Note from the Snail: I just received updated Draft Minutes. Except for some Bolding here and there, a break up of a paragraph or two, and some formatting glitches from the Blogging Software, this should look like what you’d find on the City’s website. J
LIVINGSTON CITY COUNCIL
MARCH 4, 2010
A Special Meeting of the Livingston City Council was held on March 4, 2010, in the City Council Chambers with Mayor Varela presiding.
Mayor Varela opened the Closed Session.
Mayor Daniel Varela, Sr.
Mayor Pro-Tem Frank Vierra
Council Member Rodrigo Espinoza (Absent)
Council Member Margarita Aguilar (Absent)
Council Member Martha Nateras
Also present were City Manager Richard Warne, Assistant City Manager/Finance Director Vickie Lewis, and City Attorney Jonathan Hobbs.
The Council went into Closed Session to discuss the following matters:
1. Conference with Legal Counsel—Existing Litigation.
Government Code Section 54956.9(a).
a. Conference with Legal Counsel—Existing Litigation.
Pursuant to Government Code Section 54956.9(a). City of Livingston v. The Dow Chemical Company, et al., San Francisco Superior Court Case No. CGC-05-442837; San Bernardino Superior Court, Coordination Proceeding,TCP Cases, Judicial Council Coordination.
b. 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].
c. Fernando Davalos et al, v. City of Livingston, et al, California Superior Court, County of Merced, Case No. CV000669.
d. Foster Poultry Farms, Inc. v. City of Livingston, et al, California Superior Court, County of Merced, Case No. CV000292.
2. Conference with Legal Counsel—Anticipated Litigation.
Significant Exposure to Litigation Pursuant to Government Code Section 54956.9(b): (1 Case).
The City Council came out of Closed Session and into Open Session.
CALL TO ORDER
Mayor Varela called the meeting to order at 7:00 p.m.
PLEDGE OF ALLEGIANCE
The pledge of allegiance to the flag was recited.
Mayor Daniel Varela, Sr.
Mayor Pro-Tem Frank Vierra
Council Member Rodrigo Espinoza (Absent)
Council Member Margarita Aguilar (Absent)
Council Member Martha Nateras
CLOSED SESSION ANNOUNCEMENTS
There were no announcements from Closed Session.
CHANGES TO THE AGENDA
City Attorney Jonathan Hobbs recommended removal from the agenda of item #14 (Consider Adoption of an Urgency Ordinance Establishing a Moratorium on Medicinal Marijuana Dispensaries). City Attorney Hobbs explained that this item requires a four-fifths vote because it was an urgency ordinance and there were not enough Council members present to consider this item.
Motion: M/S Vierra/Nateras to remove item #14 (Consider Adoption of an Urgency Ordinance Establishing a Moratorium on Medicinal Marijuana Dispensaries) from the agenda. The motion carried 3-0.
AWARDS, PRESENTATIONS, APPOINTMENTS AND PROCLAMATIONS
1. Presentation of Proclamation – “Portuguese Immigrant Week.”
The proclamation was read by Mayor Varela. Debbie Parrot was in attendance to receive the proclamation on behalf of the Portuguese citizens in the community.
2. Presentation of Police Chief Douglas Dunford.
City Manager Warne introduced Douglas D. Dunford, the City’s new Chief of Police. He said that he decided to appoint Douglas D. Dunford as the Livingston Police Chief after a careful and rigorous five-month process. He has worked for the Los Angeles County Sheriff’s Department, Turlock Police Department, and Burlington Northern Santa Fe (BNSF) Railroad Police Department. He has been serving as the Escalon Police Chief since 2002. Chief Dunford is an effective professional law enforcement leader and is highly respected by the City Council, City employees and residents of Escalon. City Manager Warne outlined the criteria used to recruit the new Police Chief and added that he felt Police Chief Dunford will be a good fit to the community.
Chief Dunford thanked everyone that was at the City Council meeting. He looks forward to a long career in the City of Livingston and working with a great Police Department.
Mayor Varela presented an appreciation award to Lieutenant Sharon Silva for her service as Interim Police Chief. He said that she was Interim Police Chief during a difficult time. He thanked her for her grace and leadership.
City Manager Warne stated that Lieutenant Silva did an excellent job as Interim Police Chief. She is a very competent law enforcement officer and works well with people. She brought a number of positive changes to the Police Department during her short tenure. She is one of the finest law enforcement processionals that City Manager Warne has worked with during his 28 years in local government.
3. Report on 2007 HOME Program.
Patrick Isherwood from Self-Help Enterprise gave a report on the 2007 U.S. Department of Housing and Urban Development (HUD) HOME program using a Power Point slide presentation. The topics covered during the presentation included the funding status of the 2007 HOME grant, First-Time Homebuyer Program, Housing Rehabilitation Program, 2009 HOME grant, community impacts and other related items.
Mr. Ishwood stated that the City had spent $561,879 or 82 percent of its $682,650 First-Time Home Buyer HOME budget and $94,824 or 97 percent of its $97,350 Housing Rehabilitation Program HOME budget. The First-Time Homebuyer Program has assisted eight families with the average financial assistance of $66,760. The average family size was five household members. Six of the eight families were low-income families and two families were very-low income families. Private sector funds of $869,242 augmented the HOME grant funds.
The Housing Rehabilitation Program has assisted one low-income senior citizen. The 2009 $800,000 U.S. Department of Housing and Urban Development (HUD) HOME program includes $390,000 for the First-Time Homebuyer Program, $390,000 for the Housing Rehabilitation Program, and $20,000 for administration.
Community benefits of the HOME grant program includes improving the housing stock in the community, providing jobs to realtors and contractors and permit fees to the City. Other services provided by Self-Help Enterprises for the City of Livingston includes the Neighborhood Stabilization Program (NSP), housing counseling education, foreclosure counseling and the use of individual development accounts to support first-time homebuyers.
Anyone interested in the program may contact the City of Livingston or Self-Help Enterprises. The Mayor thanked Mr. Ishwood for his report.
ANNOUNCEMENTS AND REPORTS
Supervisor John Pedrozo Announcements and Reports.
Supervisor Pedrozo was not in attendance.
City Council Members’ Announcements and Reports.
Council Member Martha Nateras
· Reported that she attended the Japanese Interment Memorial Ceremony at the Merced Fairgrounds on February 20. The event was to recognize the Japanese that were placed in internment camps from the Merced area during World War II. Ms. Nateras noted the event was put together well.
· Reported that work has begun on the Relay for Life event and the deadline to register teams is March 15. Registration packets can be picked up at WestAmerica Bank.
· Reported there will be a Young Women’s Conference for 7-10 grade girls on March 20, from 8:00 a.m. to 3:00 p.m. at the Livingston Middle School. Information is posted on the government access cable channel and the City website. She encouraged anyone with daughters to have them register for the conference at the Middle School. Council Member Nateras said that School Superintendent Henry Escobar is supporting this event.
Mayor Pro Tem Frank Vierra
· Thanked the Livingston Public Works Department for their work on all the projects in the City. Mayor Pro Tem Vierra reported that he has observed Public Works workers cleaning up the City and removing fallen trees. The City looks great.
· Commented that he was in attendance at the swearing in ceremony for Chief Douglas Dunford. Mayor Pro Tem Vierra welcomed the Chief and hoped he had a long tenure in Livingston.
Mayor’s Announcements and Reports.
Mayor Daniel Varela, Sr.
· Reported that he and the City Manager attended the Merced County Association of Governments (MCAG) One Voice State Legislature lobbying effort on February 16 and 17 in Sacramento.
· Stated that he attended a National Association of Elected Latino Officials (NAELO) Conference on February 19-20, where he received information regarding community health issues. Mayor Varela said that he is participating in a one-year leadership program with the organization.
· Reported that he met with Ben Duran, the President of Merced Community College. He said that President Duran will be visiting and touring the community in the near future.
Mike Sperry, no address given, addressed the City Council on agenda item #14 (Consider Adoption of an Urgency Ordinance Establishing a Moratorium on Medicinal Marijuana Dispensaries). This agenda item was removed from the City Council agenda at the beginning of the meeting. Mr. Sperry said that he knew that the new Police Chief needed time to look at the new ordinance. He asked when this item would be placed back on the City Council agenda.
City Attorney Hobbs said that the Urgency Ordinance required 4/5 majority and could be considered at any time once there were enough City Council members to vote on it.
Mayor Varela said that the next City Council meeting would be the first of next month. Mr. Sperry asked if there could be a City Council meeting prior to next month. Mayor Varela said that this was a new issue that the City Council was trying to understand it and would need to study it.
Mr. Sperry handed out some materials to the City Council. He asked how he could get more than three minutes to make a presentation to the City Council. City Attorney Hobbs responded that everyone gets only three minutes.
Mohani Thiara, 2747 Claret Circle, stated that she feels the community is being misled regarding the petitions for the recall of the three City Council members. Ms. Thiara stated that the non-English speaking citizens are being asked to sign petitions to lower their water bills and property taxes. They are not being told that the petitions are recall petitions. Ms. Thiara said that the Mayor and the two City Council members subject to the recall are doing a good job. She stated that the surrounding communities all have higher utility rates. Ms. Thiara said that she has read the water and wastewater studies and has done her home work. Even if there is a recall of the three members of the City Council, the water rates will still go up. She asked the people circulating the petition not to mislead the non-English speakers. She does not want these City Council members recalled. She thought it was ridiculous and a waste of money to hold a recall election in August or September when there will be a municipal election in November. Please stop misleading the people.
Grant Wilson, no address given, addressed the City Council regarding the medicinal marijuana dispensary ordinance. He asked if there will be enough members present to vote at the next meeting on the ordinance. Mr. Wilson said he supported the medicinal marijuana dispensary. Mayor Varela said that he hoped that there would be enough members of the City Council at the meeting. It is the responsibility of City Council members to be at the meeting. He thought that the absent members would be here.
City Attorney Hobbs said that if the City Council does not have at least four members at the next meeting, it will have to postpone action to the following meeting. He said he was optimistic that there would be enough members of the City Council at the next meeting. Mr. Wilson said that some Counties break State law and some do not.
Julio Valdez, no address given, stated that the Mayor did not call him on the phone. Mayor Varela stated that he called Mr. Valdez and there was no answer. He said that his number is on Channel 2 every day. He said that he wished that Julio Valdez would have called him. Mr. Valdez stated that he supports Mr. Sperry in his business venture as long as everything is legal. He asked how this item could be put on the agenda for a presentation. Mayor Varela said that they would have to talk to the staff.
Warren Urnberg, 1331 Eighth Street, stated that consent calendar item #4 (Approval of Lease of City-Owned House) should have been a public hearing. City Attorney Hobbs told Mr. Urnberg that he could comment on the item now.
Mr. Urnberg stated that the old lease for the City-owned house was for six months and the new lease is month-to-month lease. City Attorney Hobbs stated that the lease was originally for six-months, but reverted (by state law) to month-to-month basis. The tenant has been on a month-to-month lease for some time.
Gurpal Samra, 1034 J Street, asked if there was going to be public comment on agenda item #15. Mayor Varela answered that there would be public comment.
Mr. Samra announced that the annual Sikh Parade will take place in Livingston on March 28. Mr. Samra commended the City for hiring a new Chief of Police. He noted that the restrooms at Memorial Park are being locked when the Public Works Department goes home. He said that the elderly should not have to go home to use the bathroom. The Mayor said that the City would look into it. Mr. Samra stated that each person contacted during the recall process was provided information in writing explaining the process. No one was misled.
Myra Bettencourt, no address given, stated she was here to support the Mayor and City Council. The water rates have not been raised since 1995 and it had to be done. She said that she does not like the rate increase as a senior citizen on a fixed income, but she knows that it was necessary. She does not understand why people are so upset about it. We want clean water. Ms. Bettencourt said she wished the community would come together and support the City Council.
Ralph Mull, 1445 First Street, commented on the bad publicity in the press. Mr. Mull noted that the community includes not only those within the City limits, but the farming community as well. The farmers outside the community helped to build Livingston. He said that Alvernaz field is a good example of someone outside Livingston contributing to the community. Mr. Mull asked that the City Council and City staff encourage businesses to come to the community. We need more people to come to the community.
Ralph Valbreeze, no address given, said that he was a medicinal marijuana cardholder. He spoke in favor of the medicinal marijuana dispensary. He feels that the business would be beneficial to the community. He said that he currently needs to drive to Oakland to get his marijuana. He said that a medicinal marijuana dispensary will bring taxes to the community. The first one that opens a dispensary is going to benefit. He said that people drink and smoke. This is the 21st Century and we need to allow medicinal marijuana dispensaries.
Luis Flores, 707Almondwood Drive, said that Council Member Nateras made a mistake in one of her comments. He said the Japanese from this area were not placed in concentration camps. They were placed in internment camps. Mr. Flores asked if the Environmental Impact Report (EIR) for Wal-Mart is available. Mayor Varela confirmed the Environmental Impact Report (EIR) will be available in the Spring.
Mario Mendoza, no address given, said that the City Council does not intimidate him. He asked what happened to the $500,000 that was taken from the Police Department and the $500,000 that was taken from the Fire Department for the Court Theater. Mayor Varela stated that Mr. Mendoza’s information was not true.
David Mendoza, no address given, asked why the City is building more baseball fields when the City needs more soccer fields. No one plays baseball in Livingston. People only play soccer. He thought the basketball courts were a good thing for the community.
Theresa Land, no address given, asked why the February 16 and March 2 City Council meetings were cancelled and why the March 4 meeting is called a special meeting. If the meetings are going to be held only once a month, why not update Channel 2 to so state? Ms. Land also stated that she is involved in the recall and has not misled anyone that signed the petition. We are done collecting signatures and turned them into the City on March 26. The City is doing a raw count on the signatures and will then forward them to Merced County for signature verification.
City Attorney Hobbs stated that the meeting was moved to March 4 because of a court hearing that was held on March 3. It was to the benefit of the City Council to receive the court ruling prior to the City Council meeting. By the Brown Act law, a meeting being held on any date other than the regularly scheduled date, must be agendized as a special meeting.
Mayor Pro Tem Vierra requested that item #5 be pulled for consideration at the next City Council meeting. He said the City has an ordinance that that requires three votes on this item. Mayor Pro Tem Vierra said that he is going to vote against item #5.
The following items were presented for Council consideration under the consent calendar:
4. Approval of Lease of City-Owned House.
5. Approval of Merced County Association of Governments Work Program and Budget for Fiscal Year 2010/2011
Continued to the next regular City Council meeting. .
6. Resolution Approving the Expansion of the Merced County Regional Enterprise Zone Boundaries. (Resolution No. 2010-08).
7. Authorization for the City Manager to Enter into an Agreement with the Merced Union High School District for the Installation of the Exterior Lighting at the High School as funded by the U.S. Department of Justice under the COPS Secure Our Schools Grant Program.
8. Resolution to Award a Traffic Signal Maintenance and Emergency Repair Services Contract to Republic ITS of Novato, California and Authorize the City Manager to Execute the Agreement. (Resolution No. 2010-09).
9. Resolution Approving updated Owner Occupied Rehabilitation and First-Time Homebuyer Program Guidelines. (Resolution No. 2010-10).
10. Approval of Meeting Minutes of December 1, 2009.
11. Approval of Warrant Register Dated February 10, 2010.
12. Approval of Warrant Register Dated February 24, 2010.
Motion: M/S Vierra/Nateras to approve the consent calendar as presented with the exception of Item #5. The motion carried 3-0.
DISCUSSION AND POTENTIAL ACTION ITEMS
13. Consideration of Planning Commission Appointments.
Mayor Pro Tem Vierra stated that one of the applicants lives outside the City limits. He said that he does not think they can be on the Planning Commission. City Attorney Hobbs stated that to be on the Planning Commission the applicant must reside within the City limits.
Mayor Varela asked if anyone wanted to nominate and discuss candidates. Council Member Nateras said that she would like to nominate Hugh Salgado, Alex Gonzales and David Talbot.
Mario Mendoza, no address given, said that there were only three candidates that applied for the Planning Commission by the original application deadline. The deadline was then extended 30 days by Mayor Varela. He asked if any of these nominations applied after the deadline.
Mayor Varela asked who had applied. Mr. Mendoza said they were Luis Flores, David Blevins
Community Development Director Donna Kenney said that there were only two applications received by noon on the day of the original deadline. The City put a public notice in the newspaper extending the deadline for 30 days.
Mayor Varela stated that the City Council is looking for Planning Commission members that are proactive in the community and have a positive attitude about the City. Mr. Mendoza said that he was a construction supervisor for a couple of years and he knows the codes. He said that maybe one of these days we can all meet together. Mayor Varela asked what he meant by that. Someone in the audience said to go swimming.
Council Member Nateras suggested that the City Council interview the candidates.
Warren Urnberg, 1331 Eighth Street, said only three people applied prior to the original deadline. Then the Mayor extended the deadline. He asked if the City Council had interviewed any of the candidates. He said in the past two City Council Members interviewed the candidates and brought their names forward. The two people that applied prior to the first deadline should be given priority.
Community Development Director Kenney said that there were two deadlines. One deadline was the Planning Commission application deadline and the other was the newspaper deadline to get the vacancy notice published in the paper. There were only two applications submitted by the newspaper deadline. After she sent the notice to the newspaper, Mr. Flores brought his application to the City.
Gurpal Samra, 1034 J Street, asked if the deadline was based on the newspaper deadline or the end of the business day. He said that the original three applicants that applied by the end of the business day of the original deadline should be interviewed. If the City Council does not like them, they can reject all of them and start the process all over again.
Ralph Mull, 1445 First Street, spoke stated that those who submitted applications by the deadline should have priority.
Julio Valdez, no address given, asked what is the criterion for a Planning Commissioner? City Attorney Hobbs noted there is no published criterion and it is at the discretion of the Council who they want to appoint. He asked the Mayor what he meant by being proactive in the community? The Mayor responded that it is different than what Mr. Valdez thought.
City Attorney Hobbs said that this is a time for public comment. It is not a time for interrogation of City Council members. You can ask questions and the City Council can answer them if they desire. The City welcomes comments from the public.
Julio Valdez said that being proactive means being out in the community and doing what they think is right for the community. You can have disagreements and be proactive.
M/S Varela/Nateras to conduct Planning Commission interviews at a special meeting for all candidates on March 16, at 5:30 p.m. The motion carried 3-0.
Mike Sperry said that he wanted to be included in the special meeting on March 16. Mayor Varela said that the meeting would be limited to interviews of Planning Commission candidates.
14. Consider Adoption of an Urgency Ordinance Establishing a Moratorium on Medicinal Marijuana Dispensaries.
This item was continued to the next regular meeting.
15. Update and Report on Water and Wastewater Rates.
City Manager Warne said that Council Member Nateras asked for an update on the revenues and expenditures for the Water Enterprise Operating Fund and the Domestic Wastewater Enterprise Fund. City Manager Warne gave his presentation.
Ricardo Soria, no address given, asked for a breakdown of the expenditures. City Manager Warne recommended that Mr. Soria make an appointment with the City Finance Director to obtain this information and answer any questions he might have.
Mario Mendoza, no address given, said that the asked why rates are being raised so much. City Manager Warne referred Mr. Mendoza to the rate study, which outlines operating costs, capital costs and how much revenue is needed over the next five years.
Gurpal Samra, 1034 J Street, asked how much of the deficit is for attorney fees and how much is for operating costs? He said that the judge ruled against the City. Mr. Samra said he recognizes the need for an increase, but the way it was done is what the community opposes. This recall process is all that can be done. They do not have the resources of Foster Farms. Do not appeal the judge’s order. Give people their money back, go back to the old rates and start all over again. Do not listen to the City Attorney.
Myra Bettencourt said she moved to Livingston in 2005. Ms. Bettencourt stated that she has been hearing about the water rate issue for five years. She stated that this City Council is the only City Council that has had the courage to take action. The previous City Council members talked about it, but nothing was done. The people know that this had to be done. She said that she supported the City Council members that raised the rates.
Julio Valdez agreed that the rates needed to go up. He feels the increase is too much. He respects the City Council. Mr. Valdez asked what the City is going to do about the lawsuit. City Attorney Hobbs noted that an appeal has been filed. Mr. Valdez asked how much it would cost to appeal the decision. City Attorney Hobbs said that the matter is in litigation and he has no comment. He suggested that the City do something about the trash. He asked if the City could cut the frequency of the garbage collection?
Mayor Varela said that there is pending litigation and the City Council is unable to respond. Mr. Valdez said that he has businesses in other cities and he pays less in these locations.
Bob Kuyper, 1811 Park Street, Pastor of the Livingston Methodist Church, noted that he does not attend many City meetings, but is appalled at what has taken place tonight. He said that if they have a budget shortfall at his church, they can either increase revenues through donations or cut expenses. Often when they come up with budget cuts, people oppose the cuts. It is the same with the City. Cuts must be made somewhere. Can we live with fewer police officers? Can we live with more potholes? Let us let the parks dry out and have brown grass. How about the Fire Department? We can put out the fires with the cheap water, but we will have to do our own firefighting. Everyone that opposes the water rate increase should be prepared to suggest cuts, otherwise do not speak at all. The City is not the Federal Government and cannot borrow money long-term. The budget needs to be balanced.
Katherine Schell Rodriguez, P.O. Box 163, stated that if water rates had been adjusted every five years since 1995, then the rate increase would not be such a shock. If the results of the last water rate study had been adopted, then maybe we would not be here. If the prior City Attorney was right that the prior water study was not defensible in court, then she was right to order a new water rate study. If she was right to order a new water rate study, then she had a duty to be sure that the consulting firm she chose was able to do the job right. If she was right in her choice of consultants, then the consulting firm did their job right and the numbers are right. If the numbers from the consultants were right, then the water rate scenarios based on the numbers were right. If the water rate scenarios based on the numbers were right, then the City Council had a clear choice between three rational, but painful alternatives. Therefore, if the prior City Attorney did her job right in hiring the consultants and the consultants did their job right, and result was three painful, but rational alternatives, and all of the City Council members really had faith in the prior City Attorney, and all of the City Council members believe the consultants that she hand picked, then it would have been a 5-0 vote in favor of one of these alternatives and we would not be here now.
Luis Flores, 707 Almondwood Drive, stated that the water rate that was voted on was not one of the three scenarios presented. He said it was a mixture of two scenarios. He asked when the Gilton contract will be up. He asked if there was going to be an update on the water rates when the judge ruled on the Davalos case.
Ralph Mull, 1445 First Street, said he realizes that as a business owner increases are inevitable. He said that the rate increase was drastic. Could they have been so drastic? He said that he did not know. If the City has an excess amount of money, where is money going to go? Will it be used to upgrade the water and sewer systems? Or will it be used to fight lawsuits? He wants to be sure that the City looks at the big picture. Unfortunately, prices need to increase. We need to look at the big picture. We are going to have the raise them sooner or later. People are complaining that the rate increases are so drastic.
Warren Urnberg, 1331 Eighth Street, stated that a smaller increase could have been implemented two years ago. He recommended to the City Council raising the rates $10 or $20 dollars. The City Council went back and forth on this issue. He asked when do residents get their water bill and how it will be rated?
David Mendoza asked if the City Council votes on the appeal. City Attorney Hobbs noted he would not comment on pending litigation. He asked how much the City was wasting on the construction of the baseball fields. Mayor Varela said that the baseball fields are going to be built using grant funds.
Council Member Nateras asked City Manager Warne when utility bills would be sent out. City Manager Warne said that the City would start calculating the bills tomorrow. The bills will probably go out early next week.
Council Member Nateras asked why the City delayed sending out the utility bills. City Manager Warne said that the City waited for the ruling of the judge in both of the lawsuits.
Mayor Varela closed the public comment at 8:58 p.m.
Council Member Nateras said that water rates had to be raised and the City Council went with the least painful scenario and reduced it 15 percent. She said that the people complaining about the legal fees are the ones causing the legal fees through the recall effort. She said that this would be an awesome community if everyone worked together.
16. City Manager Announcements and Reports.
The meeting was adjourned by consensus at 9:03 p.m. ______________________________
City Clerk of the City of Livingston
APPROVED: May 4, 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.