V. Comments on Draft Decision
The draft decision of ALJ Econome in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(g)(1) and in Rule 77.7(b).
1. The Commission has discretion over whether or not to permit a complainant to exercise the power of eminent domain to offer a competitive service, even if complainant makes the requisite showing under § 625.
2. A timely hearing in this matter was commenced pursuant to § 625 (a)(2)(A).
3. Because this decision finds that further hearings are not necessary, the hearing concluded on July 3.
4. Crow Development and Cox, as well as other parties, are involved in multiple cases in multiple fora which essentially seek to resolve the same underlying problem.
5. In the Jamboree Superior Court Action, Jamboree seeks a declaration that it be allowed full and complete access to its utility easements, which in turn would give CoxCom and Cox certain access to the easements.
6. In the Cox Superior Court Action, Cox and CoxCom seek a declaration that CoxCom has an easement across Crow Development's property to install and maintain its cable system, over which cable television, high-speed internet access, and telephone services are provided to Park Place customers on the facility parcel. Cox and CoxCom also allege that they are entitled to continued use of these easements without interference from Crow Development.
7. In C.00-05-023, Cox and CoxCom also claim that they are entitled to access the existing utility easements to provide service to the facility parcel under various legal theories.
8. Both Pub. Util. Code §§ 625 and 1701.2 have short deadlines for processing a proceeding. It is more consistent with these statutes to dismiss the proceeding without prejudice than to stay the proceeding, because it is unclear at this point how long the proceeding would have to be stayed, or whether the parties might resolve their differences while the other proceedings are being adjudicated.
9. Whether or not Cox has existing access rights to the easements in question is critical to determining necessity.
10. It would not promote judicial economy for the Commission to make complex title and access determinations as part of exercising its regulatory authority when the Superior Court is currently adjudicating these same underlying title and access issues. Moreover, if these proceedings are litigated concurrently, the potential exists for the two fora to reach inconsistent results.
11. When a party pleads inconsistent theories it typically does so in the same case before the same forum. In such circumstances, the trier of fact has the discretion to conduct the case as procedurally appropriate.
12. If the Superior Court finds that CoxCom has an easement on Crow Development's property, Cox in turn will obtain access to the easements by virtue of an agreement with CoxCom.
13. Cox's complaint describes the easements it seeks to condemn somewhat differently in different paragraphs. All of these descriptions, however, address the existing utility easements to serve the facility parcel, and not broad easement rights which may be necessary to provide service to future tenants in establishments being developed on Crow Development's property.
14. In this case, the Superior Court is currently addressing issues concerning CoxCom's and Cox's entitlement to access the easements in question. These are not issues involving the Commission's specialized agency expertise, such as ratemaking, or a legislative scheme, but rather contract and real property issues that courts routinely resolve.
1. Before Cox can file a condemnation action in the Superior Court seeking to condemn property for a competitive purpose, it must obtain a finding from the Commission pursuant to § 625 that the condemnation is in the public interest. In order for the Commission to make such a finding, it must find, among other things, that the property to be condemned is necessary for the proposed project.
2. If the Superior Court determines that Cox owns or is otherwise entitled to access the easements in dispute, then this condemnation action would be precluded because Cox could not establish the necessity for this condemnation action.
3. Cox should not be permitted to expand the scope of the easements it seeks by means of a supplemental brief as the proceeding progresses.
4. This complaint is premature and should be dismissed without prejudice.
5. The Legislature intended that cases filed pursuant to § 625 proceed as expeditiously as possible, consistent with the law and due process. To that end, a § 625 complaint should include a specific description of the property interest sought to be condemned.
6. In describing the property sought to be condemned, a § 625 complaint, to the extent possible, should provide: a specific description of the location of the property, with a plat map showing the location, a legal description of the property, usually a metes and bounds description prepared by a licensed engineer or surveyor, and a title report or other similar information demonstrating that all persons having an interest in the property sought to be condemned have notice of the action. Additionally, the complaint should provide enough information in the complaint to satisfy the Commission that all parties having an interest in the property sought to be condemned have notice of this action.
7. To provide to timely guidance to the parties, and in light of the multiple cases now in progress, this order should be effective immediately.
IT IS ORDERED that this complaint be dismissed without prejudice.
This order is effective today.
Dated , at San Francisco, California.
