BILL ANALYSIS �
AB 320
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 320 (Hill)
As Amended June 14, 2011
Majority vote
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|ASSEMBLY: |46-27|(May 12, 2011) |SENATE: |22-15|(August 31, |
| | | | | |2011) |
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Original Committee Reference: NAT. RES.
SUMMARY : Prevents a California Environmental Quality Act (CEQA)
legal action from being dismissed for not naming indispensible
parties if the plaintiff or petitioner names the persons
identified in the project's notice of determination (NOD) or
notice of exemption (NOE) or, if no notice is filed, the persons
referenced in the definition of "project," as reflected in the
lead agency's record of proceedings.
The Senate amendments :
1)Require that an NOD or NOE identifies the persons referenced
in the definition of "project" (see b) and c) of 2) in
"Existing Law" below), as reflected in the lead agency's
record of proceedings.
2)Delete the requirement that an NOD or NOE name the recipients
of the lead agency's approval.
3)Require a petitioner or plaintiff in a CEQA legal action to
name, as a real party in interest, the persons identified in
the NOD or NOE or, if no notice is filed, the persons
referenced in the definition of "project" as reflected in the
lead agency's record of proceedings.
4)Delete the requirement that a petitioner or plaintiff in a
CEQA legal action name the recipient or recipients of an
approval as a real party in interest.
5)Delete the provision that allows a CEQA legal action to be
dismissed for failure to serve the recipients of the lead
agency's approval with the petition or complaint.
EXISTING LAW :
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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)Defines "project" as an activity which may cause either a
direct physical change in the environment, or a reasonably
foreseeable indirect physical change in the environment, and
which is any of the following: a) an activity directly
undertaken by any public agency; b) an activity undertaken by
a person who is supported, in whole or in part, through
contracts, grants, subsidies, loans, or other forms of
assistance from one or more public agencies; or, c) an
activity that involves the issuance to a person of a lease,
permit, license, certificate, or other entitlement for use by
one or more public agencies.
3)Requires a lead state agency to file an NOD with the Office of
Planning and Research and requires a lead local agency to file
an NOD with the county clerk if the project is subject to
CEQA. A state or local lead agency may file an NOE if it
determines that a project is exempt from CEQA.
4)Establishes the statute of limitations for an action to
challenge acts or decisions of a public agency on the grounds
that they violate CEQA. In general, the filing of an NOD
triggers a 30 day limitations period, the filing of an NOE
triggers a 35-day limitation period, and if there is no notice
there is a 180-day limitation period triggered by the
commencement of the project.
5)Requires the plaintiff or petitioner in a CEQA lawsuit to
name, as a real party in interest, any recipient of an
approval that is the subject of the action or proceeding.
Failure to name a recipient of approval that is an
indispensible party can be grounds for dismissal. If
dismissal occurs after the statute of limitation expires, the
court will generally not allow leave to amend.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, the bill has negligible costs.
AS PASSED BY THE ASSEMBLY , this bill:
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1)Required state agencies and local governments, when filing an
NOD or NOE, to name the recipient of the agency's approval, if
any.
2)Required the plaintiff in a CEQA action to name in its
complaint, as a real party in interest, a recipient of an
approval as identified by the public agency in its NOD or NOE.
3)Established that failure to name potential persons, other than
those real parties in interest as identified by the public
agency in its NOD or NOE, is not grounds for dismissal.
4)Allowed a CEQA legal action to be dismissed if the petitioner
or plaintiff fails to timely serve a recipient of an approval
identified in the lead agency's NOD or NOE.
COMMENTS : Under CEQA civil procedure laws, if a lawsuit does
not name a recipient of an approval, the court must determine
whether "in equity and good conscience the action should proceed
among the named parties, or should be dismissed without
prejudice, the absent person being thus regarded as
indispensable."
Often when a lawsuit is dismissed for failure to name an
indispensible party, the plaintiff can cure the deficiency by
amending the complaint to include the absent party. However,
because of the particularly short statute of limitations in CEQA
cases--30 days in many cases--it is unlikely that a plaintiff
will have an opportunity to amend the complaint before the
statute of limitations run.
According to the author, CEQA practitioners are now forced to
over-name and serve parties who might or might not be considered
indispensible to ensure no one is missed and that important
cases are not dismissed. 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.
This bill intends to prevent the dismissal of important and
meritorious CEQA cases and the over-naming of parties by
requiring a petitioner or plaintiff to only name, as a real
party in interest, the persons listed in the project's NOD or
NOE. This would allow a petitioner or plaintiff in a CEQA
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action to easily ascertain the real parties in interest so
he/she knows who to name and not name in the lawsuit. This bill
would establish that the petitioner or plaintiff's failure to
name a party, other than those identified by a lead agency in an
NOD or NOE, is not grounds for dismissal pursuant to the
indispensible party rules. As such, if a lead agency mistakenly
omits a name on an NOD or NOE, it will not be to the detriment
of the petitioner or plaintiff. If there is no NOD or NOE, the
petitioner or plaintiff would only have to name the persons
referenced in the definition of "project," as reflected in the
lead agency's record of proceedings.
This bill expressly states that it does not affect an existing
right of a party to intervene in a CEQA case.
Similar bills, SB 68 (Kuehl) in 2008 and AB 499 (Hill) in 2010
were approved by the Legislature, but vetoed by Governor
Schwarzenegger.
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092
FN: 0002108