BILL ANALYSIS
AB 499
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 499 (Hill)
As Amended June 18, 2009
Majority vote
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|ASSEMBLY: |47-30|(May 28, 2009) |SENATE: |22-15|(August 30, |
| | | | | |2010) |
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Original Committee Reference: NAT. RES.
SUMMARY : Revises the California Environmental Quality Act
(CEQA) judicial review procedures to clarify that only the
recipients of a project approval identified by the lead agency
are the real parties in interest that must be named by the
plaintiff in an appeal of the lead agency's decision.
The Senate amendments define "recipient of approval" as the
project applicant on the date of final public agency action, as
identified in the public agency's record of proceedings.
EXISTING LAW :
1)Requires lead agencies with the principal responsibility for
carrying out or approving a proposed project to prepare a
negative declaration, mitigated negative declaration, or
environmental impact report for this action, unless the
project is exempt from CEQA.
2)Requires a state agency to file a notice of its CEQA decision
with the Office of Planning and Research and requires a local
agency to file a notice of its decision with the appropriate
county clerk(s).
3)Provides appeal procedures to challenge lead agency decisions,
including requiring the petitioner or plaintiff to name, and
serve, a real party in interest; provides that failure to name
potential parties, other than specified real parties in
interest, is not grounds for dismissal of the appeal.
AS PASSED BY THE ASSEMBLY , this bill:
1)Required the lead agency to identify the recipient of the
AB 499
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agency's approval in its notice of determination or exemption.
2)Provided that the recipient of project approval identified by
the lead agency is the real party in interest that a
petitioner or plaintiff must name in, and serve, its petition
or complaint.
3)Provided that the petition or complaint is subject to
dismissal if the petitioner or plaintiff fails to serve any
recipient of approval identified by the lead agency within 20
business days after serving the agency, unless the petitioner
or plaintiff is granted additional time by the court after
showing a good faith effort to effect service.
4)Provided that the bill's revisions apply prospectively, i.e.,
they do not apply to CEQA lawsuits pending, or to public
agency decisions for which a notice was filed, on or before
December 31, 2009.
FISCAL EFFECT : According to the Senate Appropriations
Committee, negligible costs.
COMMENTS : A "real party in interest" is a person affected by
litigation other than the plaintiff or the defendant. Equitable
principles, reflected in the "indispensable party rule," seek to
assure that a person who will actually be affected by litigation
is adequately notified so he or she can participate in the
litigation. CEQA's judicial review procedures specify which
persons are indispensable parties and must be named and served
in litigation.
Under current law as recently declared by the Court of Appeal in
County of Imperial v. Superior Court (2007) 152 Cal. App. 4th
13, any person who years after project approval claims to be a
recipient of approval can be considered an "indispensable party"
and therefore required to be named in a CEQA lawsuit, which must
be brought within 30 days of project approval; failure to name
the party within that 30-day period requires categorical
dismissal of the lawsuit. Such dismissal is required, the Court
held in interpreting existing Section 21167.6.5 of the Public
Resources Code, even though the party not named had asserted in
both the administrative proceeding and in court that it did not
need the approval in question and did not claim to be
"indispensable."
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To prevent important cases from being dismissed, petitioners in
CEQA lawsuits are forced to over-name and serve parties who
might or might not be considered indispensable to ensure they
have not missed anyone. This is extremely burdensome not only to
the petitioners, but also to those who have been named as real
parties in interest by the petitioners simply out of an
abundance of caution in light of the result in the County of
Imperial case.
This bill intends to resolve the situation of CEQA appellants
either over-naming and over-serving parties, or facing the risk
their appeal may be dismissed for technical errors. First, the
bill requires lead agencies to name the recipients of approval.
Then, the bill specifies that only those parties actually
identified by the lead agency as a recipient of that approval
must be named and served. Other parties may intervene on their
own initiative. The bill appears to improve the efficiency of
CEQA judicial review by addressing a burdensome procedural
complication without affecting the statute's intent regarding
notice and participation in CEQA litigation.
A similar bill, SB 68 (Kuehl), was approved by the Legislature
in 2008, but was later vetoed by Governor Schwarzenegger, who
objected to making lead agencies responsible for determining who
the "real parties in interest" are. AB 499 is intended to
address the ambiguity the Governor objected to by clearly
indicating that lead agencies simply must name the recipients of
their approval, who petitioners must then name as real parties
in interest.
Analysis Prepared by : Lawrence Lingbloom / NAT. RES. / (916)
319-2092
FN:
0006844