Roads, waterways, convention and civic centers and fiber networks do more than just connect us to each other and the services we need to survive — they provide cities and local regions with a framework for economic growth, opportunity and jobs. But, in this day and age, legal challenges and finding funding to build these critical structures can be as complicated as the design plans themselves. Successful public infrastructure projects require a mix of creativity and transactional experience, legal knowledge and litigation skill.
Cities, as well as counties, special districts, transit and transportation authorities, water agencies, school districts and other public entities are often faced with changing legislative, funding and legal issues impacting public works projects. To accomplish the critical goals of completing a project successfully and on budget, they must obtain counsel on all aspects of public contracting, from planning and property acquisition through procurement, construction and project closeout.
Local governments must also act as the local connections regulator, as trustee of the rights of ways and even as the public safety systems manager. All these roles involve and create an enormous interest in technology and telecommunications. As communities look for ways to improve delivery of services by becoming “smart cities,” it is important to ensure that the city itself has access to adequate infrastructure for its own services, that all residents and businesses are in a position to take advantage of those services, and that equitable and social challenges created in an era of big data are addressed. Moreover, in an age when transparency is the focus, local governments need to consider publicly adopting policies that address the evolving legal issues associated with the integration of "smart" technologies into cities.
Telecommunications: Proactive, Not Reactive
Many local governments are attempting to facilitate deployment of modern, fast communication services to attract and keep businesses, stimulate economic growth and permit public agencies to deliver services (including public safety services) more effectively and efficiently to citizens. Communities understand that they may lose businesses and people, and will find it difficult to attract higher-wage businesses, unless advanced Internet services are available throughout a community. But, broadband services are increasingly reliant on wireless systems for the final connection to end users — and the careless placement of wireless antennas may change the character and appearance of neighborhoods, particularly where other utilities are undergrounded. Digging up streets for underground connections can potentially undo millions of dollars in restoration and other improvement work. Hence, it is vital to encourage infrastructure development in a way that is consistent with a high degree of respect toward the community and its land-use processes.
As the rights of way become ever more valuable for locating communications infrastructure, localities will face more intense efforts at the state, local and federal level to limit local control over, and charges for use of, the rights of way. Early in 2017, the Federal Communications Commission will consider whether it should take steps to limit what can be charged for use of rights of way and other publicly owned property and structures, and to consider whether it can “streamline” local processes for approving wireless applications. Legislation has been introduced in many states that effectively eliminates control over wireless placements in the right of way, and may reduce charges that can be imposed on wireless and wireline companies using the rights of way. Being a good steward of its rights of way is among the most vital function of municipal government. Civic leaders should understand the threats to their control and safety, and put their communities in a position to protect their interests. It is key to develop a proactive approach for responding to federal and state level challenges to local authority, while planning for and, where possible, simplifying wireless and wireline entry into the rights of way.
One challenge for localities going forward is to pull together what were once isolated activities to achieve their goals. Policies to encourage broadband deployment need to be coordinated with policies governing wireless deployment. General plans may need to be reviewed to ensure a locality is in a position to safeguard that new developments have access to broadband utility services. Local governments that work together in an organized fashion, with advocates ensuring their voices are heard, will be in a better position to secure funds and control over their own needs.
Aging and inadequate infrastructure and required upgrades, coupled with scarce public financial resources, are fostering a spirit of finding dynamic funding strategies to pay for the construction and maintenance of new public facilities, including highways, sewer lines and social infrastructure, such as civic centers and court houses. A welcome new era of innovation is fostering increased interest in project funding solutions, such as public-private partnerships. A P3 is not a financing mechanism, but, rather, a partnership between a public agency and a private investor. This contractual relationship can often last throughout the entire project, from design to development and financing to construction and into operation and maintenance.
P3s utilize many different structures and financing techniques to deliver projects that allow for a certain amount of “risk shifting” from the public to the private entity. The public agency can also benefit from the expertise of the private provider and receive a project quicker than the normal procurement methods (for example, using authority found in California Government Code section 5956 et seq. for a P3 project or the recently expanded design-build authority). In return, the private entity receives a steady cash flow from the improvement with user fees or other payments. Additionally, P3s offer an important mechanism for assisting local governments when local matching funds are needed to obtain a state or federal grant. For example, the City of Long Beach is replacing its Civic Center with a more than $530 million city hall, library, park and port headquarters utilizing a P3 strategy.
While there are more and more P3 projects being developed every day, they do require public agencies to apply innovation and, sometimes, step outside their comfort zones. It takes time and commitment to identify the problem, find the appropriate project to fix it, evaluate the politics and confirm the local priorities. Confirming these 4Ps before launching a 3P project will lead to strong solutions.
Transportation: The Future is Now
Strong and well-planned transportation infrastructure is the key to satisfaction, connectivity and sustainability within local governments. It goes beyond road rage from sitting in traffic… the fastest and most efficient routes for multi-modal forms of transit yield the most productivity, and people are happiest when they are at their peak in productivity — succeeding, contributing, profiting and, perhaps most importantly, connecting with each other in meaningful ways. Cities benefit from a happy community, as it brings in more residents, businesses and other services, all of which lead to economic stability. With so many technological and planning advances on the horizon, now is the time for cities to implement agile plans and policies to explore and promote transit-oriented developments, bus rapid transit, autonomous vehicle preparations and overall “smart” cities strategies where the fit is right. With technology, the challenge is in striking the right balance between regulations that ensure safety, but also encourage innovation.
These hubs provide communities a mixture of residential, office, retail, transportation and other amenities — all within a walkable neighborhood located within a half-mile of quality public transportation. In addition to addressing problems like affordable housing, traffic congestion and global warming, TODs save people time, contribute to healthier lifestyles and boost the local economy, job opportunities and property values. Developing successful TODs requires coordination, as well as a deep understanding of the funding, programs and policy issues at all levels of government. There are many programs that support TOD planning, and development projects should not only be multi-modal, but also forward thinking on taking advantage of future innovations, like automated vehicles and high-speed rail.
With both the National Highway Traffic and Safety Administration and the California Department of Motor Vehicles releasing their own sets of policies and guidelines related to driverless cars, public agencies must be proactive and start planning now for this technology that is no longer a figment of the imagination. As regulatory framework starts to take shape, it is important that local governments guarantee their critical roles on the safe testing and deployment of automated vehicles by communicating to both state and federal policymakers.
In California, the Contra Costa Transportation Authority was given the green light by state lawmakers to test autonomous vehicles without a driver seated in the driver’s seat and without steering wheels or brake pedals as part of its ongoing innovative pilot project. Meanwhile, the DMV made a significant revision to its closely watched draft autonomous vehicles deployment regulations to allow for the testing of vehicles without the presence of a driver with an approved permit and in cooperation with local authorities.
The first iteration of the Federal Automated Vehicles Policy addresses important and complicated issues such as data recording, privacy and cybersecurity. Such issues and the difficult ethical considerations associated with autonomous vehicles demonstrate the regulatory challenges with this technology. The policy also encourages states and local governments to prepare now by evaluating their current laws and regulations, develop clear requirements and application procedures for autonomous vehicle testing, and coordinate to establish uniform road infrastructure, including signs, traffic signals and lights, and pavement markings. However, one looming question is how local government will pay for the necessary infrastructure — a responsibility that should not fall only on local governments.
The road to innovation is always challenging, and one of the most congested intersections is that of law and technology. Local governments do not want to miss out on potential economic opportunities for public-private partnerships to enhance existing public transportation systems with driverless technologies. They should also want to avoid being confronted with an operational quagmire due to not planning for the deployment of smart transportation technologies. Moreover, state and local governments will want to continue to monitor progress and make sure their voices are heard as the NHTSA guidelines and model policies continue their inevitable evolution with the increased operation of autonomous technologies on our roads and highways.
We can’t live without water. It is, and will always be, a fundamental resource we must protect and preserve. Securing a clean, reliable supply is a crucial and challenging mission — especially when faced with an aging infrastructure, archaic laws and, significantly, historic drought in California and the West.
Our decaying drinking water, wastewater and stormwater infrastructure, has been under the national spotlight in recent years with the toxic drinking water crisis in Flint, Michigan. But we know that what happened in that community is just the tip of the iceberg. The challenges that resulted from its unstable water infrastructure were not unique, and experts agree that, if not addressed soon, more water quality crises will arise.
There are many options to creating and building a sustainable water supply. Everything from recycled water and desalination to managing groundwater supplies are implicated. However, it’s become clear through experience and history that communication and good relationships between and among water suppliers, municipalities, environmental and community groups, government agencies and lawmakers at all levels is the best way to ensure that every drop is put to beneficial use.
With funding scarce, no person or group can afford to operate in silos any longer. The water community is in a period of evolution toward regionalism and integration of water operations and management. This will change how and where the financial and other resources to develop much-needed water infrastructure will come from. In addition, the traditional national process of funding is in flux with the elimination of earmarks. Staying abreast of developments, keeping the paths of communication open and focusing on policy as much as politics will lead to significantly better preparation and outcomes.
Mar 15, 2017
BB&K Environmental Team Wins California Lawyer Attorney of the Year Award
Congratulations to Michelle Ouellette, Sarah Owsowitz and Jennifer Lynch
Director of Governmental Affairs