JUNE 1, 2010 Draft Minutes

CLOSED SESSION/REGULAR MEETING

LIVINGSTON CITY COUNCIL

JUNE 1, 2010

A Closed Session/Regular Meeting of the Livingston City Council was held on June 1, 2010, in the City Council Chambers with Mayor Varela presiding.

CLOSED SESSION

Mayor Varela opened the meeting.

ROLL CALL

Mayor Daniel Varela, Sr.

Mayor Pro-Tem Frank Vierra

Council Member Rodrigo Espinoza

Council Member Margarita Aguilar

Council Member Martha Nateras

Also present were City Manager Richard Warne, Assistant City Manager/Finance Director Vickie Lewis, and City Attorney Jonathan Hobbs.

The City Council went into Closed Session to discuss the following matter:

1. Conference with Legal Counsel—Existing Litigation.

Government Code Section 54956.9(a).

a. Merced County Farm Bureau v. City of Livingston, et al., California Superior Court, County of Merced, Case No. CU151754 [consolidated with Valley Advocates v. City of Livingston, et al, Superior Court, County of Merced, Case No. CU151757].

OPEN SESSION

The City Council came out of Closed Session and into Open Session.

REGULAR MEETING

CALL TO ORDER

Mayor Varela called the meeting to order.

ROLL CALL

Mayor Daniel Varela, Sr.

Mayor Pro-Tem Frank Vierra

Council Member Rodrigo Espinoza

Council Member Margarita Aguilar

Council Member Martha Nateras

CLOSED SESSION ANNOUNCEMENTS

Mayor Varela announced that there were no announcements from the Closed Session.

CHANGES TO THE AGENDA

None.

AWARDS, PRESENTATIONS, APPOINTMENTS AND PROCLAMATIONS

1. Children’s Bill of Rights for Merced County.

Mayor Varela read the proposed Children’s Bill of Rights for Merced County.

Motion: M/S Varela/Vierra to adopt Resolution No. 2010-23 to approve the Children’s Bill of Rights for Merced County. The motion carried 5-0 by the following vote:

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

NOES: Council Members: None

ABSENT: Council Members: None

ANNOUNCEMENTS AND REPORTS

Supervisor John Pedrozo Announcements and Reports.

Mayor Varela reported that Supervisor Pedrozo had contacted him to let him know he would not be able to attend the City Council meeting because he would be in Planada supporting the high-speed rail.

City Council Members’ Announcements and Reports.

Council Member Margarita Aguilar

· Reported that the efforts to organize the July 4 event were unsuccessful. She thanked people that attended the organizational meeting and the organizations and businesses that pledged money. She said that they raised $600. Council Member Aguilar thanked people for their participation, including students from Livingston Middle School and other community members.

· Stated that she had received a Wal-Mart questionnaire in her utility bill. She was concerned that it was not in multiple languages. Community Development Director Kenney commented the questionnaire was provided by the Wal-Mart Corporation and was not prepared by City staff.

· Asked about AB1234 ethics training for Planning Commissioners. Community Development Director Kenney reported that the Planning Commissioners were provided a website address and asked to complete the training on-line to meet the requirements of state law and receive a training certificate.

Council Member Rodrigo Espinoza

· Commented that he was sad that the July 4th event will not be held. He also thanked everyone that participated in trying to organize an event. He said that he hoped that next year the City will have fireworks.

Council Member Martha Nateras

· Reported that she attended the Livingston High School Awards night at Livingston High School on May 11. Council Member Nateras reported that she gave out four awards from the Livingston Rotary Club. Livingston High School students received $180,000 in scholarships this year. She congratulated all of the Livingston high school and college graduates.

· Reported that she had been requested by the public relations representatives from Wal-Mart to organize a meeting of Hispanic and Sikh community leaders. The purpose of the meeting was to allow Wal-Mart to provide information to these leaders regarding the proposed Wal-Mart store and to put an end to the rumors that Wal-Mart was not coming to Livingston.

· Stated that she was not able to attend the last Planning Commission meeting because she was at the Livingston High School Awards night. She asked Community Development Kenney to report on the Planning Commission meeting. Community Development Director Kenney stated that the four proposals from the skate park consultants had been distributed to the Planning Commission and they would be interviewing the consultants at their next meeting. On May 26 four members of the Planning Commission and Community Development Director Kenney toured several skate parks.

Mayor Pro-Tem Frank Vierra

· Expressed appreciation to the Public Works Department for their clean-up on “B” Street. He said the area looked great.

· Reported that Livingston Middle School will hold its graduation ceremony on June 3, 2010, and Livingston High School on June 4, 2010. He said that approximately 280 students would be graduating from Livingston High School this year.

Mayor’s Announcements and Reports.

Mayor Daniel Varela Sr.

· Reported that he recently attended with the City Manager the Livingston High School information night. The meeting focused on the future of the City of Livingston. He said that the meeting was very positive and that he received a lot of positive feedback from the meeting.

· Stated that he participated in a meeting sponsored by Livingston High School entitled “Closing the Student Achievement Gap.” The meeting was geared towards working with parents on ways to help their children do better in school and to access education opportunities.

· Reported that he participated in the National Day of Prayer activities on May 6 in Memorial Park.

· Stated that he attended the Livingston High School Awards night at Livingston High School on May 11. He gave a $1,000 scholarship in memory of Anna Fuentes on behalf of the Merced County Association of Governments (MCAG). He said that he was impressed with the students and the number of scholarships that were given out.

· Attended a Merced Community Center Character Counts Presentation on May 13 where a number of students from Livingston were recognized for their achievements and their character.

· Reported that he met with the Livingston Volunteer Firefighters on May 17. He had a discussion with them regarding the City of Livingston and future projects that were coming to the community.

· Assisted with the City Hall tour of the third graders from Campus Park Elementary School on May 20. Students were given a tour of all City Departments and concluded their visit to the City with a mock City Council meeting in the City Council Chambers.

· Attended the Merced County Association of Governments (MCAG) board meeting where the homeless problem was discussed in great detail. Livingston needs to be involved in solving the homeless problem.

· Attended a meeting with the Livingston Middle School golf program on May 26. Mayor Varela started this program for at-risk youth along with Council Member Nateras, City Manager Warne, and the Livingston Middle School vice principal. Pacific Gas and Electric (PG&E) has provided equipment including golf clubs and golf bags for the program. The program is directed toward at-risk youth in the community. There are 16 at-risk youths participating in the program.

· Attended the Livingston Middle School graduation on June 3 and the Livingston High School graduation ceremonies on June 4.

· Announced that the Livingston High School computer program took first place in a recent national competition. He wanted to recognize the Principal Ralph Calderon and the staff of the high school. Principal Calderon reported to him that Livingston High School has had fewer fights on campus this year than ever before. He wanted to recognize the football, basketball and track programs at Livingston High School. Mayor Varela said we need to celebrate the goodness of the community.

PUBLIC HEARINGS

2. Introduce and Waive the First Reading of an Ordinance of the City Council of the City of Livingston to Allow Medical Offices/Clinics in a Public Facility (PF) Zoning District with a Conditional Use Permit.

Community Development Director Kenney provided an overview and history of the project. She said that this agenda item was a text amendment to the zoning ordinance that would allow medical offices and clinics to be located in the Public Facility (PF) Zoning District with a Conditional Use Permit (CUP). This zoning text amendment process was started after the Livingston Medical Group received Federal stimulus funds to expand their current facility to better serve the residents of Livingston. The current facility is overcrowded. When Livingston Medical Group representatives came to the City, it was determined that the Public Facility (PF) Zoning District did not allow medical offices or clinics. No one knows how the current facility was built with this zoning designation.

Community Development Director Kenney said, if the zoning text amendment is approved, the Livingston Medical Group will still need to have site and design review and a Conditional Use Permit (CUP) from the Planning Commission and City Council before any construction could take place.

The Livingston Medical Group decided to withdraw their application to expand the building after receiving complaints from the Merced County Library and adjacent residents. However, the Livingston Medical Group is considering expanding their facilities on the vacant property at the corner of Sixth Street and F Street. This property is also zoned Public Facilities (PF) and a zoning text amendment would also be needed to construct facilities on their site. The City Council is only considering the zoning text amendment this evening and is not considering an application to expand the building or the facility or a Conditional Use Permit (CUP). The Planning Commission considered the proposed zoning text amendment at their last meeting and recommended approval to the City Council.

Mayor Pro-Tem Vierra asked for clarification regarding the proposed facility expansion and the zoning text amendment. He said he wanted to be sure that the City Council could approve the zoning text amendment without approving the building expansion. He said that he was concerned about the parking at the Livingston Medical Group. Community Director Kenney and City Manager Warne both stated that any proposed project would still have to go through the site design and approval process and obtain a Conditional Use Permit (CUP) prior to construction. During that process, the City Council could deny the project, approve the project or approve the project with conditions. City Manager Warne stated this zoning ordinance amendment would not automatically approve the building expansion.

Mayor Pro-Tem Vierra said that he does not have a problem with the zoning text amendment, but is concerned about expansion of the Livingston Medical Group building at its current site. He said that there is significant community opposition to the building expansion. The parking is a major problem and customers are parking at the library and in front of other people’s homes.

City Attorney Hobbs stated that the Conditional Use Permit (CUP) is one of the strongest land-use regulation tools that the City Council has at its disposal. The conditional use permit (CUP) allows the City Council considerable discretion to approve, disapprove or approve with conditions any proposed development. Any proposed development will need to have environmental review and go through the Planning Commission and City Council for approval. He said that any zoning text amendment must be applied Citywide and a particular property cannot be excluded.

Council Member Aguilar stated that she was concerned about the expansion of the existing building and the parking. She asked how much was going to be built and how was this going to affect the neighbors. Her concern was for the people. She was against the rezoning of the Livingston Medical Group property. Community Development Director Kenney corrected Council Member Aguilar and said that the agenda item was not a rezoning of the Livingston Medical Group property. Parking, traffic and other impacts are reviewed at the time that the City conducts site and design review and considers a Conditional Use Permit.

Council Member Aguilar said that she is against the rezoning of the property. Mayor Varela said the Livingston Medical Group was now focusing their efforts at the site at the corner of Sixth Street and F Street due to the concerns about the expansion of the site on Main Street. They want to take their funding and use it on the F Street site.

Council Member Aguilar said that she thought there should have been a picture and a site plan for the City Council meeting this evening. City Manager Warne said once again that the agenda item is a zoning text amendment and not a site design and review on any specific property. Site review and a Conditional Use Permit (CUP) would come later if the Livingston Medical Group decided to build or expand. He said that we are only talking about an ordinance amendment and are not considering any project in this area at this time.

Mayor Varela opened the public hearing 7:33 p.m.

Mike Torres, 1616 Eighth Street, asked why the zoning ordinance is being considered this evening. Community Development Director Kenney said that the zoning text will allow medical facilities and clinics in the Public Facilities (PF) zone on the property located at the corner of Sixth Street and F Street and in other areas of the City.

Mike Torres asked what other uses could be allowed in the Public Facilities (PF) zone. Community Development Director Kenney said that schools, government buildings and utilities could be built in this zone. Mr. Torres stated that school facilities may be a problem as more growth takes place. Additionally, Mr. Torres noted concern about parking and traffic around the Livingston Medical Group building. This is why they built a second story.

Mayor Varela said that the Livingston Union School District has a site for a future school on Robin Avenue. They have planned ahead for future growth.

Mayor Varela closed the public hearing at 7:39 p.m., as there were no further public comments.

Mayor Pro-Tem Vierra said that the Livingston Medical Group and the Livingston Union School District have been working together on a land sale for a new medical clinic.

Council Member Espinoza asked if future expansion would require an environmental document. Community Development Director Kenney reiterated that tonight’s agenda was simply a text amendment to allow medical facilities and clinics as a conditional use to the current Public Facility (PF) zoning district. There is no construction project involved in the application this evening.

Motion: M/S Vierra/Nateras to Waive the First Reading and Introduce Ordinance No. 587, an Ordinance of the City Council of the City of Livingston to Allow Medical Offices/Clinics in a Public Facility (PF) Zoning District with a Conditional Use Permit (CUP).

The motion carried 4-1 by the following vote:

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

NOES: Council Members: Aguilar

ABSENT: Council Members: None

3. Adoption of an Urgency Ordinance Extending a Moratorium on the Approval of Medical Marijuana Dispensaries.

Police Chief Douglas Dunford provided an overview of the urgency ordinance and explained the procedural requirements to approve the extension.
Mayor Varela opened the public hearing at 7:45 p.m.

Luis Flores, 707 Almondwood Drive, stated that he voted against this item that came to the Planning Commission last month. He was in opposition to the City Council adopting this ordinance. He did not feel that it should take 10 months and 15 days to review and study this issue. Community Development Director Kenney stated that this urgency ordinance was not on the Planning Commission agenda. The next agenda item, the Ordinance to Prohibit Medical Marijuana Dispensaries, was on the Planning Commission agenda.

Mayor Varela closed the public hearing at 7:47 p.m., there being no further comments

from the public.

Police Chief Dunford stated that the Urgency Ordinance timeframe of 10 months and 15 days came directly from State law. The initial Urgency Ordinance with its 45-day time limit would expire before the ordinance prohibiting marijuana dispensaries would go into effect. This ordinance would prevent a gap between the expiration of the urgency ordinance and the ordinance prohibiting marijuana dispensaries.

Motion: M/S /Nateras/Vierra to Adopt Ordinance No. 588, an Urgency Ordinance Extending a Moratorium on the Approval of Medical Marijuana Dispensaries. The motion carried 5-0 by the following vote:

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

NOES: Council Members: None

ABSENT: Council Members: None

4. Introduce and Waive the First Reading of an Ordinance of the City Council of the City of Livingston to Prohibit Medical Marijuana Dispensaries.

Police Chief Dunford provided overview of the ordinance and background on the medical marijuana dispensary issue. Community Development Director Kenney noted the changes to the zoning code if the ordinance were to be approved.

Community Development Director Kenney reviewed the sections of the Livingston Municipal Code that will be amended by the Ordinance of the City Council of the City of Livingston to Prohibit Medical Marijuana Dispensaries.

Mayor Varela opened the public hearing at 7:55 p.m.

Katherine Schell Rodriguez, P.O. Box 163, Livingston stated that the proponents of the medical marijuana have not addressed many issues. There are numerous concerns about medical marijuana and perceptions of people opposing medical marijuana that have not been professionally addressed by those supporting medical marijuana. One of the major perceptions is that dispensaries are operated by the “stoner culture.” Unfortunately, people operating dispensaries are dismissive of the concerns of the public and make fun of them. This talk does not help the discussion. There are still conflicts between State and Federal law. Marijuana is still a schedule 1 drug at the Federal level and is illegal under Federal law. Proponents want the City to run afoul of the Federal Government and just because Federal agents are not raiding medical marijuana dispensaries, it does not mean that it will not happen in the future. Perception is reality and if dispensary advocates do not respond professionally to the perceptions of the public, the next effort to establish a dispensary will also be rejected.

Luis Flores, 707 Almondwood Drive, stated that he was opposed to the ordinance prohibiting medical marijuana dispensaries.

Mayor Varela closed the public hearing at 7:59 p.m., as there were no further pubic comments.

Motion: M/S Vierra/Nateras to Introduce and Waive the First Reading of Ordinance No. 589, an Ordinance of the City Council of the City of Livingston to Prohibit Medical Marijuana Dispensaries. The motion carried 5-0 by the following vote:

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

NOES: Council Members: None

ABSENT: Council Members: None

CITIZEN COMMENTS

Gurpal Samra, 1034 J Street, expressed his appreciation to the Public Works Department for all the work the department does for the City. He noted the parks look great and B Street looks good. Mr. Samra stated that at the last City Council meeting City Manager Warne stated that there was no donation on record for the July 4 celebration. Mr. Samra disputed this and stated that Foster Farms donated $10,000 and Gallo donated $5,000 in 2008. He provided a copy of a newspaper article from the Livingston Chronicle in 2008 that read that there was $15,000 donated. He also said that he had a copy of an e-mail and cancelled check from Mike Gallo stating that there had been a donation.

Council Member Aguilar stated that they were trying to find sponsors for this year’s July 4 celebration. Council Member Aguilar asked for a copy of the e-mail.

City Manager Warne stated that he had asked Assistant City Manager/Finance Director Vickie Lewis to check the City’s accounting records to see if there had been any donations in previous years to the July 4 celebration. She reported back to him that she had gone through the general ledger and she informed him that neither Foster Farms nor anyone else had donated any funds to the July 4 celebration since 2002. As far as he knows, there has not been any donation based on the report he received from Assistant City Manager/Finance Director Vickie Lewis.

Assistant City Manager/Finance Director Lewis stated that if there was a donation it was not identified as a July 4 donation. She went through several revenue accounting line items and found no donations to the July 4 celebration since 2002. If a check was handed to the Chief, she needs to check with him to see what he did with it. She requested copies of the material Mr. Samra brought forward.

Gurpal Samra said that he just wanted to acknowledge the people that had donated the money. City Manager Warne said that he had asked the Finance Department if there had been any donations and was informed that no donations had been made.

Community Development Director Kenney stated that the Rotary Club will be meeting this week at the Blueberry Hill Bar and Grill. Rotary meetings will be moved to Memorial Park. The club has some exciting speakers including Mayor Daniel Varela. Ms. Kenney said that the Rotary Club is working with the Livingston Police Department to host a benefit golf tournament on the last Monday in September. The funds raised will go to youth activities in the City of Livingston.

Luis Flores, 707 Almondwood Drive, requested a status report on the Citizens’ Service Committee. City Manager Warne stated that he would have to check on this item.

Mike Torres, 1616 Eighth Street, stated that he was concerned about motorized wheel chairs on City streets. He asked if there is any requirement for wheel chair flags for better visibility. Police Chief Dunford said the motorized wheelchairs are allowed to travel on City sidewalks and do not need to be in the street.

Mr. Torres asked about the notice requirements for a special meeting. He asked if the Brown Act required physical attendance of the City Attorney. City Attorney Hobbs said that there is no requirement under the Brown Act to have the City Attorney present. He said that he attended a recent special meeting by phone to save costs and because there was only one agenda item. Meeting notices must be posted 24 hours in advance for a special meeting and 72 hours in advance for a regular meeting. City Manager Warne stated that regular and special meetings are always posted on the City website, Channel 2, outside City Hall and emailed to the newspaper reporter at the Merced Sun-Star and to those who have requested agendas.

City Manager Warne stated that the reason that a special meeting was called recently was to award the bid for the Federal Safe Routes to Schools sidewalk project. This was a project that was previously approved by the City Council and was included in the budget document. The City wanted to move forward to award the contract so that the contractor could get started. The best time to construct sidewalks along school routes is when the children are out of school during the summer. Council Member Espinoza stated that he thought the City should have waited for a regular meeting to award the contract.

Mario Mendoza, no address given, said that he called Mayor Pro-Tem Vierra eight years ago about a sewer problem on his property. He said that Mayor Pro-Tem Vierra left him a note eight years ago stating the problem would be addressed. Mr. Mendoza said that nothing has been done. He asked the Mayor what he would say his accomplishments were once he was out of office. He then wanted to fight all members of the City Council to raise money for the July 4 fireworks. He said that this was no joke. He said that he would pay $500 for Mayor Pro-Tem Vierra and $100 to fight each other member of the City Council.

Katherine Schell Rodriguez said that she would fight him for $1,000.

CONSENT CALENDAR
Council Member Aguilar requested that Warrant No. 70383 be pulled for discussion. The following consent calendar items were presented for consideration and approval:

5. Initiating Proceedings Under the Landscape and Lighting Act of 1972, Division 15, Part 2 of the California Streets and Highways Code, et. seq., Declaring the City’s Intention to Levy and Collect Assessments Within the City’s Landscape and Lighting Maintenance Assessment District for Fiscal Year 2010/2011, Approval of the Annual Engineer’s Report and Setting a Time and Place for a Public Hearing. (Resolution No. 2010-24).

6. Initiating Proceedings Under the Benefit Assessment Act of 1982, Government Code Section 54717, et. seq., Declaring the City’s Intention to Levy and Collect Assessments Within the City’s Benefit Assessment Districts for Fiscal Year 2010/2011, Approval of the Annual Engineer’s Report and Setting a Time and Place for a Public Hearing. (Resolution No. 2010-25).

7. Resolution No. 2010-26 to Award a Professional Design Services Contract for the Picnic Area and Restroom Facilities at the Livingston Sports Complex to RFT Design Studio, Dublin, California, and Authorize the City Manager to Execute the Contract.

8. Approval of Minutes of Meeting Held on March 16, 2010.

9. Approval of Warrant Register Dated May 13, 2010.

10. Approval of Warrant Register Dated May 24, 2010.

Motion: M/S Aguilar/Nateras approve the consent agenda with the exception of Warrant No. 70383. The motion carried 5-0.

Council Member Aguilar stated that she wanted Warrant No. 70383 to be pulled for discussion because $25,000 of the fees being charged by the City Attorney were related to the water rate increase lawsuit and she wanted the citizens to be aware of this.

Motion: M/S Vierra/Varela to approve payment of Warrant No. 70383. The motion carried 3-2 by the following vote:

AYES: Council Members: Nateras, Varela, Vierra

NOES: Council Members: Aguilar, Espinoza

ABSENT: Council Members: None

DISCUSSION AND POTENTIAL ACTION ITEMS

There were no discussion and potential action items.

11. City Manager Announcements and Reports.

City Manager Warne had no announcements or reports.

ADJOURNMENT

The meeting was adjourned by consensus at 8:30 p.m.

_________________________________

City Clerk of the City of Livingston

APPROVED: August 17, 2010

___________________________

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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