II. DISCUSSION
Applicant's first argument is that the Decision is in error because it requires Diesel to construct an access road and remove or trim trees prior to construction of the requested electric extension to his property. The argument is without merit. Further, it was considered and thoroughly discussed in the Decision beginning at page 54, where we pointed out that PG&E's tariff, as well as common sense, require that the utility must have access to a property in order to extend electricity thereto. There were no roads of any kind on Applicant's property, which was situated in a remote area, and it would have been absurd to require PG&E to construct a line over a route without first having access to service that location, as well as construct it in the first place.
PG&E's pertinent tariff provisions provide as follows:
"Rule 15A states:
"PG&E will construct, own, operate and maintain lines only along public streets, roads and highways which PG&E has the legal right to occupy, and on public lands and private property across which rights-of-way satisfactory to PG&E may be obtained without cost or condemnation by PG&E." (emphasis added).
Rule 16.A.1.a. states:
All meters will be installed by PG&E at some convenient place upon the applicant's premises approved by PG&E...and so placed as to be at all times accessible for inspection, reading and testing.
Rule 16.F. states:
"PG&E shall at all time have the right of ingress to and egress from a customer's premises at all reasonable hours for any purposes reasonably connected with the furnishing of electric energy and the exercise of any and all rights secured to it by law or its tariff schedules."
Diesel argues that because the language of these Rules does not explicitly state that PG&E may require the customer to provide access roads as a condition for service, the Decision's finding that it was reasonable for PG&E to require an access road as a prerequisite for service amounts to a "deviation" from its tariff. (Application, pages 3-4.) In support of his interpretation of Rule 15A, Diesel claims that the Tariff language requiring the customer to provide "rights of way satisfactory to PG&E" merely means that the customer must provide PG&E with an "easement of ingress and egress"...sufficient for PG&E to construct, operate and maintain its facilities," (Application, page 4).
Diesel's interpretation of the Rule 15, equating "right of way" to mean only "easements," is in error. As stated in the Decision, the issue is not only simply the legal right to enter private property, but the ability to actually access that property. "Service necessarily must be conditioned upon satisfactory access." (Decision, p. 54).
Diesel's argument that Rule 15's reference to "right-of-way," refers only to "easements," does not make sense for obvious practical and policy reasons: what good would it be for PG&E to have easement rights for its facilities on a customer's premises, if as a practical matter PG&E could not physically access those facilities? Put another way, the abstract legal right to enter the customer's property line is worthless if PG&E is physically unable to access its facilities on such property. Diesel's interpretation of Rule 15.A. would lead to absurd and prohibitively expensive results for ratepayers. Assuming a customer had only the obligation to secure easement rights for a line extension and no responsibility to provide accessible locations for PG&E's facilities, the cost of line extensions would increase because the burden of ensuring that PG&E could physically access its facilities would shift from the applicant/real estate developer to PG&E, and such cost would ultimately be borne by the ratepayers.
Thus, the finding of the Decision that Diesel was required to provide access to his property satisfactory to PG&E was a reasonable and necessary interpretation of the Rules, and to characterize it as a "deviation" of the Tariff is simply wrong.1 Moreover, as the evidentiary record demonstrates, Diesel presents contradictory arguments. On the one hand, Diesel claims that PG&E required him to build an access road as a prerequisite for the line extension. On the other hand, Diesel himself made numerous representations that he was going to build roads to serve homes he planned to construct, and such representations undermine and render moot his argument that the Rules did not permit PG&E to require him to build roads. The record is replete with testimony of PG&E witnesses that Diesel repeatedly represented to them that he intended to build homes accessed by roads. For example, it is undisputed that Diesel provided PG&E with two parcel maps or site plans (see Exh. 62, Tabs 18 and 51), each marked with icons denoting "proposed homesites" or "future homes," and each showing roads accessing such homesites, which PG&E witnesses fully understood as reflecting Applicant's intent to construct houses and install access roads, (see Taylor testimony, RT-341, lines 4-22; Stracke testimony, RT-435, lines 10-28; Edwards testimony, RT-544; Veloso testimony, RT-732, 733.)
Notably, PG&E wasn't the only one who believed that Diesel had a bona-fida intent to construct homes -- the Commission itself also believed that Diesel intended to build two homes and recited that fact as a basis for approving Resolution E-3397, permitting PG&E to deviate from the undergrounding provision of Public Utilities Code Section 320 in order to extend overhead service to Diesel's property.
Thus, as the record contains substantial evidence, it was not legal error for the Decision to find "PG&E did require Diesel to provide an access road as a prerequisite for service, and the requirement in these circumstances was entirely reasonable. Service must be conditioned upon satisfactory access." (Decision, page 54.)
Diesel next argues that the Decision is in error because it denied him reimbursement for expenses incurred in tree trimming and removal. Again, we specifically addressed this issue at page 59 of the Decision, where we found that the evidence overwhelmingly indicated that Applicant and his neighbors voluntarily undertook tree trimming and removal, some before PG&E had even determined exactly what would be the route for the proposed extension and before it had obtained the required rights-of-way, and that PG&E had expressly informed Applicant that it would not pay for such removal voluntarily undertaken by him. (Decision, page 58.) Applicant alleges that the evidence is insufficient. However, even a cursory reading of the Decision indicates that the Commission had more than ample evidence for its conclusions. Several PG&E witnesses testified that they had informed Diesel that PG&E could not proceed with any tree work until they had received rights-of-way and had ascertained the exact location of the proposed access road, and that if Applicant cut any trees before that time, it would be at his own expense. Further, Diesel and his neighbor were extremely anxious to have the project undertaken as soon as possible, and were amenable to beginning the work themselves. (Decision, pages 57-59.) Applicant has presented no convincing legal or factual argument that PG&E violated any of its tariffs in refusing to reimburse Diesel for actions voluntarily taken on his own initiative and not at the specific request of the company. The argument is meritless.
Diesel next argues that we erred in concluding that Applicant violated Rule 1 of the Commission's Rules of Practice and Procedure. Rule 1 provides:
"Any person who signs a pleading or brief, enters an appearance at a hearing, or transacts business with the Commission, by such act represents that he or she is authorized to do so and agrees to comply with the laws of this state; to maintain due respect to the Commission, members of the Commission and its Administrative Law Judges; and never to mislead the Commission or its staff by an artifice or false statement of fact or law."
As we stated at pages 50-51 of the Decision:
"It is not credible that [Commission staff member] Gaffney would have proceeded to prepare a resolution for Commission consideration had he, or any staff member, been aware that Diesel had no intention of constructing homes; that Diesel's only interest was to enhance the value of his parcels from the approximate $80,000 he paid for them to over $1 million. We note that the total free allowances for all four projected homes covered only a portion of the construction cost, with PG&E's ratepayers bearing the balance. The Commission's mission principally is to protect ratepayers, not speculators, and the Commission staff works to that purpose. Had Gaffney or any of the Energy Staff been aware that Diesel's purpose was not to build, but rather to try to use other's allowances to his benefit, with ratepayers bearing the cost, no resolution would have been issued adopting Diesel's route. It is significant that Diesel did not bring Gaffney, or Green or Clark, as witnesses to corroborate any of his assertions.
What Diesel has done was to perpetrate by his misrepresentations a Rule 15 fraud upon PG&E at substantial cost to its ratepayers. In addition, by his misrepresentations to Commission's staff in order to obtain Resolution E-3397, he has violated Rule 1 of the Commission's Rules of Practice and Procedure (which in part provides that persons transacting business with the Commission or its staff by an artifice or false statement of fact or law)."
As the Decision found, not only has PG&E been harmed by Diesel's misrepresentations that he would build homes, but the ratepayers have been harmed as well. PG&E was harmed in that it devoted an extraordinary amount of its resources, personnel, time and money in extending this line to Diesel's property, an extension which now sits idle. Likewise, the Commission and its staff have spent a substantial amount of time with respect to its issuance of Resolution E-3397 based on its belief that Applicant intended to build two homes. And the ratepayers have also suffered a loss. The symbol of this case is the stranded line extension that PG&E built to serve Diesel's property, standing idle because Diesel has failed to build houses that would draw energy and thereby generate revenues, while the ratepayers bear a double burden of both the cost of the construction of the extension, and the cost of maintaining the facilities as they deteriorate, (see Edwards' testimony, RT-723, lines 21-28; 724, lines 1-7).
What Diesel did amounts to an abuse of Rule 15, plain and simple, in which the prize was to greatly enhance the value of his land by inducing PG&E to extend power to it. In so doing, by Diesel's own estimation, his property has increased in value from $80,000 to over $1 million, (Applicant Testimony, RT- 980,1008), a return of 1,250% on his original $80,000 investment. The Commission should not countenance misleading the staff. Accordingly, it was not legal error for the Decision to conclude that "[b]y misrepresenting his intention to build homes to induce the Commission to issue Resolution E-3397 for an overheard deviation in order to serve his two parcels, Diesel violated Rule 1 of the Commission's Rules of Practice and Procedure." (See Conclusion of Law 5, Decision, page 66.) Similarly, it was not legal error for the Decision to find in Conclusion of Law 7 that "[a]s provided by Ordering Paragraph 3 or Resolution E-3397, Diesel should be required to reimburse PG&E for the latter's cost to implement the Commission accepted recommendations of CalTrans as set forth in Paragraph 12 of Resolution E-3397".2
Nor are Applicant's due process arguments persuasive. His complaint is that he was not given notice that potential violation of Rule 1 was an issue, and did not have an opportunity to prepare a defense on this issue. (Application, page 8.) However, we do not believe that it was unreasonable to expect or require Applicant to be truthful in his dealings with the Commission and our staff, not was it necessary that Diesel be given any specific prior notice that violation of such a requirement has consequences. It has long been the case, and requires no citation to authority, that ignorance of the law is no excuse for violating it. Further, Applicant unequivocally admitted under oath that he never intended to build homes or roads on the property. (RT-981, 988, 991, 992, 993.) This completely contradicts his representation to the Commission that he intended to build two homes in order to secure a deviation from the undergrounding provisions of Public Utilities Code, Section 320, which was a fundamental basis for the Commission's approval of Resolution E-3397.
Applicant's final argument is that there was no evidence for our finding that the sole reason for the routing of the subject line extension was to serve Diesel's parcel, thus necessitating a much more expensive route for PG&E than otherwise. Applicant cites no record evidence for this assertion. Rather, the record contains ample evidence that the only reason that the line was configured inland over rough terrain and at substantial additional cost to PG&E and the ratepayers was because Diesel had falsely represented that he was going to build houses on the parcel. (RT-341, 436, 725, 726.)
- A. PG&E should paint or stain the poles a shade of brown consistent with the tone, value, and hue of the surrounding background vegetation. Once PG&E has selected a paint or stain, Caltrans' Landscape Architecture Branch would review and approve the chosen color.
B. PG&E should utilize brown-colored insulators. Insulators can be obtained through special order.
C. The placement of additional wire in the future should be avoided. This recommendation applies primarily to telephone lines, but also to any other types of utility wires, such as cable TV.
D. PG&E should adjust the heights of the proposed poles to minimize the visual obtrusiveness of the electrical lines. These heights variations will be in response to the existing tree canopy and Caltrans' desire to avoid the "sky lighting" of these wires.
E. Caltrans' Architecture Branch would review the construction documents at the 35%, 65% and 95% design stage assist in the development of a design which is consistent with sound visual practices as well as satisfy concerns for safety and convenience to the traveling public. Caltrans will say in contact with the Energy Branch staff, and the appropriate PG&E design engineering as this project progresses."
