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AB 1825 Sexual Harassment Avoidance Training

16 May 2013 00:00:00 -0800

California's Fair Employment and Housing Act, pursuant to AB 1825, requires that employers with fifty or more employees in California provide at least two hours of Sexual Harassment Avoidance Training every two years to any employee that has a supervisory role in operations. This presentation is designed to satisfy those requirements.

Joseph Ortiz will be presenting the training from the Riverside office. All other BB&K offices will participate in the training via state-of-the-art video conferencing. The video conference is interactive, allowing attendees to ask questions and participate in other ways.

What will be covered:

What constitutes sexual harassment or discrimination in the workplace
How to recognize and avoid it
What procedures to follow if you witness harassment or are harassed yourself
The potential consequences - including personal liability - of sexual harassment

Who should attend:

Supervisors
Human Resources Professionals
Public Officials
Managers & Private Business Professionals with 50 or More Employees

When:
Thursday, May 16
3:00pm - 5:00pm

Registration:
CLICK HERE TO REGISTER

The training will be also be held via video conference at the following BB&K Offices throughout CA. When you register you will select which office you will select where you plan to participate in the training.

Indian Wells
Irvine
Los Angeles
Ontario
Riverside – Joseph Ortiz will be presenting from the Riverside office
Sacramento
San Diego
Walnut Creek

Cost is $75 per person. *Payment by check must be received before or on the day of the session.

BB&K Presenter:
Joseph Ortiz, Partner, Labor & Employment Practice Group in Riverside office

QUESTIONS:
Contact Katey Lamke if you have any questions about this event and/or about BB&K upcoming seminars/events.

If you are not currently receiving our Legal Alerts and would like to be added to our email distribution list, please visit our subscription page.

Counties in California Can Learn a Few Lessons from State on Inmate Health Care

09 Apr 2013 00:00:00 -0800

By Jared A. Goldman

Inmates in the Riverside County jails served a federal class-action lawsuit last month, claiming the county is subjecting them to cruel and unusual punishment by depriving them of basic medical and mental health care. A similar lawsuit was filed against Fresno County in 2011, and a lawsuit alleging inadequate jail facilities and services for the disabled was filed against Alameda County late last year. More lawsuits are expected to be filed against other California counties as they adjust to the growing challenges stemming from the state’s public safety realignment legislation, known as AB 109.

Signed into law in 2011, realignment sought to relieve overcrowding in state prisons by shifting responsibility for those convicted of nonviolent, non-serious and non-sex crimes to county custody. However, increasing jail populations associated with the realignment may strain staffing resources and facility capabilities. In addition, increased sentences may require the implementation of more sophisticated health care programs addressing chronic diseases and other long-term health care problems.

The impact of overcrowding on the delivery of health care is familiar territory in California. In 2011 the U.S. Supreme Court affirmed a District Court order directing the state to limit its prison population. Overcrowding, according to the Supreme Court, had “overtaken the limited resources of prison staff; imposed demands well beyond the capacity of medical and mental health facilities; and created unsanitary and unsafe conditions that make progress in the provision of care difficult or impossible to achieve.” Specific examples included suicidal inmates being held for pro-longed periods in cages the size of telephone booths due to shortages in treatment beds. Other mentally ill inmates awaiting care were held for months in “administrative segregation,” where they endured harsh and isolated conditions, and received only limited mental health services. Prisons failed to implement necessary suicide-prevention procedures due, in large part, to severe understaffing. Inmates with physical illnesses waited, in some cases, more than a year for needed specialty referrals outside the prison, and less fortunate inmates died waiting to see their specialists.

The Prison Law Office, together with other law firms, successfully challenged unconstitutional deprivations of health care in California’s prison system, related to the overcrowded conditions. The same lawyers represent inmates in the Riverside and Fresno county cases. These lawyers haven’t singled out overcrowding as the cause of the alleged deficiencies in Riverside County’s jails but they said, in comments to The Press-Enterprise, that they believe the alleged problems have been exacerbated by longer sentences. In the Fresno County case, it is alleged that, in addition to suffering from inadequate health care, inmates are frequently harmed in fights or assaults arising from low staff-to-inmate ratios and poor visibility in the prisons—conditions that may worsen when inmate populations soar.

Common legal concerns cut across the state and county correctional health care cases. In particular, allegations consistently focus on: the quality of the professionals employed, staffing levels, intake screening, access to physicians, timeliness of care, medication management and health records administration. County officials may wish to renew their attention on these areas of their jail health care programs before lawsuits come calling.

Fortunately, counties don’t have to reinvent the wheel to assess and improve their jail health programs. After decades of litigation and process improvement, the state can be a valuable source of information. Although some critical work remains outstanding in the prisons, U.S. District Court Judge Thelton E. Henderson, who is presiding over the state prison medical care case, recently found “significant progress” in the resolution of the prisons’ constitutional deficiencies. Similarly, U.S. District Court Judge Lawrence K. Karlton, who is presiding over the prison mental health care case, recently acknowledged the tremendous improvements achieved by the state. Inmate advocates and the state disagree on whether the state has completely satisfied the requirements of the law. There is no question, though, that a pathway out of the woods has emerged, which may provide guidance to those in charge of county jails.

Among other improvements, the state has developed a “Health Care Services Dashboard,” which measures performance in dozens of areas including chronic disease management, access to providers, staffing, provider workload, per inmate costs and prescription practices. Performance is measured statewide and on a prison-by-prison basis. Scores are posted publicly at www.cphcs.ca.gov and updated on a monthly basis, fostering transparency and a bit of healthy competition between the institutions. While the information is rolled up on the public view of the dashboard, prison managers can drill down into the dashboard to view, for example, the prescribing practices of individual providers or the chronic disease burden in the various yard clinics of a prison.

Technical assistance and jail health standards are also available from a number of reputable sources, like the National Commission on Correctional Healthcare. It is likely that county jail administrators already know exactly where to look for help. But some degree of additional political will and financial resources may be necessary to implement process improvements. County officials, of course, have competing priorities to consider. However, when weighing the costs and benefits of an increased focus on jail health, counties may want to look again to the state. In addition to the tragic human costs of poor jail health care programs, the legal cost of neglecting such programs can be crippling. According to The Associated Press, the state has spent more than $83 million in legal fees related to the two lawsuits that resulted in the cap of the state’s prison population. The old adage recommending an ounce of prevention may be good medical advice for the jails.

Jared A. Goldman is a health care attorney at Best Best & Krieger LLP in Sacramento. Since 2006, he has served as chief counsel for the receiver of the court-supervised turnaround of the California prison medical system. In addition to his receivership work, Goldman’s practice focuses on providing general counsel services and specialized advice to health care providers on operations, compliance, government and commercial contracts, and government audits and investigations. He can be reached at jared.goldman@bbklaw.com.

* This article was republished with permission from PublicCEO.com, April 9, 2013.

Redevelopment in California After the Demise of RDAs

22 Feb 2013 00:00:00 -0800

By Seth Merewitz and Ethan J. Walsh

Staples Center, L.A. Live, Bunker Hill, Hollywood and Koreatown are but a few of the places in Los Angeles that benefitted from California's community redevelopment law. The Community Redevelopment Agency of the City of Los Angeles rebuilt communities from Canoga Park to San Pedro and helped foster the LA River Revitalization Corporation and the Los Angeles CleanTech Incubator. Elsewhere in the state, it would be nearly impossible to find a publicly assisted urban development, infrastructure, or affordable housing project that was not supported by development resources granted under redevelopment law. Nevertheless, on February 1, 2012, redevelopment agencies (RDAs) were eliminated statewide and are going through a multiyear wind-down process.

Click here to read the complete article in Los Angeles Lawyer magazine.

BB&K Seminar: AB 1825 - How To Avoid Sexual Harassment Claims

19 Feb 2013 00:00:00 -0800

What will be covered:

What constitutes sexual harassment or discrimination in the workplace
How to recognize and avoid it
What procedures to follow if you witness harassment or are harassed yourself
The potential consequences - including personal liability - of sexual harassment

Who should attend:

Supervisors
Human Resources Professionals
Public Officials
Managers & Private business professionals with 50 or more employees

When/Where and Registration:

AB 1825 is being offered at four BB&K locations:

BB&K Riverside office - REGISTRATION IS CLOSED
Wednesday, March 20th
2:00pm - 4:00pm

BB&K Indian Wells office - REGISTRATION IS CLOSED
Thursday, March 21st
2:00pm - 4:00pm

BB&K San Diego office - REGISTRATION IS CLOSED
Wednesday, April 3rd
9:00am - 11:00am

BB&K Sacramento office - CANCELED
Thursday, April 18th
9:00am - 11:00am

Cost is $50 per person. *Payment by check must be received before or on the day of the session.

BB&K Presenters:
Joseph T. Ortiz, Partner, Labor & Employment Practice Group in Riverside office
Stacey Sheston, Partner, Labor & Employment Practice Group in Sacramento office
Joey Sanchez, Partner, Labor & Employment Practice Group in San Diego office

QUESTIONS:
Contact Katey Lamke if you have any questions about this event and/or about BB&K upcoming seminars/events.

If you are not currently receiving our Legal Alerts and would like to be added to our email distribution list, please visit our subscription page.

Fourteen Best Best & Krieger Attorneys Named Best Lawyers in America for 2013

01 Jan 2013 00:00:00 -0800

Fourteen attorneys from Best Best & Krieger LLP offices throughout California were recently selected by their peers for inclusion in The Best Lawyers in America® 2013. (Copyright 2012 by Woodward/White, Inc., of Aiken, S.C.).

In addition, two attorneys were also named 2013 “Lawyers of the Year” for specific practices and geographic areas.

Best Lawyers, established in 1983, is based on an exhaustive peer-review survey in which more than 39,000 attorneys cast nearly 3.1 million votes on the legal abilities of other lawyers in their practice areas. Lawyers are not required or allowed to pay a fee to be listed.

SOUTHERN CALIFORNIA

BB&K attorneys based in Riverside who were ranked as leaders in their fields include Eric Garner, a water rights attorney and managing partner of the nine-office law firm, for environmental litigation and water law; Michelle Ouellette for energy, environmental, environmental litigation and natural resources law; Gregory K. Wilkinson and Arthur L. Littleworth for energy, environmental litigation, natural resources and water law; and George M. Reyes for corporate law. Best Lawyers also named Littleworth a 2013 "Lawyer of the Year" for Riverside in environmental litigation.

In the firm’s Ontario office, Stephen P. Deitsch, who serves as city attorney to Indian Wells, Arcadia, Big Bear Lake and Shafter, was named for municipal, land use and zoning law. Also named in the municipal law category was John E. Brown, who serves as city attorney to Ontario and as town attorney for Apple Valley.

In San Diego, Robert J. Hanna, a real estate attorney, was named for commercial litigation.

NORTHERN CALIFORNIA

The attorneys honored in the Sacramento office were Edward J. Quinn Jr. and Joseph E. Coomes, Jr. for municipal, land use and zoning law; T. Brent Hawkins for municipal law; Harriet Steiner, the city attorney of Davis, for municipal law and municipal litigation; and Iris P. Yang, city attorney of Paso Robles, for municipal, land use and zoning law, and municipal litigation. Best Lawyers also named Coomes a 2013 "Lawyer of the Year" for Sacramento in municipal law.

In Walnut Creek, environmental attorney and former member of the California Attorney General’s office, Roderick E. Walston, was named for natural resources and water law.

BB&K Boosts Health Care Law Practice With New Attorney

17 Dec 2012 00:00:00 -0800

For Immediate Release: Dec. 17, 2012
Media Contact: Jennifer Bowles • 951.826.8480 • jennifer.bowles@BBKlaw.com

SACRAMENTO, Calif. _ Jared A. Goldman, a health care attorney and chief counsel for the receiver of the California prison medical system, has joined Best Best & Krieger LLP in Sacramento as a partner in the law firm’s business services practice.

Since 2006, Goldman has advised the receiver at all stages of the court-supervised turn-around of the California prison medical system, a billion-dollar health and hospital system placed under receivership by the federal court.

“I am pleased to be joining a law firm with such a great reputation statewide,” Goldman said. “I have known several attorneys at BB&K over the years, and knew it would be a great place to work.”

At BB&K, Goldman joins a health care law team that includes Gary Loveridge, former general counsel at Sutter Health whose practice encompasses all aspects of health care law, and Cathy Deubel Salenko, a health care and business attorney who also serves as general counsel to the County Medical Services Program Governing Board. The governing board oversees a program that provides health coverage for low-income, indigent adults in thirty-five, primarily rural California counties.

“Jared will be a great addition, especially given the firm’s increasing emphasis on health care law. His expertise will allow us to help our health care clients as well as counties and other public agency clients prepare for and implement the new federal health care law,” said Ed Quinn, BB&K’s office managing partner for Sacramento.

Prior to joining BB&K, Goldman served as in-house counsel to the Santa Clara Valley Health & Hospital System, a billion-dollar county healthcare provider and payor.

In addition to his receiver work, Goldman’s practice at BB&K will focus on providing general counsel services and specialized advice to health care providers on operations, compliance and government and commercial contracts, and government audits and investigations.

His clients include public, private and non-profit entities, including hospitals, clinics, psychiatric facilities, correctional facilities, pharmacies, public health agencies, emergency services agencies and various vendors supporting healthcare, social service and corrections agencies.

Goldman received his law degree in 2000 from the University of California, Hastings College of Law.

Three BB&K Attorneys Make Top 25 Municipal Lawyers List for California

05 Dec 2012 00:00:00 -0800

For Immediate Release: Dec. 5, 2012
Media Contact: Jennifer Bowles • 951.826.8480 • jennifer.bowles@BBKlaw.com

RIVERSIDE, Calif. _ The Daily Journal today named three Best Best & Krieger LLP attorneys among its Top 25 municipal lawyers in California for 2012.

“We are thrilled to have our municipal law practice group recognized so prominently by the Daily Journal. The honor reflects the commitment our firm has made to doing outstanding work for our municipal clients,” said Eric Garner, BB&K’s managing partner.

The firm’s lawyers act as city attorney to more than 30 cities across California and provide special counsel to several more.

The attorneys named to the list include John D. Higginbotham, a litigator based in Riverside who has scored a series of legal victories for municipal clients; Iris P. Yang, who serves as city attorney to Paso Robles and is active in court battles involving the wind-down of redevelopment; and Sonia R. Carvalho, the first Hispanic woman to be named as city attorney to Santa Ana, Orange County’s second-largest city.

The Daily Journal Corp., publisher of the Los Angeles and San Francisco Daily Journals, issued its list of the top 25 municipal lawyers in California in a special supplement to today’s editions.

Higginbotham was recognized for his civil trial victories for cities, including a jury trial in a contentious case pitting the City of Colton against its former police chief who alleged he was wrongfully terminated for reporting corruption. Higginbotham was able to prove that a former police chief, Kenneth Rulon, was actually aware of the corruption before any of the city’s top officials became aware but failed to act on it for a year, and that his claims related to such information had nothing to do with his termination.

In addition, Higginbotham won a ruling for Inglewood in Goldsmith v. Inglewood on the use of red-light cameras at traffic intersections. The case went on to the appellate court, which published the first-ever decision in California upholding red-light camera enforcement and declaring that photographs of drivers running red lights are legitimate evidence in court. That case, People v. Goldsmith, is scheduled to go before the state Supreme Court in 2013.

Yang, based in BB&K's Sacramento office, has served as the city attorney to Paso Robles since 1994. More recently, she has been heavily involved in litigation focused on the fall-out from the end of redevelopment agencies in California.

In League of California cities et al. v. Ana J. Matosantos, et al, she is representing the League of California Cities in challenging the penalty provisions of AB 1484 on constitutional grounds. AB 1484 was intended to clean up last year's redevelopment agency dissolution bill but instead has created additional widespread confusion and spawned dozens of lawsuits.

In another case, Yang obtained a preliminary injunction against the state from imposing any penalties on the Town of Apple Valley for the redevelopment successor agency's refusal to make a payment that the successor agency said it didn't owe the state.

She also represented Galt in a case where the state agreed that Sacramento County could release money to Galt's redevelopment successor agency to make bond payments. Yang also represents the Morgan Hill Economic Development Corporation, a non-profit corporation established by the city of Morgan Hill, in challenging the state controller's determination that the corporation should return certain properties and money to the Morgan Hill successor agency.

Carvalho became city attorney for Santa Ana in April under a unique hybrid city attorney role. Carvalho became a contract employee with the city but performs all the duties of an in-house city attorney, a move that was aimed to save the city from paying her health and retirement benefits. Carvalho, who has served as city attorney to several cities across Southern California during a 20-year legal career, remained a BB&K partner.

Post-Redevelopment California: Getting Your Real Estate Assets in Order

28 Nov 2012 00:00:00 -0800

By Ethan J. Walsh

For cities and counties across California, one of the most daunting tasks of 2012 has been starting the wind-down of redevelopment. Since the California Supreme Court released its decision in California Redevelopment Association v. Matosantos last January that eliminated all redevelopment agencies throughout the state, cities and counties have been frantically working to keep up with the dissolution steps set forth in Assembly Bill 1X 26, and then supplemented by Assembly Bill 1484.

The staff members for successor agencies established by AB 1X 26 have been running from one task to the next in order to comply with the requirements of these two bills. Due to the strict deadlines and severe penalties associated with each step of the wind-down process thus far, successor agency staff have been understandably focused on the tasks immediately in front of them for most of 2012. However, in 2013 many successor agencies will start with the next phase of the wind-down process, and focus on how to use or dispose of the real estate assets that were owned by redevelopment agencies prior to their dissolution through the preparation of a long-range property management plan as required by AB 1484. While agencies are not required to begin preparing these plans for a few months, they would be well served to get a head start on this process not only to ensure compliance with the law, but also develop the plan as a tool to fulfill local policy goals and objectives.

The Long-Range Property Management Plan

The requirement to prepare a long-range property management plan is triggered once the successor agency completes a series of requirements that were imposed by AB 1484, enacted in June. Successor agencies are preparing due diligence reviews that will be used to determine the amount of unencumbered cash that the successor agencies must turn over to their county auditors. The State Department of Finance will review the due diligence reviews, and in April will determine the amount that each agency must pay. Once an agency makes this payment, it will receive a “finding of completion,” and will be authorized to prepare the long-range property management plan within six months after receiving the finding of completion. While the long-range property management plan is required by law, it is also a tool that agencies can use to develop a strategy on how to use the remaining redevelopment agency properties.

Developing an Inventory of Successor Agency Property

A B 1484 requires that specific information be included in the long-range property management plan. The plan must include an inventory of all property that is held by the successor agency. Agencies should start developing this inventory sooner rather than later. Redevelopment agencies frequently held a wide variety of property interests, and those property interests were often managed by many different people over the life of the redevelopment agency. It is important to take the time to ensure that all property interests are addressed in the plan, and no loose ends are left to clean up later. The inventory must contain specific information regarding each property, including the date of the original acquisition and the purpose for which it was acquired; the original purchase price and the estimated current value of the property; the history of environmental contamination on the property and any clean-up efforts; a description of the property’s potential for transit-oriented development and the advancement of the successor agency’s planning efforts; and a history of any previous development proposals or activity for each property. Although agencies are required to prepare this inventory, they should not approach the task as simply a box that must be checked as part of the dissolution process. The preparation of this inventory allows for an opportunity to take a step back and evaluate the properties held by the successor agency, including relevant facts that affect their marketability and potential for development. The information compiled as part of the inventory can guide future decisions over how to use or dispose of the property going forward.

Deciding on the Use or Disposition of Property

The long-range property management plan must also address the use or disposition of all properties held by the successor agency. Any property the redevelopment agency used for a governmental purpose may be retained for that use; other properties may be kept for future development, sold or used to fulfill outstanding enforceable obligations. Properties that are to be used or sold for a project identified in an approved redevelopment plan must be transferred to the city or county, and the proceeds from the sale or use of all properties retained by the successor agency will be distributed amongst all the local agencies in the former redevelopment agency’s jurisdiction. Once complete, the plan must be approved by both the successor agency’s oversight board and the Department of Finance before successor agency can begin to implement the plan.

In addressing the future use or disposition of these properties, successor agencies should evaluate not only the value of the properties, but also how to maximize that value for the benefit of their cities and the other taxing entities. Many redevelopment agency properties can still be developed for productive uses that will further local goals, and also in many cases improve the property tax base to the benefit of all local agencies. Successor agencies should evaluate how best to achieve their goals, and may want to consider how to best position the property for sale, including possibly conducting pre-development work that would enhance the value of the properties, including environmental clearances, entitlements and feasibility studies for the property. To maximize the potential benefit, the successor agency will need a well thought-out strategy that will allow intelligent and creative decision-making on the development and liquidation of available redevelopment properties.

The wind-down of redevelopment has been a painful process for cities and counties, and is sure to give rise to many more conflicts and disputes in the coming years. The long-range property management plans, however, offer an opportunity to salvage some of the goals that were cast aside when redevelopment was eliminated. Successor agencies should take the time to take advantage of this tool for the benefit of their communities.

Ethan J. Walsh is a partner in the Municipal Law practice group of Best Best & Krieger LLP in Sacramento, where his practice focuses on post-redevelopment, affordable housing and land use law. He assists redevelopment successor agencies and private developers in structuring transactions for commercial, residential and mixed-use projects; negotiating and drafting disposition and development agreements, and owner participation agreements for commercial, residential and mixed-use projects. He can be reached at ethan.walsh@bbklaw.com.

State Regulators Reject $70 Million Gas Storage Plan in Sacramento Neighborhood

13 Jul 2012 00:00:00 -0800

SAN FRANCISCO – In an impressive display of David besting Goliath, a group of Sacramento residents succeeded Thursday in blocking a $70 million plan to store 7.5 billion cubic feet of natural gas beneath their working class neighborhood.

The California Public Utilities Commission, in a 3-2 vote, rejected the plan by Sacramento Natural Gas Storage LLC to store the gas 3,800 feet below the Avondale/Glen Elder neighborhood in southeast Sacramento.

It was a post-San Bruno moment. That Sept. 10, 2010, explosion of a 30-inch gas transmission line killed eight people and destroyed 38 homes. And it redefined how three PUC commissioners weighed this project.

"Do I think it's likely there would be a problem? No," declared PUC Commissioner Michel Peter Florio shortly before his vote to reject. "But as we've seen in many recent events … things do happen that we don't expect.

"In this instance, I think it's simply a risk too big to take, given the marginal need for this facility."

Following the San Bruno explosion, Florio has said, the PUC "renewed and strengthened" its commitment to safety.

When Thursday's hearing ended, 30 opponents of the project walked out of the PUC headquarters in San Francisco, posed for pictures and cheered loudly.

"I don't even think I believe it yet," said Constance Slider Pierre, who was pivotal in rallying opponents in the neighborhood.

"This has been five-plus years in the making and it has been an incredible battle, one of the biggest of my personal life and of this community's existence," she said.

. . .

Slider said the association initially felt outmatched. She turned to Colin Bailey, staff attorney for Legal Services of Northern California. He signed on for what turned out to be five years of work on behalf of the neighborhood association.

Bailey, in turn, reached out to Christopher J. Butcher of the Thomas Law Group in Sacramento. About 18 months ago, attorney Kara Ueda joined the pro bono effort.

. . .

Click here to read the entire article on the Sacramento Bee website.

Six BB&K Attorneys Named 2012 Northern California Super Lawyers and Rising Stars

10 Jul 2012 00:00:00 -0800

Four Best Best & Krieger attorneys were named among the Northern California lawyers most respected by their peers. In addition, two BB&K lawyers are among the top up-and-coming attorneys in Northern California under 40 years of age or practicing less than 10 years.

The attorneys on the 2012 Northern California Super Lawyers list are Susan L. Schoenig for employment and labor law, Stacey N. Sheston for employment and labor law, Harriet A. Steiner for government and municipal law, and Gene Tanaka for environmental litigation. Super Lawyers’ 2012 Northern California Rising Stars are Sarah E. Owsowitz for land use and zoning law, and Kara K. Ueda for government and municipal law.

Schoenig advises a diverse group of public and private employers in all types of employment and labor matters. She handles wrongful termination and unlawful harassment matters from the filing of the initial complaint through investigation, subsequent litigation and trial. She has served as the California Public Employees Retirement System’s litigation supervisor.

Sheston is co-leader of the firm’s labor and employment practice group. Her practice includes providing day-to-day employment advice to both public and private employers. Sheston also represents employers in employment-related mediations, arbitrations, administrative hearings and court proceedings.

Steiner, who is city attorney of Davis, also represents special districts and joint powers agencies as general counsel and special counsel. Her areas of specialty include land use, environmental law, telecommunications law and cable television franchising, wastewater and municipal water, and public financing.

Tanaka is a public agency litigator. He has litigated many land use cases, including the successful Los Angeles Superior Court challenge to the Ward Valley Low Level Radioactive Waste Facility. Tanaka also represents clients in toxics cases for cleanup or damages. He has worked on the Stringfellow cleanup litigation in U.S. District Court.

Owsowitz’s practice focuses on advice and litigation regarding the California Environmental Quality Act, with a concentration on urban decay, climate change, water supply and cultural resource issues. She has substantial experience obtaining entitlements and preparing and defending environmental impact reports for large-scale development projects, hospital retrofits and renewable energy projects.

Ueda specializes in municipal law, conflicts of interest, elections, land use, and the California Environmental Quality Act. She also assists public agencies on general plan updates, LAFCO matters, Proposition 218, and Brown Act and Public Records Act compliance. In addition, Ueda routinely litigates CEQA, land use and elections cases in state and federal courts.

Best Best & Krieger Among Nation’s Most Diverse Law Firms

18 Jun 2012 00:00:00 -0800

For Immediate Release: June 18, 2012
Media Contact: Jennifer Bowles • 951.826.8480 • jennifer.bowles@BBKlaw.com

RIVERSIDE, Calif. _ Best Best & Krieger LLP ranked 15th among the nation's most racially diverse law firms, with nearly 20 percent of its attorneys hailing from minority backgrounds, according to The American Lawyer's annual Diversity Scorecard, published in the magazine’s June issue.

BB&K, with 200 attorneys in nine offices in California and Washington D.C., placed in the Top 20 for the fifth year straight. In all, 233 of the nation’s largest and highest-grossing firms responded to this year’s survey, placing BB&K’s No. 15 ranking in the top 6.5 percent.

Eric Garner, BB&K’s managing partner, said he was very pleased with the results of the Diversity Scorecard, which also placed the firm ninth overall for the highest percentage of minority partners.

“We believe that our continued presence in the Top 20, and our highest ranking yet, reflects the firm’s longstanding commitment to diversity, which we believe is essential to foster the kind of creative solutions our clients need in 2012,” Garner said.

BB&K clients includes cities, counties, public agencies, water and school districts, companies and individuals.

The survey showed:

- BB&K’s percentage of minority attorneys, at 18.5 percent, or 35 attorneys, is nearly five percent higher than the national average of 13.6 percent.

- Of the 195 attorneys at BB&K, 15 are Hispanic-American, 15 are Asian-American, four are African-American and one is of mixed race.

- The percentage of BB&K’s minority attorneys who are partners, at 14.4 percent, rose more than 2 percent from the year before and was the ninth highest overall.

One of those partners, Gene Tanaka, sits on the firm’s executive committee and is managing partner of the Walnut Creek office. Another partner, Marco Martinez, is managing partner of the firm’s Irvine office.

Tanaka, who is Japanese-American, said the firm has always been welcoming to attorneys from diverse backgrounds.

“In my 27 years at BB&K, I can honestly say that my race has never been a consideration or issue,” he said. “I frankly do not think anyone really thought about it professionally or socially. I cannot imagine any better treatment by a group of people.”

Tanaka said shortly after he arrived at the firm, BB&K’s partners appointed him to lead an ad hoc committee to consider diversity and, as a result, the firm adopted a policy in the early 1990s to encourage diversity based on race, ethnicity and sexual orientation before many other firms.

In 2008 and 2009, BB&K ranked 19th in the Diversity Scorecard; 17th in 2010; and 19th last year.

Last year, BB&K launched a scholarship/fellowship program for a law student from a diverse background. The program offers the recipient a paid summer associate position for two summers during law school in addition to a $7,500 scholarship once the program is completed. The program’s current recipient, Leo Li from Loyola Law School, will be working in the firm’s Riverside and Ontario offices for his second summer this year. Fluent in Mandarin Chinese, Li is on track to graduate in 2013.

According to American Lawyer, large firms slightly reduced their percentage of minority attorneys to 13.6 percent. The magazine editors said they weren’t too worried about the slight dip from 13.9 percent from the year before because the editors tweaked the methodology for the latest survey to include full-time equivalent numbers for the entire calendar year. That meant that part-time attorneys were prorated in their statistics.

Developing a Municipal Real Estate Management Strategy

17 May 2012 00:00:00 -0800

This legal alert is the second in a two-part series on the disposition of former redevelopment agency assets and the management of municipal real estate assets going forward. The concepts covered will be discussed in greater detail at in-person seminars to be held on June 5 in Sacramento and on June 13 in Riverside.

As successor agencies begin the process of disposing of the assets of their former redevelopment agencies, they should develop a strategy and orderly process that will best serve their community and the agencies that will benefit from this process. To develop a disposition strategy, the successor agency should start with a few basic steps:

Make an Inventory of the Property

While this may seem obvious, it is an essential first step and the foundation on which the remainder of the process is based. Many redevelopment agencies accumulated properties, easements and covenants on property over the course of several decades. The county assessor's office, title companies and independent third party databases such as CoStar, LoopNet and Realquest all can serve as resources to develop a complete inventory. In addition, various city departments that previously oversaw components of the redevelopment agency’s responsibilities may have evidence of property interests. Each property should have a basic property profile with key information collected.

Value the Assets

Once the successor agency has determined the inventory, it should start the process of valuing the property. This includes determining which properties are the most marketable, which have the most economic development potential, which are being used or are needed for public purposes, and which are not likely to generate interest in the private market. Redevelopment agencies often held lands that suffered from contamination, remnant parcels that may not have independent development potential, and other properties encumbered by various covenants and deed restrictions. There may be agency owned properties that are currently being used for public purposes, which the successor agency will transfer to the city pursuant to the processes provided in the existing law. Further, redevelopment agency properties acquired with low and moderate income funds would be "housing assets" not retained by the successor agency, and properties acquired with tax exempt bond proceeds may be subject to other restrictions. With all of its properties, however, the successor agency should solicit input from a wide range of resources to determine the appropriate value. Properties must be analyzed on a current basis as well as on a highest and best use basis. Appraisers, real estate brokers, local real estate developers and investors, as well as city and county staff, can all offer insight into the likely value of the properties.

Maximizing the Value

In order to maximize the value of the properties, the successor agency should consider more than the value of the property today. The timing of sales, how properties are marketed and how they are packaged for sale will all play a role in getting the best value for the properties that are to be sold.

In addition, successor agencies should evaluate both the sales price and the future tax revenues to be generated if properties are developed and put into productive use. This approach was used to finance redevelopment projects for over half a century, and is a factor that should be part of the successor agency's strategy. Successor agencies that use this approach should document the benefit to both their oversight board and the State Department of Finance. This disposition strategy could be affected by pending or future legislation, which will be discussed in greater detail at our seminars in June.

The process outlined above can benefit the successor agency and taxing entities in the short term and fulfill the goals of AB 1X 26. This process could also be adjusted and used to provide long term benefit for a city or county as a comprehensive approach to real estate asset management. The process is part of portfolio management best practices used by institutional real estate investors for many years. On a practical level, it results in a summary of information which can be used as a powerful decision-making tool today and, if regularly updated, for years to come.

For more information on successor agency real estate asset management, contact BB&K attorneys Ethan Walsh or Nancy Park, or your Municipal & Redevelopment Law attorney. For more information on the upcoming seminars, contact Katey Lamke at katey.lamke@bbklaw.com.

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.

Related Legal Alert:
Managing Municipal Real Estate Assets Post-Redevelopment, Part 1: A Strategic Approach to the Sale of Former Redevelopment Agency Assets

Conservation Land Trust Activities and Potential Impacts on Planning

15 Feb 2012 00:00:00 -0800

By Ann Taylor Schwing

Cities and counties regularly review and update their general plans and zoning without necessarily realizing that conservation land trusts operating in the community may be accepting and enforcing perpetual restrictions on the use of land in the city or county. Although occasionally operating in tandem, local governments and land trusts commonly operate in ignorance of each other, often to their detriment.

What Is a Land Trust Anyway?

A land trust is a 501(c)(3) nonprofit corporation formed under state law. There are two principal types of land trusts—conservation land trusts and community land trusts. A conservation land trust is devoted primarily to permanent land conservation. Another type of nonprofit corporation, a community land trust, may be created to acquire and hold land to provide safe and affordable access to land and housing for community residents. In addition, people sometimes speak of holding land in trust, meaning that one person, a trustee, holds legal title to land that is beneficially owned by another person. This article focuses on conservation land trusts.

There are over 1,700 conservation land trusts in the United States, ranging in scope and assets from The Nature Conservancy, an international land trust with over $6 billion in assets,[1] to all volunteer local land trusts serving a single town.[2] Many land trusts are regional or county-wide, others statewide. Land trusts are a relatively new type of charitable organization. First established in the 1850s in Massachusetts, there were only 53 land trusts operating in 26 states in 1950. Changes in federal tax laws encouraging donation of conservation easements in the mid-1970s, coupled with enactment of state enabling legislation for conservation easements in many states during these years, both greatly contributed to the expansion of land trusts.[3]

Most land trusts operate under national Land Trust Standards and Practices that prescribe rules of governance and land management. These 12 standards and 88 practices were adopted by the land trust community acting through the Land Trust Alliance, the national convener, strategist and representative for over 1,700 land trusts in the U.S.[4] Land trusts are governed by a board of directors or board of trustees, drawn largely or entirely from the community. Larger land trusts have staff, often university trained in land conservation techniques.

What Do Conservation Land Trusts Do?

Not surprisingly, land trusts vary in how they operate. Differences often result from the nature of the community. A wealthy community may be able to donate funds and land and is more likely to have larger parcels; such communities often support a larger land trust staff, more donations of conservation easements and fee land, and more robust land trust programs for education and hiking. A rural area with significant agricultural land may have owners determined to keep their land in farming or ranching who may donate conservation easements or land or participate in bargain sales. More expensive land may result in more conservation easements, giving donors tax advantages, but high land values also encourage fee donations when the land is special and estate taxes may be crippling. States may provide substantial funding to acquire conservation easements over agricultural or other types of land or may offer little support. Successful bond measures resulting in significant dollars for parks may lead to increased preacquisitions by land trusts seeking to secure available property until a public agency can complete the acquisition process. Differences can arise from the funding sources available to the land trust, the relevant state laws, the sophistication of the land trust’s board and staff, historical accidents arising from the interests of early donors, board members and staff, and from many other factors. Land trusts in adjacent counties, like Marin, Sonoma, and Napa, California, may differ markedly in culture and activities, but there are common themes throughout the land trust community.

There are three primary circumstances in which land trusts commonly hold fee land or own conservation easements restricting the use of land, and any of these may affect local government planning: conservation easements, permanent preserves, and preacquisitions.[5] A land trust may elect to adopt only one or two of these methods. Here are examples of statewide holdings or acquisitions and transfers:

	conservation easement acres	fee ownership	preacquisition
California	651,270	538,682	1,113,490
Connecticut	36,054	56,531	6,964
Oklahoma	18,000	91	1
South Carolina	216,338	8,066	21,172
Washington	60,169	32,852	186,457

As reflected in the rankings of the three methods in these states, different land trusts and different parts of the country plainly favor or have favored varying methods of protecting land. Different parts of the United States have very different patterns of public and private land ownership generally. Western States have vast acres of federal and state lands, while private ownership is far more prevalent in the east. These patterns undoubtedly affect, but do not entirely explain, land trust patterns of land protection.

Land trusts are not unique in their ability to hold conservation land or conservation easements. Any person or public or private body can own or transfer fee land with a conservation purpose, although an individual will have to take additional steps to protect the land after death. Only a “qualified organization” may hold a conservation easement for which federal tax deductions are sought, and similar restrictions exist in some states for all types of conservation easements. A “qualified organization” is any government in the United States and any 501(c)(3) charity that meets the public support test, has the commitment to protect the conservation purpose of the donation, and has the resources to enforce the conservation restrictions.[6] Aside from governments, few organizations that are not land trusts satisfy the requirements to be a “qualified organization” to hold conservation easements.

Conservation Easements

Significantly, most land trusts accept and hold conservation easements. A conservation easement is a recorded deed imposing perpetual restrictions on use of the land, but ownership and possession of that land is retained by private owners. Unlike a road or utility easement that gives the holder a right to cross a specific slice of land owned by another person, a conservation easement imposes restrictions on a much larger area, often on an entire parcel. A “forever wild” conservation easement may forbid all construction other than hiking trails and, perhaps, an entry road and parking area or a single residence. An agricultural easement will permit most farming activities while prohibiting commercial feedlots, manure lagoons and the like that might be deemed agriculture as well as commercial, residential development, and other activities. Most conservation easements prohibit subdivision of the land and may require that existing parcels subject to the easement be retained forever in single ownership. Most limit the construction of additional structures, although the extent of the limitation may vary significantly.

An owner may donate a conservation easement to a land trust and receive an income tax deduction.[7] Conservation easements may also be sold to a land trust or created as mitigation for harm to other lands. In each case, the transaction is voluntary. The owner and land trust each decide whether the benefit of the transaction is worth the burden. The owner gives up some of the rights of ownership in the land, such as the right to subdivide, and the land trust accepts a perpetual obligation to monitor and enforce the restrictions. The owner typically receives potential estate tax benefits,[8] either direct compensation or income tax benefits, and the knowledge that the land is protected. For owners who love their land, the last benefit is the most significant. The land trust furthers its mission to protect land from development and harm.

Conservation easements are normally individually negotiated with reference to the specific owner’s land. Thus, an owner with two children can negotiate for two additional building sites, while an owner who cares about redwood trees or vernal pools can negotiate terms to protect these features. The land trust can be expected to negotiate to fulfill its mission to protect land. For example, if the land is scenic, the land trust may negotiate to have the two additional residences and any roads located where they will not be visible to the public, thereby preserving the scenic qualities of the land. If the parcel is small or lacking in sufficient conservation value, the land trust may simply decline to hold the conservation easement because the benefit in protected land is not worth the burden of perpetual monitoring and enforcement of the easement. Land trusts that have done a number of easements have typically declined to accept some easements entirely or as they were originally offered. An owner and land trust may spend several months or years negotiating easement terms before arriving at an agreement both can accept. The easement often will not grant any right of public access onto the land, and often neither side will consult with the local government body with jurisdiction over the land.

Once a land trust receives a conservation easement, it is required to monitor the land at least annually and to enforce the restrictions. As a general rule, monitoring means a visit to the land and with the owner, a hike over the land to observe any changes and sometimes a flight over very large easements. Easement size can vary widely—from an urban pocket park of .2 acres to a forest easement of 100,000 acres or more. Easements may exist inside city limits or over remote or inaccessible land. These and other characteristics will affect the manner and frequency of monitoring.

If a violation of the easement terms is discovered, the land trust must address it. Construction in violation of an easement must be removed; in some litigated cases, courts have required completed houses to be dismantled. Any damage to vegetation must be mitigated if, for example, a road has been constructed where no road is permitted. Violations are remedied by court order if efforts to reach agreement fail. The land trust’s charitable status and its ability to continue to accept tax deductible conservation easements depend on proper monitoring and handling of violations.

Permanent Preserves

In addition to conservation easements, land trusts often hold permanent fee lands as preserves, sanctuaries or privately owned parks. These lands are owned outright by land trusts and commonly provide some public access for hiking and scientific research. Absent a requirement in the governing documents, preserves can be reserved for particular types of uses. Preserves with endangered or threatened species may be open to the public only in limited circumstances or not at all. Some preserves are limited to scientific research or other purposes that require the land to be closed to public use. Preserve lands may include demonstration farms, educational facilities, campgrounds, and the like. Land trusts may believe that efforts to educate school children in conservation will bear fruit in years to come, and parents may become current members supporting the land trust as well.

Permanent preserves are often transferred to land trusts on the owner’s death, sometimes with no prior consultation. The land trust may receive the land with specific restrictions requiring that it be held as a preserve and used in designated ways, or the land may be transferred without restrictions. In the latter case, the land trust may sell the land to provide funding to support the land trust’s mission[9] or elect to hold the land as a preserve if it has special qualities and a preserve would further the mission.

Preacquisitions

A land trust may acquire land intended for transfer to government bodies, usually park departments or districts, fish and game departments, flood control districts and the like. These government bodies may not be nimble enough to acquire a desired parcel themselves and may rely on a land trust to option or buy the parcel when it comes on the market. This is the only land-related activity in which land trusts can be expected to communicate with government bodies before acting. Even in this case, the land trust may well not communicate with the local government having jurisdiction over the area. If the intended recipient of the land is a State Parks Department or Fish and Game Department, the land trust will often have no reason to communicate with the county or other local bodies.

Potential Impacts on Planning

A city or county general plan may be prepared to last ten to 40 or 50 years, with regular updates for the longer-lived plans. Zoning is changed more often, both through major changes and through variances and other minor adjustments. In contrast, restrictions imposed by land trusts are commonly intended and required to be perpetual. Although restrictions for a term of years are legally possible, the effort to create them is substantially the same and the funding sources are limited. Very few land trusts expend effort on restrictions that are not perpetual in nature. In part as a result, land trusts pay little or no attention to current zoning or general plan updates because these are transitory and the land trust view is perpetual. As they expect zoning and other local land use restrictions to change over time, land trusts cannot rely on these restrictions and must write their perpetual restrictions assuming that everything else will change. A land trust that intends to permit residential home occupations on a parcel may limit those uses to what is permitted under current law, attaching a copy of the pertinent law as an exhibit, or may permit the uses as may be allowed in the future, perhaps with specific restrictions on parking, numbers or size. This analysis whether to allow the restriction to float with changes in local law or to require it to be frozen is necessary for a variety of easement provisions.

Conservation Easements

Donated easements for which federal tax deductions were received are required by federal law to be perpetual,[10] and the IRS has been vigilant in enforcing these requirements in recent years.[11] As a general rule, purchased easements follow the same templates as donated easements, also affirmatively requiring perpetuity. Relatively few courts have interpreted conservation easement terms, so the language used in the documents varies to some degree as different land trusts seek to develop the clearest and most enforceable terms. The Land Trust Alliance has participated in a Conservation Easement Handbook and its second edition, establishing and explaining template language that has given rise to greater uniformity on critical paragraphs. Nevertheless, the variety in kinds of easements and circumstances leads to multiple versions of the important easement terms.

Especially when working with easement donors interested in protection of their land, land trusts may deliberately draft conservation easements to maximize the likelihood of future court interpretations in favor of permanence. For example, one provision that is sometimes used reads:

In granting this Easement, Granting Owner has considered the fact that any use of the Property that is expressly prohibited by this Easement, or any other use as determined to be inconsistent with the purpose of this Easement, may become greatly more economically valuable than the permitted uses, and the fact that neighboring properties may in the future be put entirely to uses that are not permitted in this Easement. Granting Owner believes that any such changes will increase the benefit to the public of the continuation of this Easement. Both Granting Owner and Land Trust intend that any changes shall not be deemed to be circumstances justifying the termination or extinguishment of this Easement. In addition, inability to carry on any or all of the permitted uses, or the unprofitability of doing so, shall not impair the validity of this Easement nor be considered grounds for its termination or extinguishment.

Another provision along these lines provides:

No use shall be made of the Property, and no activity thereon shall be permitted that is or is likely to become inconsistent with the Purposes of this Easement. Owner and Land Trust acknowledge that, in view of the perpetual nature of this Easement, they are unable to foresee all potential future land uses, future technologies, and future evolution of the land and other natural resources, and other future occurrences affecting the Purposes of this Easement. Land Trust therefore, in its sole discretion, may determine whether (a) proposed uses or proposed improvements not contemplated by or addressed in this Easement or (b) alterations in existing uses or structures, are consistent with the Purposes of this Easement.

Provisions such as these are designed to prevent a future owner’s efforts to “break” the conservation easement to eliminate the restrictions and, it is feared, to develop the land. Owners who consent to these sorts of provisions seek to protect their land from subdivision and future alteration in ways inconsistent with the easement restrictions.

Case Studies

To illustrate the range of conservation easements and their impact on local planning and zoning, here are some examples that show kinds of easements imposed in the United States.

An owner of three lots in a residential area of a California town wanted to give two lots to the town as a small park. The elderly owner was concerned that the town might accept the lots, wait for her death, then sell them for residential construction. The owner gave a conservation easement on the lots to the local land trust, restricting their use to open space and use for public park purposes, permitting picnic tables, swings and the like while prohibiting residential construction. The town then accepted fee ownership of the land and has operated the park since the owner’s death. The land trust drives by the lots once or twice a year to be sure the easement is being obeyed. At least for the foreseeable future, this arrangement works well and presents little cause for concern. The town is denied the ability to sell the lots and use the funds for other purposes, but the donor would not have donated the land if the town had that ability. The town could have declined to accept the land if the restriction were unacceptable. Should the area ever cease to be residential, a court may need to decide whether the restrictions continue to govern, but it is hard to foresee the day. Absent natural disaster, European towns have remained in the same locations for many hundreds of years.

An organic farmer who has operated his farm for 40 years while subdivisions were built closer and closer is determined to keep his land in farming. He and the local land trust enter into a conservation easement not only restricting the land to open space and agriculture but requiring that the land continue to be farmed. If a future owner fails to farm, the easement includes an option entitling the land trust to buy the land at its agricultural use valuation, defined in the easement. This kind of provision is at the cutting edge of conservation easements. Some argue that the option may not be enforceable because of legal limitations on restraints on alienation, a matter of state law that may have different results in different states. The conservation easement provisions mandating that the land be open space are more likely to remain enforceable. Land trusts often stack restrictions so that, even if one turns out to be ineffective, another will preclude development of the land. The result is that this easement may survive to require that this organic farm remain in open space even if surrounded by subdivisions and shopping malls.

A timber company owns 70,000 acres of forested lands and operates under a forest management plan and conservation easement. The company harvests trees consistent with the plan, ensuring long term forestry operations. Portions of the land are opened for public use with permission for hiking and other uses. The land trust monitors the land annually on the ground and by air. Barring major changes in circumstances, this easement can continue into the far future. Climate change sufficient to kill the trees at multiple elevations, devastating infestation with disease or insects that destroy the forest, perhaps bankruptcy of the timber company with no purchaser of the undivided land, come to mind as possibilities that might defeat the easement, depending on its terms. Inability to retain one type of forest does not necessarily mean no trees will grow, however, and underlying requirements to keep the land in open space may be enforced even if timber company operations are less profitable. An easement even a quarter this size necessarily impacts all planning and zoning in its vicinity. Of course, local governments could hardly be unaware of an easement over 1,000 or 10,000 acres once it is recorded,[12] but the governments may have had other plans before recordation.

The effectiveness of efforts to prevent development over the very long term through conservation easements remains to be seen. If fulfillment of all easement purposes is truly impossible, the courts may authorize termination of an easement in a “cy pres” proceeding, but the standard is properly very difficult to meet. Cities and counties may very well find that their anticipated path of growth is interrupted by blocks of land subject to conservation easement restrictions prohibiting the anticipated development. Depending on point of view, these parcels may be seen as natural oases of open space and habitat with beneficial effects or as undesirable impediments to planned growth. In the latter case, local governments may explore remedies in existing and new laws.

Permanent Preserves

Permanent preserves are not parks. A land trust preserve owner can close a preserve without any public process. Nevertheless, many preserves are opened for at least some public use such as hiking and picnics. Land trust permanent preserves may alter government decisions on the need for and placement of parks and trails. The potential for somewhat duplicative preserve/park land is presumably less troublesome and less likely to have significant negative consequences than the creation of conservation easements with no public access. As population density increases, the need for public open space will surely increase so that what may be duplicative today may be greatly appreciated tomorrow. Even so, county planning without knowledge of land trust planning may give rise to results that would not have been intended.

County staff will often not know a land trust has been promised 1,600 acres when the elderly owner dies and has negotiated the terms of the bequest to create a grassland preserve. The county may be planning to acquire and develop a nearby property to provide open space benefits; with knowledge of the likely future preserve, a different property on the other side of the river might have been chosen instead. Confidentiality obligations restrict the land trust even aside from its normal lack of communication with city and county staff. The county would not normally disclose an anticipated land purchase because of the danger of speculation. These are the realities, and there is little that can change them.

Preserve lands may enjoy property tax exemptions in jurisdictions that authorize exemptions for nonprofits, so large preserves may pose financial issues for local jurisdictions. Some land trusts deliberately do not request property tax exemptions for some or all of their preserves as a matter of policy in recognition of potential adverse impacts. Certainly, no land trust can accept a preserve on the assumption that property tax exemptions will always be available.

Local Governments and Local Land Trusts Can Work Together

Land trusts and local governments work largely independently in many parts of the United States. Many local land trust staff and boards have no knowledge of the general plan and zoning for their area. City or county staff typically have no access to information on land trust acquisition planning or sometimes even on actual real estate transactions that have occurred. It does not have to be this way, at least with respect to local land trusts.

Local governments can, and a few do, reach out to land trusts operating in the area informally, asking appropriate land and planning staff to interact directly with land trust staff or board members on a frequent basis to share information of mutual interest. There may be a broad range of topics of common interest, from efforts to control invasive plants that affect lands throughout the community, to problems with insects and animals including West Nile and Lyme disease to rabid skunks, to developments affecting range cattle or forests or agricultural lands. Government efforts to communicate information to the community may well be enhanced by joining forces with the land trust, and perhaps other nonprofits depending on the subject matter, to call joint meetings and to include information in land trust mailings.

Local governments could request or require the county recorder to provide notice of conservation easements or of all land trust transactions or, if that presented troublesome issues under state law, could send a staff member regularly to review all transactions in the prior month or six months. Alternatively, local governments could request the land trust to provide this information for all transactions in which the land trust has not given a promise of confidentiality.[13] Planning departments could provide notice to land trusts of general plan amendments and zoning changes and ensure that land trusts had prior notice of pertinent meetings and opportunity to comment.

Local governments that require conservation easements for mitigation may require that these easements be co-held by the land trust and the local government. At least some California cities impose this requirement now. If all the mitigation easements must be co-held, then the city will be involved in the creation of these easements from the start, able to influence the selection of the land and the drafting of the easement deed. Co-holding also adds to the long-term protection of the land and ensures that neither holder may act in specific ways without the consent of the other. Even without co-holding, a local government could require that copies of annual monitoring reports be provided or that other information be communicated relating to mitigation easements and perhaps all easements in its jurisdiction.

Local governments that hold easements themselves may find that an experienced land trust staff member is better able to prepare relevant documents from the draft easement itself to the baseline documentation than existing government staff. Land trust staff monitor easements routinely and may be better trained to perform this task than government employees. Savings in these activities benefit the government, and government contract payments for this work may provide funds that enable the land trust to have another staff member.

Obviously, the desirability and availability of any of these suggestions depends on the applicable laws and on the local culture. These suggestions have much less likelihood of being successful with respect to national or even statewide land trusts, as these organizations cannot meaningfully interact with all the local governments in which land has been and will be preserved. Even so, adoption of these suggestions with respect to the local land trusts in the community has at least a possibility of affecting the national land trust that interacts with local land trusts.

Conclusion

Land trusts are here to stay. Land trusts have protected 47 million acres in the United States and are actively seeking to protect additional acres. Although land trusts have had little interaction with local governments in the past and little knowledge of their general plans and zoning, no institutional barrier requires this lack of interaction. Acting together or acting with knowledge of the other, local governments and land trusts could achieve more than they do acting individually.

[1]The Nature Conservancy, Consolidated Statement of Financial Position (June 2011), available at http://www.nature.org/aboutus/ouraccountability/annualreport/fs-fy2011pdf.pdf.

[2]The 2010 census of land trusts has just been completed by the Land Trust Alliance, available at http://www.landtrustalliance.org/land-trusts/land-trust-census, showing 1699 state and local land trusts and 24 national land trusts, protecting 47 million acres.

[3] Most land trusts are members of the Land Trust Alliance which provides a map and finding guides to locate land trusts in the 50 States and nationwide. See http://findalandtrust.org/.

[4] See Land Trust Standards and Practices, available at http://www.landtrustalliance.org/training/sp/lt-standards-practices07.pdf.

[5]These statistics are drawn from page 17 of the Land Trust Alliance 2010 census, available at http://www.landtrustalliance.org/land-trusts/land-trust-census.

[6] Internal Revenue Code § 170(h)(1)(B), (3) and Treasury Regulations § 1.170A-14(c).

[7] To qualify for the federal income tax deduction, the easement must (1) be perpetual, (2) be held by a “qualified conservation organization,” and (3) serve a valid “conservation purpose,” which is defined to include (a) protection of a relatively natural habitat for wildlife and plants, (b) preservation of open space (including farmland or forest land when following a government conservation policy); (c) preservation of land areas for outdoor recreation by, or education of, the general public, and/or (d) the preservation of a historically important land area or certified historic structure. See generally Internal Revenue Code § 170(h). The amount of the deduction is determined by a “qualified appraisal,” comparing the value before and after the conservation easement. IRS Conservation Easement Audit Techniques Guide, available at http://www.irs.gov/businesses/small/article/0,,id=249135,00.html. There may be state income tax deductions as well, and a few States provide for tax credits.

[8]Potential estate tax benefits are triggered because the value of the land is diminished by the conservation easement restrictions.

[9]Commonly called tradelands in the land trust community, these properties may have limited conservation value and are sometimes subjected to conservation easements before being sold to protect any existing conservation value.

[10]Internal Revenue Code § 170(h)(2)(C), (5)(A); Treasury Regulations § 1.170A-14(b)(2).

[11] See, e.g., IRS Conservation Easement Audit Techniques Guide, available at http://www.irs.gov/businesses/small/article/0,,id=249135,00.html.

[12]The example is not the largest forestry easement. For example, there is a 760,000 acre easement in Maine (http://www.landprotect.com/files/16404788.pdf), a 188,000 acre easement in Minnesota (http://www.conservationfund.org/news/blandin_foundation_minnesota; http://www.incommons.org/node/3656), and a 72,000 acre forestry easement in the Adirondacks (http://www.dec.ny.gov/lands/9162.html).

[13]No recorded document is truly confidential, of course. Nevertheless, unless someone checks all transactions or has reason to search a particular name, the information is not publicly known. Especially with celebrity easement donors, a land trust may agree to take all possible steps to maintain confidentiality.

Best Best & Krieger LLP's Annual Labor & Employment Law Update 2012

02 Feb 2012 00:00:00 -0800

BB&K labor and employment law attorneys held a FREE seminar focusing on new legislation and case law impacting California employers - private and public.

This FREE seminar covered frequent areas of interest, such as:

Complying with wage and hour requirements
Responding to harassment complaints and preventing retaliation
Processing requests for accommodations/medical leaves and dealing with the interactive process
Special concerns when separating workers from employment (individually or as part of a reduction-in-force)

A special segment was also devoted at the end of the seminar to topics uniquely confronting our public agency clients, including how to comply with the new labor negotiations requirements of AB 646.

Materials:

If you are not currently receiving our Legal Alerts and would like to be added to our email distribution list, please visit our subscription page.

BB&K Welcomes Four New Partners; Two Of Counsel Attorneys

24 Jan 2012 00:00:00 -0800

For Immediate Release: Jan. 24, 2012
Media Contact: Jennifer Bowles • 951.826.8480 • jennifer.bowles@BBKlaw.com

RIVERSIDE, Calif. _ Best Best & Krieger LLP has promoted four attorneys across California to partner for 2012 and elevated two associates to of counsel, the law firm announced Tuesday.

“We feel we have a very strong group of new partners and we are excited to have them become part of BB&K’s future,” said Eric Garner, managing partner of the law firm, which has 200 attorneys working in eight offices across California and a ninth office in Washington, D.C.

The new partners are:

- Stacey N. Sheston, based in the Sacramento office and co-leader of the firm’s labor and employment practice group. As a litigator, Sheston represents public agency and private employers in mediations, arbitrations, administrative hearings and court proceedings involving wrongful termination, breach of contract, unpaid wages, harassment, discrimination and retaliation. She also provides legal advice on day-to-day employment matters such as discipline and termination, requests for disability accommodations as well as leave of absence, and wage and hour issues. Prior to joining BB&K in 2010, she was a shareholder at McDonough Holland & Allen in Sacramento. She received her law degree from the University of California, Davis, in 1996.

- Jason M. Ackerman, who is a Riverside-based member of the environmental and natural resources practice group. His practice focuses on assisting renewable energy clients with site control, securing water rights and project permitting, and helping them to comply with state and federal environmental laws. In addition, Ackerman provides general and special counsel services to several of the firm’s public agency clients. He received his law degree from the University of the Pacific, McGeorge School of Law in 2001.

- Peggy Hosking, a Riverside-based business attorney whose practice focuses on mergers & acquisitions and commercial real estate transactions, such as the recent acquisition of a film and television editing studio and the sale of a minor league baseball team. In addition, she serves as general counsel for various corporations such as iHerb.com in Moreno Valley. Hosking serves on the board of the Commercial Real Estate Women-Inland Empire Chapter. She graduated from Loyola Law School in Los Angeles in 1997.

- Tyree K. Dorward, who is based in San Diego where he is a member of the firm’s school law, special districts and municipal law practice groups. Dorward’s practice focuses primarily on school business and facilities issues, public works purchasing, bidding, construction and environmental issues. He received his law degree from the University of San Diego School of Law in 2000.

The attorneys who were promoted to of counsel are:

- Joseph T. Ortiz in Riverside who is part of the firm’s labor and employment practice. An experienced trial lawyer, Ortiz has successfully tried employment matters before state and federal courts, administrative agencies, and arbitration tribunals on claims of all types. He received his law degree from the University of Minnesota in 2001.

- Matthew L. Green, based in the San Diego office and whose practice focuses on civil litigation where he represents both public entities and private clients in state and federal court. Prior to joining BB&K in 2004, Green served as a judicial law clerk to the late U.S. District Judge Napoleon A. Jones, Jr. in the Southern District of California. Green received his law degree from California Western School of Law in 2003.

BB&K Names New Managing Partner for Law Firm’s Sacramento Office

17 Jan 2012 00:00:00 -0800

For Immediate Release: Jan. 17, 2011
Media Contact: Jennifer Bowles • 951.826.8480 • jennifer.bowles@BBKlaw.com

SACRAMENTO, Calif. _ Edward J. Quinn, Jr., a BB&K partner who is well-known in Northern California for economic development, land use and redevelopment law, has been named managing partner of Best Best & Krieger LLP’s Sacramento office.

Quinn will oversee the day-to-day operations and long-term planning for the Sacramento office, the third largest of nine BB&K offices across California and in Washington D.C.

Attorneys working in the Sacramento office, 32 in all, focus on municipal, environmental, health care, business and redevelopment law. They include Harriet Steiner, who serves as city attorney for Davis, Iris P. Yang, who is the city attorney for Paso Robles and T. Brent Hawkins, general counsel to the California Redevelopment Association.

“It is an honor to be chosen to head up this office and to lead a great group of attorneys who are highly respected in their practices,” Quinn said.

Quinn replaces Gene Tanaka, an environmental litigator who was elected to the firm’s executive committee and will remain office managing partner in Walnut Creek, where he is based.

Quinn joined BB&K in 2010 from McDonough Holland & Allen where he was chief executive officer. Quinn has been named to highly respected “The Best Lawyers in America” for land use and zoning law every year since 2007, and for municipal law for the past three years. He holds the Martindale-Hubbell AV rating and is a co-author of Redevelopment in California (Solano Press, 2d ed. 1995).

In the Sacramento community, Quinn served as president of the Sacramento Area Commerce and Trade Organization and chairman of the organization’s Pacific Rim committee; ex-officio director of the Sacramento Metropolitan Chamber of Commerce; chairman of the International Trade Committee of the Sacramento Metropolitan Chamber of Commerce, and trustee of the Sacramento Country Day School.

Quinn received his law degree at the University of Michigan, where he served on the editorial board of the Michigan Law Review; and at Harvard Law School, where he earned an LL.M. in International Law.

Court of Federal Claims Dismisses Water District Takings Lawsuit

07 Dec 2011 00:00:00 -0800

Ojai California’s Casitas Municipal Water District has – at least for the time being – failed in its quest for compensation from the United States for water lost to comply with a National Marine Fisheries Service Biological Opinion (BiOp) intended to benefit endangered west coast steelhead trout. However, the court’s Opinion leaves open the possibility that if and when Casitas – or someone else – can demonstrate that water taken by the government has resulted in an actual reduction of the beneficial use of water – e.g., the amount of water actually delivered to customers – the government will be liable under the Fifth Amendment to actually pay for it.

After trial on remand from the Court of Appeals in Casitas Municipal Water District v. United States, Case No. 1:05-cv-00168-JPW, the trial court ruled on December 5 that Casitas’ “compensable property interest” under California water law is not the water that it diverts into its reservoir under its state permits, but is its right to the beneficial use of that water. The court found that Casitas has not yet suffered any reduction in that aspect of its water rights.

The court rejected both Casitas’ argument that it should be compensated for water it had a legal right to divert but did not because of the BiOp, and the United States’ argument that because of underlying California water law principles, Casitas’ legal right to divert was already limited, notwithstanding the BiOp.

With respect to one of those underlying principles, the public trust doctrine, the court cited the California Supreme Court’s 1983 observation that “[t]he population and economy of [California] depend upon the appropriation of vast quantities of water for uses unrelated to in-stream trust values,” stating that “Notably, the public trust doctrine is concerned not only with fish and other environmental values, but also with human navigation and commerce.” The power of the government to take water for environmental uses is not absolute.

For more information on this case and how it may affect your agency or project, please contact Robert Sawyer or Roderick Walston of BB&K’s Environmental Law & Natural Resources practice group.

Twelve Best Best & Krieger Attorneys Named Best Lawyers in America for 2012

06 Sep 2011 00:00:00 -0800

RIVERSIDE, Calif. _ Twelve lawyers from Best Best & Krieger LLP offices throughout California were recently selected by their peers for inclusion in The Best Lawyers in America® 2012. (Copyright 2010 by Woodward/White, Inc., of Aiken, S.C.).

BB&K attorneys who were ranked as leaders in their fields include Eric Garner, a water rights attorneys and managing partner of the nine-office law firm, for environmental litigation.

Best Lawyers, established in 1983, is based on an exhaustive peer-review survey in which more than 39,000 attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas. Lawyers are not required or allowed to pay a fee to be listed.

Other BB&K attorneys bestowed with the honor include the following from the Riverside office: Michelle Ouellette, for energy, environmental, environmental litigation and natural resources law; Gregory K. Wilkinson and Arthur L. Littleworth for energy, environmental litigation, natural resources and water law; and George M. Reyes for corporate law.

In the firm’s Ontario office, Stephen P. Deitsch, who serves as city attorney to Indian Wells, Arcadia, Big Bear Lake and Shafter, was named for municipal, land use and zoning law. Also named in the municipal law category was John E. Brown, who serves as city attorney to Ontario and as town attorney for Apple Valley.

The attorneys honored in the Sacramento office were Ed J. Quinn Jr. and Joseph E. Coomes, Jr. for municipal, land use and zoning law; Harriet Steiner, the city attorney for Davis, for municipal law and municipal litigation, and Iris P. Yang, city attorney for Paso Robles, for municipal litigation.

In Walnut Creek, Roderick E. Walston was named for natural resources and water law.

Four BB&K Attorneys Named 2011 Northern California Super Lawyers

13 Jul 2011 00:00:00 -0800

Four Best Best & Krieger attorneys were named among the lawyers most respected by their peers in Northern California Super Lawyers’ 2011 list. Northern California Super Lawyers lists the top five percent of attorneys who have attained a high degree of peer recognition and personal achievement.

The honored attorneys are Susan L. Schoenig for employment and labor law; Ann Taylor Schwing for business litigation; Harriet A. Steiner for government and municipal law, and Gene Tanaka for land use and zoning law.

Schoenig advises a diverse group of public and private employers in all types of employment and labor matters. She has served as the California Public Employees Retirement System’s litigation supervisor. Schoenig also represents clients in a wide range of real estate and commercial litigation.

Schwing’s litigation practice focuses on appeals, motions and research. She divides her time between work for the firm, writing legal treatises and volunteer work on several nonprofit boards. She serves as commissioner and secretary for the Land Trust Accreditation Commission, and as an executive committee member and Master of the Bench for The Anthony M. Kennedy Inn of Court.

Steiner, who is city attorney of Davis, also represents special districts and joint powers agencies as general counsel and special counsel. Her areas of specialty include land use, environmental law, telecommunications law and cable television franchising, wastewater and municipal water, and public financing.

Tanaka is a public agency litigator. He has litigated many land use cases, including the successful Los Angeles Superior Court challenge to the Ward Valley Low Level Radioactive Waste Facility. Tanaka also represents clients in toxics cases for cleanup or damages. He has worked on the Stringfellow cleanup litigation in U.S. District Court.

BB&K Only Law Office in Sacramento Region With More Women Partners, Survey Finds

10 Jun 2011 00:00:00 -0800

More women than men are going to law school. Nearly half of law school grads are female, and they get hired by private firms at about the same rate as men.

Then something happens. There’s leakage in the pipeline to partnership. Some women gravitate to state jobs. Others become in-house attorneys at private or public companies. Some move out of town. Some make it to the top. Others decide not to go there.

Despite a local initiative in 2006 to break the glass ceiling, the percentage of women who are equity partners at large private law firms in Sacramento appears to be lower in 2011 than it was seven years ago.

In an informal survey last month by the Business Journal to which 16 of the region’s 25 largest law firms responded, only 64 of 259 partners were women. That’s 24.7 percent, compared to 31.5 percent in 2004.

. . .

Best Best & Krieger LLP, a Riverside-based firm with a growing Sacramento office, is the only one surveyed that has more women partners than men — and more women overall.

Eight of 13 partners are women; so are 17 of the firm’s 31 local lawyers.

The office more than doubled last year when 19 lawyers from McDonough Holland & Allen PC joined the firm. McDonough had a lot of women and a culture of supporting a diverse mix of lawyers. The firm shut down Sept. 3.

“There was not a closed network or glass ceiling there; it was just a question of how much time people were willing to spend,” said Iris Yang, a former McDonough partner who is now a partner at BB&K. Shopping for a new home, Yang looked for a similar culture.

“My sense is there are a lot of women and when they become eligible, they do become partners,” Yang said. “When they brought up groups from various Southern California offices, they all included women partners. That sealed the deal. It was clear everybody considered each other equals.”