California First District Court of Appeal rules in favor of Grist Creek Aggregates LLC in dispute over tie vote

By Angela Underwood | Jul 5, 2017

SAN FRANCISCO — A California appeals court recently ruled that a trial court erred when it held that a district hearing board’s tie vote did not constitute a decision.

In a decision filed on April 6, the California First District Court of Appeal ruled judicial review over the production of a rubberized asphalt project between Grist Creek Aggregates LLC and the Mendocino County Air Quality Management District that arose when environmental group Friends of Outlet Creek accused the district hearing board of not conducting an environmental review under the California Environmental Quality Act (CEQA).

The dispute began in 2016 when the environmental group charged that the county hearing board only used four members for a vote because the fifth member was a former Grist Creek employee. Friends of Outlet Creek further alleged that the tie vote wrongfully awarded a project permit. 

The group then filed a petition for writ of administrative mandate in the trial court against the hearing board and Grist Creek, arguing that the California Environmental Quality Act was violated because no environmental study was conducted.

The hearing board filed a demurrer, arguing “that because the split vote was tantamount to no action, there was nothing for the trial court to review. Grist Creek also filed a demurrer, arguing that the plaintiffs couldn't sue under CEQA and could not prove any "abuse of discretion" by the hearing board, according to the opinion. 

The trial court sided with the hearing board's argument and denied Grist Creek's argument because the "tie vote was not a decision and there was therefore nothing to review," according to the appeals court ruling. 

Grist Creek then filed a writ of mandate in the appeals court, seeking to vacate the trial court's decision, and the appeals court granted Grist Creek's petition.

"Putting aside its merits, the trial court's order sustaining the hearing board‟s demurrer is internally inconsistent,” according to the decision.

The appeals court said that a case, Lopez v. Imperial County Sheriff’s Office (2008), the trial court had relied on to make its decision was slightly different than this case.

“Here, the trial court relied on Lopez for the broad proposition that 'a tie vote of an administrative agency results in no action,' but that reliance is based on an oversimplification,” according to appeals court decision, “...Unlike in Lopez, there is no allegation here that any member of the hearing board who participated in Friends' appeal failed to act as required by law, and there is likewise no allegation that the fifth board member wrongfully abstained from participating.”

Stressing a narrow ruling, the appeals court said a tie “vote mean different things in different contexts."

“We therefore grant the petition, direct that a writ of mandate issue, and command the trial court to conduct further proceedings consistent with this opinion,” the appeals court said in the decision.

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First District Court of Appeal California Grist Creek Aggregates LLC Mendocino County Air Quality Management District

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