7. Comments on Draft Decision

The draft decision of the ALJ in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(g)(1) and Rule 77.7 of the Rules of Practice and Procedure. No comments were received.

Findings of Fact

1. Bishop Tract originally was swamp and overflow land granted by the state to the original owners for the purpose of reclaiming these lands.

2. Construction of levees around Bishop Tract began in the mid-1800s and was completed around the turn of the century.

3. The Reclamation District was formed in 1919, acquiring a 100-foot easement at the levees at a cost of $116,750.

4. Reclamation districts in California are formed pursuant to Sections 50000 through 53901 of the Water Code.

5. The levee improvements relevant to this proceeding occurred in 1991 and 1992 at a cost of $7 million.

6. The levee improvements were intended to increase the width and height of the levees and improve drainage and irrigation systems to protect the land from flooding.

7. The work also was intended to restore Bishop Tract properties to a position outside the 100-year flood plain, a status the properties had enjoyed until 1988 when new FEMA regulations were put in place.

8. City and county planning departments permit agricultural use of lands within the 100-year flood plain, but they do not permit housing or commercial uses for such properties.

9. In 1993, Bishop Tract was removed from the 100-year flood plain as a result of the levee improvements.

10. In 1992, there were five major property divisions within the District's boundaries, ranging in size from 832 acres to 340 acres.

11. Relocation of PG&E utility poles and equipment was required as part of the levee work.

12. PG&E refused to move its facilities until the District made payment for the cost of relocation.

13. Under protest, the District paid PG&E $353.906.32 for the relocation work.

14. For various reasons, including the unavailability of the assigned ALJ for an extended period of time, the case was not immediately decided.

15. Early this year, the case was reopened for the limited purpose of learning from the parties whether any material issues of fact or law had arisen since 1995.

16. The parties agree that no developments since 1995 require further hearing.

17. Since 1995, most use of the Bishop Tract lands continues to be agricultural in nature, although a golf course has been constructed on one of the parcels of land, and plans for residential and commercial development of another parcel have been presented to the City of Stockton.

Conclusions of Law

1. Only municipalities, i.e., cities and counties, are authorized by the Legislature to enter into franchise agreements with utilities.

2. Franchise agreements are contracts that, among other things, allow the franchised utility to install facilities on roads within the city or county limits.

3. In exchange for the right to install facilities, a utility under a franchise agreement agrees to relocate its facilities without charge should the city or county deem such relocation necessary for road widening or other public works.

4. Applying a benefit analysis to the facts of this case, owners of the property within Bishop Tract are the primary beneficiaries of the levee expansion, since the work increases the value of their land and enables them to consider uses other than farming.

5. The District does not have a franchise agreement with PG&E, nor does it have authority to require removal of PG&E facilities through the franchise provisions of state law.

6. Relocation of PG&E facilities for the convenience of an applicant is governed by PG&E Tariff Rule 16G2 (now 16F2), which requires that such relocation be at the expense of the applicant.

7. The reclamation district provisions of the Water Code do not give the District authority under its police power to require PG&E to relocate facilities at the expense of the utility's ratepayers.

8. The District has not shown that it has superior easement rights in Bishop Tract that permitted it to require relocation of PG&E facilities at the utility's cost.

9. The utility lines at issue have been in place for between 40 and 70 years without objection by the District until the bringing of this complaint.

10. The District has not met its burden of proving by a preponderance of the evidence that PG&E violated any provision of law or of any order or rule of the Commission, as required by Pub. Util. Code § 1702.

11. The complaint should be denied, effective immediately, in order to resolve this old dispute without further delay.

ORDER

IT IS ORDERED that:

1. The complaint of Reclamation District No. 2042 against Pacific Gas and Electric Company is denied.

2. Case 93-06-039 is closed.

This order is effective today.

Dated July 12, 2001, at San Francisco, California.

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