Kaplan Kirsch & Rockwell is pleased to congratulate the City of Atlanta on the start of operations for the Atlanta Streetcar Project.  Working together with representatives of the City, the Federal Transit Administration, the Georgia Department of Transportation, and the Metropolitan Atlanta Rapid Transit Authority (MARTA), our attorneys played a key role in securing the final regulatory approvals and agreements that were required to bring this project to its successful implementation for the benefit of Atlanta’s residents and visitors.

On December 30, 2014, the Surface Transportation Board (STB) issued a decision denying a request from a private shortline railroad, Ballard Terminal Railroad, seeking authority to reinstitute rail service on a railbanked railroad corridor owned by several local governmental entities near Seattle, Washington and denying Ballard’s request to vacate the STB’s order “railbanking” the corridor pursuant to the National Trails System Act.  Kaplan Kirsch & Rockwell clients King County, Washington and Central Puget Sound Regional Transit Authority (Sound Transit), together with other regional government entities, had made a significant investment to acquire the corridor for use as a recreational trail and commuter rail line, as well as other public uses, and to preserve the corridor for potential future rail use.  Ballard’s petitions threatened those plans by proposing to replace those public uses with a speculative, low volume freight railroad service. Although railbanked corridors are subject to the reinstatement of rail service, the STB found that Ballard was not a “bona fide” petitioner because it had not demonstrated sufficient evidence of financing or shipper demand to warrant reactivation of the corridor.  This is the latest in a string of favorable STB decisions for Kaplan Kirsch & Rockwell on behalf of King County and Sound Transit regarding this corridor.

Law Week Colorado and The Denver Post featured articles about Kaplan Kirsch & Rockwell’s representation of the private purchaser and redeveloper of the well-known, former Gates Rubber Company site.  The Firm’s involvement included negotiation of the purchase and sale agreement, project due diligence, negotiation of the environmental insurance policy, environmental cleanup and risk management, entitlements, use of special district and tax increment financing, railroad right-of-way issues, transit-oriented development, and private project financing.

On September 12, 2014, the FAA issued a Director’s Determination dismissing a Part 16 complaint filed by a user of the now-closed Blue Ash Airport against Firm client the City of Cincinnati.  The complaint alleged the City had illegally diverted proceeds from the sale of the Blue Ash Airport.  The City demonstrated that it had not spent any of the proceeds from the sale until after a prior sales agreement had been rescinded and the Blue Ash Airport closed.  Based on that showing, the FAA found that there had been no revenue diversion and dismissed the complaint.  The FAA also reiterated that airport sponsors are not required to keep airport revenues in segregated, interest bearing accounts, although airport sponsors should be prepared to account for all airport revenues to demonstrate that airport revenues are spent for permitted airport purposes.

On August 19, 2014, FAA published a Notice and Request for Public Comment regarding Section 213(c)(2) of the FAA Modernization and Reform Act of 2012, which directs FAA to file a Categorical Exclusion (CATEX) for any Performance Based Navigation (PBN) procedure that would result in measurable reductions in fuel consumption, carbon dioxide emissions, and noise on a per flight basis.  FAA is now proposing the New Noise Reduction Method for determining whether a proposed PBN reduces noise.  Specifically, where the number of people who experience a noise reduction exceeds the number of people experiencing a noise increase, the proposed PBN reduces noise, and the application of the CATEX is reasonable.  FAA is now asking for public comment regarding the Net Noise Reduction Method and several suggested variations that also incorporate consideration of the magnitude of the noise level change.  See 79 Fed. Reg. 49, 141 (Aug. 19, 2014).

On August 12, 2014, the FAA announced an amendment to the procedures for issuing enforcement orders under 14 C.F.R. Part 13, including cease and desist orders, to provide an opportunity for an informal conference with an FAA attorney that may resolve, or narrow, the issues under investigation.  The amendment will go into effect on October 14, 2014, and the FAA has requested comments by September 11, 2014.  Specifically, the FAA proposes to amend 14 C.F.R. 13.20, which authorizes the FAA to issue orders of compliance and cease and desist orders for violations of a number of statutes, including the FAA Act, the Airport and Airway Development Act of 1970, and the Airport and Airway Improvement Act of 1982.  Section 13.20 does not apply to alleged violations of grant assurances, which are addressed in 14 C.F.R. Part 16, or to orders regarding certificate action or civil penalties, which are covered in other sections of Part 13.

The July 2014 edition of North American Windpower magazine published an article authored by John Putnam. The article highlights litigation regarding Colorado’s renewable portfolio standard and the constitutional challenges surrounding it. Kaplan Kirsch & Rockwell represented the Colorado renewable energy industry in the successful defense of the Colorado renewable standard.

We are pleased to announce that Lorri T. Salyards joined the Firm as the Firm Administrator on June 30, 2014.  We wish all the best to Edna Trujillo, who retired on June 27 after 12 years as the Firm’s founding Firm Administrator.

Lorri Salyards can be reached at lsalyards@kaplankirsch.com or 303.825.7000.

We are excited to share that the following attorneys were recently selected for inclusion in Chambers USA 2014:

• Polly Jessen for Natural Resources & Environment – Band 3
• Steve Kaplan for Real Estate: Zoning/Land Use – Band 1
• Sarah Rockwell for Real Estate: Zoning/Land Use – Band 1

Chambers USA compiles its rankings based on the research of more than 170 editors and researchers who talk to lawyers and attorneys all the year round, condutitng in-depth interviews.  This is Steve’s and Sarah’s tenth consecutive year to be selected for inclusion and Polly’s second year.