfully asserted that, for the trial court to quiet title, it must have quantified the proportionate prescriptive right to the pumped groundwater as to each property owner. The Appellate Court rejected the argument, finding that the quantification was unnecessary at the time of judgment — as the basin was not in overdraft. However, should there be future periods of overdraft, then the court could consider a quantification of each landowner’s groundwater right.

The opinion follows a 2012 published opinion that upheld the City’s prescriptive right to groundwater and court-imposed groundwater management plan by the City of Santa Maria and other groundwater users. The two decisions provide guidance to California courts as to how to allocate increasingly scarce groundwater supplies.

The case is City of Santa Maria et al v. Richard E. Adam, H041133

CEQA, Brown Act and Planning and Zoning Law Challenges Overcome in Development Project

02 Jun 2016 00:00:00 -0800

A team of Best Best & Krieger LLP attorneys successfully defeated environmental and other legal challenges to a master planned infill residential and habitat preservation project in the City of Montebello. Los Angeles Superior Court Judge John A. Torribio denied a petition for a writ of mandate that claimed the project plan was inconsistent with the City’s General Plan and that the City violated open meeting laws during the approval process. In a decision issued May 23, Torribio found both those claims and others lacked merit.

The project is planned on a nearly 500-acre plot of undeveloped land in Montebello. The land is being used for oil production, and has been for a century. About 10 years ago, the plan to develop about 150 acres of the site into a residential community was proposed. The rest of the site will be dedicated to open space uses, with approximately 260 acres reserved for the California gnatcatcher, a species designated as threatened by the federal government. The development also includes trails and parks, allowing the public access to the space for the first time in recent history.

Following numerous public hearings before both the City Council and the Planning Commission, as well as several revisions to the environmental impact report based on feedback from the public and other public agencies, the plan was approved in June 2015. A month later, the lawsuit was filed.

The petitioner claimed the project should be halted because the City’s administrative process was flawed in that the wrong address for a public hearing was on the City’s website. However, noting that the correct address was on the properly noticed meeting agenda, Torribio, rejected the claim. He also rejected a claim that the plan was inconsistent with the City’s General Plan for not addressing low-income and special needs housing issues. Torribio noted that the proposed project need only be “compatible” with the General Plan and that they are, indeed, compatible in that they do not preclude affordable housing and programs to assist the elderly and the disabled elsewhere in the City. He also found that the petitioner did not properly follow procedure on other claims, and rejected those.

The case is Citizens for Open and Public Participation v. City of Montebello, BS156922.

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.

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BB&K Team Helps L.A. County Get State Funding for Exide Contamination

26 Feb 2016 00:00:00 -0800

Best Best & Krieger LLP is pleased to have assisted the Los Angeles County Board of Supervisors in securing $176.6 million to test and clean up contaminated areas near the now-closed Exide battery recycling facility in the City of Vernon. BB&K attorneys John Holloway and Gene Tanaka, as well as BB&K’s Director of Governmental Affairs Syrus Devers, accompanied supervisors and community members at an Assembly hearing on the clean-up efforts and discussions with legislators in Sacramento to help secure funding from Gov. Jerry Brown.

Brown originally proposed just $8.5 million for the effort, which involves testing for and removal of lead-contaminated soil from the most contaminated homes in an approximately 1.7-mile radius from the plant. This long-standing and high-profile contamination matter arises from the emissions of a former battery recycling facility, which operated for more than 30 years without proper permits and safety upgrades. High exposure to lead can cause a host of health concerns, and the State estimates that up to 10,000 homes may be impacted.

“This funding will bring immediate relief to thousands of families who have been voiceless for too long,” Supervisor Hilda Solis said in a thank you letter to those who assisted in the effort. This week, the Board of Supervisors acknowledged the lead partners’ work on the Exide clean up with a Commendation “in recognition of dedicated service to the affairs of the community and for the civic pride demonstrated by numerous contributions for the benefit of all the citizens of Los Angeles County.”

Antelope Valley Groundwater Adjudication Settles

21 Jan 2016 00:00:00 -0800

Best Best & Krieger LLP is pleased to announce the trial court judgment in the largest groundwater pumping rights case ever in California and perhaps in United States history. After 16 years of litigation involving approximately 70,000 landowners, including two separate classes, Judge Jack Komar (Ret.) has signed a judgment that determines who has the right to pump water from the Antelope Valley groundwater basin and establishes a long-term sustainable management plan. The litigation was complex not only because of the number of parties and the size of the area, but due to the fact that the U.S. government, as the largest landowner in the region, was a party to this State Court proceeding.

A team of BB&K attorneys, led by Managing Partner Eric L. Garner and Partner Jeffrey V. Dunn, represented the County of Los Angeles Waterworks District No. 40 in the adjudication, which involved anyone who had a claim to use water from the groundwater basin. The first complaint in what would become a consolidated complex proceeding known as the Antelope Valley Groundwater Cases was filed in Riverside County Superior Court on Oct. 29, 1999.

The goal of the adjudication was to bring management to the basin and to limit further subsidence. This judgment is a means of ensuring the basin will now be sustainably managed.

For more than 60 years, more water has been pumped out of the groundwater basin than is naturally replenished. This has caused subsidence, which literally means that the ground has been sinking. In the 1990s, the subsidence was so bad that it led to a crack in a runway at Edwards Air Force Base.

The Judgment allows, anyone who was a party to the case to pump from the basin, although there may be charges for pumping depending on a parties’ prior pumping and some pumping is subject to the watermaster’s approval.

The court will maintain continuing jurisdiction over the basin, and five watermaster board members will administer the basin in conjunction with the court. One of the watermasters will represent District 40, which is the Valley’s largest retail water supplier with more than 200,000 people.

BB&K, and, specifically Garner and Dunn, is the only law firm in California history to have represented the lead party in two different groundwater adjudications — this one and the Santa Maria groundwater adjudication, which ended in 2012 with an appellate court decision that case resulted in an important victory for public water suppliers.

Catalina Island Desalination Unit

04 Dec 2015 00:00:00 -0800

Despite being surrounded by water, Catalina Island residents were critically short on freshwater as a result of California’s historic drought. Best Best & Krieger LLP was pleased to represent the City of Avalon in drafting an agreement with Southern California Edison that allowed the joint purchase of an additional desalination unit that could potentially delay or avert 50 percent water rationing on the Island. The plant is scheduled to go online Dec. 7.

A team of BB&K attorneys, including Scott Campbell, who serves as city attorney for Avalon, Shawn Hagerty, whose practice focuses on water supply and quality, and business attorney Glen Price advised Avalon in the formation of this mutually beneficial agreement with SCE. The agreement allows SCE to continue to pursue other water resources, which is important to ensure the Island’s water supply. In addition, the BB&K attorneys helped the two entities craft an agreement that encouraged joint participation in state and federal funding options. The attorneys also advised on environmental issues concerning the disposal of brine from the plant’s operation.

Watch media coverage of the unit’s grand opening:

BB&K Successfully Defends CEQA Challenge to City of Riverside Power Project

13 Nov 2015 00:00:00 -0800

Best Best & Krieger LLP attorneys Michelle Ouellette, Charity Schiller and Alisha Winterswyk successfully defended the City of Riverside against claims its environmental review of a power transmission project were inadequate. Power to the City of Riverside, the largest city in the Inland Empire with a population of 313,670, is currently delivered by a single transmission line.

To address potential power shortages, the City designed the Riverside Transmission and Reliability Project. The RTRP would provide a second connection to the transmission grid and protect Riverside against the blackouts that occur whenever service through the existing line is interrupted. The Project includes two new substations, several 69 kV subtransmission lines to deliver power to areas throughout Riverside, and a 230 kV transmission line — a portion of which would be within the city limits of the City of Jurupa Valley. The City of Jurupa Valley filed a California Environmental Quality Act lawsuit challenging the Project approvals and Riverside’s Environmental Impact Report under CEQA.

All of Jurupa Valley's claims were rejected via a judgment entered on May 1, 2014 in the Los Angeles Superior Court. On Nov. 6, 2015, the Second District Court of Appeal affirmed the judgment in full and ruled that Riverside’s EIR fully complied with CEQA.

Critical Ecosystem Restoration Contract Secured by BB&K Team for Texas City

19 Oct 2015 00:00:00 -0800

Best Best & Krieger LLP Partner Gerard Lavery Lederer, Senior Director of Governmental Affairs John D. Freshman and Legislative Assistant Annick C. Miller River helped the City of Laredo, Texas obtain an ecosystem restoration contract from the U.S. Army Corps of Engineers. The $2.44 million contract was awarded to both Laredo and a private company as part of a cost-share partnership to restore and preserve part a swath of land along the Rio Grande river bend in Laredo.

The BB&K team facilitated the contract to ensure the wildlife and ecosystems of the 77-acre Laredo Riverbend site are protected. The area is a critical migration, foraging and breeding ground for a myriad of species, including three listed as threatened under the Endangered Species Act. In addition, nonnative plants, stormwater erosion, recreational use and trails and roads have degraded the corridor. All of this will be addressed with this project, which includes plans to improve the river’s connection to surrounding water bodies and permanent nesting spaces for birds in the middle of two ponds.

This project is an example of BB&K’s ability to combine legal and advocacy services to ensure strong partnerships with great outcomes for our clients.

Attorney Fees Awarded Following Successful CEQA Lawsuit

15 Sep 2015 00:00:00 -0800

In the wake of a successful California Environmental Quality Act lawsuit on behalf of the City of Shafter, a team of Best Best & Krieger LLP attorneys secured a $185,000 post-judgment attorneys’ fees award. Attorneys Jason Ackerman, Fernando Avila and Jennifer Lynch represented Shafter in its CEQA lawsuit that challenged Kern Delta Water District’s proposal to shift a diversion of water historically diverted north of the Kern River to south of the river.

The BB&K attorneys began representing Shafter in 2012 when the Kern Delta Water District was attempting to adopt an environmental impact report for the Kern River Allocation Plan. The Plan called for the diversion of approximately 33,000 acre-feet of water.

On behalf of Shafter, the BB&K team argued that the EIR failed to analyze the groundwater impacts, the short- and mid-term impacts related to land subsidence and the impacts outside the project area – particularly how the groundwater basins that serve Shafter would be depleted.

In a ruling last year, a Ventura County Superior Court judge sided with Shafter on virtually all the arguments. The attorneys’ fees award followed.