A 2-2 vote on an environmental impact report is not enough to certify the document, the Fourth District Court of Appeals has ruled. The California Environmental Quality Act requires that the elected body make an affirmative decision on environmental documents, the court held. In this case, the Orange County Board of Supervisors, after one member recused himself, voted 2-2 on an EIR for a proposed 705-unit mobile home park. The county then determined that the Planning Commission's certification of the EIR, which had been appealed to supervisors, remained in effect. But in an artfully written opinion, Fourth District, Division Three Presiding Justice David Sills said no. "[A] board cannot validly provide for an approval of an EIR by tie vote. In doing so, it would be circumventing the protections provided by CEQA to expose elected decisionmakers to the political consequences of any decision to certify an EIR," Sills wrote. "There is sort of a grand design in CEQA: Projects which significantly affect the environment can go forward, but only after the elected decisionmakers have their noses rubbed in those environmental effects, and vote to go forward anyway." In 1996, California Quartet, Ltd., proposed a 705-unit mobile home development on 222 acres in Trabuco Canyon near St Michael's Abbey and the Ramakrishna Monastery. Orange County prepared an EIR that identified a number of significant impacts, including adverse air quality, loss of certain habitats, conflict with wildlife movement corridors, viewshed alteration and nighttime glare. In December 1997, the county Planning Commission certified the final EIR. The Vedanta Society of Southern California, which owns the monastery, appealed the decision to the Board of Supervisors. Two months later, the Board of Supervisors conducted a public hearing from which Supervisor James Silva recused himself. The remaining four supervisors split 2-2 on the EIR. However, Supervisor Thomas Wilson, acting as board vice chairman, declared that the tie vote meant that the Planning Commission's decision had been upheld. The Vedanta Society sued, seeking a declaration that the Board of Supervisors never decided on the appeal and did not ratify the Planning Commission's action. Meanwhile, California Quartet revised its project to call for 299 single-family houses. The Board of Supervisors then decided on a 3-1 vote that the project revision did not trigger the need for a subsequent EIR and that an addendum would suffice. That decision produced another lawsuit from the Vedanta Society and St. Michael's Abbey, and a suit from three environmental groups. The three lawsuits were consolidated in 1999. Orange County Superior Court Judge Robert Thomas ruled that the tie vote was the same as taking no action on the Vedanta Society's appeal; thus, the EIR was never validly certified. Judge Thomas also directed the county to set aside all approvals regarding the 299-unit project. On appeal, the developer and the county argued that, under CEQA, the default result of a tie vote was adoption of the planning commission's findings and explanations. They also argued that under the county's internal procedures the tie vote meant the Planning Commission decision was upheld. Finally, they argued that supervisors' 3-1 vote not to require a subsequent EIR was an affirmation of the original EIR. The unanimous three-judge panel of the Fourth District rejected all three arguments. The court held that CEQA and its Guidelines (California Code of Regulations, Title 14, §§15000) required the Board of Supervisors to make an "affirmative explanation" and adopt its own findings. "The very fact that ‘findings' (including a Guideline 15091 (a) explanation) must be made at all is incompatible with the nature of a tie vote. A tie vote … cannot constitute an affirmative act de novo," Sills wrote. "In effect, CEQA requires not only de novo review by a board of supervisors, but de novo fact finding as well." Sills continued, "Elected decisionmakers faced with appeals under CEQA from unelected bodies thus do not have the luxury of playing Hamlet. … Inherent in a consideration and finding requirement is that the body of elected decisionmakers must take unambiguous action, and unambiguous action means decisionmakers cannot be evenly divided against themselves. In CEQA terms, they have no alternative to taking arms against the troubles identified in the EIR; they do not have the option of suffering them silently." The court found that if the county had a policy allowing EIR approval on a tie vote, it would not be allowed under CEQA. The court also held that the 3-1 vote against requiring a subsequent EIR meant little. "As we have explained above, this EIR was never validly certified. A vote to allow an addendum made on the assumption that it already was certified cannot substitute for a vote certifying the EIR in the first place," Sills wrote. The court pointed out that its decision did not apply to tie votes in non-CEQA cases. It also did not address consequences of failing to adopt the EIR. Pointing to Sunset Drive Corp. v. City of Redlands, (1999) 73 Cal.App4th 215, (See CP&DR Legal Digest, August 1999), in which the court held that a city could be liable for damages under the federal Civil Rights Act for not completing a required EIR, Sills wrote, "We simply note that a developer is not without remedy for a lead agency's failure to certify an EIR because it deadlocked on a vote." The Case: Vedanta Society of Southern California v. California Quartet, Ltd., No. G026580, 00 C.D.O.S. 8762, 2000 Daily Journal, D.A.R. 11559, filed October 30, 2000. The Lawyers: For Vedanta Society: Edmond Connor, Connor, Culver, Blake & Griffin, (949) 622-2600. For California Quartet: William D. Ross, (213) 892-1592. For Orange County: Robert Break, Latham & Watkins, (714) 540-1235.