MARCH 3, 2009



MARCH 3, 2009




A Regular Meeting of the Livingston City Council was held on March 3, 2009, in the City Council Chambers with Mayor Varela presiding.




Mayor Varela called the meeting to order at 7:03 p.m.




The pledge of allegiance to the flag was recited.




   Mayor Daniel Varela, Sr.

   Mayor Pro-Tem Rodrigo Espinoza

   Council Member Frank Vierra

   Council Member Margarita Aguilar

   Council Member Martha Nateras




There was no Closed Session held.











Mayor Varela asked that a moment of silence be taken in memory of Woody Campini, former City Council Member and City Clerk, and Fred Worden, former City Council Member and Mayor.




1.      2010 Census Partnership Proclamation.


Mayor Varela presented a 2010 Census Partnership Proclamation to Jess Rodriguez representing the United States Department of Commerce Census Bureau.


Mr. Rodriguez presented a brief update on the 2010 Federal census.


2.      Special Recognition – Livingston Middle School 7th Grade Boys Basketball Team.


Mayor Varela presented a Certificate of Achievement to Markella Tsatsaronis, coach of the Livingston Middle School seventh grade boys basketball team.  Coach Tsatsaronis introduced team members.  The team was undefeated with a 14-0 record for the 2008-2009 school year. 


3.     Tree Foundation Presentation.


Mayor Varela turned the meeting over to Council Member Aguilar.  Council Member Aguilar introduced Jim Williamson representing the Tree Partner Foundation.


Mr. Williamson commented that he is a member of the Tree Partner Foundation in Atwater.  He said that 20 years ago was the best time to plant a tree and now is the best time to plant a tree.  As one looks ahead, the City’s trees are a silent business partner. They keep water from running down the storm drain.  He noted that his foundation is going to start some partnering with Campus Park Elementary School. Trees can reduce a utility bill by $300 per year.  Mr. Williamson commented that Henry Escobar will be evaluating the tree canopy at the school, so there is already a partnership.  The City of Livingston has an inventory of trees at the prison.  He said that the foundation is available to assist the City.


Council Member Aguilar noted there was a tree poster contest at Campus Park Elementary School.  A poster was just sent in from Campus Park Elementary School to the Arbor Day Foundation.  She thanked Mr. Williamson for the information.


4.     Appointment of Planning Commissioners.


The agenda item was presented by Mayor Varela.


Mayor Varela presented the agenda item pertaining to the appointment of three regular Planning Commissioners and one alternate Planning Commissioner.


Mayor Varela made a motion to approve Resolution No, 2009-6 appointing Roy Soria and Leticia Soto to a four-year term on the Planning Commission commencing January 1, 2009; and appointing Kaye Greeley to fill the unexpired term of Martin Silva which ends on December 31, 2010, and appointing Manoj Bains as an alternate member of the Planning Commission for a four-year term commencing on January 1, 2009.  The motion was seconded by Council Member Vierra and carried 3-2, with Mayor Pro-Tem Espinoza and Council Member Aguilar voting no.


Mike Torres, 1616 Eighth Street, commented that it made no difference to him as to who was appointed.  However, he felt it was only right to announce the names of the other seven candidates that applied. 


Council Member Aguilar said, “It was my understanding that our attorney was going to let us know how to vote or how things were going to be done.  I am in shock right now.  I had no idea they had these names selected or that this was going to happen.  In this case the Council should have voted for each one independently, and that is how strong I feel about it.  I am so sorry Mr. Torres.”


Council Member Nateras said, “I was not here for the last interviews, but I did listen to the CD of the meeting.  I would like to thank all of you for applying.  All of you have excellent potential and experience.  It was a hard decision.  All were good candidates.  Thank you for applying.”


Mayor Pro-Tem Espinoza commented, “I just feel bad for all those people who just wasted their time coming to get interviewed.  I don’t know if this was a setup or a Brown Act violation.  It seems like everything was written out.”


Mayor Varela said, “Excuse me sir, you are out of order by even making that accusation.  You are out of order.  There…. believe me, there is no Brown Act violation here.”


Mayor Pro-Tem Espinoza commented, “Well, I was just saying…..”


Mayor Varela said, “I am just telling you right now that you are out of order.”


Council Member Nateras stated to Mayor Pro-Tempore Espinoza, “You need to have your facts straight before making that comment.”


Mayor Varela said, “I made this recommendation because I am the Mayor.  I made the motion and I had a second.  Now we don’t have to get personal.  Please don’t make this personal.”


Mayor Pro-Tem Espinoza said, “I’m not.”


Mayor Varela said, “We made a selection sir, now you made an accusation and you shouldn’t do that.”


Mayor Pro-Tem Espinoza said, “Well it’s just that ……”


Mayor Varela said, “You should have called me, you should have talked to me about this. I made calls to get your opinion to see how you felt about the interviews.  I received no calls back.”


Mayor Pro-Tem Espinoza said, “I received no call from you.”


Mayor Varela commented, “I made my recommendation and it was carried, so we will move forward.  No way is this an attack on any individual–thank you.  Now we will have no disorder in the chamber. Thank you.”  He added that “there was no serial meeting.”


Mike Torres stated that “when a Council Member selects someone for a position, they need to have a nomination and then a second.  If you are going to do something right, do it right,” he said.  He commented that this is an outside done deal; this is what it looks like.  The Mayor should read every one of those names.  He said the right way is to name everyone who applied, then make a motion, then how it comes out comes out.  If these people take their advice it will come out the same way, he noted.


Council Member Aguilar said, “The reason I didn’t call you back because I knew you were going to be talking about that and who we should be voting for.  I was referring to our AB 1234 training because one person would have called one person and another would have called another.  It is a violation based on what I understood.  That is why I did not call back.”


Council Member Nateras stated, “In order to keep the record straight in honor of Mr. Torres, I have nothing to hide.  I have no problem acknowledging everyone.”


Mayor Varela stated, “There is a motion that was put out and a second and as far as any question as to what we have done, I have not violated any ethic.  If any of you know me you would understand that.”


Mayor Pro-Tem Espinoza said, “I never received a call from you regarding the interviews, so if you are calling us to question the interviews, you were questioning the people and that seems to be a Brown Act violation.”  Does our attorney agree?


City Attorney Subramanian commented, “If the Mayor did speak to a quorum of you,  yes it would be.  It is my understanding that no one returned his call.  And I understand it to be that Council Member Vierra did not talk to the Mayor.”


Council Member Vierra said, “I did not talk to him.”


City Attorney Subramanian said, “As I understand that Council Member Nateras did not talk to the Mayor.”


Council Member Nateras said, “I was out of town.”


City Attorney Subramanian said, “She was out of town and I understand that Council Member Aguilar did not speak with the Mayor and did not return his call and as I understand you Vice Mayor indicated that you did not receive a call, so therefore there could not be a Brown Act violation.”


Council Member Aguilar said, “Was there an intention for a Brown Act violation?   I could of said I called him back and then I didn’t.  I know we are doing speculations.  I heard the CD’s too.  I feel very confident too.  I am sure some of these people would like to hear their names too.  You had these names.  That means you made the choice and who else cause I know you are going to put it out there, but that is not the majority.  And, Ms. Nateras says she would be willing to call each name and I thank you for that.  That it is very important to see that .”


Council Member Nateras commented, “Well maybe I took the easy way out.  I heard the tapes.  I read the applications.  It was a hard decision for me to make because I know all of them.  I think all would be excellent candidates. So I thought that was a good selection. I understand the others had a lot of experience too, but anyway we can do whatever you want Mayor.   I am o.k. with how you vote.”


Mayor Pro-Tem Espinoza said, “Um, my last comments Mayor, um if you did that motion because you didn’t want to make the same mistake as when you guys accidently made me Mayor Pro-Tem then if that is the case I could relinquish my Mayor Pro-Tem position, so….”


Mayor Varela said, “So you want to relinquish your Mayor Pro-Tem position?”


Mayor Pro-Tem Espinoza replied, “Um yes I do.”


Mayor Varela said, “Okay, so is that on the table?  Is that….?”


City Attorney Subramanian said, “You would not be able to vote or replace this position, but if you are relinquishing it that it can be put on the record.


Council Member Espinoza said, “Okay.”


Mayor Varela stated, “We will put it on the record and put it on the next agenda.  When

I ran as Mayor I wanted to make changes.  This is not personal and this is being made personal.  We are looking at longevity and we are looking down the line for the next generation. I wanted to make changes.  By going the other way it would have gotten political and it would have gotten personal.   I made the recommendation and it was carried.  Thank you.”




     Supervisor John Pedrozo Announcements and Reports.


·        Commented that he was glad to see the Council acknowledge Mr. Campini and Mr. Worden tonight.  He said they were some of the first citizens he had met in the community.

·        Introduced Mike Lynch, a consultant for the high speed rail.  Mr. Lynch provided a description on the high speed rail system and what is to come.  He said there will be a meeting on March 18 at the Merced Senior Center from 3:00 p.m. to 7:00 p.m. to discuss the first leg of the route.  He said the second leg of the route will be built from Fresno to Pacheco Pass.  He invited the Council to attend the March 18 meeting and said there will be another meeting on March 19 in Madera.  Light rail will bring jobs to the Central Valley, especially if the maintenance facility is at Castle.  His preference was the Altamont Corridor. 


·        New Animal Shelter at Castle is opening on March 15.


     City Council Members’ Announcements and Reports.


Donna Kenney commented that, as the Secretary to the Planning Commission, she wanted to welcome and congratulate the new members.


Council Member Nateras thanked Ms. Kenney and said she was going to add this to her comments as well.  She also congratulated the new Planning Commissioners.


     Council Member Aguilar


·        She wanted to apologize to any of the Planning Commission candidates that were interviewed for the way this matter was brought up.  She congratulated the new Planning Commissioners.


·        Directed a comment to Supervisor Pedrozo regarding the visit to the Science Technology Center.  She said the facility was very educational and family oriented.  She noted that members of the Livingston Community Network were also present.


     Council Member Vierra


·        Commented on the 2010 Federal census.  He said it is very important that everyone get counted.  It means dollars down the road.  He stated that the City needs your support and help to get these people counted. 


     Council Member Nateras


·        Thanked all the candidates that applied for the Planning Commission.  She commented that just because previous City Councils have done things a certain way in the past as a new City Council we are going things different.  She asked the City Attorney if the Council did things legally.  City Attorney Subramanian said that there was nothing illegal about the Planning Commission appointments.  She gave an explanation.  Council Member Nateras added that she was sorry if feelings were hurt.  This was not the intention of the Council.


·        Attended a Relay for Life meeting on February 11.  The next meeting is scheduled for March 11, at 6:00 p.m., at the Police Department.  The Relay for Life event is slated for May 16.


·        The Livingston Police Department awards dinner was very nice.  She had an opportunity to speak and she expressed how great the City’s officers are and what a great Chief of Police the City has.     


Mayor’s Announcements and Reports.


·        On February 4, he and the City Manager met with Jesse Brown, Executive Director and Marjie Kirn, Vice Executive Director of the Merced County Association of Governments.

After their meeting, they took them for a tour of the City and they went home transformed, he noted.


·        On February 11 he attended a Merced County Hispanic Chamber of Commerce event and took with him a couple of male students from the Livingston Middle School and showed off what great kids the community has.  He noted he is developing a mentorship program in the community because some of the youth are at risk, but this is a good thing for the community.


·        On February 18 he and the City Manager met with representatives of Frontier Communications.  He noted Frontier Communications will be making a presentation at the March 17 Council meeting.


·        He and the City Manager had toured several skate parks and also met with some parents regarding a skate park.  He said they had let the parents know that because of the economy it was a difficult time for a skate park to be built, but perhaps it would become a reality sometime in the distant future.


·        On February 24, he and his wife attended a Sea Cadets presentation in Turlock.  He said the presentation was beautiful, especially how they presented the colors of the flag.


·        On February 23 he and the City Manager had a “meet and greet” meeting with representatives of Grace Nursing Home.


·        Also on February 23, he met with Aurora Garcia and Cora Gonzalez of the Livingston Medical Group.  We were the only group able to use the only elevator in Livingston and received a tour of the facility.  He wants to team up to provide some structure to some of boys in the community.  He was hoping to get them to commit to teach a CPR class for the boys.


·        As the Mayor, and not as a City event, he would like to invite citizens to a community prayer event at Memorial Park at 7:00 p.m.  He will also be attending a Merced County Hispanic Chamber of Commerce social on March 10 at the Gallo facility on Highway 140.  He would like to see City staff attend as well.


·        Commented that when he was selected to the Citizens’ Advisory Committee approximately one year ago, his name was the only name read that evening.  His appointment was approved and then the Mayor moved forward with the next agenda.




5.     Resolution to Adopt an Initial Study and Mitigated Negative Declaration and Approve Site Plan/Design Review 2008-1 for the Foster Farms Industrial Wastewater Treatment Plant (FFIWWTP).       


Mayor Varela declared a conflict of interest, excused himself and left the Council Chambers.


City Attorney Subramanian asked that, since Mr. Espinoza relinquished his position as Mayor Pro-Tempore, was there a Council volunteer to run the meeting during this item?  She suggested the most senior City Council person.  Council Member Vierra said he would chair the meeting during this item.


Council Member Vierra introduced the agenda item.  Community Development Director Kenney presented the agenda item.


Dennis Strand, representing Foster Farms, commented that Foster Farms is very excited about this project.  It has been a big effort on the City, City staff, Condor as the CEQA consultant, and people within Foster Farms.  Now it’s all come together and Foster Farms is very excited about the project.  He said he feels like the City staff and consultants have done an excellent job in preparing the initial study and have been great to work with.  The mitigation measures are reasonable, so he thinks the City Council is at a decision point right now.  He thanked the Council for their consideration.


Council Member Vierra opened the Public Hearing at 8:08 p.m.


Roy Soria, 1826 D Street, said he is very excited about the facility, but asked what are the

City incentives for taking the project?  He noted that he is very familiar with the project and asked if there are any variances or exceptions to the City’s development requirements.


Donna Kenney replied that the City would be out of the industrial wastewater treatment business and the City would receive 120 acres back  The City worked closely to set aside the future right-of-way of Winton Parkway and the City feels that was a big achievement.


Roy Soria stated that there is probably going to be another interchange going in there and Foster Farms is going to benefit from it.  “I have not seen any sidewalks on Livingston-Cressey, or Swan.


Council Member Vierra closed the Public Hearing at 8:14 p.m., as there were no further public comments.


Council Member Espinoza stated the City Council cannot place any sidewalk requirements on Foster Farms because he doesn’t think the City can do so. 


City Attorney Subramanian said that the City would need to show the nexus between a development requirement and the development impact.  She said this project is replacing the existing City Wastewater Treatment Plant.  She is concerned that there is no nexusCouncil Member Espinoza said hopefully the City is getting the future right-of-way for Olive Avenue as a condition.  Donna Kenney said this is correct and gave an explanation.


City Manager Warne said Foster Farms is just reserving the area so that the street can go through.  He said there is no right-of-way purchase or dedication at this time.


Council Member Nateras said she was at the Planning Commission meeting and thought the presentation was excellent.  She wanted to clarify that there would be no odor.

Dennis  Strand said he visited three sites with similar plants and the conditions were good at all sites.  He said the water coming out of this site will be far better than what Foster Farms has ever experienced.


City Manager Warne said he has asked the question and he was assured that with the technology that is going to be instated there will be no odors.  He said Foster Farms is required to have an odor control plan. 


John Krammer from Condor Earth Technologies explained his company’s role in preparing the environmental document.  He said the City was concerned about odors.  Foster Farms has had extensive interviews with other plant personnel.  They also included an odor control plan requirement and have conditions in place if something were to arise. 


City Manager Warne said he also spoke with Larry Parlin and asked him to look at the environmental document and look at the process that would be used and got his professional opinion on the odor issue.


Council Member Vierra said he is concerned about odors because there is an elementary school nearby and the City does have a problem with odors coming from Foster Farms at certain times, especially when the wind shifts.  He asked if the odor control plan is going to be put into place if there is a problem.  John Krammer read from Section 7, page 60 regarding the odor control plan.  Council Member Vierra said odor is one of his main concerns because Foster Farms is located right in the center of town.  He asked what happens if there is an odor issue and what are the City’s recourses.  John Krammer gave an explanation.


Council Member Vierra stated that when there is new development in town they install curbs, sidewalks, etc.  He said Foster Farms expanded their restaurant and they did not install sidewalk, curb or gutter.  He commented that Foster Farms expanded their office building and again no sidewalks were put in.  Then the deli plant was built without putting in sidewalks.  Then they built a 52-bay concrete building that he thought there was going to be a row of trees put in.  He said the Council hears about nexus but when does it kick in?  It has not kicked in the last 3-4 projects, so you might take that back to Foster FarmsHe is concerned about people who have to walk in the streets since there is no sidewalk.  He said the Council can’t make Foster Farms do this tonight, but possibly in the future.


Motion:  M/S Espinoza/Nateras to adopt Resolution No. 2009-07, Adopting an Initial Study and Mitigated Negative Declaration and Approving Site Plan Design Review 2008-1 for the Foster Farms Industrial Wastewater Treatment Plant (FFIWWTP).  The motion carried 4-1 by the following vote:

AYES:                  Council Members: Aguilar, Espinoza, Nateras, Vierra

NOES:                  Council Members: None

ABSENT:    Council Members: None

ABSTAIN:  Council Members: Varela


                   Mayor Varela returned to the Council Chambers at 8:30 p.m.




Katherine Schell Rodriguez, P.O. Box 163, Livingston stated that most of those in attendance know her as she has probably been to almost every Council meeting.  For all the campaign talk that she has heard, she sees a split on the City Council.  She said the citizens were getting ready “to walk through the fire” because of the upcoming Proposition 218 hearing and the City Council can’t afford to be “screwing around” with personalities.  She said she is preaching and she suggested that everyone look at themselves on video or listen to themselves on tape.  Ms. Schell Rodriguez said that we can’t afford pettiness.  She said she has done her own reading and research about the Brown Act before some of the new Council Members were on board.  She suggested the Council go home, think, reflect, pray or mediate, whatever they have to do.  People should not throw accusations of the Brown Act violations in an open session.


Pamela Tamez, 1440 Main Street, asked if she should fill out a citizens’ complaint form for a broken window or what procedure should she us to get the window fixed?


City Manager Warne explained the procedure for filing claims for damages with the City.


Donna Kenney said the owner of the Movie Gallery building left her a message this afternoon, so she will inform him about the windows and have the matter taken care of.


Roy Soria thanked the Council for giving him the opportunity to serve on the Planning Commission.




     The Council considered the following items for approval under the consent calendar:


6.     Minutes of Meeting Held on February 17, 2009.


7.     Approval of Minutes Held on February 26, 2009.


8.     Approval of Warrant Register Dated February 25, 2009.


Council Member Nateras asked that Item #6 be pulled from the agenda.  She made corrections to Page 6 of the Minutes.


     Motion:  M/S Nateras/Vierra to approve Item #6 as amended.  The motion carried 5-0.


     Motion:  M/S Varela/Aguilar to approve Items 7 and 8.  The motion carried 5-0.




     9.  City Council Policy Guidance on Mens Baseball Registration Fees.


City Manager Warne introduced the agenda item.  Recreation Superintendent Benoit

presented the agenda item.


Council Member Vierra stated 83% of the participants in mens baseball are from

outside Livingston.  Recreation Superintendent Benoit said this is correct.


Council Member Vierra said there are children in the community that need more

recreation activities.  The current rate structure is subsidizing adults.


City Manager Warne gave an explanation on the adjustment of fees.


Recreation Superintendent Benoit commented that team fees may appear high, but when

fees are broken down per game, the fee is approximately $60 per game.


Council Member Aguilar asked if the figures shown were $18 per hour for an umpire?


Mayor Varela asked if these teams have been approached.  Recreation Superintendent

Benoit explained that he has been telling them for two seasons that the fees would have to

be raised.  She also sent coaches the proposed fee increases.  She said she has one

coach that is working on some solutions to the increase in fees.


City Manager Warne said staff will prepare a resolution and place it on the consent calendar at a future meeting.


Recreation Superintendent Benoit said that everyone is completed for this league and how long will the City have to wait because the Mexican-American League is coming up.


City Manager Warne gave an explanation and said staff will move forward and place this item on the agenda for the next meeting.


10. City Manager Announcements and Reports.

·        Water, Wastewater and Solid Waste Rates Proposed Public Information Meeting.


City Manager Warne commented that a public hearing will be held on April 21 on the rate increases.  It has been suggested that a public information meeting be held before this date.  He asked the Council to make suggestions.  Mayor Varela recommended March 26.  Staff agreed with this date.  The public information meeting (town hall meeting) will be scheduled for March 26, at 7:00 p.m.  City Manager Warne said staff will also send out a one page notice regarding the town hall meeting to everyone in English, Spanish and Punjabi.




The meeting was adjourned by consensus at 8:53 p.m.




                                                           City Clerk of the City of Livingston



APPROVED:  March 17, 2009





 Mayor or Mayor ProTempore




The written meeting minutes reflect a summary of specific actions taken by the City Council. They do not necessarily reflect all of the comments or dialogue leading up to the action. All meetings are digitally recorded and are an official record of the meeting’s proceedings. Digitally recorded verbatim minutes are available, upon request, and may be obtained at Livingston City Hall.


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