Tag: Civil Procedure

Air District Board’s Tie Vote on Authority to Construct Permit Is Effectively a Decision Not to Revoke It, Which Is Reviewable for Prejudicial Abuse of Discretion

On June 14, 2017, Division One of the First Appellate District published its decision in Grist Creek Aggregates, LLC v. The Superior Court of Mendocino County (2017) 12 Cal.App.5th­­­ 979, in which the Court of Appeal held that a county air district board’s tie vote on the petitioner’s administrative appeal of an asphalt production facility’s construction permit, effectively resulted in the appeal’s denial, rendering the denial subject to judicial review.

The appellate court’s decision is the latest in a series of environmental and administrative challenges arising from Grist Creek Aggregate’s construction and operation of an asphalt facility in Mendocino County. At issue here, in November 2015, the Mendocino County Air Quality Management District issued an authority to construct permit (ATC) to Grist Creek Aggregates to build a facility to heat and blend rubber. Friends of Outlet Creek, the petitioner in the related suits, appealed the ATC decision to the District’s five-member Hearing Board. After recusal of one of the Board’s members, the remaining four members were locked in a tie vote. Because it was unable to reach a decision, the Board determined not to hold any further hearings on the appeal. Thus, the ATC remained in place.

Friends filed suit, alleging that the Air District and the Hearing Board violated CEQA in not conducting environmental review for the ATC, and violated the District’s own regulations. The Hearing Board demurred on the ground that because the tie vote was tantamount to no action, there was no agency decision for the court to review. Grist Creek Aggregates also demurred, arguing that Friends could not sue directly under CEQA and had failed to exhaust its administrative remedies. The trial court sustained the Board’s demurrer with leave to amend and overruled Grist Creek’s demurrer, both on the basis that the tie vote was not a Board “decision,” and therefore, there was nothing for the court to review. In the interim, the Board added a fifth member. The trial court noted this, but failed to order that the new Board rehear the ATC permit appeal. Grist Creek filed a writ of mandate in the Court of Appeal seeking to require the trial court to vacate all of its demurrer rulings.

The Court of Appeal granted Grist Creek’s petition. The court first noted that the trial court’s decision was internally inconsistent. The Board was under no obligation to hold another hearing on the appeal, and in fact indicated to opposing counsel that they would not do so. Coupled with the trial court’s conclusion that the tie vote meant that Friends did not have a cause of action, it was unclear how the trial court envisioned that Friend’s writ petition could be cured by amendment.

As the purpose and meaning of a tie vote, the Court of Appeal explained there are two criteria for the Board to reach a decision: a quorum of voting members and a majority decision by those voting members. The Board had a quorum (four voting members out of five) but they failed to reach a majority decision. It does not follow from this result that there is nothing for a trial court to review, since the gravamen of Friends’ petition was a challenge to the District’s underlying approval of the ATC and the Board’s failure to revoke it.

In reaching this decision, the court emphasized that the meaning of tie votes in administrative proceedings must be viewed in context. The trial court erroneously oversimplified precedent in its finding that a tie vote of an administrative action agency always results in no action. A deeper analysis of the relevant case law demonstrates that a tie vote can mean that the petitioner is entitled to a different remedy—a return to status quo ante, a new hearing, or setting aside the agency decision—not that the agency has not acted.

Viewing the tie vote in context, the Board’s action here was the equivalent of allowing the ATC to stand, which is effectively a decision not to revoke it. That decision was ripe for judicial review under the prejudicial abuse of discretion standard of Code of Civil Procedure section 1094.5.