Best Best & Krieger News Feedhttp://www.bbklaw.com/?t=39&format=xml&directive=0&stylesheet=rss&records=50Best Best and Krieger is a Full Service Law Firmen-us27 Aug 2014 00:00:00 -0800firmwisehttp://blogs.law.harvard.edu/tech/rssInitiatives and Referendumshttp://www.bbklaw.com/?t=40&an=32239&format=xml<p>BB&amp;K Partner Kara Ueda will be among the presenters at the League of California Cities&rsquo; New Law &amp; Elections Seminar<span>, which will be held Dec. 3-5, 2014. She will provide an overview of the initiative process, including the roles of city clerks, city attorneys, city councils and initiative proponents, as well as considerations for potential and actual litigation.</span></p> <p><b>When<br /> </b>Dec. 4, 2014<br /> 1:45-5 p.m.</p> <p><b>Where<br /> </b>Hyatt Regency Monterey</p> <p>For more information or to register for the conference, visit the LCC&rsquo;s City Clerks New Law &amp; Elections Seminar page by <a target="_blank" href="http://www.cacities.org/Education-Events/City-Clerks-New-Law-Elections-Seminar"><span style="color: #0000ff">clicking here</span></a>.</p>Conferences & Speaking Engagements04 Dec 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=32239&format=xmlDeployment of Wireless Facilitieshttp://www.bbklaw.com/?t=40&an=31723&format=xml<p>BB&amp;K telecommunications law attorneys <b>Joseph Van Eaton</b> and <b>Gerard Lederer</b>, who is also a co-chair of the program, will be among the featured speakers at this two-day conference titled &ldquo;Deployment of Wireless Facilities: Adapting to New Technologies, FCC Rules, State Legislative Developments and a Major Supreme Court Decision.&rdquo;</p> <p>This year has seen explosive mobile industry growth. Smartphones, &quot;apps,&quot; social media and streaming video are all creating unprecedented demand for mobile broadband, both services and infrastructure. This conference addresses the practical, legal, economic and regulatory issues applicable to providers, local governments, building landlords, private property owners and others that arise from this explosion in the growth of mobile wireless services, and the infrastructure that makes these services possible.</p> <p>This advanced conference will examine the changing business of mobile and wireless communications services and its impact on the increased demand for, and design of, wireless facilities. Topics to be discussed include state and federal regulations and statutes that define the rights and responsibilities of mobile service providers, local governments and property owners when it comes to site, and modifying towers and antennas. Panelists will also discuss deal points associated with the deployment and modification of cell sites, towers, and other facilities' access.</p> <p>The conference will also be webcast live.<br /> <br /> <i>BB&amp;K clients and colleagues receive $100 off registration.</i></p> <p><b>BB&amp;K Speakers</b><br /> Gerard Lederer<br /> Thursday, Nov. 13, 2014<br /> 8:30 a.m.<br /> &ldquo;Introduction to Day 1: Demand Factors for New Infrastructure and New Regulatory Developments&rdquo;<br /> The big events relating to local permitting of wireless telecommunications facilities and how they fit together: Case law; the FCC &quot;shot clock&quot; ruling and Supreme Court case; Section 6409 (a) of the Middle Class Tax Relief Act and follow-on court decisions.</p> <p>Joseph Van Eaton<br /> Thursday, Nov. 13, 2014<br /> 3:15 p.m.<br /> &ldquo;Other Items on the Changing Federal and State Legal Landscape for Deployment of Wireless Facilities: What Are the New Rules of the Road?&rdquo;<br /> Overview of recent federal court cases including T-Mobile South v. City of Roswell; other litigation developments; FCC regulatory initiatives; local government perspective on the implications.</p> <p>Gerard Lederer<br /> Friday, Nov. 14, 2014<br /> 10:15 a.m.<br /> &ldquo;Carrier Access to Buildings and Other Structures: Best Practices for Negotiating Lease Terms with the Landlord&rdquo;<br /> Carrier and building owner perspectives on getting to yes for wireless facilities leases</p> <p>BB&amp;K is also co-sponsoring a reception for faculty and attendees on Thursday, Nov. 13, 2014 at 5 p.m.</p> <p><b>Continuing Education Credits</b><br /> Live credits: This program qualifies for 10.3 GA CLE credits. Upon request, event organizers will apply for, or help you apply for, CLE credits in other states and other types of credits.</p> <p><b>Location</b><br /> Hilton Garden Inn Atlanta Midtown<br /> 97 10th Street NW<br /> Atlanta, GA 30309</p> <p>For more information or to register, please visit Law Seminars International&rsquo;s event page by clicking <a target="_blank" href="http://www.lawseminars.com/detail.php?SeminarCode=14TINGA"><span style="color: #0000ff">here</span></a>.</p>Conferences & Speaking Engagements13 Nov 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31723&format=xmlDealing in Drought: Development, Legislation and Litigationhttp://www.bbklaw.com/?t=40&an=31529&format=xml<p>BB&amp;K Managing Partner <b>Eric Garner</b>, who is the program chair of the event, and Partners <b>Paeter Garcia</b> and <b>Kelly Salt</b> will be participating in some of the panel discussions during this day-long seminar. This year is being touted as California&rsquo;s single driest year on record and severe drought conditions have brought the state to a crossroads. Is drought now going to be the new normal in California? This program will help attendees understand the impacts of drought on the competing needs of urban, agricultural and environmental water users. A diverse group of water leaders from state and local government, water associations, the legislature and engineers and attorneys will provide their insight on the legal and policy issues facing the state&rsquo;s surface water, groundwater and alternative water supplies. Come and discover how California&rsquo;s drought is creating challenges and prompting new solutions for water resource management.</p> <p><b>BB&amp;K Speakers:</b><br /> <br /> Eric Garner will deliver the event&rsquo;s opening introduction at overview at 9 a.m. At 11:30 a.m., he will moderate the discussion &ldquo;The Groundwater Conundrum,&rdquo; which will explore the following topics:</p> <ul> <li>Groundwater Use in an Arid State (Availability, Rights, Uses, Reserves and Overdraft)</li> <li>Whiskey is for Drinking (Adjudications Past, Present and Future)</li> <li>Common Ground (Groundwater Management Plans; Special Legislation; State Oversight)</li> </ul> <p>Paeter Garcia will appear as a panelist at 3 p.m. for a discussion titled, &ldquo;The Perfect Non-Storm: Permitting Development in Drought Conditions.&rdquo; Topics to be discussed include:</p> <ul> <li>California Growth and Related Development</li> <li>Tall Task for Water Supply Planning (Urban Water Management Plans; General Plans)</li> <li>Preparing Defensible Water Supply Analyses (Water Supply Assessments; Written Verifications; CEQA Analysis)</li> </ul> <p>Kelly Salt is participating on a panel at 4 p.m. called, &ldquo;Pricing the Way through a Water Shortage.&rdquo; Issues to be covered include:</p> <ul> <li>Declaring Water Shortage and Emergency Conditions (Ordinances, Conservation, Rationing)</li> <li>Pricing Structures and Challenges</li> <li>Public Issue with Private Implications</li> </ul> <p><b>Credits: </b><br /> <br /> CA CLE: 6.25 General CLE credits<br /> CDPH: 6.0 contact hours</p> <p><b>Topics Covered: </b></p> <ul> <li>Drought Response</li> <li>Environmental</li> <li>Groundwater Use and Management</li> <li>Stormwater and Greywater</li> <li>Water Purchases and Transfers</li> <li>Water Shortage and Emergency Conditions</li> </ul> <p><b>Who Should Attend:</b></p> <ul> <li>Attorneys/Legal Staff</li> <li>State and Municipal Officials</li> <li>Water Operators</li> <li>Developers/Land Owners</li> <li>Farmers/Ranchers</li> <li>Environmentalists</li> <li>Utility Managers</li> <li>Planners</li> </ul> <p><b>Where: </b><br /> <br /> DoubleTree by Hilton LA Downtown<br /> 120 S. Los Angeles St.<br /> Los Angeles, CA 90012</p> <p>For more information or to register, please click <a target="_blank" href="http://www.theseminargroup.net/seminar.lasso?seminar=14.DROUCA"><u><span style="color: #0000ff">here</span></u></a>.</p>Conferences & Speaking Engagements30 Oct 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31529&format=xmlPrivate Access to Public Rights-of-Wayhttp://www.bbklaw.com/?t=40&an=32231&format=xml<p>Join BB&amp;K attorneys Gail Karish and Matthew Schettenhelm at Lorman Education Services&rsquo; &ldquo;Private Access to Public Rights-of-Way.&rdquo; During this webinar, you will learn to increase your proficiency in the private use of rights-of-ways and be provided a useful introduction to the challenges facing local governments as more private providers seek to use the public rights-of-way for a variety of purposes. Public officials, private service providers and lawyers will benefit from understanding the variety of existing and emerging users and uses, the options available for securing access to public rights-of-way and the duties and liabilities related to their use.</p> <p>By using <a target="_blank" href="http://www.lorman.com/training/394386?discount_code=Q3462135&amp;p=13389&amp;s=direct"><span style="color: #0000ff">this link to register</span></a>, BB&amp;K guests receive 50 percent off registration.</p> <p><b>When</b><br /> Oct. 29, 014<br /> 10 &ndash; 11:30 a.m. (PST)<br /> <br /> Continuing Education credits are available.</p>Conferences & Speaking Engagements29 Oct 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=32231&format=xmlClimate Action Planning by Local Governmenthttp://www.bbklaw.com/?t=40&an=32363&format=xml<p>BB&amp;K attorneys <b>Fernando Avila</b> and <b>Charity Schiller</b> will present &ldquo;Urban Density, Transit, Water/Energy Conservation and Distributed Energy: Climate Action Planning by Local Government&rdquo; at CLE International&rsquo;s &ldquo;California Greenhouse Gas Regulations&rdquo; two-day program.</p> <p><b>When:</b><br /> Oct. 6, 2014<br /> 3:30 p.m.</p> <p><b>Location:</b><br /> Hotel Nikko, San Francisco<br /> For more information or to register, visit CLE International by <a target="_blank" href="http://www.cle.com/product.php?proid=1469&amp;src=Featured&amp;page=California_Greenhouse_Gas_Regulations"><font color="#0000ff">clicking here</font></a>.</p>Conferences & Speaking Engagements07 Oct 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=32363&format=xmlHydrology and the Lawhttp://www.bbklaw.com/?t=40&an=32004&format=xml<p>Program Co-Chair and BB&amp;K Managing Partner <b>Eric Garner</b> and Partner <b>Shawn Hagerty</b> are among the presenters at this one-day seminar titled &ldquo;Hydrology and the Law: Effective Tools for Resolving Water Rights and Damages Issues&rdquo; in Santa Monica, Calif. and webcast live. California is in the midst of a historic drought. Surface water deliveries are at an all-time low and many groundwater basins are being significantly drawn down. As the State, other public agencies and private interests struggle with how to maintain supplies in the short and long term, as well as protect the environment and comply with environmental regulations, understanding how hydrology and the law interrelate has never been more important.</p> <p>This one-day seminar will explain the basics of hydrology and how it interacts with the law in California for the benefit of practitioners in both fields. In particular, leading experts in both fields will examine the relationship between hydrology and the law as it relates to water quality and pending groundwater legislation, as well as how hydrology comes into play during litigation. This seminar will help practitioners in both fields improve their overall understanding of these very interrelated fields just as water issues are front page news.</p> <p style="text-align: left"><strong><em>Half-price registration is available to BB&amp;K guests. Please call (206) 567-4490 or email </em></strong><strong><a href="http://wiseadmin.net/wise2/fckeditor/editor/dialog/ndawber@lawseminars.com%20"><em><font color="#0000ff">ndawber@lawseminars.com</font></em></a><em> and mention BB&amp;K to obtain this special discount.</em></strong></p> <p><b>BB&amp;K Speakers</b></p> <p>Eric Garner<br /> 8:30 a.m., &ldquo;Introduction and Overview: Surface and Groundwater Law and Relevant Legal Concepts&rdquo;<br /> 2:30 p.m., &ldquo;The Practical Application of Science to New Groundwater Regulation&rdquo;</p> <p>Shawn Hagerty<br /> 1:30 p.m., &ldquo;The Practical Application of Science to Current Water Quality Issues: Challenges of Certainty in an Uncertain World&rdquo;</p> <p><b>What You Will Learn</b></p> <ul> <li>Hydrology of surface water, groundwater and sub-surface flows</li> <li>Water supply forecasting</li> <li>Application of science to water quality issues</li> <li>New groundwater regulations</li> <li>The use of science in resolving water quality disputes and damages</li> </ul> <p><b>Who Should Attend</b></p> <ul> <li>Attorneys</li> <li>Consultants</li> <li>Real estate developers</li> <li>Agricultural water users</li> <li>Agency and Tribal representatives</li> <li>Anyone else involved in water issues in California</li> </ul> <p><b>Date:</b><br /> Oct. 7, 2014<br /> 8 a.m. &ndash; 5 p.m.</p> <p><b>Location:</b><br /> DoubleTree Guest Suites Santa Monica Hotel or Live via Webcast</p> <p><b>Continuing Education Credits</b><br /> Live credits: Law Seminars International is a State Bar of California approved MCLE provider. This program qualifies for 6.75 California MCLE credits. Upon request, we will apply for, or help you apply for, CLE credits in other states and other types of credits.</p> <p>For more information, <a target="_blank" href="https://www.lawseminars.com/detail.php?SeminarCode=14HYCA"><font color="#0000ff">visit the Law Seminars International event page by clicking here</font></a>.</p>Conferences & Speaking Engagements07 Oct 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=32004&format=xmlA Summary of California Water Rights Systems and a Primer for Public Water Agency Directorshttp://www.bbklaw.com/?t=40&an=31201&format=xml<p>BB&amp;K attorneys Eric Garner and Jeff Ferre will be presenting at the Water Education Foundation&rsquo;s 2014 Water 101 Workshop. This course offers the opportunity to learn the California water basics and water district board member governance. It is open to anyone interested in learning more about the history of, and the management structure of, water in California, and about the key water issues facing the State &ndash; including the drought, groundwater management and the potential for a 2014 water bond.</p> <p>BB&amp;K Managing Partner Eric Garner will present &ldquo;Summary of California Water Rights Systems&rdquo; on Thursday, Oct. 2 at 10:30 a.m. Eric will discuss:</p> <ul> <li>Riparian Rights</li> <li>Appropriative Rights</li> <li>Groundwater Law and Cases</li> <li>Reasonable and Beneficial Use</li> <li>Public Trust Law and Cases</li> </ul> <p>BB&amp;K Partner Jeff Ferre will present &ldquo;Governance Primer for Water District Directors&rdquo; on Friday, Oct. 3 at 9 a.m. He will speak about:</p> <ul> <li>The Role and Responsibilities of a Water District Director</li> <li>Building an Effective Board</li> <li>The Brown Act &ndash; Basic Requirements</li> <li>The Fair Political Practices Act &ndash; Basic Requirements</li> <li>Conflict of Interest Code</li> <li>Requirements for Ethics Training</li> <li>Avoiding Common Legal and Political Pitfalls for Directors</li> </ul> <p><strong>Audience:<br /> </strong>The course will be especially beneficial to water resource industry staff, engineering and environmental firm personnel, legislators, legislative staff, press, advocates, stakeholders, environmentalists, public interest organizations and water district directors.</p> <p><strong>When:</strong><br /> Thursday, Oct. 2 &ndash; Friday, Oct. 3, 2014</p> <p>Where:<br /> The Cucamonga Valley Water District&rsquo;s Frontier Project in Rancho Cucamonga</p> <p>For more information or to register, please click <a target="_blank" href="http://www.watereducation.org/foundation-event/water-101-workshop"><span style="color: #0000ff"><span style="background-color: #ffffff">here</span></span></a>.</p>Conferences & Speaking Engagements02 Oct 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31201&format=xmlRate Setting Compliance, Social Media in Politics and CEQAhttp://www.bbklaw.com/?t=40&an=32089&format=xml<p style="text-align: left">BB&amp;K Partners <b>Kelly Salt, </b><b>John Brown, Michelle Ouellette </b>and<b>&nbsp;</b>Of Counsel<b> Fernando Avila</b>&nbsp;and <strong>Sarah Owsowitz</strong> are among the presenters at the CSDA Annual Conference, which will be held from Sept. 30 to Oct. 2, 2014, in Palm Springs, Calif.</p> <p>BB&amp;K is a sponsor of this event.</p> <p><b>BB&amp;K Speakers</b><br /> <b><br /> Kelly Salt</b>, panelist, &ldquo;Rate Setting and the Role of Attorneys and Public Officials in Reviewing Cost-of-Service and Rate Studies for Compliance with Propositions 218 and 26&rdquo;<br /> Oct. 1<br /> 11 a.m. - 12:15 p.m.<br /> The burden of proof for compliance with the two propositions is on public agencies. Courts will exercise their independent judgment when reviewing whether a public agency has complied with the substantive and procedural requirements of Proposition 218 and whether a fee is a tax under Proposition 26. This presentation will discuss the process for preparing a cost-of-service and rate study, and issues that attorneys and public officials should address in reviewing these studies.</p> <p><b>John Brown</b>, moderator, &ldquo;Citizen Engagement: New Uses of Social Media and the Body Politic&rdquo;<br /> Oct. 1<br /> 11 a.m. - 12:15 p.m.<br /> This multi-media workshop will combine the perspectives of a general counsel, social media expert and two water district public affairs experts to discuss innovative uses of social media to facilitate constituent communications and promote important issues of public policy on a regional basis.<br /> <br /> Panelists: Director of Legislative &amp; Community Affairs Greg Morrison, Elsinore Valley Municipal Water District;<br /> Public Information Associate Jennifer Poland, Hi-Desert Water District and President Teresa Warren, TW2 Marketing<br /> <br /> <b>Michelle Ouellette, Fernando Avila and&nbsp;Sarah Owsowitz</b>&nbsp;panelists, &ldquo;Special Districts and CEQA &ndash; CEQA from Your Perspective&rdquo;<br /> Oct. 1<br /> 3:45 &ndash; 4:45 p.m.<br /> The panel will provide a brief overview of CEQA as it applies to districts and then engage the audience in a wide-ranging conversation based on questions submitted prior to or during the panel about how CEQA works for districts.</p> <p>For more information or to register, visit the CSDA Annual Conference event page by <a href="http://conference.csda.net/#about"><font color="#0000ff">clicking here</font></a>.</p>Conferences & Speaking Engagements01 Oct 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=32089&format=xmlCEQA: California Environmental Quality Acthttp://www.bbklaw.com/?t=40&an=31522&format=xml<p>BB&amp;K attorneys Michelle Ouellette and Fernando Avila are among the faculty at this day-long seminar on CEQA. As the cornerstone of the state's environmental protection laws, CEQA tends to be a focus for lawsuits challenging the land-use decisions of public agencies. Developing strategies for surviving potential litigation is an important aspect of preparing sound CEQA documents.</p> <p>Attend this seminar and get the tools you need to develop effective CEQA compliance strategies. The essentials of preparing legally defensible CEQA documents and examination of solutions to real projects will be discussed.</p> <p><strong>When:</strong><br /> Friday, Sept. 19, 2014<br /> 9 a.m. &ndash; 4:30 p.m.</p> <p><strong>Where:</strong><br /> Hampton Inn &amp; Suites Riverside/Corona East<br /> 4250 Riverwalk Parkway<br /> Riverside, CA 92505</p> <p>For more information or to register, click <a target="_blank" href="http://www.lorman.com/training/ceqa-california-environmental-quality-act-393990"><u><span style="color: #0000ff">here</span></u></a>.</p>Conferences & Speaking Engagements19 Sep 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31522&format=xmlNew Uses of Social Media to Engage the Citizenry and Inform the Planning Processs/Ethics and Conflicts of Interest in Land Use Approval Processhttp://www.bbklaw.com/?t=40&an=32090&format=xml<p>BB&amp;K attorneys <b>John Brown</b> and <b>Matthew &ldquo;Mal&rdquo; Richardson</b> will be a panelists at the American Planning Association California Chapter&rsquo;s 2014 Conference &ldquo;California&rsquo;s Adventures in Planning,&rdquo; which will be Sept. 13-16, 2014 at the Disneyland Resort in Anaheim, Calif.</p> <p>&ldquo;New Uses of Social Media to Engage the Citizenry and Inform the Planning Process&rdquo;<br /> Sept. 15<br /> 8 &ndash; 9:30 a.m.</p> <p>This multi-media workshop will discuss innovative uses of social media to facilitate constituent communications and inform the planning process and planning entitlements, and inform the public of planning and other public policy initiatives, through social media.</p> <p>Speakers:</p> <ul> <li>BB&amp; K Partner John Brown (Moderator)</li> <li>Deputy City Manager Lori Sassoon, City of Rancho Cucamonga</li> <li>Economic Development Coordinator Tanya Spiegel, City of Ontario</li> <li>Municipal IT Business Analyst Cristina Tejeda,&nbsp; City of Fontana</li> </ul> <p>&ldquo;Ethics and Conflicts of Interest in the Land Use Approval Process: Guidance for Public and Private Planners, Attorneys and Development Principals&rdquo;<br /> Sept. 15<br /> 9:45 &ndash; 11:15 a.m.</p> <p>This presentation will provide tools for public and private planners, attorneys and development principals to issue spot situations where legal conflicts of interest and other ethical issues (e.g., Political Reform Act, revolving door statutes, due process, etc.) could cause a development project to stall, be improperly influenced or be invalidated.</p> <p>Speakers:</p> <ul> <li>City Attorney Michael R.W. Houston, City of Anaheim (Moderator)</li> <li>Assistant City Attorney Michael Torres, City of Newport Beach</li> <li>BB&amp;K Partner Matthew &ldquo;Mal&rdquo; Richardson</li> </ul> <p>For more information or to register, visit the APA California Chapter Conference event page by <a target="_blank" href="http://www.apacalifornia-conference.org/"><span style="color: #0000ff">clicking here</span></a>.</p>Conferences & Speaking Engagements15 Sep 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=32090&format=xmlCurrent Legal Issues Affecting the Telecommunications Industryhttp://www.bbklaw.com/?t=40&an=31488&format=xml<p>BB&amp;K attorney Gail Karish will speak at a program summarizing the legal issues affecting the telecommunications industry. Attendees will learn about siting, zoning, federal preemption of local control, co-location, cell site leasing, lots of opportunities and constraints for public and private entity control and/or participation.</p> <p><b>When:</b><br /> Friday, Sept. 12, 2014<br /> 11:15 AM - 12:15 PM</p> <p><b>Where:</b><br /> Grand Hyatt San Diego</p> <br /> For more information or to register, please <a target="_blank" href="http://www.calbar.ca.gov/AboutUs/AnnualMeeting.aspx"><u><span style="color: #0000ff">click here</span></u></a>.<br />Conferences & Speaking Engagements12 Sep 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31488&format=xmlBB&K Attorneys to Appear on Panels Covering Telecommunications, the Environment, Hot Federal Issues and Morehttp://www.bbklaw.com/?t=40&an=31515&format=xml<p>Best Best &amp; Krieger is pleased to sponsor and participate in the International Municipal Lawyers Association&rsquo;s 2014 Annual Conference.</p> <p>TELECOMMUNICATION CHALLENGES FACING LOCAL GOVERNMENTS<br /> Sept. 10, 2014<br /> 1 &ndash; 2 p.m.</p> <p style="margin-left: 40px">&quot;How Converging Technologies and Mega-Mergers May Affect Your Community &ndash; A View From Municipal Perspectives&quot;<br /> <strong>BB&amp;K Speaker</strong>: Joseph Van Eaton, Partner<br /> Changes in technology present enormous opportunities for community development and delivering government services more efficiently &ndash; but also pose challenges. This presentation will discuss how localities can use existing laws and pending FCC proceedings to protect their interests.</p> <p style="margin-left: 40px">&quot;An Industry Perspective &ndash; What Do Changes In Technology Mean to Your Community?&quot;<br /> Speaker: Michael Ruger, Executive Director, Government Affairs, Comcast Cable Communications, LLC<br /> <br /> &quot;Wireless Siting &ndash; How Local Control is Faring at the FCC and in the Courts&quot;<br /> <strong>BB&amp;K Speaker</strong>: Matt Schettenhelm, Associate<br /> The FCC is in the midst of a major rulemaking that may redefine local authority over cell tower placement and modification. This presentation will provide an update on the status of the FCC rulemaking, and recent court rulings, and what steps localities can take locally and nationally to protect their interests.</p> <p>STORMWATER: NEW REQUIREMENTS FOR DEVELOPMENT PROJECTS AND EPA&rsquo;S PROPOSED RULE RE-DEFINING &ldquo;WATERS OF THE U.S.&rdquo; WILL HAVE MAJOR COST AND OPERATIONAL IMPACTS FOR MUNICIPALITIES<br /> Sept. 10, 2014<br /> 2 &ndash; 3 p.m.</p> <p style="margin-left: 40px"><strong>BB&amp;K Speaker</strong>: Andre Monette, Associate <br /> Other Presenters: Ryan Baron, Senior Deputy County Counsel, Orange County, California; Marc E. Gori, Assistant County Attorney, Fairfax County, Virginia<br /> Comments on the EPA&rsquo;s Proposed Rule broadly defining &ldquo;Waters of the U.S.&rdquo; under the Clean Water Act are due in October. The controversial proposed changes are important to local government and public agencies because, if adopted, they will greatly expand the jurisdictional reach of the CWA and change how municipal stormwater systems are categorized.</p> <p>STORMWATER MANAGEMENT/MS4 PERMITTING<br /> Sept. 11, 2014<br /> 9:15 &ndash; 10:15 a.m.</p> <p style="margin-left: 40px"><strong>BB&amp;K Speaker</strong>: Gene Tanaka, Partner<br /> Other Presenters: Steve Roy, Larry Coffman and Lee Epstein</p> <p>HOT FEDERAL ISSUES: TAXES, TRANSPORT AND COMMUNITY DEVELOPMENT<br /> Sept. 11, 2014<br /> Noon &ndash; 1 p.m.</p> <p style="margin-left: 40px">A review of critical federal issues that may affect your community&rsquo;s bottom line and economic development plans &ndash;and the opportunities and risks they present to municipalities.</p> <p style="margin-left: 40px"><em>&quot;</em>Update on Congressional Actions Affecting Your Community and Your Budget&quot;<br /> <strong>BB&amp;K Speaker</strong>: Gerard Lederer, Partner<br /> Congress is considering a number of measures &ndash; including some that could block taxation of Internet access, allow taxation of e-commerce and could affect the funds available for transportation projects &mdash; that could significantly affect communities throughout the country. This presentation will provide an update on Congressional actions, including those affecting he Highway Trust Fund, and what those actions mean for communities.</p> <p style="margin-left: 40px">&quot;Rail Transport and Public Safety -&nbsp; Is There a Solution?&quot;<br /> <strong>BB&amp;K Speaker</strong>: Harriet Steiner, Partner<br /> Cities have raised significant concerns regarding the safety of rail freight transiting through their communities. This presentation will focus on the status of federal rules regarding train safety &ndash; and their effectiveness.<br /> <br /> &quot;Speeding Development By Planning for the Endangered Species Act&quot;<br /> <strong>BB&amp;K Speaker</strong>: Michelle Ouellette, Partner<br /> The Endangered Species Act can block development projects or it can be used to help clear the way for future development. This presentation will discuss how communities are working with the ESA to speed development.</p> <p><strong>Where</strong>:<strong><br /> </strong>Baltimore, Maryland</p> <p>To learn more about IMLA&rsquo;s 2014 Annual Conference or to register, please click <a target="_blank" href="http://www.imla.org/events/conferences"><u><span style="color: #0000ff">here</span></u></a>.</p>Conferences & Speaking Engagements10 Sep 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31515&format=xmlBB&K Attorneys Discuss Fair Housing Claims, Environmental Legal Issues and Social Mediahttp://www.bbklaw.com/?t=40&an=32028&format=xml<p>BB&amp;K attorneys <b>Jeffrey Ballinger</b>, <b>Danielle Sakai</b> and <b>John Brown</b> will be joined by many other esteemed California city officials at the League of California Cities&rsquo; Annual Conference and Expo, Sept. 3-5, 2014, in Downtown Los Angeles.</p> <p>BB&amp;K is a sponsor of this event.<br /> <br /> Friday, Sept. 5<br /> 10:30 &ndash; 11:45 a.m.<br /> <strong>&ldquo;Citizen Engagement: New Uses of Social Media and the Body Politic&rdquo; </strong><br /> BB&amp;K Speaker: John Brown, City Attorney of Ontario and the Town Attorney of Apple Valley<br /> Other Speakers: Ontario Assistant City Manager and Public Information Officer Jacob Green, Apple Valley Marketing &amp; Public Affairs Officer Kathie Martin and TW2 Marketing Principal Teresa Warren<br /> <br /> <u>City Attorneys' Department Track</u><br /> <br /> Wednesday, Sept. 3<br /> 1 &ndash; 2:45 p.m.<br /> General Session<br /> <strong>&ldquo;Fair Housing Claims and Enforcement Actions&rdquo;&nbsp;</strong><br /> BB&amp;K Speaker: Jeffrey Ballinger, City Attorney, Fontana and San Jacinto, Assistant City Attorney, Big Bear Lake</p> <p>Thursday, Sept.&nbsp; 4<br /> 8 &ndash; 9:30 a.m.<br /> General Session<br /> <strong>&ldquo;Environmental Legal Issues and Due Diligence When Cities Acquire Real Property&rdquo;</strong><br /> BB&amp;K Speaker:&nbsp; Danielle G. Sakai, Partner Environmental &amp; Natural Resources</p> <p>For more information on the City Attorneys' Department Track, <a target="_blank" href="http://www.cacities.org/Resources-Documents/Member-Engagement/Professional-Departments/City-Attorneys/Annual-Conference-2014_-City-Attorneys-Department.aspx"><span style="color: #0000ff">click here.</span></a><br /> <br /> Visit us at Expo booth #507.</p> <p><b>Location</b><br /> Los Angeles Convention Center</p> <p>For more information or to register, please visit the <a target="_blank" href="http://www.cacities.org/Education-Events/Annual-Conference-Expo"><span style="color: #0000ff">League of California Cities Annual Conference &amp; Expo event page.</span></a></p>Conferences & Speaking Engagements03 Sep 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=32028&format=xmlCPUC Review of Comcast-TWC Merger Gives Cities & Schools Opportunity to Improve Broadband Serviceshttp://www.bbklaw.com/?t=40&an=32475&format=xml<p>The California Public Utilities Commission has decided to focus on the cost and availability of broadband services in its review of the proposed merger between the two largest cable and broadband providers in the state: Comcast and Time Warner Cable. Local governments and schools may want to participate to express their concerns on issues, such as broadband access and the &ldquo;digital divide,&rdquo; as well as the proposed merger&rsquo;s effect on safety, reliability and build out to unserved and underserved areas of California.</p> <p>The FCC is reviewing the merger from a national perspective, but this CPUC proceeding provides a unique opportunity for local governments and schools to participate in a review of the merger focused specifically on impacts in California. Under the state video franchising regime adopted in the Digital Infrastructure and Video Competition Act of 2006, the companies do not require approval by local authorities or the CPUC to transfer their state video franchises. However, CPUC approval is required to transfer the companies&rsquo; state-issued telecommunications authorizations, and it is in this context that the CPUC has issued its <a target="_blank" href="http://docs.cpuc.ca.gov/PublishedDocs/Efile/G000/M101/K123/101123512.PDF"><span style="color: #0000ff">scoping ruling</span></a> focusing on broadband.</p> <p>The CPUC will concentrate on whether the merger will be beneficial on an overall basis to state and local economies, and to the communities in the areas served by the merged company. Among the topics it will examine, the CPUC will look at the effects of the merger on:</p> <ul> <li>Safety and reliability of voice and broadband services, including battery backups provided to consumers;</li> <li>Broadband deployment, especially to elementary and secondary schools and classrooms and unserved and underserved areas of the State;</li> <li>Consumer protection, including impacts or benefits for low-income consumers, accessibility, affordability, outreach and adoption.</li> </ul> <p>The CPUC may require mitigation measures to prevent any adverse consequences of the merger.</p> <p>As part of the proceeding, the CPUC directed its staff to issue discovery requests to the companies on topic areas such as: safety and reliability, complaints and complaint procedures, service terms and conditions, customer privacy, public safety, subscriber counts and network footprints, and services offered including voice, backhaul, wholesale and business services.</p> <p>If you would like to participate in this proceeding, please let us know as soon as possible. Discovery must be completed by Oct. 1, and opening briefs are due Oct. 20.</p> <p>The CPUC plans to issue a proposed decision in December, and adopt a final decision in January. For more information on this CPUC proceeding, please contact the authors of this legal alert listed at right, an attorney in the firm&rsquo;s <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=456&amp;format=xml"><span style="color: #0000ff">Telecommunications</span></a> practice group or your <a target="_blank" href="http://www.bbklaw.com/?p=2099"><span style="color: #0000ff">BB&amp;K attorney</span></a>.</p>Legal Alerts26 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=32475&format=xmlEthics Training for State and Local Officialshttp://www.bbklaw.com/?t=40&an=32034&format=xml<p>BB&amp;K Partner Kara Ueda is a speaker on the &ldquo;Ethics Training for State and Local Officials&rdquo; panel at the California Association of Sanitation Agencies 59th Annual Conference.</p> <p><b>When<br /> </b>Wed., Aug. 20, 2014<br /> 1 &ndash; 3 p.m.</p> <p><b>Location</b><br /> Marriott Monterey</p> For more information, visit the CASA event page by <a target="_blank" href="http://www.casaweb.org/documents/casa-preliminaryprogram-aug2014_1.pdf"><span style="color: #0000ff">clicking here</span></a>.Conferences & Speaking Engagements20 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=32034&format=xmlFourteen BB&K Attorneys Named to The Best Lawyers in America 2015 Listhttp://www.bbklaw.com/?t=40&an=32280&format=xml<p><b>RIVERSIDE, Calif.</b>&nbsp;- Best Best &amp; Krieger LLP is pleased to announce that 14 of its attorneys were selected by their peers for inclusion on <i>The Best Lawyers in America</i>&copy; 2015 list. The attorneys are from BB&amp;K offices throughout California and represent a diverse cross-section of the firm&rsquo;s practices.</p> <p><i>Best Lawyers</i>, first published in 1983, is based on an exhaustive peer-review survey in which more than 52,000 leading attorneys cast nearly 5.5 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. To read more about <i>Best Lawyers</i>, <a target="_blank" href="https://www.bestlawyers.com/"><span style="color: #0000ff">click here</span></a>.</p> <p>The BB&amp;K attorneys included on <i>The Best Lawyers in America</i>&copy; 2015 list, along with their BB&amp;K office and practice areas for which they were recognized, are:</p> <ul> <li>Eric L. Garner, Los Angeles, Environmental Litigation and Water Law<br type="_moz" /> &nbsp;</li> <li>Arthur L. Littleworth, Riverside, Environmental Litigation, Energy, Natural Resources and Water law<br type="_moz" /> &nbsp;</li> <li>George M. Reyes, Riverside, Corporate Law<br type="_moz" /> &nbsp;</li> <li>Gregory K. Wilkinson, Riverside, Environmental Litigation, Energy, Natural Resources and Water law<br type="_moz" /> &nbsp;</li> <li>Michelle Ouellette, Riverside, Environmental Litigation, Energy, Environmental and Natural Resources law<br type="_moz" /> &nbsp;</li> <li>Edward J. Quinn, Jr., Sacramento, Land Use and Zoning and Municipal law<br type="_moz" /> &nbsp;</li> <li>Harriet A. Steiner, Sacramento, Municipal Litigation and Municipal Law<br type="_moz" /> &nbsp;</li> <li>Iris P. Yang, Sacramento, Municipal Litigation, Land Use and Zoning and Municipal law<br type="_moz" /> &nbsp;</li> <li>Joseph E. Coomes, Jr., Sacramento, Land Use and Zoning and Municipal law<br type="_moz" /> &nbsp;</li> <li>T. Brent Hawkins, Sacramento, Municipal Law<br type="_moz" /> &nbsp;</li> <li>John E. Brown, Ontario, Municipal Law<br type="_moz" /> &nbsp;</li> <li>Stephen P. Deitsch, Land Use and Zoning and Municipal law<br type="_moz" /> &nbsp;</li> <li>Robert J. Hanna, San Diego, Commercial Litigation<br type="_moz" /> &nbsp;</li> <li>Roderick E. Walston, Walnut Creek, Natural Resources and Water law</li> </ul> <p style="text-align: left">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p>Press Releases19 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=32280&format=xmlProsecutors are Entitled to Direct Access to Peace Officer Personnel Recordshttp://www.bbklaw.com/?t=40&an=32118&format=xml<p><b>Overview:<i> </i></b>A California appellate court held this week that prosecutors are entitled to direct access &mdash; without a <i>Pitchess</i> motion &mdash; to a peace officer&rsquo;s personnel records to determine if there is any material subject to disclosure to the defense in a criminal case as required by the United States Supreme Court&rsquo;s decision in <i>Brady v. Maryland</i>.</p> <p><b>Training Point:<i> </i></b>If this case stands, prosecutors may routinely, and without a court order, obtain direct access to, and examine, a peace officer&rsquo;s personnel records for <i>Brady</i> purposes. Should the prosecutor suspect the existence of <i>Brady</i> material, they will be required to file a <i>Pitchess</i> motion to have that information disclosed to the defense. It appears that this rule will apply to any criminal prosecution in which an officer is a &ldquo;material,&rdquo; critical or important witness. <i>Brady </i>requires the prosecution to disclose any &ldquo;material&rdquo; evidence that might assist the defense as to either guilt or penalty, and includes both exonerating evidence and impeachment of a prosecution witnesses. How each county district attorney&rsquo;s office will implement this decision is yet to be determined and likely will be subject to policy guidelines in each office. This case significantly alters the <i>Pitchess</i> analysis and balancing of interests embodied in the law, as it is hard to see how any court will deny a prosecutor&rsquo;s motion following an unrestricted review that officers have no ability to challenge.</p> <p><b>Summary Analysis:<i> </i></b>In <i>People v. Superior Court (Johnson), </i>the San Francisco District Attorney was prosecuting a domestic violence case against Johnson. Two San Francisco police officers were potential witnesses in the prosecution. Pursuant to an SFPD Bureau Order, the deputy public defender determined and informed the prosecutors that the two officers had material in their personnel files that might be subject to disclosure to the defense under <i>Brady v. Maryland</i>.Prosecutors &nbsp;filed a <i>Pitchess</i> motion asking the court to review the personnel records to determine if material was subject to disclosure under <i>Brady</i> and, if so, to disclose the material subject to a protective order. The Police Department supported the District Attorney&rsquo;s motion. The trial court denied the District Attorney&rsquo;s motion, finding prosecutors had not made a sufficient showing of even potential <i>Brady</i> &ldquo;materiality&rdquo; to require review of the records. The court further held that the <i>Pitchess</i> motion procedure did not apply to prosecutor&rsquo;s efforts to review police personnel records for <i>Brady</i> material, and that Penal Code section 832.7(a) is unconstitutional to the extent it bars the&nbsp;prosecutor&rsquo;s access to police officer personnel records in order to comply with <i>Brady</i>.</p> <p>The Court of Appeal held that Penal Code section 832.7(a) does not preclude direct prosecutorial access to police officer personnel records for purposes of determining the existence of <i>Brady </i>material, as direct prosecution access does not constitute &ldquo;disclosure&rdquo; under the statute. Second, the court held that such direct prosecution access does not breach the &ldquo;confidentiality&rdquo; of the personnel records, as the prosecutor&rsquo;s access does not risk &ldquo;public disclosure,&rdquo; which is what Penal Code section 832.7(a) is designed to protect against. If after reviewing the files the prosecutor believes that <i>Brady</i> material is subject to disclosure to the defense, the prosecutor must then file a motion under Evidence Code 1043, et seq., i.e., initiate the <i>Pitchess</i> process.</p> <p>For more information regarding this case or its implications for your agency and public safety department, &nbsp;please contact one of the attorney authors of this legal alert listed at the right in the <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=2532&amp;format=xml"><font color="#0000ff">Public Safety</font></a> group, or your <a target="_blank" href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></a>.</p> &nbsp;<i>Disclaimer: BB&amp;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 communiqu&eacute;.</i>Legal Alerts15 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=32118&format=xmlWater Supply and Infrastructure Bond to be Placed on November Ballothttp://www.bbklaw.com/?t=40&an=32047&format=xml<p>How public agencies seek funding for water quality and storage projects will be impacted if voters approve the state water bond measure passed by the Legislature and signed by Gov. Jerry Brown late Wednesday.<br /> <br /> Just before the deadline for inclusion on the November ballot, AB 1471, also known as the Water Quality, Supply, and Infrastructure Improvement Act of 2014, was approved to replace the previous bond measure of $11 billion, which was deemed too costly. If passed by voters, the new bond measure includes $7.5 billion for a water quality, supply and infrastructure improvement program.<br /> <br /> Specifically, the measure would allocate $520 million for projects to improve water quality and wastewater treatment, and provide more reliable safe drinking water. Priority for this funding would be given to projects benefitting disadvantaged communities. Also, of the $7.5 billion made available by the bond measure, $2.7 billion would be available for water storage projects. Storage projects would be selected by the California Water Commission through a competitive process that ranks projects based on expected return and overall public benefit. However, to be eligible, applicants for storage project funds must first complete feasibility studies and draft environmental documents.</p> <p>Additionally, the measure would allocate nearly $1.5 billion for watershed protection and restoration projects; $900 million for groundwater cleanup and management; $810 million for integrated regional water management, water conservation and stormwater capture; $725 million for water recycling projects and facilities; and $395 million for flood management projects.</p> <p>In various parts of this bill, statements are made that funds from this bond shall not be expended to pay the costs of Delta conveyance facilities (i.e. twin tunnels), and that those costs shall be the responsibility of the agencies that benefit from those facilities.</p> <p>If approved by voters, public agencies seeking funding for any projects will need to evaluate how their project will be prioritized and ranked for eligibility based on the various criteria used for each category of funding. This includes the availability of additional federal, local or private funding, and an evaluation of both technological and economic feasibility.</p> <p>For more information about how the Water Quality, Supply, and Infrastructure Improvement Act may affect your agency and its water projects, please contact one of the attorney authors of this legal alert listed at the right in the <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=492&amp;format=xml"><span style="color: #0000ff">Environmental Law &amp; Natural Resources</span></a> and <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=487&amp;format=xml"><span style="color: #0000ff">Special Districts</span></a> practice groups, or your <a target="_blank" href="http://www.bbklaw.com/?p=2099"><span style="color: #0000ff">BB&amp;K</span></a> attorney.</p> <i>Disclaimer: BB&amp;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 communiqu&eacute;.</i>Legal Alerts14 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=32047&format=xmlThree BB&K Attorneys Among Daily Journal's Top 50 California Development Attorneys for 2014http://www.bbklaw.com/?t=40&an=32113&format=xml<p><b>LOS ANGELES</b>&nbsp;- Please join Best Best &amp; Krieger LLP in congratulating Scott Campbell, Steven DeBaun and Michelle Ouellette for being among an elite group of attorneys working to transform California&rsquo;s infrastructure. Whether it&rsquo;s improving water supply or quality or transportation systems, these BB&amp;K attorneys are standouts and have earned spots on the competitive <i>Daily Journal</i> Top 50 Development Lawyers list for 2014.</p> <p>Campbell&rsquo;s work improving the City of Avalon&rsquo;s water infrastructure&nbsp;&mdash; a transformation that got the Catalina Island tourist enclave off Heal the Bay&rsquo;s &ldquo;Beach Bummer&rdquo; list &mdash; was recognized by the <i>Daily Journal</i> editors. Campbell, who serves as Avalon&rsquo;s city attorney, used ingenuity and creativity to secure the funds for the much-needed improvements following Gov. Jerry Brown&rsquo;s dismantling of redevelopment agencies, the <i>Daily Journal </i>reported.</p> <p>&ldquo;People go in the water and there are no posting of warning signs by the County of Los Angeles,&rdquo; Campbell told the <i>Daily Journal</i>. &ldquo;This year&rsquo;s Beach Bummer list didn&rsquo;t have Avalon on it and, next year, we are hoping to get an &lsquo;A&rsquo; on the Heal the Bay list.&rdquo; <a target="_blank" href="http://www.bbklaw.com/?t=3&amp;A=1560&amp;format=xml"><span style="color: #0000ff">Campbell</span></a> practices in BB&amp;K&rsquo;s Los Angeles office and is a partner in the Municipal Law and Litigation practice groups.</p> <p>DeBaun is overseeing a $1.2 billion toll lane project for the State Route 91 freeway, as well as a mixed-flow lane for the same freeway, and is also working on a $250 million commuter rail line project to expand Metrolink between Riverside and Perris. Both projects, noted the <i>Daily Journal</i>, have had significant hurdles. DeBaun drafted legislation so the Riverside County Transportation Commission, to which he has served as general counsel for 20 years, could construct and operate the toll facility. Then, there were many other property acquisition and agency coordination issues to work through.</p> <p>&ldquo;It&rsquo;s been a real struggle moving through these agreements,&rdquo; DeBaun told the <i>Daily Journal</i>. &ldquo;I had wondered if we&rsquo;d ever get to the end point, but it&rsquo;s clearly going to happen.&rdquo; <a target="_blank" href="http://www.bbklaw.com/?t=3&amp;A=1576&amp;format=xml"><font color="#0000ff">DeBaun</font></a> works in BB&amp;K&rsquo;s Riverside office and is a partner in the Special Districts, Municipal Law and Education Law practice groups.</p> <p>Ouellette was recognized for her work leading the Santa Margarita Water District legal team to a significant victory in a case stemming from a project to supply approximately 50,000 acre-feet of water per year, over 50 years, to water users throughout Southern California. The project is a unique private/public partnership and it&rsquo;s environmental review and designation of the Water District as lead agency were challenged in six different lawsuits. In a separate matter, the <i>Daily Journal</i> editors also noted that, on behalf of the City of Riverside, Ouellette and the BB&amp;K legal team prevailed on a transmission grid project, which addressed potential power shortages.</p> <p>Both of &nbsp;these cases addressed the issue of who should be the lead agency under the California Environmental Quality Act, and, in the Cadiz case, for public/private partnerships. Ouellette told the <i>Daily Journal</i>. &ldquo;I think that if we want to encourage such partnerships, the public agency who is entering into them should be the lead agency, which I believe is fully supported by the relevant [California Environmental Quality Act] statute and guidelines.&rdquo; <a target="_blank" href="http://www.bbklaw.com/?t=3&amp;A=1650&amp;format=xml"><font color="#0000ff">Ouellette</font></a> also practices in BB&amp;K&rsquo;s Riverside office and is a partner in the Environmental Law &amp; Natural Resources and Municipal Law practice groups.</p> <p>Read more about the <i>Daily Journal&rsquo;s</i> Top 50 Development Attorneys by visiting the publication&rsquo;s <a target="_blank" href="http://www.dailyjournal.com/"><font color="#0000ff">website</font></a> (subscription required).</p>Press Releases14 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=32113&format=xmlAsscociate - Employee Benefits & Tax - Riverside Officehttp://www.bbklaw.com/?t=40&an=32024&format=xml<p>Our Riverside office is seeking an associate with 1 to 3 years of experience in employee benefits, tax and ERISA matters.</p> <p>Qualified applicants are invited to apply online by clicking the link below. Applicants must attach a resume, transcript and cover letter to be considered for employment. This self-apply feature is compatible with Internet Explorer 6, 7, 8 &amp; 9, Mozilla Firefox for Windows, or Safari for Macintosh.</p> <p><a target="_blank" href="https://lawcruit.micronapps.com/sup/lc_supp_jobpost.aspx?%40Pl3%3cKWEX%40=2%3e4&amp;%3db8=8_CG">lawcruit.micronapps.com/sup/lc_supp_jobpost.aspx</a><br /> <br /> Please address your cover letter to:</p> <p><strong>Jill N. Willis<br /> </strong><em>Chief Talent Officer<br /> </em>Best Best &amp; Krieger LLP<br /> 300 South Grand Avenue, 25th Floor<br /> Los Angeles, CA 90071<br /> <br /> <em><strong>No phone calls please</strong></em><br /> <br /> <b><i>Best Best &amp; Krieger LLP is an Equal Opportunity Employer.</i></b></p>Job Openings at BB&K13 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=32024&format=xmlPublic partner financing: a capital proposalhttp://www.bbklaw.com/?t=40&an=32025&format=xml<p><strong>By:</strong> Jake Vollebregt<br /> <br /> Cities throughout California are looking for development partners to revitalize downtown districts, create value in suburban neighborhoods, and renew aging infrastructure. Though local governments are prohibited from making outright gifts of public funds, cities can provide financial assistance, including loans, grants, subsidies and tax incentives, if the program supports an identifiable public purpose and community benefit. Here are a few tools that developers should be aware of when considering a public entity as a potential capital provider for a real estate development project.</p> <p><b>Commercial Rehabilitation Loans</b></p> <p>If a city determines that an investment in a few key properties will catalyze economic growth in a community's downtown district, underwriting a commercial rehabilitation loan can make sense. Senate Bill 470, enacted last year, restored cities' explicit authority to issue commercial rehabilitation loans. Few cities have surpluses in their operating budgets, so where does the money come from? Redevelopment agencies, which were dissolved in 2011, accounted for approximately $5 billion in tax increment revenue that cities could employ to revitalize blighted areas. Today, cities may decide to establish revolving funds with allocations from new tax revenues to underwrite commercial rehabilitation loans. Even if the loan has a relatively low internal rate of return, a city may choose to extend the loan from its general fund because the project will revitalize a commercial center and increase property values and tax revenue.</p> <p><i>Click <a target="_blank" href="http://www.dailyjournal.com/subscriber/SubMain.cfm?shCenFileName=Supplement&amp;shNewsType=Supplement&amp;selOption=Real%20Estate&amp;NewsId=1320&amp;pubdate=2014-08-13#section=tab3.cfm%3Fseloption%3Dnews%26pubdate%3D2014-08-13%26shNewsType%3DSupplement%26NewsId%3D936620%26sdivId%3Dtab3"><span style="color: #0000ff">here</span></a> to read the entire article published on Aug. 13, 2014 in the Daily Journal&rsquo;s Development Supplement (subscription required).</i></p>BB&K In The News13 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=32025&format=xmlAttorney - Eminent Domain - Riverside, Ontario or Los Angeles Officehttp://www.bbklaw.com/?t=40&an=32011&format=xml<p>Our Eminent Domain Practice Group is seeking an attorney with 8+ years&rsquo; complex litigation experience, including jury trial experience. Experience with public agency acquisitions, eminent domain and inverse condemnation litigation preferred.&nbsp;</p> <p>Qualified applicants are invited to apply online by clicking the link below. Applicants must attach a resume, transcript and cover letter to be considered for employment. This self-apply feature is compatible with Internet Explorer 6, 7, 8 &amp; 9, Mozilla Firefox for Windows, or Safari for Macintosh.</p> <p><a target="_blank" href="https://lawcruit.micronapps.com/sup/lc_supp_jobpost.aspx?%40Pl3%3cKWEX%40=2%3e4&amp;%3db8=8_CG">lawcruit.micronapps.com/sup/lc_supp_jobpost.aspx</a><br /> <br /> Please address your cover letter to:</p> <p><strong>Jill N. Willis<br /> </strong><em>Chief Talent Officer<br /> </em>Best Best &amp; Krieger LLP<br /> 300 South Grand Avenue, 25th Floor<br /> Los Angeles, CA 90071<br /> <br /> <em><strong>No phone calls please</strong></em><br /> <br /> <b><i>Best Best &amp; Krieger LLP is an Equal Opportunity Employer.</i></b></p>Job Openings at BB&K12 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=32011&format=xmlAB 1825 Sexual Harassment Avoidance Training (August 12)http://www.bbklaw.com/?t=40&an=31358&format=xml<div><br /> 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.</div> <p>Joseph Ortiz will present the training from the Riverside office. All other BB&amp;K offices participating 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.<br /> <br /> <a href="http://events.constantcontact.com/register/event?llr=apf8yceab&amp;oeidk=a07e9je1pdw3c0bf5b2"><span style="color: #0000ff"><strong>Click Here</strong></span></a>&nbsp;to Register</p> <p><strong>What will be&nbsp;covered:</strong></p> <ul type="disc"> <li>What constitutes sexual harassment or discrimination in the workplace</li> <li>How to recognize and avoid it</li> <li>What procedures to follow if you witness harassment or are harassed yourself</li> <li>The potential consequences - including personal liability - of sexual harassment</li> </ul> <strong><br /> Audience:</strong><br /> <br /> <ul type="disc"> <li>Supervisors</li> <li>Human Resources Professionals</li> <li>Public Officials</li> <li>Managers &amp; Private Business Professionals with 50 or More Employees</li> </ul> <p><strong>When: <br /> </strong><br /> Tuesday, August 12<br /> 9 - 11 a.m.<br /> <br /> <strong>Registration:<br /> </strong><br /> The training will be held via video conference at the following BB&amp;K offices throughout California. <a href="http://events.constantcontact.com/register/event?llr=apf8yceab&amp;oeidk=a07e9je1pdw3c0bf5b2"><span style="color: #0000ff"><strong>Click here</strong></span></a> to register to attend the training.</p> <ul> <li><a href="http://www.bbklaw.com/?t=10&amp;L=60&amp;format=xml"><span style="color: #0000ff">Indian wells </span></a></li> <li><a href="http://www.bbklaw.com/?t=10&amp;L=61&amp;format=xml"><span style="color: #0000ff">Irvine </span></a></li> <li><a href="http://www.bbklaw.com/?t=10&amp;L=62&amp;format=xml"><span style="color: #0000ff">Los Angeles </span></a></li> <li><a href="http://www.bbklaw.com/?t=10&amp;L=59&amp;format=xml"><span style="color: #0000ff">Ontario </span></a></li> <li><a href="http://www.bbklaw.com/?t=10&amp;L=63&amp;format=xml"><span style="color: #0000ff">Riverside</span></a> &ndash; Joseph Ortiz presented from the Riverside office</li> <li><a href="http://www.bbklaw.com/?t=10&amp;L=64&amp;format=xml"><span style="color: #0000ff">Sacramento </span></a></li> <li><a href="http://www.bbklaw.com/?t=10&amp;L=65&amp;format=xml"><span style="color: #0000ff">San Diego </span></a></li> <li><a href="http://www.bbklaw.com/?t=10&amp;L=66&amp;format=xml"><span style="color: #0000ff">Walnut Creek </span></a></li> </ul> <p><strong>BB&amp;K Presenter:<br /> <br /> </strong>Joseph Ortiz, Partner, Labor &amp; Employment Practice Group in Riverside office<br /> <br /> <strong>QUESTIONS:<br /> <br /> </strong>Contact <a href="mailto:katey.lamke@bbklaw.com?subject=BB%26K%20Training"><span style="color: #0000ff">Katey Lamke</span></a> if you have any questions about this event and/or about BB&amp;K upcoming seminars/events.<br /> <br /> If you are not currently receiving our Legal Alerts and would like to be added to our email distribution list, please visit our <a target="_blank" href="http://www.bbklaw.com/?p=2121"><span style="color: #0000ff">subscription page</span></a>.</p>Seminars and Webinars12 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31358&format=xmlHobby Lobby ripples still being measuredhttp://www.bbklaw.com/?t=40&an=31999&format=xml<p><strong>By</strong>: Brian Reider<br /> <br /> The U.S. Supreme Court in June decided the controversial case of Burwell v. Hobby Lobby Stores Inc. The court ruled that Hobby Lobby, as a privately owned corporation, has the right to refuse to comply with federal regulations that mandate that health insurance offered to employees by employers covered by the Affordable Care Act &ndash; also known as Obamacare &ndash; make specified contraceptives available.</p> <p>The technical basis for the decision is the Religious Freedom Restoration Act of 1993 (RFRA), which prohibits the &ldquo;Government (from) substantially burden(ing) a person&rsquo;s exercise of religion &hellip;&rdquo; unless the Government &ldquo;demonstrates that application of the burden to the person &mdash; (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.&rdquo;</p> <p>The Supreme Court found that the owners of Hobby Lobby and two other corporations, which also sued, have sincere Christian beliefs that life begins at conception, and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point.</p> <p>Obamacare regulations mandate that nonexempt employers are generally required to provide coverage for 20 contraceptive methods approved by the Food and Drug Administration, including four that may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.</p> <p>The court ruled that these regulations violate the owner&rsquo;s religious beliefs, and, therefore, cannot be enforced under RFRA.</p> <p>The court&rsquo;s decision is very narrow in scope, but opens the door to arguments that other regulatory mandates, such as requirements for insurance coverage for blood transfusions or vaccinations, may also be unenforceable if the private legitimate religious beliefs of the owners of a private corporation lead them to object.</p> <p>The decision is also important in finding that private corporations have personal rights to religious freedom that must be honored by the government.</p> <p>The majority of businesses already offered comprehensive contraception coverage before the Affordable Care Act passed and continue to do so.</p> <p>Employers hoping to qualify for the exemption afforded by this Supreme Court decision must consider the following:</p> <ul> <li>The ruling does not apply to publicly traded companies.</li> <li>It is limited to&nbsp;&ldquo;closely held&rdquo;&nbsp;corporations, but the court did not define what that meant for this purpose.</li> <li>The business owners must have&nbsp;&ldquo;sincere&rdquo;&nbsp;religious beliefs that life begins at conception.</li> <li>Applicants are required to sign and deliver a federal form that certifies their objection.</li> <li>This ruling concerns four methods of contraception. Employers may face an uphill battle if they attempt to restrict other items or services on the basis of religious objection.</li> <li>The decision does not necessarily impact state laws, including mandates concerning contraception coverage, although California does have its own religious exemption regarding contraceptives.</li> <li>Employers cannot illegally discriminate against employees on the ground of religious freedom.</li> </ul> <p>It remains to be seen how insurance companies will respond to requests to carve out parts of the health coverage they provide.</p> <p>The impacts from this case will continue to cause ripples, but the immediate result is that some privately owned corporations do have the right to refuse to comply with federal regulations mandating that insurance provided by employers covered by Obamacare make certain contraceptives available to employees.</p> <p><i>* This article first appeared in <a target="_blank" href="https://webmail.bbklaw.com/owa/14.3.195.1/scripts/premium/redir.aspx?C=cJJvCig43Eq18ptMuE7hFVOEnkNpidEIAMVJv60fBKrxrHR0nUlCRo6lIyib2jg5-DDwOcXdK88.&amp;URL=http%3a%2f%2fwww.pe.com%2farticles%2freligious-698618-court-employers.html">The Press-Enterprise</a>&nbsp;on Aug. 10, 2014. Republished with permission.</i></p>BB&K In The News10 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31999&format=xmlCalifornia Supreme Court Rules Local Governments Are Not Required to Comply With CEQA Before Adopting a Voter-Sponsored Initiativehttp://www.bbklaw.com/?t=40&an=31966&format=xml<p>Local governments may adopt voter-sponsored initiatives without conducting environmental review pursuant to the California Environmental Quality Act, the California Supreme Court has ruled. In a unanimous decision handed down Thursday, the court held in <i>Tuolumne Jobs &amp; Small Business Alliance v. Superior Court</i> that the City of Sonora properly adopted a land-use ordinance brought by a voter-sponsored petition, even though the City did not undertake an environmental review.</p> <p>The opinion clarifies that land-use initiatives proposed by voters are not subject to CEQA review, even when a local government adopts an initiative proposed by voters. The court also distinguished initiatives generated by city councils, confirming the existing rule that cities must comply with CEQA before placing a <u>city-generated</u> initiative on the ballot.</p> <p>At issue in <i>Tuolumne Jobs</i> was the expansion of a Wal-Mart store into a Wal-Mart Supercenter. Before the City approved the project, a group of citizens brought an initiative petition to the City that would streamline approval of the project. The City had three choices: (1) adopt the initiative, (2) submit the initiative to a vote at a special election or (3) order a report prepared regarding the project, and, after review of the report, either adopt the initiative or submit it to the electorate. The City chose to have a report prepared and, afterward, adopted the ordinance that the initiative proposed.</p> <p>Tuolumne Jobs &amp; Small Business Alliance sued, arguing that the City should have conducted CEQA review before adopting the voter-sponsored initiative ordinance. After reviewing the statutory language, legislative history and public policy, the Supreme Court disagreed. It found that it would be impossible for a city to complete a CEQA review within the timeframes allowed for adopting a voter-sponsored initiative. It also noted that several bills that attempted to require CEQA or other environmental review of local initiatives had failed. In addition, the court determined that, from the inception of the initiative power, cities have had the option to directly adopt voter initiatives. Accordingly, the Supreme Court held that the City was not required to conduct a CEQA review before adopting the ordinance.</p> <p>For more information about this case and how&nbsp;it may affect your agency, please contact one of the attorney authors of this legal alert listed at the right in the <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=492&amp;format=xml"><font color="#0000ff">Environmental Law &amp; Natural Resources</font></a> practice group, or your <a target="_blank" href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></a>.</p> <i>Disclaimer: BB&amp;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 communiqu&eacute;.</i>Legal Alerts08 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31966&format=xmlDevelopment Agreements, Public-Private Partnerships and Redevelopment 2.0http://www.bbklaw.com/?t=40&an=31737&format=xml<p>BB&amp;K attorneys <b>Harriet Steiner</b>, <b>Seth Merewitz</b> and <b>Joseph Coomes</b>&nbsp; will be instructors at the University of California, Davis&rsquo; one-day seminar &ldquo;Development Agreements, Public-Private Partnerships and Redevelopment 2.0.&rdquo; This course will discuss public-private partnerships and the legal and practical considerations impacting how cities, counties and private developers can collaborate on matters involving economic development. With the repeal of the redevelopment law, one critically important, long-time functioning tool has been eliminated. This class examines other techniques such as development agreements, infrastructure financing districts, special taxes and assessments as possible collaborate strategies for moving forward both public and private agendas. Instructors also include William Abbott, a partner at Abbott &amp; Kindermann in Sacramento and Steven Rudolph, the city attorney of Galt.</p> <p><b>Date</b><br /> Friday, Aug. 8, 2014</p> <p><b>Time</b><br /> 9 a.m. &ndash; 4:30 p.m.</p> <p><b>Location</b><br /> Sutter Square Galleria<br /> 2901 K St<br /> Sacramento, CA</p> <p><b>Credit</b><br /> .6 CEU, 6 Hours, 6 AICP Hours, 6 MCLE Hours</p> <p>For more information or to register, please click <a href="http://extension.ucdavis.edu/unit/land_use_and_natural_resources/course/description/?type=A&amp;unit=LUNR&amp;SectionID=173729&amp;prgList=LUP&amp;AreaName=Land"><font color="#0000ff">here</font></a>.</p>Conferences & Speaking Engagements08 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31737&format=xmlFederal Court of Appeals Rules that California Water District May Recover Expectancy Damages from the United Stateshttp://www.bbklaw.com/?t=40&an=31908&format=xml<p>A recent federal appellate decision may clear the way for water purveyors to collect damages when the federal government shortens water deliveries, in breach of water supply contracts. The U.S. Court of Appeals for the Federal Circuit reversed a Court of Federal Claims (trial court) for its denial of expectancy damages in a decades-long breach of contract case, ruling on Aug. 1 that the trial court erred in its analysis of how expectancy damages are to be calculated based on the facts of the case. The decision opens the door to the possibility for water districts with federal government water supply contracts to obtain monetary damages from the government if their water deliveries are shorted due to an inexcusable breach of contract.</p> <p>In 1983, Central San Joaquin Water Conservation District contracted with the United States Bureau of Reclamation for an appropriation of water from the New Melones Reservoir within the San Joaquin Valley to support agricultural interests in the Valley. However, nearly 10 years later, the Bureau informed the District it would not be able to meet the contract&rsquo;s demands, and the District eventually purchased water from the South San Joaquin Irrigation District instead.</p> <p>The District sued the United States for breach of contract in federal court in 1993. The trial and appellate courts disagreed on liability, and the appellate court reversed the trial court and determined that the United States was liable for breach of contract from 1999 to 2004. It returned the case to the trial court for a damages determination for the breaches that occurred during that time.</p> <p>On remand, the trial court found that the District was entitled to recover damages in the amount of $149,950 &mdash; the difference between what the District paid to SSJID for water and the total amount it would have paid to the Bureau for the water in 2002 to 2004. The trial court denied any expectancy damages, finding that the District had failed to present evidence demonstrating how much water it might have needed from 1999 to 2004 in a non-breach circumstance. Expectancy damages are based on the value of the injured party's interest lost by the failure of the other party to fulfill its contractual obligations. The appeal followed.</p> <p>Here, the appellate court ruled that the trial court erred in its expectancy damages analysis because it only examined the conduct during the period of liability (1999 to 2004) instead of beginning in 1993, and focused on the District&rsquo;s failure to request water in certain years, following years of announcements from the Bureau that it could not provide the District water.</p> <p>To determine expectancy damages, one must consider what would have happened had the contract been performed. The appellate court excused the District&rsquo;s failure to request water from the Bureau in certain years because, at &ldquo;some point, most people stop asking for what they have been told they are not going to get, and they make other plans to meet their needs.&rdquo;</p> <p>Thus, the appellate court vacated the trial court&rsquo;s judgment in part and remanded the case for a reconsideration of expectancy damages with instructions for the trial court to consider the effect of the Bureau&rsquo;s announcements of non-delivery, beginning in 1993, on the expectations of the District and the agricultural community it served. The District was also awarded costs on appeal.</p> <p>Based upon the court&rsquo;s decision, it appears likely that the District will receive damages in excess of the $149,950 it originally received.</p> <p>If you have questions about this case, or how your agency may be affected, please contact one of the attorney authors of this legal alert listed at right in the <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=425&amp;format=xml"><span style="color: #0000ff">Water Rights group</span></a>, or your <a target="_blank" href="http://www.bbklaw.com/?p=2099"><span style="color: #0000ff">BB&amp;K attorney</span></a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts07 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31908&format=xmlOffice of Planning and Research Issues Draft Update to State CEQA Guidelines for Analyzing Traffic Impactshttp://www.bbklaw.com/?t=40&an=31946&format=xml<p>As mandated by 2013&rsquo;s Senate Bill 743, the Office of Planning and Research has released its draft update to the State CEQA Guidelines, <a target="_blank" href="http://www.opr.ca.gov/docs/Final_Preliminary_Discussion_Draft_of_Updates_Implementing_SB_743_080614.pdf"><span style="color: #0000ff">available here</span></a>. SB 743 requires OPR to update the Guidelines to set forth alternative methods of measuring transportation impacts under CEQA. These methods are to replace the frequently relied upon Level of Service method, which assesses traffic impacts by measuring automobile delay.</p> <p>The draft update proposes adding a new section 15064.3 to the Guidelines and amending Guidelines Appendix F (Energy Impacts) to describe possible mitigation measures and alternatives to mitigate traffic impacts. The update also amends the threshold questions related to transportation contained in Guidelines Appendix G section XVI to conform to the proposed new section 15064.3.</p> <p>Specifically, the update states that a project&rsquo;s effect on automobile delay, or LOS, does <u>not</u> constitute a significant environmental impact for traffic purposes. Instead, it provides that the Vehicle Miles Traveled method (i.e. assessing the amount and distance of automobile travel associated with a project) is &ldquo;generally&rdquo; the &ldquo;best&rdquo; measurement of whether a traffic impact is significant. The proposed amendments to the Guidelines do not, however, address whether LOS may be an appropriate metric for determining impacts to other environmental resources.</p> <p>Where a significant traffic impact is identified using the VMT method, updated Appendix F contains a list of potential mitigation measures and project alternatives to reduce the impact&rsquo;s significance. The mitigation measures include increasing access to transit and improving transit services, and the alternatives include locating projects near transit and increasing the mix of uses in a project.</p> <p>If adopted, the update would apply immediately to projects within &ldquo;transit priority areas,&rdquo; which are areas within one-half mile of an existing or planned major transit stop. Outside of those areas, a lead agency may elect to be immediately governed by the provisions of the update. However, after January 1, 2016, the update would apply statewide.</p> <p>Should your agency wish to submit input to OPR on the proposed updates, including the use of the VMT method or the proposed mitigation measures, comments must be submitted by 5p.m. on October 10. Comments may be submitted either electronically to <a href="mailto:CEQA.Guidelines@ceres.ca.gov"><font color="#0000ff">CEQA.Guidelines@ceres.ca.gov</font></a>, or by mail or hand delivery to:</p> <p>Christopher Calfee, Senior Counsel<br /> Governor&rsquo;s Office of Planning and Research<br /> 1400 Tenth Street<br /> Sacramento, California 95814</p> <p>If your agency would like assistance preparing and/or submitting comments to OPR, please contact one of the attorney authors of this legal alert listed at right in the Environmental Law &amp; Natural Resources practice group, or your BB&amp;K attorney.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts07 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31946&format=xmlKey Public Policy Issues: Our Perspectiveshttp://www.bbklaw.com/?t=40&an=31316&format=xml<p>BB&amp;K attorney <b>Gerard Lederer</b> will be a panelist at the ACM &amp; NAMAC&rsquo;s National Conference State &amp; Main: Intersecting Networks, Communities, Generations. He will be on a panel titled, &ldquo;Key Public Policy Issues: Our Perspectives,&rdquo; which will provide an in-depth focus on the federal agenda for community media centers, including captioning standards, AT&amp;T U-verse, electronic program guides, funding streams, federal PEG priorities, HD conversion standards, franchising, the Telecom Act and the Community Access Preservation Act.</p> <p><b>When:</b><br /> Thursday, Aug. 7, 2014<br /> 2 &ndash; 3:30 p.m.</p> <p><b>Location:</b><br /> The Sheraton Philadelphia Downtown Hotel<br /> Room: Independence A &amp; B (Ballroom Level)<br /> <span itemprop="address">201 North 17th Street<br /> Philadelphia, PA 19103</span></p> <p>For more details about the conference or to register, visit <a href="http://stateandmain2014.com/"><font color="#0000ff">http://stateandmain2014.com</font></a>.</p>Conferences & Speaking Engagements07 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31316&format=xmlAttorney - Municipal Law - Sacramento Officehttp://www.bbklaw.com/?t=40&an=31850&format=xml<p>Our Sacramento office is seeking an attorney with 8+ years&rsquo; experience and an independent practice in construction-related transactional and litigation work, with a focus on construction law issues for public agencies. Experience should include public contract drafting and negotiation, bidding documentation and disputes, construction suretyship, insurance, indemnity and risk management, and resolution of construction disputes. &nbsp;A background in engineering or construction is preferred.</p> <p>Qualified applicants are invited to apply online by clicking the link below. Applicants must attach a resume, transcript and cover letter to be considered for employment. This self-apply feature is compatible with Internet Explorer 6, 7, 8 &amp; 9, Mozilla Firefox for Windows, or Safari for Macintosh.</p> <p><a target="_blank" href="https://lawcruit.micronapps.com/sup/lc_supp_jobpost.aspx?%40Pl3%3cKWEX%40=2%3e4&amp;%3db8=8_CG">lawcruit.micronapps.com/sup/lc_supp_jobpost.aspx</a><br /> <br /> Please address your cover letter to:</p> <p><strong>Jill N. Willis<br /> </strong><em>Chief Talent Officer<br /> </em>Best Best &amp; Krieger LLP<br /> 300 South Grand Avenue, 25th Floor<br /> Los Angeles, CA 90071<br /> <br /> <em><strong>No phone calls please</strong></em><br /> <br /> <b><i>Best Best &amp; Krieger LLP is an Equal Opportunity Employer.</i></b></p>Job Openings at BB&K06 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31850&format=xmlLegal Ethics Resourceshttp://www.bbklaw.com/?t=40&an=32008&format=xml<p>Substantial information on legal ethics is available on the Internet, including:</p> <ul> <li><a target="_blank" href="http://www.law.georgetown.edu/library/research/guides/legal_ethics.cfm"><span style="color: #0000ff">http://www.law.georgetown.edu/library/research/guides/legal_ethics.cfm</span></a>, a broad-based Legal Ethics Research Guide offered by Georgetown Law Library with links to substantial material. Many of the links are to Lexis and Westlaw, but there is an extensive list of available resources, and some Internet links.<a href="http://www.imla.org/blog/wp-content/uploads/2014/04/legal-ethics.jpg"><img class="alignright size-medium wp-image-646" border="0" hspace="15" alt="legal ethics" vspace="15" align="right" width="300" height="225" src="http://www.imla.org/blog/wp-content/uploads/2014/04/legal-ethics-300x225.jpg" /></a></li> <li><a target="_blank" href="http://legalethics.com/"><span style="color: #0000ff">http://legalethics.com/</span></a>, which focuses on a variety of specific topics, including ethical walls, blogs, ethical issues associated with use of technology by legal professionals, use of the cloud, and a state by state directory.</li> <li><a target="_blank" href="http://www.freivogelonconflicts.com/"><span style="color: #0000ff">http://www.freivogelonconflicts.com/</span></a>, described as &ldquo;A Guide to Conflicts of Interest for Lawyers,&rdquo; which gathers material into multiple topics such as Co-Counsel/Common Interest, Corporate Families, Enjoining Conflicts, Investing in Clients/Stock for Fees, Lawyers Representing Lawyers.</li> <li><a target="_blank" href="http://www.law.cornell.edu/ethics/"><span style="color: #0000ff">http://www.law.cornell.edu/ethics/</span></a>, the American Legal Ethics Library, with information from all 50 States and the ABA. The information is accessible by jurisdiction and by topic, as well as a collection of material on multidisciplinary practice. [as of March 1, 2013, no longer maintained and updated]</li> <li>Most States have websites specific to legal ethics issues in the specific State. A search for &ldquo;legal ethics&rdquo; or &ldquo;ethics&rdquo; and the State will bring these quickly to hand. California at <a target="_blank" href="http://ethics.calbar.ca.gov/"><span style="color: #0000ff">http://ethics.calbar.ca.gov/</span></a> Louisiana&nbsp;<a target="_blank" href="http://www.lasc.org/rules/"><span style="color: #0000ff">http://www.lasc.org/rules/</span></a>&nbsp;&nbsp; <a target="_blank" href="http://www.lsba.org/Members/EthicsAdvisary.aspx"><span style="color: #0000ff">http://www.lsba.org/Members/EthicsAdvisary.aspx </span></a><br /> &nbsp;</li> <li>Individual federal courts may also have rules governing lawyers practicing in the court. For example, the Seventh Circuit has Standards for Professional Conduct that govern Lawyers&rsquo; Duties to Other Counsel, Lawyers&rsquo; Duties to the Court and the Courts&rsquo; Duties to Lawyers <a target="_blank" href="http://www.ca7.uscourts.gov/Rules/rules.htm#standards"><span style="color: #0000ff">http://www.ca7.uscourts.gov/Rules/rules.htm#standards</span></a></li> </ul> <p>There is much to be said in favor of checking the ethics of conduct when one contemplates embarking on a new course of action. New attorneys should review ethics rules regularly, especially if their superior advocates action that does not seem appropriate. Counsel should never accuse another attorney of unethical behavior without checking to be sure what is and what is not permitted.</p> <p>Image courtesy of <a target="_blank" href="https://www.flickr.com/photos/48408790@N00/316669375/in/photolist-tZ1LP-B4xD1-DTB6p-MioTi-2bVfSK-2gY7wv-4k7WoA-4x3PzP-4JfBK5-4KXBfZ-4RW4Sm-56tsYe-5a4rwu-5ashWZ-5d4MLv-5jnHWJ-5m46vp-5m8mQ3-5sZbBQ-5wUJxr-5AKKry-5D9y52-5THLPA-5YgqGn-65tbnJ-66NC6S-66WnSx-67d5kK-6bH65b-6dhbZe-6hqKZ7-6hRuHT-6icxES-6k1re1-6wkw3L-6wUL26-6xmpkd-6FRRTi-6Xnxtf-6ZD2LA-78qoMq-7iLF52-cr58mo-9yRFzi-keveZF-a5oF29-ka1VX8-bs9vKr-8TNzvx-a3gCpa-7SzYds"><span style="color: #0000ff">Flickr</span></a>&nbsp;by <a target="_blank" href="https://www.flickr.com/photos/stephenccwu/"><span style="color: #0000ff">Stephen Wu</span></a> (<a target="_blank" href="https://creativecommons.org/licenses/by-sa/2.0/deed.en"><span style="color: #0000ff">creative-commons license, no changes made</span></a>).<br /> <em><br /> * This blog post was originally published in </em><a target="_blank" href="http://www.imla.org/blog/2014/08/legal-ethics-resources/"><span style="color: #0000ff"><u><em>IMLA Appellate Practice Blog</em></u></span></a><em>, August 5, 2014. Republished with permission. Visit </em><a target="_blank" href="http://www.imla.org/blog"><span style="color: #0000ff"><em>www.imla.org/blog</em></span></a><span style="color: #0000ff"><em> </em></span><em>to read additional IMLA Appellate Practice Blog posts and to subscribe by email.</em></p>Blogs05 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=32008&format=xmlWater shortage threatens global securityhttp://www.bbklaw.com/?t=40&an=31840&format=xml<p>By: Rebecca Lowe and Emily Silvester</p> <p><i>Global Insight</i>, a publication of the International Bar Association, examines the growing danger that the lack of water poses on global security. Noting that, by 2050, almost 40 percent of the world population will live in areas where water is in demand, the risk of conflict will increase exponentially as countries and territories fight for the scarce resource. Tension is expect to continue to increase in Central Asia, where the shrinking Aral Sea basin, which sits between Uzbekistan and Kazakhstan, is vital to the 43 million people who live in the region. Plans by two states upstream to build dams could drastically decrease the Aral Sea. <i>Global Insight</i> reports:</p> <p>&ldquo;Due to these divided interests, construction of Tajikistan&rsquo;s colossal Rogun dam over the Vakhsh River was suspended in August 2012 pending a World Bank assessment. While tensions remain high, Uzbekistan and Kazakhstan have jointly called for the UN to review the potential impact of the dams, and voiced a desire for dialogue between the four states to resolve the issue cooperatively.</p> <p>&ldquo;The key to success for such dialogue, stresses Eric Garner, Managing Partner of US law firm Best Best &amp; Krieger and former Chair of the IBA Water Law Committee, is information and transparency &ndash; something easier said than done in regions lacking democracy and effective governance. &lsquo;In terms of building really successful water security there are three important elements,&rsquo; he says. &lsquo;Communication between states at the technical level, the legal level and the governmental level.&rsquo; The first of these is the most significant, he believes. &lsquo;Technical work is the foundation for good water management and there really cannot be enough of it [&hellip;]. You need experts to sit down and talk to each other, and establish some baseline from which the lawyers and governments can start to resolve these disputes. Without that baseline, you&rsquo;re nowhere.&rsquo;&rdquo;</p> To read the entire article in <i>Global Insight</i>, <a target="_blank" href="http://www.ibanet.org/Article/Detail.aspx?ArticleUid=B7ACBA3B-A762-4B1A-A715-8BBEDC90F854"><span style="color: #0000ff">click here</span></a>.BB&K In The News03 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31840&format=xmlCitizen Engagement: New uses of social media and the body politichttp://www.bbklaw.com/?t=40&an=32033&format=xml<p><strong>By</strong>: John Brown</p> <p>This year marks the 25th anniversary of the invention of the World Wide Web, and local governments are looking to leverage widespread use of social media to better reach constituents, promote civic engagement, increase safety, and solicit citizen feedback. Social media methods that increase opportunities for online interaction among users provide greater potential for improving government. However, they also pose greater risks and challenges to regulate.</p> <p>Browsing the Internet has become a daily activity for most of the world, and using social media is the most popular online activity with an estimated 22 percent of all Internet activity being attributed to sites like Facebook, Twitter, LinkedIn, Google+, YouTube, Instagram, Tumblr and Pinterest.</p> <p>The Pew Research Center&rsquo;s Internet Project found that 73 percent of online adults were using at least one social networking site in 2013. This number has been on the rise since social media became a dominant force when Facebook launched in 2004. While Facebook is still the leading platform, the social media presence of the average user is diversifying. Forty-two percent of online adults are now on multiple networking sites, and the majority check their profiles at least once a day.</p> <p>A 2013 study by the International City/County Management Association (ICMA) estimates that 84 percent of local governments have a social media presence. The specific uses of social media by local governments are widespread, but generally fall into three categories: information, consultation or deliberation. The information approach allows governments to provide one-way communication from the agency to the public. Consultation-based social media solicits feedback from the public and gives the entity an opportunity to respond. Finally, the deliberation approach allows the public to interact online and share views, ideas and recommendations for the public agency.</p> <p>The beneficial uses of social media for government entities are vast. The use of this technology in recent years has led to increased transparency from the online posting of meeting agendas and minutes, improved citizen safety from natural disaster notification systems and police department crime feeds, heightened civic engagement from new forms of publicizing events and soliciting feedback, increased government efficiency and decreased public agency costs.</p> <p>In January 2014, Congressman Paul Cook of Apple Valley hosted a Twitter Town Hall to engage and connect with constituents in California&rsquo;s 8th congressional district. Citizens were encouraged to ask questions and share opinions using the hashtag &ldquo;#AskCook.&rdquo; Uses of social media like this allow public officials to engage with new constituencies and provide an instant channel between local residents and the government.</p> <p>The City of Oakland recently found another use for Twitter in government. Oakland has taken to blasting its thousands of Twitter followers with real-time crime updates. Twitter posts advise citizens of areas with active criminal activity and solicit citizen assistance to apprehend suspects. Citizens enjoy the opportunity to write back with questions or concerns and have even helped dispense justice by reporting suspects who matched descriptions tweeted by the Oakland Police Department.</p> <p>Boston has launched one of the most proactive uses of social media to date with its mobile app, Citizens Connect. The app is a web-based companion to the city&rsquo;s existing 311 reporting hotline. Citizens Connect allows users to upload photographs of problems, such as potholes or downed power lines, so the city can act promptly to correct the issues. The app was also designed to increase civic engagement and transparency by providing online forums and easily accessible city reports. Boston is currently developing another app called &ldquo;Where&rsquo;s My School Bus,&rdquo; which aims to connect parents with public schools to foster trust between them.</p> <p>Special districts have also taken to social media to inform customers and stakeholders about news, events and conservation initiatives. Hi-Desert Water District uses Facebook and Twitter to publicize meetings, answer questions about the pending sewer project in the area, notify citizens about interruptions in water service and share tips for conservation.</p> <p>Elsinore Valley Municipal Water District (EVMWD) has used &ldquo;Elsinore Eddie,&rdquo; the mascot for the district&rsquo;s water conservation campaign, to connect with citizens. Eddie is on Facebook, Twitter and YouTube posting regularly about water system repairs, tips for cutting water costs and conservation ideas. Residents in EVMWD&rsquo;s 96-square mile service area were enticed to &ldquo;friend&rdquo; or &ldquo;follow&rdquo; Eddie with the promise of a new low-flow showerhead in return. These social media efforts have helped EVMWD achieve a 15 percent reduction in water consumption by customers.</p> <p>While the advantages of social media use are numerous, use is not without downsides and legal risks. The posting of meeting information and hosting of online citizen forums with elected officials can increase transparency, but it can also put governments at risk for violation of open meeting laws. Providing an avenue for citizens to share concerns online can pave the way for increased activism, but can also open a public entity to First Amendment concerns in deciding how to regulate and police its forums. The mass creation of digital archives through social media platforms can create a helpful paper trail, but also raises complicated issues related to privacy and public records disclosure.</p> <p>If public entities wish to use social media to interface with citizens, they should exercise care to ensure that a proper social media policy is in place. The Center for Technology in Government recently reviewed government social media policies and identified eight essential elements that every government entity should address in its policy. According to the center, each policy should include specifics regarding:</p> <ol> <li>Employee access to social media sites</li> <li>Management and maintenance of content</li> <li>Acceptable use</li> <li>Employee conduct on social media</li> <li>Content&nbsp;&nbsp;</li> <li>Security</li> <li>Legal issues related to social media, including freedom of speech, freedom of information, public disclosure, equal accessibility, copyright protection and privacy</li> <li>Citizen conduct permitted on the sites</li> </ol> <p>The creation and continued attention to a policy that includes these elements will help mitigate risks and reduce liability for government entities embracing social media.</p> <p>While the use of social media by governments is on the rise, the specific ramifications of its use are still being weighed. Entities looking to expand their use of social media should not only have a policy in place but should also carefully monitor the feedback and interaction with constituents to ensure that the intended result is, in fact, being met.</p> <i>This article first appeared in the July/August 2014 edition of <a target="_top" href="http://www.csda.net/membership-highlight/julyaugust-california-special-district-online/"><span style="color: #0000ff">California Special District </span></a>magazine. Republished with permission. <a href="88E17A/assets/files/Documents/John_Brown.pdf"><span style="color: #0000ff">Click here</span></a> to see a .pdf of the article.</i>BB&K In The News01 Aug 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=32033&format=xmlEEOC Releases Guidance on Pregnancy Discrimination Lawshttp://www.bbklaw.com/?t=40&an=31680&format=xml<p>The U.S. Equal Employment Opportunity Commission has released its new <a target="_blank" href="http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm"><u><span style="color: #0000ff">enforcement guidance on pregnancy discrimination issues</span></u></a>. This is the first time in three decades that the EEOC has updated its guidance. The guidance covers the Pregnancy Discrimination Act, pregnancy-related matters under the Americans with Disabilities Act and the Family Medical Leave Act, as well as several other federal laws. The EEOC also provided a <u><span style="color: #0000ff"><a target="_blank" href="http://www.eeoc.gov/eeoc/publications/pregnancy_factsheet.cfm"><u><span style="color: #0000ff">fact sheet</span></u></a></span></u><span style="color: #0000ff"> </span>and <a target="_blank" href="http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm"><u><span style="color: #0000ff">question-and-answer document</span></u></a> for small businesses. Notably, the guidance does not address California&rsquo;s specific laws and requirements.</p> <p>The guidance explains that under the PDA, discrimination based on pregnancy, childbirth or related medical conditions are prohibited forms of sex discrimination. Employers must treat pregnant employees and applicants the same way they treat non-pregnant employees and applicants who have similar physical limitations. Similarly, the ADA prohibits discrimination on the basis of disabilities, which may include impairments related to pregnancy though not the pregnancy itself.</p> <p>The new enforcement guidance explains how these basic principles apply prior to, during and after a pregnancy. For instance, the guidance covers how employers should treat pregnant applicants for employment. Particularly, the guidance outlines breastfeeding and lactation rights of new mothers and also covers diverse advice for employers related to an employee&rsquo;s infertility treatment, contraceptive use or abortions. The guidance also discusses the range of potential reasonable accommodations under the ADA that may be made for pregnant employees.</p> <p>Employers should note that the EEOC guidance is not law. In fact, the recent release has sparked some criticism &ndash; including from the two republicans on the EEOC who opposed the decision to publish the guidance. Specifically, those objections relate to the decision to publish the guidance shortly after the Supreme Court decided to consider <i>Young v. United Parcel Services, Inc.</i>, a Fourth Circuit Court of Appeals case addressing which employees to compare to a pregnant worker when determining if a similarly situated employee was treated differently and what entitlements or accommodations may be available to a pregnant employee. Critics assert the EEOC should have waited for the Supreme Court to weigh in on the issue before releasing its guidance.</p> <p>California employers must be cognizant that state-specific laws impact their rights and obligations regarding pregnant employees. For more information on the new EEOC guidance and California-specific pregnancy discrimination laws, or other discrimination laws and compliance issues, please contact one of the attorney authors of this legal alert listed at right in the <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=491&amp;format=xml"><u><span style="color: #0000ff">Labor and Employment</span></u></a> practice group, or your <a target="_blank" href="http://www.bbklaw.com/?p=2099"><u><span style="color: #0000ff">BB&amp;K attorney</span></u></a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts31 Jul 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31680&format=xmlPublic Bleachers Constructed Prior to the ADA Don't Need Additional Improvements if a Viable Alternative is Offeredhttp://www.bbklaw.com/?t=40&an=31678&format=xml<p>The Ninth Circuit has ruled that the Americans with Disabilities Act does not require a public entity to structurally alter existing bleacher seating at high school football games where the seating was constructed prior to the enactment of the ADA (1992) and there are alternative ADA accessible seating locations. In <i>Daubert v. Lindsay Unified School District</i>, Lindsay High School offered bleacher seating within its football stadium &ndash; constructed before 1992 and unaltered since then &ndash; without constructing additional wheelchair access. Nonetheless, the Ninth Circuit found the school complied with the ADA by offering handicapped accessible field-level locations where patrons in wheelchairs could have an unobstructed view of the football games. BB&amp;K&rsquo;s Michael Maurer successfully represented Lindsay Unified School District in this matter.</p> <p>The ADA requires public agencies to provide handicapped access to all of their services, programs and activities, but it does not require public agencies to retrofit or upgrade existing facilities if there are other suitable means of providing access. This requirement is meant to shield public agencies from the costs of retrofitting, but it is not always clear whether an alternative method will provide a legally sufficient level of access. In particular, many school districts do not have the funding available for the potentially substantial costs necessary to construct additional stadium/bleacher improvements and therefore face uncertainty as to whether they are in violation of the ADA.</p> <p>As the first published case addressing whether a public agency must retrofit its bleacher seating, <i>Lindsay Unified</i> clarifies school districts&rsquo; and other agencies&rsquo; obligations under the ADA when hosting community events. Because the court found that Lindsay Unified School District complied with the ADA, other government agencies can use this case as a blueprint for providing access to events that occur within small, local stadiums.</p> <p>Even though the existing bleacher seating was inaccessible to wheelchair users, Lindsay High School provided field-level seating locations with several key features, including:</p> <ul> <li>an unobstructed view of the event,</li> <li>the opportunity to sit with other friends and family,</li> <li>an accessible route allowing for unassisted ingress to and egress from the locations, and</li> <li>unassisted access to concessions and other amenities of the event.</li> </ul> <p>By considering these key features, public agencies can develop a plan to provide access to events that is consistent with <i>Lindsay Unified</i> and thus will likely satisfy the requirements of the ADA.</p> <p>As a final caveat, <i>Lindsay Unified</i> only applies to bleacher and stadium seating that was constructed prior to the enactment of the ADA (i.e., prior to January 26, 1992) and that has since never been altered. Any newly constructed or altered seating arrangement must strictly comply with ADA design standards, regardless of any alternative seating arrangement.</p> <p>For questions regarding this ruling and how it may impact your agency or organization, please contact the attorney author of this legal alert listed at right in the <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=451&amp;format=xml"><u><span style="color: #0000ff">Public Contracts and Construction</span></u></a> practice or your <a target="_blank" href="http://www.bbklaw.com/?p=2099"><u><span style="color: #0000ff">BB&amp;K attorney</span></u></a>.</p> <i>Disclaimer: BB&amp;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 communiqu&eacute;.</i>Legal Alerts30 Jul 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31678&format=xmlThe Complications of Colocation: What the FCC's Rulemaking May Mean for Your Communityhttp://www.bbklaw.com/?t=40&an=31968&format=xml<p><strong>By: </strong>Matthew Schettenhelm</p> <p>You did it. You successfully worked with a wireless service provider to find the ideal spot for its new wireless tower. The tower is positioned perfectly&mdash;in the heart of downtown, yet safe, hidden, completely undisruptive. The provider is happy. The community is content. It&rsquo;s a win-win.</p> <p>Fast forward a month. The provider is back with a new idea: to support the latest technology and to enhance its revenues, it will add not one, but four 20-foot extensions for new antennas. The extensions would make the otherwise hidden facility visible. They would reach across and over the sidewalk and street, presenting safety risks. And the provider would also add four new equipment cabinets and an equipment shelter.</p> <p>Your answer is easy: Absolutely not. We can find a better solution.</p> <p>But this time the provider is not asking, it&rsquo;s demanding. It says that because it is not proposing an initial facility but a collocation, you <i>must</i> approve its requests.</p> <p>Whether the provider is correct may turn on how the Federal Communications Commission resolves a pending rulemaking. This article describes the proceeding, key issues it raises, and what the proceeding may mean to you and your community. As a planner, you can influence the proceeding by meeting with the Federal Communications Commission (FCC) to discuss the proposed rules and by responding to industry claims that local requirements are delaying deployment.&nbsp;</p> <p><b><i>Background</i></b></p> <p>In 1996, in an effort to balance local interests and the interests of companies deploying cell sites for wireless services, Congress adopted Section 332(c)(7) of the Communications Act.&nbsp;The provision generally preserves local zoning authority but also limits it in certain respects.<a class=" FCK__AnchorC" title="" href="#_ftn1" name="_ftnref1"><span><span><span>[1]</span></span></span></a> For example, it bars a local government from &ldquo;prohibiting&rdquo; the provision of service and prevents it from &ldquo;unreasonably discriminat[ing] among providers of functionally equivalent services.&rdquo; Federal law did not draw any distinction between local authority to grant or deny applications to modify or expand existing towers and facilities, and local authority to control the initial placement of wireless facilities.&nbsp;</p> <p>That changed in 2012. Congress adopted Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012. The statute addresses an &ldquo;eligible facility request,&rdquo; defined as &ldquo;any request for modification of a wireless tower or base station that involves collocation, removal, or replacement of transmission equipment.&rdquo; It provides that &ldquo;[n]otwithstanding . . . any other provision of law,&rdquo; a state or local government &ldquo;may not deny, and shall approve,&rdquo; such an eligible facility request for a modification of an existing wireless tower or base station &ldquo;that does not substantially change the physical dimensions of such tower or base station.&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn2" name="_ftnref2"><sup><span><sup><span>[2]</span></sup></span></sup></a> Other than &ldquo;eligible facility request,&rdquo; Congress did not define any of the statute&rsquo;s key terms.</p> <p>In January 2013, the FCC&rsquo;s Wireless Bureau adopted <i>non-binding</i> &ldquo;guidance&rdquo; addressing the statute.<a class=" FCK__AnchorC" title="" href="#_ftn3" name="_ftnref3"><span><span><span>[3]</span></span></span></a> The bureau offered its view of what it means to &ldquo;substantially change the physical dimensions&rdquo; of a tower or base station, explained what constitutes a &ldquo;wireless tower or base station,&rdquo; addressed application requirements, and commented on how quickly a zoning authority must act.&nbsp;</p> <p>In September 2013, the FCC moved to adopt <i>binding </i>rules interpreting Section 6409(a). It issued proposed rules that largely echoed the guidance, and sought comments on those rules.<a class=" FCK__AnchorC" title="" href="#_ftn4" name="_ftnref4"><span><span><span>[4]</span></span></span></a> The FCC received hundreds of comments from local governments, the wireless industry, and interested individuals. The FCC has now moved to a different phase of the proceeding: as the agency evaluates the comments, anyone interested can seek to meet with the agency to discuss the issues. This <i>ex parte</i> phase&mdash;which ends just before the FCC adopts rules&mdash;can affect the proceeding&rsquo;s outcome. The FCC is not expected to issue final rules until the fall.</p> <p><b><i>Key Issues</i></b></p> <p>What are the key issues in the FCC proceeding, and how did the parties address them? Here are some of the most significant:</p> <p><b><i>1.</i> <i>What does it mean to &ldquo;substantially change the physical dimensions&rdquo; of a wireless tower or base station?</i></b></p> <p>Section 6409(a) mandates that a local government &ldquo;may not deny, and shall approve&rdquo; a request unless it would &ldquo;substantially change the physical dimensions&rdquo; of a wireless tower or base station. What does that mean?</p> <p>The FCC proposed a definition that was troubling to local governments. According to the FCC, a modification would result in a &ldquo;substantial change&rdquo; <i>only</i> if it involved:</p> <p>(1) increasing an existing structure&rsquo;s height by more than 10 percent;</p> <p>(2) installing more than four equipment cabinets or more than one equipment shelter;</p> <p>(3) adding an appurtenance that protrudes from the support structure more than twenty feet; or</p> <p>(4) excavating outside the current structure site.<a class=" FCK__AnchorC" title="" href="#_ftn5" name="_ftnref5"><span><span><span>[5]</span></span></span></a></p> <p>If the proposed modification would not do this&mdash;if, for example, it protruded only 20 feet from the existing facility and involved only a single equipment shelter and only four equipment cabinets&mdash;the &ldquo;substantially change&rdquo; limitation would not apply, and the local government arguably then &ldquo;may not deny, and shall approve&rdquo; the request. On top of that, the FCC definition makes exceptions to even these lenient standards. For example, on item (3), the FCC&rsquo;s definition indicates that an appurtenance may extend more than 20 feet and not constitute a &ldquo;substantial change&rdquo; if it were &ldquo;necessary to shelter the antenna from inclement weather.&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn6" name="_ftnref6"><span><span><span>[6]</span></span></span></a></p> <p>Local governments and related groups strongly opposed this approach to &ldquo;substantially change.&rdquo; For example, the APA, along with a coalition of local communities and associations, emphasized that what is a substantial change &ldquo;depends on context, and does not lend itself to a mechanical, numerical formula&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn7" name="_ftnref7"><span><span><span>[7]</span></span></span></a>:</p> <p>[A] &ldquo;substantial&rdquo; change is a change that is &ldquo;important&rdquo; or &ldquo;essential.&rdquo; If all towers and base stations were of a similar design and located in similar places, a &ldquo;substantial change&rdquo; might be defined by a single, absolute standard&mdash;as in the proposed rules. But where towers and base stations vary dramatically in size and design, and where the location may affect a change&rsquo;s impact significantly, an absolute standard will not do.<a class=" FCK__AnchorC" title="" href="#_ftn8" name="_ftnref8"><span><span><span>[8]</span></span></span></a></p> <p>The coalition explained that a substantial change includes, among other things, a physical dimension that would &ldquo;make a facility unsafe, render public streets or sidewalks less accessible or hazardous, damage a historically significant area or structure, expose a &lsquo;stealth&rsquo; facility, or otherwise defeat conditions that were key to the underlying facility.&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn9" name="_ftnref9"><span><span><span>[9]</span></span></span></a> The group indicated that these factors should typically be evaluated on a case-by-case basis. They added that a change to a facility classified as &ldquo;legal, non-conforming&rdquo; should be treated as &ldquo;substantial.&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn10" name="_ftnref10"><span><span><span>[10]</span></span></span></a></p> <p>The wireless industry, however, embraced the FCC&rsquo;s fixed definition. Some even argued that the standard should be expanded to allow the placement of larger facilities.<a class=" FCK__AnchorC" title="" href="#_ftn11" name="_ftnref11"><span><span><span>[11]</span></span></span></a> CTIA-The Wireless Association (&ldquo;CTIA&rdquo;) added that the standard should evaluate only &ldquo;empirically measurable dimensions (height and width, for example), and not subjective evaluations such as visual effect.&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn12" name="_ftnref12"><span><span><span>[12]</span></span></span></a> PCIA-The Wireless Infrastructure Association and the HetNet Forum (&ldquo;PCIA&rdquo;) emphasized that allowing a facility to be evaluated in context &ldquo;would defeat the streamlining purpose of Section 6409(a).&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn13" name="_ftnref13"><span><span><span>[13]</span></span></span></a>&nbsp;</p> <p>Despite this, some industry members did make concessions. For example, PCIA admitted that a modification that &ldquo;undermines the concealment elements of a &lsquo;stealth&rsquo; wireless facility, such as screening fa&ccedil;ade paint or tree branches, should not be considered insubstantial.&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn14" name="_ftnref14"><span><span><span>[14]</span></span></span></a> Crown Castle similarly recognized that if a structure&rsquo;s original zoning approval &ldquo;was conditioned on a design element intended to mitigate visual impact (e.g., a &lsquo;stealthing&rsquo; requirement, landscape buffer, fencing, etc.), and a proposed collocation would have the effect of defeating such a condition,&rdquo; it is a substantial change.&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn15" name="_ftnref15"><span><span><span>[15]</span></span></span></a></p> <p><b><i>2.</i> <i>What is a &ldquo;wireless tower&rdquo; or &ldquo;base station?&rdquo;</i></b></p> <p>Because Section 6409(a) applies to a modification of only a &ldquo;wireless tower&rdquo; or &ldquo;base station,&rdquo; defining these terms is significant. A structure that does not qualify is not subject to Section 6409(a)&rsquo;s &ldquo;may not deny, and shall approve&rdquo; language.</p> <p>The industry generally argued for broad definitions of these terms. For example, with respect to &ldquo;wireless tower,&rdquo; industry commenters widely disagreed with the FCC&rsquo;s proposal to limit it to a structure &ldquo;built for the sole or primary purpose&rdquo; of supporting antennas. They would instead expand the term to reach any structure that supports wireless equipment, including water towers, utility poles, buildings, and street lights.<a class=" FCK__AnchorC" title="" href="#_ftn16" name="_ftnref16"><span><span><span>[16]</span></span></span></a> Local governments supported the FCC&rsquo;s approach.</p> <p>On the other hand, the industry supported the FCC&rsquo;s proposal to define a &ldquo;base station&rdquo; to include a structure that &ldquo;supports or houses an antenna, transceiver, or other associated equipment that constitutes part of a base station.&rdquo;&nbsp;That is, under the FCC&rsquo;s rule, the side of a building would be a &ldquo;base station,&rdquo; and so would a utility pole or light standard.&nbsp;Local governments argued that Section 6409(a) applies only to one support structure, a wireless tower, and that a &ldquo;base station&rdquo; is not a support structure but a network element (on a wireless tower) that communicates with mobile stations.<a class=" FCK__AnchorC" title="" href="#_ftn17" name="_ftnref17"><span><span><span>[17]</span></span></span></a>&nbsp;</p> <p><b><i>3.</i> <i>What does &ldquo;may not deny, and shall approve&rdquo; require?</i></b></p> <p>Local governments and industry also disagreed about whether Section 6409(a) limits a local government&rsquo;s ability to condition its approvals. Local governments argued that because Section 6409(a) does not expressly forbid conditions, they are permissible.<a class=" FCK__AnchorC" title="" href="#_ftn18" name="_ftnref18"><span><span><span>[18]</span></span></span></a> Local governments argued, for example, that they should be able to enforce &ldquo;fall zone&rdquo; requirements that apply specifically to towers and that are not part of the general uniform building codes; and to enforce height limits that reflect unique hazards that rooftop installations may present. The industry argued that local governments may only condition approvals on compliance with nondiscretionary building and other structural safety codes.<a class=" FCK__AnchorC" title="" href="#_ftn19" name="_ftnref19"><span><span><span>[19]</span></span></span></a> They emphasized that approvals must be ministerial not discretionary, and CTIA argued that Section 6409(a) preempts local requirements such as fall zones and set-back distances.<a class=" FCK__AnchorC" title="" href="#_ftn20" name="_ftnref20"><span><span><span>[20]</span></span></span></a></p> <p>The parties also disagreed about the proper remedy. The industry generally argued that if a local government fails to act on or improperly denies an application that qualifies under Section 6409(a), the FCC should &ldquo;deem&rdquo; it &ldquo;granted&rdquo; automatically. Local governments disagreed. They argued that this would raise serious constitutional questions under the Tenth Amendment and Due Process clause.<a class=" FCK__AnchorC" title="" href="#_ftn21" name="_ftnref21"><span><span><span>[21]</span></span></span></a> They maintained that if a provider wants to enforce its rights under Section 6409(a), it should bring an action in court.<a class=" FCK__AnchorC" title="" href="#_ftn22" name="_ftnref22"><span><span><span>[22]</span></span></span></a></p> <p>These are just a small sample of important issues in the proceeding, but they provide a flavor of the debate and how it may impact you. The industry stresses the need for quick deployment of an increasing number of facilities with minimal oversight. Local governments emphasize that they too want deployment, just in a sensible way. They argue that mandating automatic approvals of modifications will only make it more difficult to approve the underlying wireless towers and base stations since the risk of problematic expansion later is too great.</p> <p>&nbsp;<b><i>Next Steps</i></b></p> <p>If the FCC adopts rules along the lines that the industry has proposed, it could affect local authority to protect environmentally or historically sensitive sites and to minimize the impact of wireless installations. It may also make it more difficult to evaluate applications for new facilities, since they could transform into something quite different.&nbsp;To preserve local authority to the maximum extent possible, the planning community should actively participate in this proceeding through the <i>ex parte</i> process in the coming weeks.&nbsp;<br clear="all" /> <hr align="left" width="33%" size="1" /> </p> <div> <div id="ftn1"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref1" name="_ftn1"><span><span><span>[1]</span></span></span></a><font size="2"> 47 U.S.C. &sect; 332(c)(7).</font></p> </div> <div id="ftn2"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref2" name="_ftn2"><span><span><span><span>[2]</span></span></span></span></a> <font size="2">47 U.S.C. &sect; 1455(a).</font></p> </div> <div id="ftn3"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref3" name="_ftn3"><span><span><span>[3]</span></span></span></a><font size="2"> <i>Wireless Telecommunications Bureau Offers Guidance on Interpretation of Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012</i>, DA 12-2047 (Jan. 25, 2013).</font></p> </div> <div id="ftn4"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref4" name="_ftn4"><span><span><span>[4]</span></span></span></a><font size="2"> <i>In re Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies</i>, WT Docket No. 13-238, FCC 13-122 (Sept. 26, 2013).</font></p> </div> <div id="ftn5"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref5" name="_ftn5"><span><span><span>[5]</span></span></span></a><font size="2"> NPRM at Appendix A (&sect; 1.30001(d)).</font></p> </div> <div id="ftn6"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref6" name="_ftn6"><span><span><span>[6]</span></span></span></a><font size="2"> <i>Id.</i></font></p> </div> <div id="ftn7"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref7" name="_ftn7"><span><span><span>[7]</span></span></span></a><font size="2"> Comments of the City of Alexandria, VA <i>et al.</i>, WT Docket No. 13-238, at 32 (Feb 3, 2014).</font></p> </div> <div id="ftn8"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref8" name="_ftn8"><span><span><span>[8]</span></span></span></a><font size="2"> <i>Id.</i></font></p> </div> <div id="ftn9"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref9" name="_ftn9"><span><span><span>[9]</span></span></span></a><font size="2"> <i>Id.</i> at 40.</font></p> </div> <div id="ftn10"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref10" name="_ftn10"><span><span><span>[10]</span></span></span></a><font size="2"> <i>Id.</i> at 43.</font></p> </div> <div id="ftn11"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref11" name="_ftn11"><span><span><span>[11]</span></span></span></a><font size="2"> Comments of Utilities Telecom Council, WT Docket No. 13-238 (Feb. 3, 2014).</font></p> </div> <div id="ftn12"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref12" name="_ftn12"><span><span><span>[12]</span></span></span></a><font size="2"> Comments of CTIA-The Wireless Association, WT Docket No. 13-238 at 14 (Feb. 3, 2014).</font></p> </div> <div id="ftn13"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref13" name="_ftn13"><span><span><span>[13]</span></span></span></a><font size="2"> Comments of PCIA-The Wireless Infrastructure Association and the HetNet Forum, WT Docket No. 13-238, at 40 (Feb. 3, 2014).</font></p> </div> <div id="ftn14"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref14" name="_ftn14"><span><span><span>[14]</span></span></span></a><font size="2"><i>Id.</i> at 39.</font></p> </div> <div id="ftn15"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref15" name="_ftn15"><span><span><span>[15]</span></span></span></a><font size="2"> Comments of Crown Castle, WT Docket No. 13-238&nbsp;at 14 (Feb. 3, 2014).</font></p> </div> <div id="ftn16"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref16" name="_ftn16"><span><span><span>[16]</span></span></span></a><font size="2"> <i>See, e.g.,</i> PCIA Comments at 31-32.</font></p> </div> <div id="ftn17"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref17" name="_ftn17"><span><span><span>[17]</span></span></span></a><font size="2"> Alexandria <i>et al. </i>Comments at 27-28.</font></p> </div> <div id="ftn18"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref18" name="_ftn18"><span><span><span>[18]</span></span></span></a><font size="2"> Alexandria <i>et al.</i> Comments at 41.</font></p> </div> <div id="ftn19"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref19" name="_ftn19"><span><span><span>[19]</span></span></span></a><font size="2"> <i>See, e.g., </i>Comments of AT&amp;T, WT Docket No. 13-238&nbsp;at 26 (Feb 3, 2014).</font></p> </div> <div id="ftn20"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref20" name="_ftn20"><span><span><span>[20]</span></span></span></a><font size="2"> CTIA Comments at 14-15.</font></p> </div> <div id="ftn21"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref21" name="_ftn21"><span><span><span>[21]</span></span></span></a><font size="2"> Alexandria <i>et al.</i> Comments at 46-47.</font></p> </div> <div id="ftn22"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref22" name="_ftn22"><span><span><span>[22]</span></span></span></a><font size="2"> <i>Id.</i> at 48.</font></p> </div> </div> <p><i>This is an Accepted Manuscript of an article published in Planning &amp; Environmental Law on July 29, 2014, available online at <a href="https://www.planning.org/pel/"><font color="#0000ff">https://www.planning.org/pel/</font></a></i><br /> &nbsp;</p>BB&K In The News29 Jul 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31968&format=xmlIs a Local Government's Decision In Writing? The U.S. Supreme Court To Rulehttp://www.bbklaw.com/?t=40&an=31969&format=xml<p><strong>By: </strong>Matthew Schettenhelm</p> <p>An application to place a 108-foot-tall cell tower in a residential neighborhood.</p> <p>An outpouring of opposition.</p> <p>A public hearing.</p> <p>A denial&mdash;by unanimous vote on an oral motion.</p> <p>And a letter to the applicant stating that the application had been denied and referring to the hearing&rsquo;s minutes, which reflect reasons why the board may have denied the application.</p> <p>These are the key facts of <i>T-Mobile South, LLC v. City of Roswell</i>, No. 13-975, a case that the United States Supreme Court will consider this fall. The case&rsquo;s central legal question is also straightforward. The Telecommunications Act of 1996 states that &ldquo;[a]ny decision . . . to deny a request . . . shall be in writing.&rdquo; The Court will decide whether it is sufficient for a city to state in writing that it has denied the application and to refer to the record, or whether the written denial must also describe the reasons for the city&rsquo;s decision.</p> <p>The case could have significant impacts on how local zoning boards function and on the form their decisions must take to survive legal challenge. It also could lead to effects on local governments well beyond the narrow issue presented here.</p> <p><b><i>Section 332(c)(7) of the Communications Act</i></b></p> <p>The case concerns Section 332(c)(7) of the Communications Act, which Congress adopted in 1996 to address how local governments may regulate the placement of &ldquo;personal wireless service facilities,&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn1" name="_ftnref1"><span><span><span>[1]</span></span></span></a> a term that includes cell towers and other wireless-communications facilities. The statute provides a number of express limits on state and local authority, which:</p> <ul> <li>Shall not unreasonably discriminate among providers of functionally equivalent services;</li> <li>Shall not prohibit or have the effect of prohibiting the provision of personal wireless services;</li> <li>Shall act on any request within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request;</li> <li>Shall make any decision denying an application in writing, which must be supported by substantial evidence contained in a written record; and</li> <li>Shall not regulate on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions.</li> </ul> <p>Courts have often applied Section 332(c)(7) in disputes between wireless service applicants and local governments. But very few have considered what it means to issue a decision &ldquo;in writing,&rdquo; and the Supreme Court has never directly addressed any of Section 332(c)(7)&rsquo;s substantive limitations.</p> <p>The Court has issued two decisions related to Section 332(c)(7). In <i>Rancho Palos Verdes v. Abrams</i>, the Court decided that if a local government violates Section 332(c)(7), an affected individual may not also bring an action for damages under the federal civil-rights laws.<a class=" FCK__AnchorC" title="" href="#_ftn2" name="_ftnref2"><span><span><span>[2]</span></span></span></a> And in <i>City of Arlington v. FCC</i>, the Court ruled that the Federal Communications Commission has authority to make rules implementing Section 332(c)(7)&rsquo;s ambiguous terms.<a class=" FCK__AnchorC" title="" href="#_ftn3" name="_ftnref3"><span><span><span>[3]</span></span></span></a> The FCC has not interpreted the &ldquo;in writing&rdquo; requirement.</p> <p><b><i>T-Mobile&rsquo;s Proposal in </i>Roswell</b></p> <p>T-Mobile South, LLC (&ldquo;T-Mobile&rdquo;) applied to construct a 108-foot-tall cell tower in Roswell, Georgia,<a class=" FCK__AnchorC" title="" href="#_ftn4" name="_ftnref4"><span><span><span>[4]</span></span></span></a>&nbsp;a suburb of Atlanta and the state&rsquo;s eighth-largest city. Although T-Mobile proposed to conceal the tower as a tree, it would be approximately 25 feet taller than the trees that would surround it and placed in a well-established residential neighborhood. An outpouring of public opposition followed. Despite this, the city&rsquo;s planning department recommended that the City Council approve the application&mdash;provided that the company would shift the tower&rsquo;s location on the site, surround the tower with a fence, and install 33 evergreen trees for screening.<a class=" FCK__AnchorC" title="" href="#_ftn5" name="_ftnref5"><span><span><span>[5]</span></span></span></a></p> <p>The City Council proceeded to hold a public hearing on the request, which lasted over two hours. The planning department, T-Mobile, 13 city residents (all in opposition), and certain City Council members addressed the application. In the end, Councilmember Dr. Betty Price moved to deny the application after stating:</p> <p>I think based on our ordinance, Article 21.2.1, . . . the purpose and intent of our cell-phone ordinance is to protect the residential areas from the adverse impact of telecommunications towers and to minimize the number of towers and the other adverse impacts being minimized.</p> <p>I think the conclusion from that first section would be that this is aesthetically incompatible and certainly in this area. It&rsquo;s other than I-1, C-3 offices or highway commercial area [zoning districts].</p> <p>Number two, the alternative tower that was proposed, in my opinion, it would not be compatible with the natural setting and surrounding structures also due to the height being created by the other trees.</p> <p>And, number three, in our Ordinance 21.2.4, the proximity to residential structures, the nearness to other homes, and being within the residential zoning area and adjacent properties, therefore, the adverse effects to the enjoyment of those neighbors and potential loss of resale value among other potential parameters are difficult really to definitively assess.</p> <p>Therefore, overall, I move to deny the application for the wireless facility monopine tower on Lake Charles Drive.<a class=" FCK__AnchorC" title="" href="#_ftn6" name="_ftnref6"><span><span><span>[6]</span></span></span></a></p> <p>The motion passed unanimously.<a class=" FCK__AnchorC" title="" href="#_ftn7" name="_ftnref7"><span><span><span>[7]</span></span></span></a> Two days later, the planning department sent T-Mobile a letter advising that the council had denied T-Mobile&rsquo;s request and indicating how the company could obtain the meeting&rsquo;s minutes.<a class=" FCK__AnchorC" title="" href="#_ftn8" name="_ftnref8"><span><span><span>[8]</span></span></span></a></p> <p><b><i>T-Mobile&rsquo;s Challenge</i></b></p> <p>T-Mobile filed suit in federal court, and the court ruled for the company.<a class=" FCK__AnchorC" title="" href="#_ftn9" name="_ftnref9"><span><span><span>[9]</span></span></span></a> The court applied Section 332(c)(7)(B)(iii)&rsquo;s requirement that a decision to deny a request to place a cell tower must be &ldquo;in writing&rdquo;:</p> <p>Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities <i>shall be in writing</i> and supported by substantial evidence contained in a written record.<a class=" FCK__AnchorC" title="" href="#_ftn10" name="_ftnref10"><span><span><span>[10]</span></span></span></a></p> <p>The court found that this requirement &ldquo;demands something more than a bare written statement of denial, because the judicial review contemplated by the Communications Act is frustrated if a reviewing court has no means to ascertain the rationale behind the decision.&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn11" name="_ftnref11"><span><span><span>[11]</span></span></span></a> The court explained that the minutes and transcript are insufficient: &ldquo;nowhere is there a clear articulation of the rationale of the Council as a whole for denying the application.&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn12" name="_ftnref12"><span><span><span>[12]</span></span></span></a> The court indicated that although the written record reflects a number of reasons that may have motivated the council, it is &ldquo;impossible. . . to discern which of these reasons motivated the Council as a whole or commanded the support of a majority of the Council members.&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn13" name="_ftnref13"><span><span><span>[13]</span></span></span></a> In the court&rsquo;s view, an explanation of the basis for the denial is particularly important in a case like this one&nbsp;&ldquo;where the applicant and opponents presented a substantial volume of conflicting evidence on a number of different issues.&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn14" name="_ftnref14"><span><span><span>[14]</span></span></span></a> Without an explanation, the court is left to review a voluminous record &ldquo;without any guidance as to what evidence the City Council found credible and reliable, what evidence it discounted or rejected altogether, and why.&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn15" name="_ftnref15"><span><span><span>[15]</span></span></span></a> The court ruled that because the city had not complied with the &ldquo;in writing&rdquo; requirement, T-Mobile was entitled to an injunction requiring the city to issue the permit.<a class=" FCK__AnchorC" title="" href="#_ftn16" name="_ftnref16"><span><span><span>[16]</span></span></span></a></p> <p>The City appealed to the Eleventh Circuit, and the court reversed. It did so because after the district court had issued its decision, the Eleventh Circuit reached the opposite conclusion in another case, <i>T-Mobile South, LLC v. City of Milton</i>.<a class=" FCK__AnchorC" title="" href="#_ftn17" name="_ftnref17"><span><span><span>[17]</span></span></span></a>&nbsp;</p> <p><b><i>The Circuit Split</i></b></p> <p>But while the Eleventh Circuit found that a written denial and reference to the record is sufficient, other courts, and more importantly, other federal appellate courts had concluded that more is required. It is this split in the federal appellate courts that likely motivated the Supreme Court to hear the case.</p> <p>With its <i>Milton</i> and <i>Roswell</i> decisions, the Eleventh Circuit falls on one side of the split. In the <i>Milton</i> case, the City had sent T-Mobile three letters addressing its applications, but the letters did not state the reasons for its decisions.<a class=" FCK__AnchorC" title="" href="#_ftn18" name="_ftnref18"><span><span><span>[18]</span></span></span></a> The Eleventh Circuit ruled that this did not violate the &ldquo;in writing&rdquo; requirement because the reasons for the denial could be identified in the minutes and transcript:</p> <p>Each letter unambiguously states Milton's decision on the application it addresses. The reasons for those decisions are detailed in the 181-page transcript of the city council's hearings on the applications and in the sixty-five pages of minutes of the council meeting and those hearings. The transcript and the minutes set out the discussion, the motions that were made on each application, the reasons stated for each motion, and the vote on it. T-Mobile had, or at least had access to, the three letters, the transcript of the hearings, and the minutes at the time it filed this lawsuit.<a class=" FCK__AnchorC" title="" href="#_ftn19" name="_ftnref19"><span><span><span>[19]</span></span></span></a></p> <p>The court emphasized that Section 332(c)(7)(A) indicates Congress&rsquo;s intent to generally preserve local governments&rsquo; authority, except where the statute states otherwise.<a class=" FCK__AnchorC" title="" href="#_ftn20" name="_ftnref20"><span><span><span>[20]</span></span></span></a> It explained that T-Mobile cannot complain that the letters stating the city&rsquo;s decisions are not &ldquo;in writing&rdquo;: &ldquo;each one is.&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn21" name="_ftnref21"><span><span><span>[21]</span></span></span></a> The court noted that that the act does not say that the reasons for a decision must be stated separately. And the court emphasized that it is not a judge&rsquo;s role to improve a statute with its own policy choices: &ldquo;Although we, like most judges, have enough ego to believe that we could improve a good many statutes if given the chance, statutory construction does not give us that chance if we are true to the judicial function. Our duty is to say what statutory language means, not what it should mean, and not what it would mean if we had drafted it.&rdquo;&nbsp;</p> <p>Applying <i>Milton</i>, the Eleventh Circuit concluded that the City of Roswell had satisfied the &ldquo;in writing&rdquo; requirement: &ldquo;T-Mobile in this case had the same &lsquo;writings&rsquo; it had in City of Milton: (1) a letter explicitly denying T-Mobile's request; (2) minutes summarizing the April 12, 2010 hearing and recounting the reasons for the denial; and (3) a verbatim transcript of the April 12, 2010 hearing during which the City Council denied the request.&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn22" name="_ftnref22"><span><span><span>[22]</span></span></span></a></p> <p>The Eleventh Circuit followed the approach that the Fourth Circuit had announced earlier. That court found that a written record of a meeting combined with a stamp of the word &ldquo;denied&rdquo; satisfies the statute.<a class=" FCK__AnchorC" title="" href="#_ftn23" name="_ftnref23"><span><span><span>[23]</span></span></span></a> The court contrasted the &ldquo;in writing&rdquo; requirement with requirements of the Administrative Procedure Act (&ldquo;APA&rdquo;). For example, the APA requires that all adjudications and formal rulemakings &ldquo;include a statement of . . . findings and conclusions, and the reasons or basis therefor.&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn24" name="_ftnref24"><span><span><span>[24]</span></span></span></a> In the Fourth Circuit&rsquo;s view, &ldquo;[t]he simple requirement of a &lsquo;decision . . . in writing&rsquo; cannot reasonably be inflated into a requirement of a &lsquo;statement of . . . findings and conclusions, and the reasons or basis therefor.&rsquo;&rdquo; The court was also not persuaded that a separate statement of the findings and conclusions is necessary to support judicial review. The court explained that Section 332(c)(7)(B)&rsquo;s separate requirement that any denial be &ldquo;supported by substantial evidence&rdquo; ensures more than sufficient information to enable judicial review.<a class=" FCK__AnchorC" title="" href="#_ftn25" name="_ftnref25"><span><span><span>[25]</span></span></span></a> In a later decision, the Fourth Circuit affirmed this view, and emphasized that requiring local governments to adopt separate, written opinions explaining their decisions contemporaneously with their denials would be highly burdensome:</p> <p>To require as a matter of federal law, as did the district court, that each of these six hundred odd county and municipal authorities write formal opinions with respect to every zoning decision in every case in which like towers are involved, and file the same contemporaneously with the decision, would create an administrative morass which might not be subject to solution and might well even invite Tenth Amendment scrutiny.<a class=" FCK__AnchorC" title="" href="#_ftn26" name="_ftnref26"><span><span><span>[26]</span></span></span></a></p> <p>But other circuits disagree with the Eleventh and Fourth Circuits. The First,<a class=" FCK__AnchorC" title="" href="#_ftn27" name="_ftnref27"><span><span><span>[27]</span></span></span></a> Sixth, <a class=" FCK__AnchorC" title="" href="#_ftn28" name="_ftnref28"><span><span><span>[28]</span></span></span> Seventh,</a><a class=" FCK__AnchorC" title="" href="#_ftn29" name="_ftnref29"><span><span><span>[29]</span></span></span></a> and Ninth Circuits<a class=" FCK__AnchorC" title="" href="#_ftn30" name="_ftnref30"><span><span><span>[30]</span></span></span></a> have each interpreted the statute to require a separate writing that describes the reasons for the denial. The First Circuit was the first court to reach this conclusion,<a class=" FCK__AnchorC" title="" href="#_ftn31" name="_ftnref31"><span><span><span>[31]</span></span></span></a> and other circuits have followed its reasoning. The court explained that permitting local boards to issue written denials that give no reasons for a decision &ldquo;would frustrate meaningful judicial review.&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn32" name="_ftnref32"><span><span><span>[32]</span></span></span></a> The court found that a written record &ldquo;can create difficulties in determining the rationale behind a board's decision, particularly when that record reflects arguments put forth by individual members rather than a statement of the reasons that commanded the support of a majority of the board.&rdquo;<a class=" FCK__AnchorC" title="" href="#_ftn33" name="_ftnref33"><span><span><span>[33]</span></span></span></a></p> <p><b><i>Practical Guidance and Potential Impact</i></b></p> <p>To many who watch the Supreme Court and who monitor Section 332(c)(7) litigation, the Court&rsquo;s decision to take the <i>Roswell </i>case was a surprise&mdash;at least a small one. Although the Court often takes cases that present circuit splits like the one here, the Court also often declines review if the underlying issue is not of pressing, national significance. Few would have described the &ldquo;in writing&rdquo; issue as rising to that level.</p> <p>Nevertheless, the case could lead to practical and legal problems for local governments, on this issue and others:</p> <p><b><i>Impact on small communities</i></b><i>.</i> Without question, the best practice for local governments and their planners seeking to deny a cell-tower application is to issue a written decision that also explains the reasons for the denial. By doing so, a local government would satisfy every circuit&rsquo;s &ldquo;in writing&rdquo; standard;&nbsp;a Supreme Court decision against the city here would not likely require more. Crafting a detailed written decision may not always be possible for smaller communities, however, especially those with limited staff and resources. Mandating such a writing also creates risks for these communities. If the decision is poorly done, for example, it could jeopardize a community&rsquo;s decision that would otherwise be perfectly lawful. The approach of the Eleventh and the Fourth Circuits is certainly preferable.</p> <p><b><i>Timing for local action.</i></b> The case could also lead to a timing problem for local governments. The FCC has already imposed &ldquo;shot clocks&rdquo; for local action on wireless-facility requests.<a class=" FCK__AnchorC" title="" href="#_ftn34" name="_ftnref34"><span><span><span>[34]</span></span></span></a> If a local government&rsquo;s written decision must issue within these timelines and must also include the reasons for the decision, as a practical matter, the local government must close the record earlier (to provide time to prepare the decision). This effectively shortens the length of the FCC&rsquo;s &ldquo;shot clocks,&rdquo; and increases the costs of the proceeding.&nbsp;</p> <p><b><i>Presumption against preemption</i></b><i>.</i> The case is also important for the precedent it could establish as a federalism matter: it could lead courts to find additional federal preemption of local authority in the future. Although courts have long presumed that federal law does not supersede state and local law unless Congress has made its intent to do so clear, the Supreme Court is now deeply divided about whether to continue&nbsp;to apply this principle to statutes in which Congress has expressed at least some intent to preempt. Specifically, four members of the Court have now stated in two cases that they do not feel compelled to read an express-preemption provision narrowly to protect federalism values.<a class=" FCK__AnchorC" title="" href="#_ftn35" name="_ftnref35"><span><span><span>[35]</span></span></span></a> <i>Roswell</i>, which turns on how broad a mandate the &ldquo;in writing&rdquo; requirement imposes, could again test the Court&rsquo;s fragile balance on this issue.</p> <p><b><i>Deference to the FCC</i>.</b> The United States Solicitor General is likely to file a brief as an <i>amicus</i> <i>curiae</i> to present its preferred reading of the &ldquo;in writing&rdquo; requirement. The brief will likely claim that its position is entitled to considerable deference because it reflects the views of the FCC, the agency that administers the Communications Act. But the question whether a federal court should defer to an agency&rsquo;s brief&mdash;as opposed to its rule or formal decision&mdash;is controversial. If the FCC can effectively make rules under Section 332(c)(7) by simply participating as a litigant instead of holding a rulemaking, it could present considerable risk to local governments in the future.<br /> <br /> For local governments, <i>T-Mobile v. Roswell</i> is an important case to watch. The case&rsquo;s direct impact is likely to be felt most by smaller communities that lack the resources to comply with the detailed &ldquo;in writing&rdquo; standard announced by some circuits. But the case could also lead to indirect legal effects that are substantial and long lasting.&nbsp;</p> <div><br clear="all" /> <hr align="left" width="33%" size="1" /> <div id="ftn1"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref1" name="_ftn1"><span><span><span>[1]</span></span></span></a><font size="2"> &ldquo;[P]ersonal wireless services&rdquo; means &ldquo;commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.&rdquo; 47 U.S.C. &sect; 332(c)(7)(C)(i). &ldquo;Personal wireless service facilities&rdquo; means &ldquo;facilities for the provision of personal wireless services.&rdquo;&nbsp;47 U.S.C. &sect; 332(c)(7)(C)(ii).</font></p> </div> <div id="ftn2"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref2" name="_ftn2"><span><span><span>[2]</span></span></span></a><font size="2"> 544 U.S. 113 (2005).</font></p> </div> <div id="ftn3"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref3" name="_ftn3"><span><span><span>[3]</span></span></span></a><font size="2"> 133 S. Ct. 1863 (2013).</font></p> </div> <div id="ftn4"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref4" name="_ftn4"><span><span><span>[4]</span></span></span></a><font size="2"> <i>T-Mobile South, LLC v. City of Roswell</i>, 731 F.3d 1213, 1214-15 (11th Cir. 2014).</font></p> </div> <div id="ftn5"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref5" name="_ftn5"><span><span><span>[5]</span></span></span></a><font size="2"> <i>Id.</i> at 1215.</font></p> </div> <div id="ftn6"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref6" name="_ftn6"><span><span><span>[6]</span></span></span></a><font size="2"> <i>Id.</i> at 1216-17.</font></p> </div> <div id="ftn7"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref7" name="_ftn7"><span><span><span>[7]</span></span></span></a><font size="2"> <i>Id.</i> at 1217.</font></p> </div> <div id="ftn8"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref8" name="_ftn8"><span><span><span>[8]</span></span></span></a><font size="2"> <i>Id.</i></font></p> </div> <div id="ftn9"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref9" name="_ftn9"><span><span><span>[9]</span></span></span></a><font size="2"> <i>T-Mobile South, LLC v. City of Roswell, </i>No 10-CV-1464 (N.D. Ga. Mar. 27, 2012).</font></p> </div> <div id="ftn10"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref10" name="_ftn10"><span><span><span>[10]</span></span></span></a><font size="2"> 47 U.S.C. &sect; 332(c)(7)(B)(iii) (emphasis added). Notably, T-Mobile did not raise the &ldquo;in writing&rdquo; issue as a distinct count in its complaint. The court ruled that the city had waived any objection to this, however. <i>Id.</i> at 8 n.9.</font></p> </div> <div id="ftn11"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref11" name="_ftn11"><span><span><span>[11]</span></span></span></a><font size="2"> <i>Id.</i> at 11.</font></p> </div> <div id="ftn12"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref12" name="_ftn12"><span><span><span>[12]</span></span></span></a><font size="2"> <i>Id.</i> at 12-13.</font></p> </div> <div id="ftn13"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref13" name="_ftn13"><span><span><span>[13]</span></span></span></a><font size="2"> <i>Id.</i> at 15.</font></p> </div> <div id="ftn14"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref14" name="_ftn14"><span><span><span>[14]</span></span></span></a><font size="2"> <i>Id.</i></font></p> </div> <div id="ftn15"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref15" name="_ftn15"><span><span><span>[15]</span></span></span></a><font size="2"> <i>Id.</i> at 17.</font></p> </div> <div id="ftn16"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref16" name="_ftn16"><span><span><span>[16]</span></span></span></a><font size="2"> <i>Id.</i> at 20.</font></p> </div> <div id="ftn17"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref17" name="_ftn17"><span><span><span>[17]</span></span></span></a><font size="2"> 728 F.3d 1274 (11th Cir. 2013).</font></p> </div> <div id="ftn18"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref18" name="_ftn18"><span><span><span>[18]</span></span></span></a><font size="2"> <i>Id.</i> at 1279.</font></p> </div> <div id="ftn19"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref19" name="_ftn19"><span><span><span>[19]</span></span></span></a><font size="2"> <i>Id.</i> at 1282.</font></p> </div> <div id="ftn20"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref20" name="_ftn20"><span><span><span>[20]</span></span></span></a><font size="2"> <i>Id.</i> at 1283.</font></p> </div> <div id="ftn21"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref21" name="_ftn21"><span><span><span>[21]</span></span></span></a><font size="2"><i>Id.</i> at 1282.</font></p> </div> <div id="ftn22"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref22" name="_ftn22"><span><span><span>[22]</span></span></span></a><font size="2"> <i>Roswell</i>, 731 F.3d at 1221.</font></p> </div> <div id="ftn23"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref23" name="_ftn23"><span><span><span>[23]</span></span></span></a><font size="2"> <i>AT&amp;T Wireless PCS, Inc. v. City Council of the City of Virginia Beach</i>, 155 F.3d 423, 429-30 (4th Cir. 1998).</font></p> </div> <div id="ftn24"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref24" name="_ftn24"><span><span><span>[24]</span></span></span></a><font size="2"> 5 U.S.C. &sect; 557(c).</font></p> </div> <div id="ftn25"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref25" name="_ftn25"><span><span><span>[25]</span></span></span></a><font size="2"> <i>City of Virginia Beach</i>, 155 F.3d at 430.</font></p> </div> <div id="ftn26"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref26" name="_ftn26"><span><span><span>[26]</span></span></span></a><font size="2"> <i>AT&amp;T Wireless PCS v. Winston-Salem Zoning Bd.</i>, 172 F.3d 307, 313 (4th Cir. 1999).</font></p> </div> <div id="ftn27"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref27" name="_ftn27"><span><span><span>[27]</span></span></span></a><font size="2"> <i>Sw. Bell Mobile Sys., Inc. v. Todd</i>, 244 F.3d 51, 60 (1st Cir. 2001).</font></p> </div> <div id="ftn28"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref28" name="_ftn28"><span><span><span>[28]</span></span></span></a><font size="2"> <i>New Par v. City of Saginaw</i>, 301 F.3d 390, 396 (6th Cir. 2002).</font></p> </div> <div id="ftn29"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref29" name="_ftn29"><span><span><span>[29]</span></span></span></a><font size="2"> <i>Helcher v. Dearborn County</i>, 595 F.3d 710, 719&nbsp;(7th Cir. 2010) (&ldquo;The &lsquo;in writing&rsquo; requirement is met so long as the written decision contains a sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons.&rdquo;);</font></p> </div> <div id="ftn30"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref30" name="_ftn30"><span><span><span>[30]</span></span></span></a><font size="2"> <i>MetroPCS, Inc. v. City and County of San Francisco</i>, 400 F.3d 715, 721-723 (9th Cir. 2005). The Eighth Circuit also assumed, without deciding, that this was the proper approach. <i>Sprint Spectrum, L.P. v. Platte County</i>, 578 F.3d 727, 732 (8th Cir. 2009).</font></p> </div> <div id="ftn31"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref31" name="_ftn31"><span><span><span>[31]</span></span></span></a><font size="2"> <i>Sw. Bell Mobile Sys., Inc. v. Todd</i>, 244 F.3d 51, 60 (1st Cir. 2001).</font></p> </div> <div id="ftn32"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref32" name="_ftn32"><span><span><span>[32]</span></span></span></a><font size="2"> <i>Id.</i></font></p> </div> <div id="ftn33"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref33" name="_ftn33"><span><span><span>[33]</span></span></span></a><font size="2"> <i>Id.</i></font></p> </div> <div id="ftn34"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref34" name="_ftn34"><span><span><span>[34]</span></span></span></a><font size="2"> <i>In re Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B)</i>, WT Docket Np. 08-165 (Nov. 18, 2009).</font></p> </div> <div id="ftn35"> <p><a class=" FCK__AnchorC" title="" href="#_ftnref35" name="_ftn35"><span><span><span>[35]</span></span></span></a><font size="2"> <i>CTS Corp. v. Waldburger</i>, No. 13-339 (June 9, 2014) (Scalia, J., concurring) (joined by Chief Justice Roberts, Justice Thomas, and Justice Alito); <i>Altria Group, Inc. v. Good</i>, 129 S. Ct. 538, 556 (2008) (Thomas, J., dissenting) (joined by Chief Justice Roberts, Justice Scalia, and Justice Alito).<br /> <br /> <i>This is an Accepted Manuscript of an article published in Planning &amp; Environmental Law on July 29, 2014, available online at <a href="https://www.planning.org/pel/"><font color="#0000ff">https://www.planning.org/pel/</font></a></i></font></p> </div> </div>BB&K In The News29 Jul 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31969&format=xmlBB&K Attorney HongDao Nguyen Named to the Lawyers of Color Western Region Hot List 2014http://www.bbklaw.com/?t=40&an=31691&format=xml<p><b>For Immediate Release</b>: July 28, 2014 <br /> <b>Media Contact</b>: Denise Nix &bull; 213-787-2552 &bull; <span><span><font color="#0000ff"><a href="mailto:denise.nix@bbklaw.com"><u><span style="color: #0000ff">denise.nix@bbklaw.com</span></u></a></font> </span></span></p> <p><b>IRVINE, Calif.</b> _ Best Best &amp; Krieger is pleased to announce that HongDao Nguyen, an associate in the firm&rsquo;s Irvine office, is among the 100 minority attorneys named to the <span style="color: #0000ff"><i><a target="_blank" href="http://onbeingalawyerofcolor.com/western-region-hot-list-2014"><u><span style="color: #0000ff">Lawyers of Color Western Region Hot List 2014</span></u></a></i></span>. The second annual Hot List, which recognizes early- to mid-career minority attorneys excelling in the legal profession, includes in-house counsel, government attorneys and law firm associates and partners. Nominations were received from mentors, peers and colleagues. The <i>Lawyers of Color</i> selection committee also researched bar association publications and legal blogs in order to identify promising candidates.</p> <p>Nguyen, who assists clients in transactional and litigation matters concerning municipal government and land use law, currently serves as assistant city attorney for the City of Stanton, Calif. and as deputy city attorney for the cities of Lake Forest and Aliso Viejo, Calif. She received her law degree from Loyola Law School and her B.A. in Communications from Biola University. Prior to joining the legal profession, Nguyen was a reporter at the <i>San Jose Mercury News</i>.</p> <p><b><i>Best Best &amp; Krieger LLP</i></b><i> is a national law firm that focuses on environmental, business, education, municipal and telecommunications law for public agency and private clients. With 200 attorneys, the law firm has nine offices nationwide, including Los Angeles, Sacramento, San Diego and Washington D.C. For more information, visit </i><span style="color: #0000ff"><i><a target="_blank" href="http://www.bbklaw.com/"><u><span style="color: #0000ff">www.bbklaw.com</span></u></a></i></span><i> or follow @BBKlaw on Twitter.</i></p>Press Releases28 Jul 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31691&format=xmlSanta Barbara County Plans for Utility-Scale Solar Projects on Farmlandhttp://www.bbklaw.com/?t=40&an=31774&format=xml<p>By: Leora Broydo Vestel</p> <p>Santa Barbara County may soon have its first utility-scale renewables project. The county&rsquo;s planning commission has approved a 40 MW solar-energy project proposed by First Solar, to be built on prime farmland in Cuyama Valley. The county is moving forward with land-use changes that would allow for utility-scale solar development totaling 75 MW in the valley, as officials try to strike a balance between resource protection and renewable-energy development.</p> <p>The Santa Barbara County Planning Commission on July 22 unanimously approved a proposal by First Solar to build a 40 MW solar energy-generation facility, the Cuyama Solar Project, on 327 acres of prime farmland. If built, the project would be the first large-scale renewable-energy facility in the county.</p> <p>The commission also green-lighted changes to the county&rsquo;s land-use development code to allow for utility-scale solar projects on up to 600 acres of prime agricultural land in the Cuyama Valley Rural Region, including the site for the First Solar project.</p> <p>The 600 acres can accommodate solar projects totaling 75 MW given existing transmission infrastructure, according to county estimates. The area is said to have the highest levels of insolation in the county.</p> <p>The project and code changes, which still require the approval of the Santa Barbara County Board of Supervisors, would provide a permitting pathway for solar-energy project development in a county that has yet to see the construction of any large-scale renewables projects. A 97.5 MW wind project by Acciona Energy approved by the county in 2009 would have been the first, but remains unbuilt.</p> <p>Commissioner C. Michael Cooney said the project represents &ldquo;a great opportunity&rdquo; for the county to join other jurisdictions in California that have permitted utility-scale solar projects.</p> <p>County officials are trying to strike a balance between competing goals of resource protection and renewable-energy development.</p> <p>The First Solar project site has been used to grow crops such as carrots, onions and potatoes since the early 1980s. It consists of about 250 acres of prime farmland and 75 acres of farmland of statewide impor&shy;tance, as classified by the state Department of Con&shy;servation.</p> <p>Converting the land to solar production requires the partial cancellation of a Williamson Act contract that encumbers 167 acres of the 327-acre site. The project would result in a loss of approximately 0.03 percent of all land currently enrolled in the county&rsquo;s Williamson Act program.</p> <p>The Williamson Act, or California Land Conser&shy;vation Act, was approved by the Legislature in 1965 to stem conversion of farmland to urban uses. Under the act, landowners can sign a contract in which they agree not to develop farmland for a minimum of 10 years in exchange for reduced property taxes.</p> <p>State law provides that a county can cancel a Williamson contract if it con&shy;cludes the public benefits of a proposed project substantially outweigh the objectives of the act&mdash;a determination that was made for the Cuyama Solar Project.</p> <p>The project benefits outlined by the county include support for local and state renewable-energy goals, a reduction in energy-related greenhouse-gas emissions, and reduced water usage in an overdrafted water basin.</p> <p>About 960 acre-feet per year of water extracted from the Cuyama Valley groundwater basin is used to irrigate crops at the project site, a report by county staff notes.</p> <p>&ldquo;Solar uses very little water,&rdquo; observed Sarah Owsowitz, a land-use and California Environmental Quality Act attorney at Best Best &amp; Krieger. &ldquo;That can&rsquo;t be a bad thing right now.&rdquo;</p> <p>Owsowitz also noted that it is in the county&rsquo;s financial interest to approve the project, given the state no longer reimburses local jurisdictions for lost property taxes due to Williamson Act contracts.</p> <p>Further, the voiding of the Williamson contract to make way for the Cuyama Solar Project will net the county a $125,000 cancellation fee, to be paid by the landowner.</p> <p>&ldquo;It seems to me that the county would have very little incentive to prevent a project like this from going forward,&rdquo; Owsowitz said.</p> <p>In order to mitigate the &ldquo;significant and unavoidable&rdquo; impacts to agricultural resources, solar projects in Cuyama Valley will be required to permanently preserve off-site agricultural land at a ratio of 1:1 through the purchase of an agricultural conservation easement, buying credits from an agricultural farm-land mitigation bank or by other means spelled out in an environmental impact report.</p> <p>The commission received close to 60 letters from individuals and groups expressing support for the First Solar project. The county&rsquo;s Agricultural Preserve Advisory Committee voted in favor of it.</p> <p>At the July 22 meeting, commissioners approved additional avian protections to the project at the behest of the Santa Barbara Audubon Society. The group expressed opposition to the facility on the grounds that it would harm California condors.</p> <p>The Board of Supervisors will consider approving the project and the proposed changes to the land-use development code in September.</p> <p>&ldquo;I am very proud to be a part of the commission that&rsquo;s recommending this project to the board,&rdquo; said Commissioner Joan Hartmann.</p> <p>If the project gets the green light from the board, construction would begin in early 2015 and entail the installation of about 600,000 solar-photovoltaic modules that use single-axis tracking technology.</p> <p>Pacific Gas &amp; Electric will buy the power generated from the facility under a long-term power-purchase agreement.</p> <p>Meanwhile, the California Roundtable on Agriculture and the Environment&mdash;a coalition of farm and environmental organizations, including American Farmland Trust&mdash;issued a policy document this month that calls on state policymakers to &ldquo;take urgent action&rdquo; to prevent widespread conversion of farmland to other uses.</p> <p>California loses an average of 30,000 acres of farmland per year to non-agricultural uses, according to CRAE.</p> <p>&ldquo;Today, the pressures on California agricultural land seem to be gathering additional momentum rather than being dissipated by effective policies,&rdquo; CRAE states. &ldquo;New and significant threats such as high speed rail, increased oil and gas development, and utility-scale solar development put tens, if not hundreds of thousands of acres of agricultural land at risk.&rdquo;</p> <p>Laurel Perez, a planning and permitting consultant for First Solar, noted that the power generated by the Cuyama Solar Project will help local farmers, given the region is prone to occasional brownouts, which impact the operation of well pumps.</p> <p>&ldquo;Adding this power to the local grid provides a safety net for farmers,&rdquo; Perez said. &ldquo;There&rsquo;s a need.&rdquo; Leora Broydo Vestel</p> <p>To read the full issue of California Energy Markets, <span style="color: #0000ff"><a target="_blank" href="88E17A/assets/files/Documents/Cem1293.pdf">click here</a></span><span style="color: #0000ff"> </span>(pdf).</p> <p><i>This article was reprinted with permission from the California Energy Markets and <a target="_blank" href="http://www.newsdata.com/"><span style="color: #0000ff">Energy NewsData Corp</span></a>.</i></p>BB&K In The News25 Jul 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31774&format=xmlAll Things Groundwater: From Local Regulation to CEQAhttp://www.bbklaw.com/?t=40&an=31846&format=xml<p>BB&amp;K attorneys Jeffrey Dunn, Sarah C. Foley, Sarah E. Owsowitz and Melissa R. Cushman gave a two-hour presentation titled &ldquo;All Things Groundwater: From Local Regulation to CEQA&rdquo; at the Northern California County Counsels&rsquo; Conference on July 24, 2014 in Squaw Valley, Calif.</p> <p><a target="_blank" href="88E17A/assets/files/Documents/NorCalCoCounselConf_ Groundwater and CEQAPDF.pdf"><span style="color: #0000ff">Click here to download the PowerPoint presentation prepared for the event</span></a>.</p>Conferences & Speaking Engagements24 Jul 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31846&format=xmlAttorney - Municipal Law - Ontario or Irvine Officehttp://www.bbklaw.com/?t=40&an=29737&format=xml<p>We have an immediate opening for an attorney with a minimum of 4 years' transactional municipal law experience. Planning degree and/or extensive experience with planning, zoning and land use issues required.&nbsp; Experience attending legislative body meetings and with local tax, assessment and fee/rate setting under Propositions 13, 218 and 26 a plus.&nbsp;</p> <p>Qualified applicants are invited to apply online by clicking the link below. Applicants must attach a resume, transcript and cover letter to be considered for employment. This self-apply feature is compatible with Internet Explorer 6, 7, 8 &amp; 9, Mozilla Firefox for Windows, or Safari for Macintosh.</p> <a target="_blank" href="https://lawcruit.micronapps.com/sup/lc_supp_jobpost.aspx?%40Pl3%3cKWEX%40=2%3e4&amp;%3db8=8_CG">lawcruit.micronapps.com/sup/lc_supp_jobpost.aspx</a><br /> <br /> <p>Please address your cover letter to:</p> <p><strong>Jill N. Willis<br /> </strong><em>Chief Talent Officer<br /> </em>Best Best &amp; Krieger LLP<br /> 300 South Grand Avenue, 25th Floor<br /> Los Angeles, CA 90071<br /> <br /> <em><strong>No phone calls please</strong></em><br /> <br /> <b><i>Best Best &amp; Krieger LLP is an Equal Opportunity Employer.</i></b></p>Job Openings at BB&K23 Jul 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29737&format=xmlNot Represented by the Same Counsel in This Courthttp://www.bbklaw.com/?t=40&an=31649&format=xml<p><a href="http://www.imla.org/blog/wp-content/uploads/2013/09/Gavel.jpg"><img border="0" hspace="15" alt="Gavel" vspace="5" align="right" width="300" height="225" size-medium="" scale="0" src="http://www.imla.org/blog/wp-content/uploads/2013/09/Gavel-300x225.jpg" /></a>Trial and appellate counsel may differ for a variety of reasons, not all of which reflect poorly on one or the other. On occasion, however, trial counsel may have acted so unprofessionally or ignorantly as to be the target of strong remarks by the appellate court. In this case, the appellate court should and often does inform readers of its decision that the same attorney did not appear in both courts.</p> <p>In <a target="_blank" href="http://scholar.google.com/scholar_case?q=Evitts+v.+Lucey,+469+U.S.+387,+391+n.&amp;hl=en&amp;as_sdt=2006&amp;case=8362000692816150291&amp;scilh=0"><u><span style="color: #0000ff"><em>Evitts v. Lucey</em>, 469 U.S. 387, 391 n.3 (1985)</span></u></a>, the Court observed: &ldquo;The District Court also referred respondent&rsquo;s counsel to the Board of Governors of the Kentucky State Bar Association for disciplinary proceedings &hellip;. Respondent is not represented by the same counsel before this Court.&rdquo; The Seventh Circuit was &ldquo;acutely aware of the fact that Mr. Gruel during the initial pursuit of this theater project was not represented by the same counsel that represented him in connection with this particular piece of litigation.&rdquo; <a target="_blank" href="http://scholar.google.com/scholar_case?q=81+F.3d+729&amp;hl=en&amp;as_sdt=2006&amp;case=7957954324719360933&amp;scilh=0"><u><span style="color: #0000ff"><em>Budget Cinema, Inc. v. Watertower Associates</em>, 81 F.3d 729, 732 n.1 (7th Cir. 1996)</span></u></a>. In <a target="_blank" href="http://scholar.google.com/scholar_case?q=Brown+v.+Dick,+107+P.3d+260&amp;hl=en&amp;as_sdt=2006&amp;case=12922790695958758855&amp;scilh=0"><u><span style="color: #0000ff"><em>Brown v. Dick</em>, 107 P.3d 260, 263 n.4 (Alaska 2005)</span></u></a>, &ldquo;Brown secured new counsel on appeal and is not represented by the same counsel who handled his case below.&rdquo;</p> <p>These sorts of remarks are important. The trial court decision is often not published, so the available record is simply that a particular attorney was representing the party at the time the negative remarks were made. Who can know in years to come, especially after the records of the trial court are destroyed, which attorney represented the party and at what times. The more incompetent or unethical the blunder in the trial court, the more important it is that the appellate court spare the implication that counsel on appeal may have committed the blunder. If omitted, this correction is one that the new counsel on appeal may be hesitant to request, so all attorneys should take responsibility to seek addition of a simple footnote stating the facts.</p> <p>Image courtesy of <a target="_blank" href="http://www.flickr.com/photos/60588258@N00/3293465641/in/photolist-622SAn-63UDyk-63UDAr-63UDLR-64oi15-67uFtJ-68qMei-6dMTJX-6dMTWT-6dS2Sh-6dS2VW-6dS2Yh-6dS35W-6dS39h-6dS3cb-6GzjL6-6Gzm5n-6GDiiL-6GDj5h-6GDjSd-6GDkEd-6GDmu9-6GDnas-6GDnNf-6GDp8J-6MsJfK-7cGLtK-7eAx1z-7uZv4t-7va6Vs-7vq7St-9U4rk9-9U4rkf-e6yiVM-9qGVTS-8Cp6in-aqCiHc-exBsHh-bH9CKc-dvMZm5-eSjg29-dtFLXY-aqAPHX-cTXQqU-cKzLey-fZe4UE-fZdDQ5-a61Zef-exB4Gh-exBr2f-exydTR"><u><span style="color: #0000ff">Flickr</span></u></a> by <a target="_blank" href="http://www.flickr.com/photos/60588258@N00/"><u><span style="color: #0000ff">Brian Turner</span></u></a> (<a target="_blank" href="http://creativecommons.org/licenses/by/2.0/deed.en"><u><span style="color: #0000ff">creative-commons license</span></u></a>, no changes made).</p> <p><em>* This blog post was originally published in </em><a target="_blank" href="http://www.imla.org/blog/2014/07/not-represented-by-the-same-counsel-in-this-court/"><u><span style="color: #0000ff"><em>IMLA Appellate Practice Blog</em></span></u></a><em>, July 21, 2014. Republished with permission. Visit </em><a target="_blank" href="http://www.imla.org/blog"><span style="color: #0000ff"><em>www.imla.org/blog</em></span></a><span style="color: #0000ff"><em> </em></span><em>to read additional IMLA Appellate Practice Blog posts and to subscribe by email.</em></p>Blogs21 Jul 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31649&format=xmlBB&K Police Bulletin: Police Order To Stay Put While Conducting Background Check Is A Seizure Under Fourth Amendmenthttp://www.bbklaw.com/?t=40&an=31512&format=xml<p><b>Overview: </b>The Ninth Circuit recently held that, when a police officer orders a suspect to &ldquo;stay put,&rdquo; that command constitutes a seizure under the Fourth Amendment of the U.S. Constitution and can implicate municipal liability under <i>Monell</i>.</p> <p><b>Training Points: </b>When officers conduct a &ldquo;consensual encounter&rdquo; with a person, unless they have reasonable suspicion that crime is afoot, they are not permitted to detain the person for any longer than to confirm if a crime has occurred [or is occurring]. Commands not to leave, absent probable cause to prolong the detention, will be considered a &ldquo;seizure&rdquo; under the Fourth Amendment. On appeal in <i>Benson v. City of San Jose</i>, the City argued that the officer approached Benson for a loitering offense. However, the court noted that the officer never stated why he approached Benson. Since the argument was made after the fact, and not at the time of the stop, the court rejected the argument that the officer had reasonable suspicion at the time of the stop. In light of this decision, officers should be mindful of two things: 1.) Always ensure that the person being contacted is informed of the purpose of the stop and 2.) Properly document the points of probable cause in the police report, including the admonition about the reason for the stop, along with other elements of probable cause for the contact.</p> <p><b>Summary Analysis: </b>In <i>Benson v. City of San Jose</i>, a police officer approached Benson for loitering and requested his identification. As he was running a background check, he told Benson to &ldquo;stay put.&rdquo; Benson sued the officer and the City claiming his Fourth Amendment rights were violated. The court reasoned that, while the initial encounter with Benson may have been consensual, the officer lacked reasonable suspicion for the seizure and, therefore, his command to Benson to &ldquo;stay put&rdquo; transformed the stop into a seizure under the Fourth Amendment. &nbsp;Further, the court held that the officer was not entitled to qualified immunity because, as of the date of the encounter, it was clearly established that when an officer retains a person&rsquo;s identification and commands a person not to leave, that constitutes a seizure. Finally, the court found the officer&rsquo;s actions could implicate municipal liability since the police chief testified the officer acted reasonably and within department policy and procedure. This, the court found, constituted official approval and ratification of the officer&rsquo;s decision and the basis for it.</p> <p><b>Follow-Up Contact: </b>For questions regarding this case or its implications for your agency and public safety department, please contact one of the authors of this bulletin listed at right in the <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=2532&amp;format=xml"><u><span style="color: #0000ff">Public Safety</span></u></a> group, or your <a target="_blank" href="http://www.bbklaw.com/?p=2099"><u><span style="color: #0000ff">BB&amp;K attorney</span></u></a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts21 Jul 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31512&format=xmlState Water Resources Control Board Adopts Emergency Water Conservation Regulation in Response to Droughthttp://www.bbklaw.com/?t=40&an=31473&format=xml<p>The State Water Resources Control Board has adopted an emergency regulation requiring local agencies to restrict potable water use by their customers and prohibiting certain uses of potable water. The regulation is expected to go into effect on August 1 and last for 270 days, unless extended by the SWRCB. The regulation does not apply to water wholesalers or the wholesale operations of combined water retailers/wholesalers.</p> <p>The regulation requires urban water suppliers (suppliers providing water to over 3,000 municipal customers or providing over 3,000 acre-feet per year to municipal customers) to activate their previously adopted, Water Code-compliant Water Shortage Contingency Plans at the stage that imposes mandatory restrictions on outdoor irrigation of ornamental landscapes or turf.</p> <p>As an option, urban water suppliers may develop an alternate plan that does not include mandatory restrictions on outdoor irrigation if allocation-based water rate structures, combined with other measures, achieve a level of conservation that would be greater than the amount of conservation that would be achieved by limiting outdoor irrigation to two days per week. An urban water supplier&rsquo;s alternate plan would be subject to approval by the executive director of SWRCB who would evaluate whether the plan meets the requirements above.&nbsp;</p> <p>All other distributors of public water (whether publically or privately owned and including mutual water companies), along with urban water suppliers that do not have a Water Shortage Contingency Plan or that have been notified by the Department of Water Resources that their plan is not compliant with the Water Code, must limit outdoor irrigation of ornamental landscapes to two days per week or impose other mandatory conservation measures designed to achieve comparable reductions in water use. These agencies have 30 days from the effective date of the regulations (expected to be August 1) to implement their conservation measures.</p> <p>Additionally, urban water suppliers must submit a report to the SWRCB by the 15th of each month comparing the amount of potable water produced in the preceding month to that month in 2013.The initial report must also state the number of people served by the urban water supplier. Beginning October 15, the report must provide an estimate of gallons of water used per person per day by residential customers.</p> <p>The regulation also prohibits individuals from using potable water to wash driveways and sidewalks; water outdoor landscapes that cause excess runoff; wash a car with a hose without a shut-off nozzle; or operate a fountain or other decorative water feature. Excess runoff includes situations where water flows onto adjacent property, non-irrigated areas, private and public walkways, roadways, parking lots, or structures. Violations are punishable by an infraction and up to a $500 fine for each day a violation occurs. Local agencies or the SWRCB may issue infractions and fines at their discretion. It is anticipated that such fines will likely be imposed through the authority and procedures in an urban water supplier&rsquo;s Water Shortage Contingency Plan.</p> <p>The SWRCB regulation can be viewed by clicking <a target="_blank" href="http://www.waterboards.ca.gov/board_decisions/adopted_orders/resolutions/2014/rs2014_0038_regs.pdf"><u><span style="color: #0000ff">here</span></u></a>.</p> <p>For more information about the emergency drought regulation and how it may affect your agency, please contact one of the attorney authors of this legal alert listed to the right, an attorney in the <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=492&amp;format=xml"><u><span style="color: #0000ff">Environmental Law &amp; Natural Resources</span></u></a> practice group, or your <a target="_blank" href="http://www.bbklaw.com/?p=2099"><u><span style="color: #0000ff">BB&amp;K attorney</span></u></a>.</p> <i>Disclaimer: BB&amp;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 communiqu&eacute;.</i>Legal Alerts17 Jul 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31473&format=xmlBB&K Attorney Joseph P. Byrne Re-Appointed to California Water Commissionhttp://www.bbklaw.com/?t=40&an=31443&format=xml<p><strong>For Immediate Release:</strong> July 15, 2014<br /> <span><strong>Media Contact:</strong>&nbsp;Denise Nix&nbsp;&bull; 213.787.2552 &bull; <a href="mailto:denise.nix@bbklaw.com"><u><span style="color: #0000ff">denise.nix@bbklaw.com</span></u></a></span><br /> <br /> <strong>LOS ANGELES</strong> _ Gov. Jerry Brown has announced the re-appointment of Joseph P. Byrne, who is of counsel in Best Best &amp; Krieger LLP&rsquo;s Los Angeles office, to the California Water Commission. He has served on the Commission since 2010, and as its chair since January 2013.</p> <p>The Commission consists of nine members who are charged with a number of statewide responsibilities related to water. Currently, one of the Commission&rsquo;s most important tasks is preparing for the passage of a state water bond that is expected to contain funding for water storage projects.</p> <p>&ldquo;I am honored that the Governor has selected me to continue to serve on the Commission and I am looking forward to working with my colleagues on statewide water issues, especially at such a critical time for the State during the current drought,&rdquo; Byrne said.</p> <p>Byrne is a member of BB&amp;K&rsquo;s Environmental Law &amp; Natural Resources, Municipal Law, Special Districts and Business Services practice groups. He provides general counsel services to both public and private clients and advises clients on a wide variety of water-related issues, including water rights and water-related agreements.&nbsp;</p> <p>The appointment is subject to confirmation by the Senate.</p> <p><b><i>Best Best &amp; Krieger LLP</i></b><i> is a national law firm that focuses on environmental, business, education, municipal and telecommunications law for public agency and private clients. With 200 attorneys, the law firm has nine offices nationwide, including Los Angeles, Sacramento, San Diego and Washington D.C. For more information, visit </i><i><a target="_blank" href="http://www.bbklaw.com/"><font color="#0000ff">www.bbklaw.com</font></a> or follow @BBKlaw on Twitter.</i></p>Press Releases15 Jul 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31443&format=xmlComments Due August 25 on Comcast-Time Warner Cable-Charter Merger/Spin Off Transactionshttp://www.bbklaw.com/?t=40&an=31444&format=xml<p>Last week the FCC made two important announcements concerning its review of the applications filed for approval of the Comcast &ndash; Time Warner Cable &ndash; Charter cable merger and spin off transactions, and at the same time the agency formally started the time clock running on its review. The FCC announced the formation of teams to review the transactions, and established the filing dates and rules for formal participation. The depth and breadth of the review teams suggests the FCC will engage in a serious examination of oppositions and comments seeking that conditions be imposed on the approvals &ndash; provided that the comments/objections are well supported and made in a timely fashion. <b><i>This review provides a unique opportunity for local governments to object to the merger (even if the merger is not subject to review at the local level) and provides an opportunity to raise concerns about the merger&rsquo;s effects on localities, as well as to seek conditions that could protect local communities, should the FCC decide to approve the merger. This could include, for example, conditions that protect PEG, and that ensure Comcast does not abuse its control over the &ldquo;last mile&rdquo; broadband connection to the home. But as we explain below, the window for local governments to effectively make their concerns known is small &ndash; and could close late next month.</i></b></p> <p><b>Transaction Review Teams:</b> A steering committee composed of top members of major bureaus and offices &mdash; legal, media, wireline, wireless and international &mdash; will oversee review of the Comcast transactions and the AT&amp;T-DirecTV merger. The review teams also include an attorney formerly with the Department of Justice&rsquo;s Antitrust Division and two Northwestern University professors with economics and business expertise.</p> <p><b>Rules for Public Participation and Filing Dates:</b> The pleading cycle has three stages and anticipates two different types of responses to the applications &mdash; <i>comments on the applications</i> and <i>petitions to deny the applications</i>. The difference between the two types of filings is material. Filing a petition to deny will preserve your rights to take further action if you are unhappy with the FCC&rsquo;s decision on the applications. Simply filing comments generally does not allow you to seek reconsideration of the FCC&rsquo;s decision or appeal a final decision to the courts.</p> <p>The due dates for filings are as follows:</p> <p>Comments on Applications / Petitions to Deny Applications: Aug. 25</p> <p>Responses to Comments / Oppositions to Petitions to Deny Applications: Sept. 23</p> <p>Replies to Responses to Comments / Replies to Oppositions to Petitions to Deny: Oct. 8</p> <p>Although <i>ex parte</i> communications (outside the above dates) will be permitted in limited circumstances, the FCC&rsquo;s public notice warns participants that only timely participation can ensure that your issues will be fully considered. Specifically, the notice states &ldquo;petitioners and commenters should raise all issues in their initial filings. New issues may not be raised in responses or replies.&nbsp;A party or interested person seeking to raise a new issue after the pleading cycle has closed must show good cause why it was not possible for it to have raised the issue previously. Submissions after the pleading cycle has closed that seek to raise new issues based on new facts or newly discovered facts should be filed within 15 days after such facts are discovered. Absent such a showing of good cause, any issues not timely raised may be disregarded by the Commission.&rdquo;</p> <p><b><i>That makes August 25 the key filing date to have your voice heard. Now is a great time for interested communities to create a coalition so that critical issues can be timely raised.</i></b></p> <p>For more information about the merger, please click here: <a target="_blank" href="http://www.fcc.gov/transaction/comcast-twc"><u><span style="color: #0000ff">http://www.fcc.gov/transaction/comcast-twc</span></u></a></p> <p>For more information on the merger and it&rsquo;s potential impact on your organization or community, please contact the authors of this e-alert listed at right, an attorney in the firm&rsquo;s <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=456&amp;format=xml"><u><span style="color: #0000ff">Telecommunications</span></u></a> practice group or your <a target="_blank" href="http://www.bbklaw.com/?p=2099"><u><span style="color: #0000ff">BB&amp;K attorney</span></u></a>.<br /> <br /> <em>Disclaimer: BB&amp;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 communiqu&eacute;.</em></p>Legal Alerts15 Jul 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31444&format=xmlMatthew Bender Practice Guide: California Civil Appeals and Writshttp://www.bbklaw.com/?t=40&an=31402&format=xml<p>BB&amp;K Partner Kira L. Klatchko is the co-editorial consultant of <a target="_blank" href="http://www.lexisnexis.com/store/catalog/booktemplate/productdetail.jsp?pageName=relatedProducts&amp;prodId=prod20620328"><span style="color: #0000ff">Matthew Bender Practice Guide: California Civil Appeals and Writs</span></a>, along with Benjamin G. Shatz of Manatt, Phelps &amp; Phillips, LLP. The publication helps litigators take their case one step further to success with practical advice on how to either security a victory, or a judgment reversal, in the appellate court.<br /> <br /> (Image source: LexisNexis Store)</p>Publications14 Jul 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31402&format=xmlDealing with the Dangers of Online Reviewinghttp://www.bbklaw.com/?t=40&an=31517&format=xmlBy <strong>James R. Harper </strong>and <strong>Jeremiah J. Lee<br /> </strong><br /> <p><span>Online review websites, such as Yelp or Angie&rsquo;s List, have become a common forum for griping. They give a voice to past customers to praise or condemn the efforts of a local business and inform future customers about which businesses in the community deserve their business, and which to avoid. </span></p> <p><span>But what happens when fake &ldquo;customers&rdquo; post negative reviews, or real customers embellish the horror of poor service? Can reviewers be held liable for their disparaging comments, and what can businesses do to protect themselves? </span></p> <p><span>The laws governing online reviews are quickly changing across the country and are pitting online reviewer anonymity and freedom to comment against businesses&nbsp;- both large and small&nbsp;- fighting to prevent false reviews and mitigate the impact of negative reviews on their online reputations. </span></p> <p><span>Two recent Virginia cases helped set some legal ground rules regarding online reviews. </span></p> <p><span>In one case, a woman was sued for $750,000 for lost business due to defamation after she wrote a scathing one-star review of a contractor, which included accusations of damage to her home, missing jewelry and an inflated invoice. </span></p> <p><span>The court found that the woman made false statements and defamed the contractor, but also found that the contractor, in its online responses, also defamed the woman. No damages were awarded, but the precedent was established that a reviewer can be found liable for shooting off an exaggerated and harmful review. </span></p> <p><span>In the second case, on more of a technical note, a Virginia court of appeal ruled that Yelp must reveal the identities of seven anonymous users who left negative reviews. Yelp has been opposed to giving information about its users, but the court found that the identities were needed to determine whether the users were actually customers of the reviewed business or if they were competitors or others writing fake reviews. </span></p> <p><span>Although expressing one&rsquo;s opinion online is a pastime of many and generally garners anonymity and free speech protection, reviews that include deliberately false statements of fact do not enjoy such protections and can lead to liability. </span></p> <p><span>Similar litigation has sprung up across the country with mixed results. A California technology company won a $1.6 million judgment against a blogger accusing it of stealing money from its business partners. </span></p> <p><span>Other cases have gone in favor of the reviewer. In 2011, a California court ordered a dentist to pay his patient&rsquo;s medical bills after he attempted to sue the patient&rsquo;s parents for posting a negative review on Yelp. The outcomes of these cases are largely due to the specific facts and events of each case, but as state laws are passed to deal with these situations, the outcome for a specific reviewer or business may depend, in part, where each party resides. </span></p> <p><span>In California, current legislation is seeking to limit a practice of some companies of including provisions in the fine print of their contracts that prevent users from leaving negative reviews online. The bill was in response to a Utah case in which a couple was charged $3,500 for posting a negative review in violation of a provision in the terms of service. </span></p> <p><span>The items reviewed cost less than $20 and, when the customers refused to pay the $3,500 fee, the company reported the unpaid amount to the credit reporting agencies. </span></p> <p><span>California Assembly Bill 2365 would make it unlawful to threaten or seek to enforce any provision in an agreement that requires a customer to waive his or her right to make statements about the consumer&rsquo;s experience with a business. The bill would impose fines against businesses that threaten to, or attempt to, enforce this sort of gag order provision, unless the provision was clearly and conspicuously identified and agreed to in the contract. Numerous articles, blog posts and consultants give good advice about how to protect oneself as a reviewer or as a business owner when interacting online. In the face of rapidly changing laws, reviewers will benefit from sticking to truthful opinions in their online reviews and businesses will benefit from creating a plan on how to best engage their customers online that includes some preparation to suffer through, or proactively address, the inevitable fake or false review. </span></p> <i>* This article first appeared in <a target="_blank" href="http://digital.olivesoftware.com/Default/Scripting/ArticleWin.asp?From=Archive&amp;Source=Page&amp;Skin=PressEnterpriseA&amp;BaseHref=PSE/2014/07/13&amp;PageLabelPrint=D3&amp;EntityId=Ar08002&amp;ViewMode=HTML"><u><span style="color: #0000ff">The Press-Enterprise</span></u></a> on July 13, 2014. Republished with permission.</i>BB&K In The News13 Jul 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31517&format=xmlAll California Contractors and Subcontractors Involved with Public Works Projects Now Required to Register With State by March 1, 2015http://www.bbklaw.com/?t=40&an=31362&format=xml<p>The California Legislature has imposed a new registration requirement for contractors and subcontractors involved with public works projects. Senate Bill 854, passed late last month, created a registration program, effective July 1, 2014, to fund the Department of Industrial Relations&rsquo; monitoring and enforcement of prevailing wage laws.</p> <p>The registration period is open now, and contractors and subcontractors wishing to work on a public works project must be registered by March 1, 2015. For public agencies/awarding bodies, the new law requires that all public works projects with bids due after March 1, 2015, or awarded on or after April 1, 2015, use only registered contractors and subcontractors. The bill also requires awarding bodies to include notice of the registration requirement in their bid invitations and bid documents. In addition, public agencies must also file notice of their public works projects using DIR approved forms.</p> <p>Registration is completed through an online application and requires a non-refundable $300 fee to be paid by the contractors and subcontractors. The registration process requires contractors to:</p> <ul> <li>provide workers&rsquo; compensation coverage to its employees</li> <li>hold a valid Contractors State License Board license</li> <li>have no delinquent unpaid wage or penalty assessments</li> <li>not be subject to federal or state debarment</li> </ul> <p>Contractors must pay an annual renewal fee by July 1 of each year. The registration form is located on the DIR&rsquo;s website at <a target="_blank" href="http://www.dir.ca.gov/DLSE/dlsepublicworks.html"><span style="color: #0000ff">http://www.dir.ca.gov/DLSE/dlsepublicworks.html</span></a><u>. </u></p> <p>To help awarding bodies and contractors comply with the new requirements, the DIR will post a database of registered contractors and subcontractors on its website. While non-registered contractors may not be awarded public works contracts after the effective date, inadvertently listing an unregistered subcontractor on a bid will not necessarily invalidate that bid. In addition, the registration requirement does not apply to private jobs that are determined to be public works after the contract has been awarded.</p> <p>The new registration system replaces the previous requirement that awarding bodies pay for costs to monitor and enforce compliance with prevailing wage laws for certain public works projects. Registration and renewal fees will go into the State Public Works Enforcement Fund, which provides for the administration of contractor registration, monitoring and enforcement of prevailing wage laws, and the enforcement of Labor Code violations on public works projects by the DIR.</p> <p>For more information on the new public works contractor registration requirement and its potential impact on public works projects, please contact the authors of this e-alert listed at right, an attorney in the firm&rsquo;s <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=451&amp;format=xml"><span style="color: #0000ff">Public Contracts and Construction group </span></a>or your <a target="_blank" href="http://www.bbklaw.com/?p=2099"><span style="color: #0000ff">BB&amp;K attorney</span></a>.</p> <p><i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts10 Jul 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31362&format=xmlState Water Resources Control Board to Consider Emergency Water Conservation Regulations in Response to Droughthttp://www.bbklaw.com/?t=40&an=31341&format=xml<p>In response to Gov. Jerry Brown&rsquo;s State of Emergency Drought Declaration and Proclamation of a Continued State of Emergency, on July 15 the State Water Resources Control Board will consider adopting emergency water conservation regulations. The proposed regulations would enact restrictions on individuals, urban water suppliers (a supplier providing water for municipal purposes directly or indirectly to more than 3,000 customers or supplying more than 3,000 acre-feet of water annually) and distributors of public water supplies (whether publicly or privately owned and including mutual water companies). Interested parties have&nbsp;until noon on July 14 to submit comments on the proposed regulations to the California Office of Administrative Law. Due to the short timeframe to comment and the ambiguities noted below, BB&amp;K recommends the submission of joint comments by public agencies and other water suppliers.<br /> <br /> As to individuals, the proposed regulations prohibit the application of water to outdoor landscapes in a manner that causes visible runoff, the use of a hose to wash an automobile except where the hose is equipped with a shut-off nozzle, the application of water to hard surfaces including driveways and sidewalks, and the use of potable water in non-recirculating decorative water fountains. Violations would be punishable by a fine of up to $500 for each day in which the violation occurs. However, the proposed regulations do not address how the restrictions would be enforced and who would enforce them.</p> <p>The proposed regulations require all urban water suppliers to implement any applicable stage of their water shortage contingency plan that imposes mandatory restrictions on outdoor irrigation. For urban water suppliers without a water shortage contingency plan or with an insufficient plan, and for all distributors of public water supplies, the proposed regulations require, within 30 days, the implementation of limits on outdoor irrigation by customers to no more than two days per week or other conservation measures to achieve reduction in water consumption from 2013 levels. Although it appears that the limits on &ldquo;outdoor irrigation&rdquo; are not intended to apply to agricultural uses, the proposed regulations are ambiguous because the term &ldquo;outdoor irrigation&rdquo; is not defined.</p> <p>The proposed regulations mandate that each urban water supplier submit a monthly monitoring report by the 15th of each month to the Water Board. The monthly report must state the amount of potable water produced (including treated water) in the preceding month and an estimate of the gallons of water used per person per day. Further, the initial report must state the number of people served by the urban water supplier.</p> <p>For more information about the proposed regulations and how they may affect your agency, please contact one of the attorney authors of this legal alert listed at right in the <a href="http://www.bbklaw.com/?t=5&amp;LPA=492&amp;format=xml"><span style="color: #0000ff">Environmental Law &amp; Natural Resources</span></a> practice group, or your <a href="http://www.bbklaw.com/?p=2099"><span style="color: #0000ff">BB&amp;K attorney</span></a>.<br /> <br /> <i>Disclaimer: BB&amp;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 communiqu&eacute;.</i></p>Legal Alerts09 Jul 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=31341&format=xml