3. Discussion
Section 851 provides that no public utility shall sell, lease, mortgage, or otherwise encumber the whole or any part of property necessary or useful in the performance of its duties to the public, without first having obtained Commission approval.9
The primary question for the Commission in Section 851 proceedings is whether the proposed transaction is in the public interest. The public interest is served when utility property is used for other productive purposes without interfering with the utility's operations or affecting service to utility customers.10 In reviewing a Section 851 application, the Commission may "take such action, as a condition to the transfer, as the public interest may require."11
We find that SCE's proposed lease with RVSA is in the public interest. The proposed lease will not interfere with SCE's use of the property or with service to SCE customers, and the property will be utilized safely and in a manner consistent with legal and regulatory requirements. The terms of the Agreement between SCE and RVSA are reasonable and do not subject SCE to an undue risk of liability that could affect SCE's ability to provide utility service to the public. SCE's entry into the lease with RVSA will generate substantial OOR for the benefit of ratepayers and will permit the productive use of the site, without interfering with SCE's existing transmission facilities.
However, we are concerned that the Agreement would permit RVSA to assign, transfer, encumber, sublease or mortgage the lease, without prior Commission approval. We therefore, require SCE to apply for Commission authorization pursuant to Section 851 for any proposed assignment, transfer, encumbrance, sublease, or mortgage of the lease by RVSA that would alter the terms of the existing Agreement, including for transactions which involve a "permitted transferee," as defined in the Section 10.1 of the Agreement.
We are also concerned that in addition to use of the site for a recreational vehicle and boat storage facility, the proposed lease would permit RVSA to utilize the property for other purposes, with SCE's approval, but without prior Commission approval of the change in use of the property.
Therefore, in order to comply with CEQA and Section 851, if RVSA or any party to which the lease is assigned, transferred, encumbered, subleased, or mortgaged, wishes to utilize the property for any use other than a recreational and boat storage facility, and SCE wishes to permit such use of the property, SCE must first apply for authorization pursuant to Section 851 and undergo any additional required environmental review. RVSA must also obtain any necessary local approvals required for use of the property other than as the site for a recreational vehicle and boat storage facility.
We approve of the proposed ratemaking treatment for the compensation that RVSA will pay to SCE under the lease. The treatment of this compensation as OOR and of the lease as a "passive" source of revenue for the purposes of allocation between shareholders and ratepayers is consistent with prior Commission decisions and our current policy.
9 Section 851 states in pertinent part:
No public utility...shall sell, lease, assign, mortgage, or otherwise dispose of or encumber the whole or any part of its ... property necessary or useful in the performance of its duties to the public ... without first having either secured an order from the commission authorizing it to do so for qualified transactions valued above five million dollars ($5,000,000) or for qualified transactions valued at five million dollars ($5,000,000) or less, filed an advice letter and obtained a resolution from the commission authorizing it do to so.....
10 D.00-07-010 at 6.
11 D.3320, 10 CRRC 56, 63.
