DECEMBER 14, 2010



DECEMBER 14, 2010
7:00 P.M.

The regular meeting of the Livingston Planning Commission was held in the City Hall Conference Room on Tuesday, December 14, 2010. The meeting was called to order by Chair Soria at 7:00 p.m.

Commissioners Present: Chair Roy Soria, Commissioner Luis Enrique Flores, and Commissioner Alex Gonzalez.

Commissioners Absent: Alternate Commissioner Manoj Bains (Excused)

Staff Present: Administrative Assistant Filomena Arredondo, Community Development Director Donna Kenney, Acting City Manager Vickie Lewis, and Interim City Attorney Jose Sanchez.

Others Present: Council Liaison Theresa Land, Katherine Schell-Rodriguez, Serafim Aguiar, and David Blevins.


The pledge of allegiance to the flag was recited.


Jose Sanchez from the law firm of Meyers Nave of Sacramento, California, introduced himself as the Interim City Attorney for the City of Livingston. He has been serving in this position since the end of September 2010.

Commissioner Flores asked him what his Alma matter was.

Mr. Sanchez replied he grew up in Gustine, CA, and graduated from Gustine High School. He attended UC Davis for his minor grad followed by the University of San Francisco School of Law.



Commissioner Flores questioned if AT&T had submitted to the City the structural report for the antenna tower on Walnut Avenue for the Clearwire Project as stated on page 3 of the August 10, 2010, Planning Commission minutes.

Director Kenney replied that it was submitted and reviewed and the antennas had already been installed.

Motion by Commissioner Flores, seconded by Commissioner Gonzalez, to approve the minutes from the regular meeting of August 10, 2010. Motion carried 3-0.


Members of the Audience

Katherine Schell-Rodriguez, P.O. Box 163, Livingston, stated that the temporary stop signs placed at the corner of Park and Main Streets when the school construction project began on Peach Avenue was a good idea. She feels it is a much safer intersection now, especially during the heavier traffic hours before and after school. She added that since everyone is now trained to stop there, the City should consider keeping the stop signs permanently.

Director Kenney said she would relay that to the City Engineer.



This item was continued from the regular Planning Commission meeting of March 9, 2010.

Director Kenney presented the staff report and recommendation.

Mr. Aguiar applied for a Site Plan/Design Review and a Conditional Use Permit to be able to keep the gate, chain, and lanterns and posts on his front yard fence and a rear patio structure which currently do not meet the height requirements per City code. Mr. Aguiar and his daughter brought a lot of pictures and made a presentation at the March 9, 2010, Planning Commission meeting to show the work being done. The Planning Commission voted to continue this item for six months to give Mr. Aguiar additional time to comply with code requirements. Prior to this meeting, Director Kenney sent Mr. Aguiar two letters to remind him about the upcoming meeting

and attached a copy of the minutes from March 9th to remind him what items he needed to work on. This item should have been brought back to the Planning Commission in October; however, the regular meetings were cancelled for the months of October and November.

Director Kenney explained that this item came forward through neighbor complaints before the City had a code enforcement officer on staff and before the nuisance ordinance was adopted. Therefore, there was not a lot in the code that staff could refer to, to follow up on the complaints received, except for the height of some of these items. There were other parts of the yard that needed to be cleaned up (such as removing old vehicles and some machinery parts) due to other smaller sections of the code, but staff was not yet able to use the nuisance code.

Director Kenney took pictures of Mr. Aguiar’s property in March, October, and December. A great deal of work was completed between March and October that made the nonconforming height situation a little bit better. For example, there was a 9-foot tall gate that was reduced to the fence height and was later replaced with some wrought iron fencing, but then when she went out to take pictures in December, she saw that this fence had changed again and now had a sailing ship and some lions and chains on it. In fact, it was the same issue again; making it taller than the height he had brought the fence down to, so this is an ongoing process.

Staff recommends denial of both the Conditional Use Permit and the Site Plan/Design Review due to the findings listed in the staff report and resolution. She added that she would like to go back and take the code enforcement officer to meet with Mr. Aguiar and go through his yard and discuss what he has to do to bring it into compliance. She provided the Planning Commission with a Google map of Mr. Aguiar’s property downloaded on June 14, 2010. The map clearly shows that Mr. Aguiar’s yard is not compatible with other yards in the neighborhood, which is one of the findings.

Interim City Attorney wanted to make some comments before getting any public comments. He mentioned that he has been discussing this issue with Director Kenney and added that this issue came about before there were other ordinances in the Municipal Code that may play a role. He wanted the Planning Commission to keep in mind that their action at this time is really only focused on the height. He explained that if this item gets approved, this doesn’t mean that everything is now legal and can stand as is. All this is doing is making the height legal. Because there are other issues going on as mentioned in the staff report (such as building permits for possible electricity), one option is that the property owner withdraw the application and work together with City staff to see if a lot of these code violations could be corrected before going back to the Planning Commission on the height issue. He thinks that they can benefit a lot from continuing to work with the applicant now that we have the nuisance code and explain to the applicant what he needs to do to come into compliance. At a later point, if things need to come back to the Planning Commission, they come back after having that opportunity to work with the applicant.

Chair Soria opened the Public Hearing at 7:14 p.m.

Katherine Schell-Rodriguez, P.O. Box 163, said she hopes that the Planning Commission and the Council, thereafter, can figure out a way to work with Mr. Aguiar because a lot of what she sees in his yard, although she would consider it a little eccentric or a little bit unusual, was there for years and is his own artistic vision and it seems that what has happened over the years is that some people have decided that they don’t necessarily like Mr. Aguiar’s artistic vision and even though a lot of his stuff was there first, they want it gone. This clash of something that was there first before another may have moved to the neighborhood is an issue that our little town is grappling with and has grappled with in the past. She can remember not too long ago, for example, there were people who had moved into the City recently that wanted cyclone fencing removed from throughout the entire City because they thought cyclone fencing was ugly and brought down property values. So this idea of what is art and what is one person’s idea of a castle and what somebody else’s idea is of junk is something that the City is going to have to figure out a way to deal with and she certainly doesn’t think that it’s fair for him to have to pull down all, if not most, of his lawn art just because it is things that other people may not choose as their own particular way of decorating their yard. Some people decorate with wrought iron; some people decorate with trees and plants. Not everybody chooses to decorate their house in the same way. She is hoping that some kind of compromise can be worked out for this gentleman because at least he went through the time and the expense and the effort to apply for a Site and Design Review and a Conditional Use Permit and he came up with a presentation and he is here and that at least deserves some kind of respect and accommodation. He has worked for it. He is working for it. He shall be working for it. He has earned it.

Chair Soria closed the Public Hearing at 7:18 p.m.

Commissioners’ Questions/Comments:


· Agrees 100% with compromise. He asked if denying this Conditional Use Permit will mean City staff will have to go out to the property again.

Director Kenney responded it means they would go out to the property, meet with the applicant and work with him.

Interim City Attorney Sanchez explained that what they have to focus on is the height. Section 5-4-3 of the Municipal Code would require approval of this Conditional Use Permit in order for something to exceed the height limits of the Code. Therefore, denying this does not address the other issues that still need to be addressed and that is why he made that recommendation.


· Wondered why the applicant chose the Statue of Liberty, thus making it taller.

Serafim Aguiar introduced himself as a hard-working American Citizen who came to the United States from the Azore Islands 44 years. He has worked in dairy farms for 30 years and works an average of 70 hours a week.

In response to the question of why he chose the Statue of Liberty, he said it is something that meant a lot to him being that he flew over New York when he first came to the United States and this was a form of respect to the U.S. flag. It stands two (2) feet tall.

Most of these items are made out of metal, except for the Statue of Liberty, which is a little bit different, and the chains in his front yard that came from a war ship that was being taken apart. He put them in his front yard because he wanted to do something different from everyone else. He added that he had this little aluminum replica of a sailing ship and he put it up thinking that maybe the Planning Commission would understand his situation and grant him permission to keep it. As for the lamps, he stated these lamps mean a lot to him and cutting them off is like cutting off a person’s neck.


· Thinks the Planning Commission should try to resolve this issue rather than passing it on to City Council. Since they are only acting on the height, if they were to deny this project, it will then go to the City Council and staff will still have to work with Mr. Aguiar to resolve all the other issues, so instead why not grant Mr. Aguiar more time and have City staff continue working with him?

Interim City Attorney Sanchez said this could be accomplished if the property owner withdraws his application for the Conditional Use Permit and Site Plan/Design Review. Since the Conditional Use Permit is already on paper, it could easily be replicated if it needs to come back to the Planning Commission and it will not accrue any other charges.

He explained that you first want to go through certain code enforcement procedures of working with the applicant in a manageable way so you can resolve the issues. It would be an easier decision to make if all other issues would get resolved first and the only thing left would be to deal with the height issue.

Attorney Sanchez noted than although the applicant was being artistic and different, there is still the Livingston Municipal Code that has certain codes for a reason. There are different laws that don’t just allow everything to go up. He added that there are findings that the Planning Commission also has to make to issue a Conditional Use Permit or a Site and Design Review and it has to be in harmony with the rest of the community or the adjacent properties.

Commissioner Flores questioned if the option of extending time or working collaboratively with City staff is something that the applicant even wants.

Mr. Aguiar said he appreciates this option about more time, but he is not sure he will be able to shrink the height since, as he mentioned earlier, not having the lanterns is like a person with no head.

Interim City Attorney Sanchez explained that when the Planning Commission and City Council decide on the actual height, they have to look at other things, not only at the height; they will look at how that height of those structures blends with the rest of the community and they will look at what kind of structure it is and how it all blends together. Therefore, if things are done to make it blend a little more with the surrounding properties, it may help the decision of the Planning Commission and the Council. They may be able to see it more in harmony to the rest of the community. Right now the findings in the resolution say the opposite, the height right now, because of other situations that are going on with the fence itself, does not blend with the rest of the community.

Mr. Aguiar replied that if they were going to give him a heart attack, they might as well give it to him now.

Mr. Aguiar talked about the metal structure in the rear yard that was compared to monkey bars. It was put there approximately 26 years ago. He added that at the March meeting, everyone saw enough of what is there. Some may call it a bunch of scrap metal put together or, on the other hand, something that you put together with patience and a certain plan as it became the ornamental thing, but it is ultimately up to the Planning Commission’s discretion.

Commissioner Flores moved to recommend approval of this project and added that he is a fan of this property. He likes its eccentricity and uniqueness in the City of Livingston and Merced County.

Interim City Attorney Sanchez asked for clarification of the motion. He asked if the motion was to grant a Conditional Use Permit and to recommend approval of the Site Plan/Design Review.

Commissioner Flores responded that he was recommending approval of both Conditional Use Permit 2010-01 and Site Plan/Design Review 2010-01.

City Attorney Sanchez clarified that the Conditional Use Permit would automatically go to the City Council as well as the Site Plan/Design Review because it doesn’t make sense to take the Site Plan/Design Review alone since both are required.

Commissioner Gonzalez asked what the Conditional Use Permit allows.

Intern City Attorney Sanchez replied that current code section is only for the height.

Director Kenney explained that it would allow the height to exceed the maximum per Code for the rear patio structure, the gate, and the posts and lanterns with chains.

Commissioner Flores asked if they would have a discussion after a motion has been made and seconded.

Chair Soria said a motion had been made, but it had not been seconded; therefore, he would entertain a second and if there was no second, the motion would fail for lack of a second.

Commissioner Flores’ motion was not seconded, so his motion failed.

Chair Soria asked for another motion.

Commissioner Flores questioned if all Commissioners present would have to agree in order for it to pass since only three were present.

Interim City Attorney Sanchez replied that since the Planning Commission is a five-member Commission, they had a quorum. What the decision requires is the majority of the quorum there, so that would be a 2-1 vote whether they pass it or deny it. If there is no decision made, it automatically goes to the City Council.

Chair Soria made a motion to adopt Resolution 2010-08, A Resolution of the Planning Commission of the City of Livingston Denying Conditional Use Permit 2010-01 for 1333 Second Street and Resolution 2010-09, A Resolution of the Planning Commission of the City of Livingston Recommending to the City Council the Denial of Site Plan/Design Review 2010-01 for 1333 Second Street.

Commissioner Gonzalez seconded Chair Soria’s motion after stating that he is huge fan of the art, but he also believes in code enforcement. He recommended that the applicant work with staff and get the required permits to hopefully get to keep what he has there, but it should be done the right way.

Commissioner Flores asked if they could have a discussion before taking roll call.

Intern City Attorney Sanchez said it was up to the Chair to open it up for discussion again.

Chair Soria allowed the discussion.

Commissioner Flores stated it is a real shame they are voting this way and added that he hopes that the City Council can reach a compromise with the applicant so that his art does not have to be sacrificed.

Chair Soria noted that his intent was to give the applicant more time and have staff continue to work with him, but it did not work out that way and hopes the City Council can work something out.

The motion carried 2-1 by the following vote:

AYES: Chair Soria and Commissioner Gonzalez

NOES: Commissioner Flores

ABSENT: Alternate Commissioner Bains

Interim City Attorney Sanchez explained to the property owner that this item will be heard by the City Council and they will make the final decision. He added that although the Planning Commission normally grants Conditional Use Permits, this Conditional Use Permit would be sent to the City Council as well because of a typographical error in the code requiring both a Conditional Use Permit and a Site and Design Review for this project.

Director Kenney noted that the next regularly scheduled Council Meeting is January 4, 2011, at 7:00 p.m., but this item may have to wait until the second meeting in January on the 18th.


Planning Commission


· Wished everyone a safe and great holiday.

· Welcomed new legal staff member Jose Sanchez.

· Welcomed City Council Liaison Theresa Land.

· Encouraged businesses to start developing and investing in the City of Livingston.

· Questioned if Director Kenney had any updates on the hotel and/or supermarket projects.

Director Kenney said she currently does not have any updates on the larger projects. This time of the year tends to be very quiet and many people take days off during the holidays. She hopes to have something to report at their next Planning Commission meeting.

· Asked if there is any way to remediate the traffic congestion over by the Community Center on Prusso Street during weekday mornings, between 7:15 a.m. and 8:15 a.m.

· There will be a meeting on Monday, December 20th, at 7:00 p.m. for those interested in reviving the 4th of July movement. They need a lot of support from the community.


· Seconded Commissioner Flores’ encouragement for business development in Livingston. He thinks we really need it, especially small businesses.

· Great features are being constructed at the high school.

· He is glad to hear that the second skate park workshop attendance was much better than the first one.

· He also thinks the stop signs on Main and Park Streets are wonderful there.

· He is concerned about the two lines before the stop sign on Peach Avenue and Main Street. There are two lines four (4) feet apart and people get confused and don’t know where to stop their car, if on the first or the second line.


· Welcomed Theresa Land to the City Council.

· Welcomed aboard Interim City Attorney Jose Sanchez.

· Wished everybody happy holidays.

City Staff

Community Development Director Kenney

· Wished everyone happy holidays.

· Congratulated new Council Liaison Theresa Land, Interim City Attorney Jose Sanchez, and Acting City Manager Vickie Lewis. She has no doubt that they will all do a fine job.

· The second skate park workshop was a great success. There were close to 60 people in attendance. People can visit the City’s website at and find the link that goes directly to the concepts that were designed at the workshop and sometime during the first week in January, people should be able to actually go online and vote on the concepts that they liked best. She added that she will keep everyone posted as to when the next meeting will be held.

Administrative Assistant Arredondo

· Wished everybody a Merry Christmas and Happy New Year.

City Attorney Jose Sanchez

· Wished everybody happy holidays.


The regular meeting was adjourned by consensus at 7:53 p.m.

APPROVED: January 11, 2011

______________________________ _______________________________

Chair, ROY SORIA Secretary of the Planning Commission,



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