3. Position of the Reclamation District
Bishop Tract is comprised of 3,115 acres and is located north of Stockton. It was originally swamp and overflow land granted by the state to the original owners for the purpose that these lands be reclaimed. The property is bordered by water on three sides, with its entire eastern boundary running adjacent to Interstate Highway 5. The District's witnesses testified that construction of levees around Bishop Tract began in the mid-1800s and was completed around the turn of the century. In 1919, the Reclamation District was formed, and it paid the then-owner, California Delta Farms, Inc., $116,750 for a 100-foot easement at the levees and for the labor and materials used in constructing and maintaining the levees.
Reclamation districts in California are formed pursuant to Sections 50000 through 53901 of the Water Code. Engineer Christopher H. Neudeck testified that property owners formed the District for Bishop Tract to create a common design for levee improvements, the costs of which are shared through tax assessments on the owners' properties. The levee improvements relevant to this proceeding occurred in 1991 and 1992 and were intended to increase the width and height of the levees and improve existing drainage and irrigation systems to protect Bishop Tract lands from flooding.
The work also was intended to remove Bishop Tract properties from the 100-year flood plain. The 100-year flood plain is designated by the Federal Emergency Management Agency, or FEMA, as an area where there is a probability of a major flood occurring sometime during a 100-year period. In other words, the area has a 1% chance of a flood occurring in any given year. Bishop Tract prior to 1988 was outside the 100-year flood plain, but new FEMA regulations put it within the plain.
Restoring Bishop Tract to a position outside the 100-year flood plain was a benefit to owners of the land, since it increased the value of the property both for farming (with lessened chance of flooding) and for other uses. City and county planning commissions permit agricultural uses of land inside the 100-year flood plain but do not permit housing, recreation or commercial uses. Neudeck testified that there are five major property divisions with the District's boundaries, each of which has a representative on the District Board. The five major divisions range in size from 832 acres to 340 acres. PG&E owns a four-acre parcel where it has installed a substation. As an owner, PG&E was assessed a pro-rata share of the cost of levee improvements based on its four acres.
The cost of the levee improvements along 8.24 miles of the District's boundary perimeter was $7 million. In 1993, FEMA removed the District from the 100-year flood plain as a result of the improvements made in 1991 and 1992.
Relocation of PG&E utility poles and equipment at Bishop Tract was required as part of the levee work. Neudeck said that when he first contacted PG&E in early 1989 about the relocation, the utility refused to move the equipment until the District made payment in full for the cost of relocation. The work proceeded when the District agreed to pay under protest.
District Board member Steven A. Malcoun testified that Bishop Tract was outside the 100-year flood plain when he joined the Board in 1987 and that the District's policy has long been to maintain that status. He said the Board's decision to authorize improvements to meet new FEMA requirements was unanimous. The improvements were financed through a bond issued under the Mello-Roos Community Facilities Act of 1982, with landowners within the District's boundaries paying debt service on the bonds through property taxes assessed on a per-acre basis.
Other witnesses for the District testified that Bishop Tract would continue to be used primarily for agricultural purposes for the foreseeable future, and that housing or commercial development of parts of the property was not a substantial factor in the District's decision to proceed with the $7 million levee improvements.
Darrel Ramus, an assistant engineer involved in the levee project, testified that his examination of county surveyor maps of Bishop Tract showed that no power lines existed in the area until after 1922. According to Ramus, this supports the position that the District, formed in 1919, has land rights within Bishop Tract that are superior to those of PG&E.
Based on the testimony, the District takes the position that, among other things:
· The District, as a state agency engaged in flood control efforts, has a governmental "police power" to compel PG&E to relocate its utility lines without cost to the District.
· As a government entity, the District is entitled to the benefits of statutory and common law franchise rights, in which a utility may be compelled to move facilities for projects that are deemed to be in the public interest.
· The District holds easement rights superior to those of PG&E and therefore can require a secondary easement holder to yield its use.
The District also asks that it be awarded interest on the disputed payments, as well as attorneys' fees and costs.
