June 09, 2009





JUNE 9, 2009    

7:00 P.M.


The regular meeting of the Livingston Planning Commission was held in the City Council Chambers on Tuesday, June 9, 2009.  The meeting was called to order by Chair Blevins at 7:00 p.m.


Commissioners Present: Chair David Blevins, Vice-Chair Ramon Avila, Commissioner Roy Soria, Commissioner Kaye Greeley, Commissioner Leticia Soto, Alternate Commissioner Manoj Bains. (Commissioner Soto was a few minutes late due to a work-related matter.)


Commissioners Absent: None


Staff Present:                 Administrative Assistant Filomena Arredondo, Community Development Director Donna Kenney, City Manager Richard Warne, and Assistant City Attorney Melanie Donnelly.


Others Present:                        Council Liaison Martha Nateras, Richard Weimer – Ridge Communications, John D’Arcy – JD Mill Creek Development, Katherine Schell-Rodriguez, Angelina Torrez, Maria Cortez, and others in the audience.  




The pledge of allegiance to the flag was recited.                     






Motion by Commissioner Soria, seconded by Commissioner Greeley, to approve the minutes from the regular meeting of May 12, 2009. Motion carried 5-0, with corrections to pages 1 and 7.




Katherine Schell-Rodriguez, P.O. Box 163, Livingston, made the following comments:

Most folks around City Hall know that Donna Kenney and I have “butted heads” on more than one occasion. There are quite a few things we may never agree on and I’ve done my share of “fussing” and “kvetching” about certain projects, and policy decisions.


Something happened at the City Council Meeting of June 2, 2009, than made my blood run cold and my soul white hot at the same time.

Nope! Ms. Kenney wasn’t the instigator, she was the target. The target of a “verbal battering’ by a City Council Member who had the audacity to not only challenge Ms. Kenney as to just who gave her the authority to do parts of her job, but also accused her of putting out misinformation to the public as well.

The whole thing reminded me more of a McCarthy hearing or an inquisition, than a fact finding mission.

The “conversation” revolved around the previous Planning Commission meeting and just who gave Ms. Kenney the authority to negotiate having Wal-Mart or Fresenius do the leveling and grading of parts of the future Sports Complex.

I didn’t see anything particularly unusual or out of the ordinary with what Ms. Kenney discussed that night at Planning – I was there. After all, some of it had to do with what do you do with storm water, and where do you put it? Maybe the fields at the Sports Complex, and grading so the water ends up in the right place, and maybe saving the City a few bucks in the process by having a developer do it.

But then again, I’ve been to enough City Council and Planning Commission meetings to understand that a whole lot of negotiating goes on about stuff like that.

Just like teachers have a certain amount of discretion and “wiggle room” when it comes to setting up their Grading Policy, so, too, does the Planning Department when it comes to working out some of the preliminary details of Development Agreements. That’s just part of the territory. It’s also called part of the “Job Description.”

It seems to me that one of our City Attorneys needs to have a serious sit down with the Council and make sure everyone understands that calling Staff’s job performance into question in Open Session is treading in some very dangerous “Legal Territory”.  Any critique or implied critique of an Employee’s job performance needs to be done IN PRIVATE! Period!!!

If what happened Tuesday wasn’t Harassment verging into Hostile Work Environment territory, then it certainly was damn close. Someone needs to “cool their jets” and “stand down.”


Angelina Torrez, 1620 Jantz Street, Livingston, stated the following in response to Ms. Schell‑Rodriguez’ comments:

“It seems that there is a lot of friction between a lot of the Council people and a lot of the Planning Commission. I really don’t think it’s more of a “who’s picking on whom?” It’s that they just don’t get along! If we are going to be pointing fingers, if we are going to be saying, “This person said this or this person was hitting on this,” then we should see what’s happening with the City Council and how is one of the main persons who should be in order, who should know how it is when a motion is done and continues with it instead of badgering the Council Members to try and put a vote through. That’s where it is to get people. If it’s going to be coming to pointing fingers at who said what and who is pointing at what, then we need to look at the whole thing because it’s going on a lot.”




Verizon Wireless proposes to co-locate a new 10-foot antenna mount sector frame for three (3) new antennas and to replace six (6) existing antennas with six (6) new antennas in three sectors (A, B, & C) at the 150-foot elevation of an existing 195-foot tall self‑supporting lattice tower located off of Walnut Avenue and Industrial Drive.


Staff presented the staff report and recommended approval of Site Plan/Design Review 2009-02. Staff explained that normally an application for a co-location of antennas is approved administratively when the change is very minimal, but considering that this project included a 10-foot long mount sector frame as well as additional antennas, a site and design review was required.


Staff went over the photo simulations provided by the applicant which showed what the antennas propose to look like.


The applicant was present to answer questions.


Commissioner Soto arrived at 7:09 p.m.


Richard Weimer, Ridge Communications and Verizon Wireless, 12667 Alcosta Blvd., Suite 175, San Ramon, CA, 94583, stated that this additional frame will be their third frame on that tower and added that their antennas are replaced approximately every two years to improve coverage and send better signal.


Chair Blevins opened the Public Hearing at 7:11 p.m.


Angelina Torrez, 1620 Jantz Street, asked if there is health issues associated with these antennas.


Mr. Weimer responded that there is no health issue associated with these antennas, and added that communication commissions and health agencies have checked for health risks. There are limits to how much you can legally tolerate radio waves. These antennas are located 67 feet in the air. The FCC does not even want to hear about it if they are more than 10 feet in the air.


Chair Blevins closed the Public Hearing at 7:15 p.m.


Commissioners Comments:




·        Asked how this would impact other towers.


          Mr. Weimer responded that they are required by the FCC to keep the frequencies very discrete, so there is no impact to other towers.


·        Has not seen a Verizon store in the area. She asked if they were thinking about putting one in Livingston.


          Mr. Weimer responded that he could not speak to that.




·        Questioned if coverage is only for Verizon Wireless.


          Mr. Weimer responded, “Yes”.


·        Asked if the high speed wireless access to the City will be better.


          Mr. Weimer responded that it will be augmented.


·        Questioned if they will provide internet or DSL and added that currently the only providers in town are Frontier, Charter Communications, and ClearWire.


          Mr. Weimer responded that in time they will be able to provide internet and DSL.




·        He is in favor of this project, but he would like them to make a contribution to the community, possibly towards the new skate park. He asked Mr. Weimer if there was such a possibility.


Mr. Weimer responded that they are a public utility and their contribution would be to provide better service.




No questions.




·        Noted that the closest Verizon Wireless store in the area is located in Turlock, CA.


·        Questioned if they are doing any construction on the tower base.


          Mr. Weimer responded they are not.




No questions.


Following discussion, it was moved by Vice-Chair Avila, seconded by Commissioner Soria, to adopt Resolution 2009‑05, a Resolution of the Planning Commission of the City of Livingston Recommending to the City Council the Approval of Site Plan/Design Review 2009-02 for Verizon Wireless. Motion carried 5-0, by the following vote:


AYES:                  Chair Blevins, Vice-Chair Avila, and Commissioners Greeley, Soto and Soria

NOES:                  None

ABSENT:   None




In 2003, the City Council approved Vesting Tentative Subdivision Map 2003-01, for the

Country Lane

(Kishi) Subdivisions located between Walnut and Olive Avenues, off of

Hammatt Avenue

. These lots are a minimum size of approximately 6,000 sq. ft.. The model homes and several residences were constructed by Matthews Homes before activity ceased due to the economic downturn in the housing market. A new developer is now interested in purchasing the completed vacant lots (Country Lane 1 and 2) from Matthews Homes. In order to facilitate the sale, there needs to be an amendment to the Development Agreement. The approval of this amendment would extend the initial term of the agreement to seven (7) years from the date of adoption of the amendment.


Staff explained that in addition to the work that the original owner did underneath this development agreement by putting in a well, there were some reimbursements due back to the first developer and the new developer has graciously agreed to waive those reimbursements, so this is money that the City would not have to pay back to the developer. In addition, the new developer has also offered to donate $100,000 for a new skate park or another park use.


Project applicant, John D’Arcy, was present to answer questions. Also present was City Manager Richard Warne who helped negotiate this development agreement amendment.


City Manager Warne stated that he has been working with the developer in the negotiation process for a number of months and added that this is a win-win situation for both the developer and the City – A new developer is walking in and picking up a project that has stalled and is offering the City some generous benefits for accepting this amendment to the agreement.


He explained that the developer will get an extension of time to develop the subdivision and certainty in terms of what the fee schedule is going to be. The agreement is that the seven years begin from the time the City Council approves the new Development Agreement (the initial term), and then an additional three years can be added as an additional term with the approval of the City Council.


City Manager Warne explained how this would benefit the City:


·        A well (Well #16) was constructed in conjunction with this subdivision, so the developer is due back fee credits or payments from impact fees for anything that is above and beyond what is needed for his subdivision. (Well #16 is a large well, so a substantial amount of money would be due back.) As part of this agreement for extending the time, all fee credits are waived, so the City saves from having to make future reimbursements.


·        There were a number of upsized storm drain lines and the City would have to reimburse the developer from future development fees, but this developer has also waived that as part of this development agreement.


·        All new development in the City has a 1% amenities fee that is paid at the time the building permit is issued, which is used for parks and recreation activities. This particular subdivision did not have the 1% amenities fee attached to it because this development agreement was approved before that fee was enacted by the City Council, so any house currently built does not have to pay that. However, the developer has agreed to pay the 1% amenities fee on each new house built in the City.

·        The developer will make a cash contribution to the skate park within 30 days after City Council approval.


The City Engineer estimates the benefit to the City will be approximately $1.5 Million.


Assistant City Attorney Donnelly clarified that the $100,000 cash contribution can be towards a skate park or any other park use.


Chair Blevins opened the Public Hearing at 7:25 p.m.


Katherine Schell-Rodriguez, P.O. Box 163, Livingston, looking directly at Planning Commissioner Soria said, “There is your money.”


Council Liaison Martha Nateras, 780 Dwight Way, questioned if the quality of homes would be the same as what is there now.


John D’Arcy, JD Mill Creek Development, LLC, Victoria, British Columbia, responded that the quality of homes would remain the same.


Angelina Torrez, 1620 Jantz Street, asked if their prices are going to be moderate enough for the people that live in Livingston.


Mr. D’Arcy responded that prices are going to be determined by the market. He added that the market is down about 40% to 50% right now and many builders are starting to come up to build houses for $45‑$50 a sq. ft. vs. three to four years ago when it was closer to $70-$80 a sq. ft., so he thinks that anybody building new houses in the near future is going to have to sell them for about $100 a sq. ft.


Chair Blevins closed the Public Hearing at 7:28 p.m. as there was no further public comment.


Commissioners Comments:




·        Asked if $100,000 would cover the cost of the skate park.


     City Manager Warne responded it will not cover the entire cost of the skate park, but it will help design it and they will probably still have some money left over for construction. He added that the City is going to have to work on other sources of funding.




No questions.



·        Asked City Manager Warne if he had talked with the developer about the lots next to the park.


     City Manager Warne explained that Commissioner Soria had asked him to discuss with Mr. D’Arcy the potential of dedicating to the City the five lots that are adjacent to the park.  He added that he did have a discussion with Mr. D’Arcy, but Mr. D’Arcy does not feel that he can dedicate those lots to the City.


Mr. Warne stated that staff is always trying to do the best they can for the City and he feels this is a good project. Since the financial benefit to the City is worth about $1.5 Million, he is reluctant to add anything more to it. He would hate to see Mr. D’Arcy move on because this doesn’t pencil out.


     Commissioner Soria said it would only be those five lots so that the park could be expanded. He doesn’t want to see the park surrounded by homes with wooden backyard fencing around the park when there should be block walls.


Commissioner Soria would like to call for a field trip so that all Commissioners know what he is talking about.


     Assistant City Attorney Donnelly said they could not take a field trip that is not agendized. – It would be a Brown Act violation.


Commissioner Soria said that in the future, he would like to see that when items such as this come up, a field trip is made available so they are not violating the Brown Act.


     City Manager Warne stated that the only way this would work out is if the City would purchase these lots. However, due to the state of the economy the City does not currently have the financial resources to make an offer for purchase.


     Commissioner Soria asked if they could add a clause in the Development Agreement so that those particular five lots would not get built, and if the economy does pick up, the City would have first choice at purchasing those lots.


     Assistant City Attorney Donnelly said they would have to negotiate that with the developer.


     Mr. D’Arcy said he totally understands what Commissioner Soria wants, but they are pretty much at the end of their rope. He has been negotiating with City Manager Warne

for five or six months already. He added that this is the hardest market anybody has ever seen and it is very hard to sell. Any restrictions they add will make it harder to sell, so he is very reluctant to do that.




·        Asked if there is any particular reason why the investor wants to invest in Livingston.


     Mr. D’Arcy responded that he is one of the investors and added that his perception of the Valley is that it is going through a very rough time right now, but in the long term, the market will get better.  He likes the town and he thinks the City did an outstanding job planning it. He added that he is very committed to this area. He thinks people like to live in small towns and Livingston has a great deal going on.


·        Questioned when the cash donation would take place.


     Mr. D’Arcy responded it will happen 30 days after they close escrow.




·        Questioned what section was Country Lane 1 and what was Country lane 2.


City Manager explained that a great majority of the lots is Country Lane 2 (Kishi), but there is a small piece on the east side of Hammatt behind the commercial (as you cross Walnut Avenuegoing towards Olive) that is Country Lane 1. He added that one cannot really tell when driving through there whether you are in Country Lane 1 or Country Lane 2. This development agreement would include all the lots, whether Country Lane 1 or Country Lane 2.


·        He, too, went out to the site and he understands Commissioner Soria’s concern.


·        He asked that the lots be cleaned up as soon as the new owner takes over.


·        Questioned if all the infrastructure was already there.


City Manager Warne responded that all infrastructure has been built. The development has no further responsibilities for any kind of infrastructure.




·        Questioned how many lots are there.


Mr. D’Arcy responded 172 lots.


It was moved by Commissioner Greeley, seconded by Commissioner Soria, to adopt Resolution 2009‑06, a Resolution of the Planning Commission of the City of Livingston Recommending to the City Council the Approval of the First Amendment to the Country Lane 1 and 2 Development Agreement. Motion carried 5-0, by the following vote:


AYES:                  Chair Blevins, Vice-Chair Avila, and Commissioners Greeley, Soto and Soria

NOES:                  None

ABSENT:   None




Planning Commission








·        It was brought to his attention that crosswalks are needed on 4th, 5th, 6th, 7th, 8th, and D  Streets. There are a lot of school children crossing at those intersections.


·        Traffic is moving too rapidly through D Street– people need to slow down.








·        Asked staff if La Morenita Restaurant is already serving alcohol in the outdoor eating area. He remembers that when the Planning Commission approved their CUP, they were required to put up a wrought iron fence, but there is no fence there yet and they already have tables outside.  


Staff responded that the wrought iron fence was not a requirement for them to be permitted to serve alcohol and added that since the approval of their CUP, the building owner has proposed to remodel the outside of the building – redoing the windows and adding more stucco and tile. It is not that they are not going to move forward on the fence installation, but now it has become part of a bigger and nicer project. Since there has been no square footage added to the building, the building owner is only required to pull a building permit.




·        Congratulated everyone with friends and relatives graduating from the high school or the elementary school.


·        There is construction work going on at St. Jude Catholic Church and it came to his attention that they were halted for some reason. He asked staff if she knew the reason.


Staff responded there was a problem with lack of an encroachment permit for redoing some of the curb and gutter, but since then, she has not heard of any other problem.






City Staff


·        Announced that the City lost one of its part‑time Public Works employees, Carlos Aguilar, due to an automobile accident and requested a moment of silence in his memory.  She added that City employees and members of their families had a car wash fundraiser on Saturday for approximately four hours and raised over $1,000 to help with the expenses for a chicken dinner fundraiser planned for Friday, June 12, 2009. Tickets are $10.00 and can be purchased at City Hall or from any Public Works employee. The money raised will be used for the funeral expenses to help support Carlos’ 14 year old daughter.


City Attorney






The regular meeting was adjourned by consensus at 7:51 p.m., to the next Planning Commission meeting on August 11, 2009 (July 14, 2009, regular meeting was cancelled due to lack of agenda items).


APPROVED:  August 11, 2009




______________________________                 _______________________________

Chair, DAVID BLEVINS                                     Secretary of the Planning Commission,

                                                                          DONNA M. KENNEY


2 thoughts on “June 09, 2009”

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