HomeMy WebLinkAboutMINUTES - 01152002 - C.94 C,q,#
TO: BOARD OF SUPERVISORS
FROM: SIl_VAN'O B. MARCH'ESI, COUNTY COUNSEL
BATE: January 15, 2402
SUBJECT: Adopt Findings and Deny Administrative Appeal of Seren Innovations,
Inc., of County Administrator's Denial of SereWs Application for
Encroachment Permits
RECOMMENDATIONS:
APPROVE and ADOPT the Findings, Conclusions and Discussion below, and DENY
the administrative Appeal of Seren Innovations, Inc., from the County Administrator's
denial of Seren's application for encroachment permits.
BAC KG RO ND:
By letter dated September 6, 2441, Assistant County Administrator Sara M. Hoffman
denied Seren Innovation, Inc.'s ("Seren") application for encroachment permits to
install its cable television and other telecommunications infrastructure in
unincorporated area streets. On October 2, 2441, pursuant to County Ordinance
Code sections 14-4.002 and 14-4.004, Seren appealed the County Administrator's
denial of the encroachment permits. On November 6, 2441, the Board heard
Seren's administrative appeal, and Continued the matter to December 11, 2441, to
allow the Board to receive closed session advice from the County Counsel. The
hearing was continued from December 11, 2041, to December 18, 2041, by
agreement of the parties. On December 18, 2441, the hearing was resumed, and
the Board heard additional oral testimony from Seren's representatives.
CONTINUED ON ATTACHMENT: X YES SIGNATURE: {
P--"'RECOMMENDATION OF COUNTY ADMINISTRATOR
RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURES).,
x�
ACTION OF BOAR"IN 4;2144Z�PROV'ED AS RECOMMENDED
VOTE OF SUPERVISORS t hereby certify that this is a true and correct cop
of an action taken and entered on the minutes of
UNANIMOUS{ABSENTAj�� i _3 the board of Supervisors on the date shown.
AYES: _ NOES:
ABSENT. ABSTAff. Attested:,aJohn Sweeten,Clerk of the Lard of
SuperA rsandCountyAdministrator
Orig.: County Counsel(L,.Fu ii)
cc: CACI(J. Sweeten,S,Pof man, P.Burke)
Public Works(Nl.Shiu) By
CUD(C.Kutsuris)
Contact: L. Fujii 5-1814 ;w
Boardof Supervisors
January 15, 2002
Page 2
Having considered the oral testimony and arguments presented, and all of the reports
and documentation submitted by Seren and County staff, the Board unanimously
declared its intent to deny the appeal, and directed staff to prepare findings for the
Board's consideration and possible adoption. Staff has prepared the following
Findings, Conclusions and Discussion, for the Board's consideration and adaption.
FINDINGS CONCLUSIONS ANIS DISCUSSION.
Flndinas:
1. In 1999, Seren entered cable television franchises with the cities of Concord
and Walnut Greek. Also in 1999, Seren requested that the Cities of Clayton and
Pleasant Hill, the Town of Danville, and the County Oointly, "Communities") enter a
cable franchise with Seren.
2. From 1999 to the end of 2000, Seren and the Communities engaged in
negotiations on the terms of a cable franchise agreement. No final agreement was, or
has been, entered into.
3. Seren applied to the County for an encroachment permit to install parts of
its hybrid fiber coaxial cable in unincorporated area streets. The cable is a part of the
infrastructure, as currently designed,that Seren will use to provide cable, voice, data
and other telecommunications services to residents in pockets of Walnut Greek and
Concord.
4. Seren has a Certificate of Public Convenience and Necessity ("GPCN")from
the California Public Utilities Commission ("PUC").
5. In its Proponent's Environmental Assessment, Which is a part of its GPGN
application, Seren stated that.
"2. Petitioner's [Seren's] facilities-based telephone services will
be prodded using a hybrid fiber coaxial network built to provide
cable television services. Initially, switching facilities will be
leased from an existing provider. Petitioner's cable operations
will address with local authorities the environmental issues
applicable to such infrastructure prior to making such facilities
available for telephony, as authorized by this Commission. In
addition, Petitioner's cable operations will secure any required
ministerial permits from the appropriate local entities. Petitioner's
network facilities will be limited to existing rights of way and the
use of existing conduits or ducts in existing utility rights of way. If
Petitioner ever intends to extend its construction local exchange
facilities[sic) beyond the utility right-of-way into undisturbed areas
or other right-of-way, Petitioner will file a Petition to Modify its
Certificate of Public Convenience and Necessity, to the extent
such modification is required by the Commission."
6. eren's encroachment permit application proposes extensive construction
in unincorporated Contra Costa County streets, inconsistent with Seven's above
statement(in Finding No. 5).
Board,of Supervisors
January 15, 2002
Page
Conclusions.
1. The PUC's environmental review of Seren's application for the CPCN did
not adequately address the impacts of Seren's installation of its hybrid fiber coaxial
cable in unincorporated Contra Costa County streets, to meet the requirements of the
California Environmental Quality Act, as such information was not provided to the
PUC by Seren in its Proponent's Environmental Assessment.
2. Seren's CPCN does not authorize it to install its hybrid fiber coaxial cable in
unincorporated streets.
C3iscussion.
As noted in the above findings, Seren represented to the PUC that its facilities
would first be built to provide cable television service, and made available for
telephone service only after facilities have been installed under cable authorities and
permits. Seren also represented to the PUC that installation of its infrastructure would
be under the environmental scrutiny of cable officials, and that only minimal
construction would be undertaken under the CPCN.
Consequently, installation of Seren's infrastructure under the CPCN could not
have been envisioned by the PUC when it issued the CPCN to Seren, and such
installation was not a part of the project for which environmental review was
conducted. One of the basic purposes of CEQA is to inform governmental decision-
makers and the public about the potential, significant environmental effects of
proposed activities. (CEQA Guidelines (14 Cal.Code Pegs.), § 15002(a)(1).) This
cannot be done if governmental decision-makers do not know what activities are
proposed.
Inasmuch as infrastructure installation was not part of the project that was
reviewed and considered, this Board rejects Seren's argument that the CPCN entitles
it to install its infrastructure(needed to provide cable and other telecommunications
services) in unincorporated area road rights of way.
LTF