JULY 19, 2011 Draft Minutes

MEETING MINUTES

CLOSED SESSION/REGULAR MEETING

LIVINGSTON CITY COUNCIL

JULY 19, 2011

A Closed Session/Regular Meeting of the Livingston City Council was held on July 19, 2011, in the City Council Chambers with Mayor Espinoza presiding.

CLOSED SESSION

CALL TO ORDER

Mayor Espinoza opened the meeting at 5:33 p.m.

PLEDGE OF ALLEGIANCE

The pledge of allegiance to the flag was recited.

ROLL CALL

Mayor Rodrigo Espinoza

Mayor Pro-Tem Margarita Aguilar

Council Member Frank Vierra

Council Member Theresa Land

Council Member Gurpal Samra

Mayor Espinoza opened the meeting for public comments. There were no public comments.

The City Council subsequently adjourned to the City Hall Conference Room for Closed Session to discuss the following matters:

1. Conference with Legal Counsel – Existing Litigation

Government Code Section 54956.9(a)

a. City of Livingston v. The Dow Chemical Company, et al.

San Francisco Superior Court, Case No.CGC-05-442837

San Bernardino Superior Court, Case No. SVCSS 120627

Judicial Council Coordination Proceeding No. 4435

2. Public Employee Appointment

(Government Code Section 54957)

Title: Interim City Manager

3. Public Employee Discipline/Dismissal/Release

(Government Code Section 54957)

Public Employee: Unrepresented Employee

OPEN SESSION

The Council came out of Closed Session and returned to the City Council Chambers into Open Session for the Regular Meeting.

REGULAR MEETING

CALL TO ORDER

Mayor Espinoza opened the meeting at 7:01 p.m.

PLEDGE OF ALLEGIANCE

The pledge of allegiance to the flag was recited.

ROLL CALL

Mayor Rodrigo Espinoza

Mayor Pro-Tem Margarita Aguilar

Council Member Frank Vierra

Council Member Theresa Land

Council Member Gurpal Samra

CLOSED SESSION ANNOUNCEMENTS

City Attorney Jose Sanchez indicated there was nothing to report at this time and the City Council would resume Closed Session after the Regular Meeting.

CHANGES TO THE AGENDA

Interim City Manager Vickie Lewis stated she needed to pull Item 9 due to last minute changes by the property owner.

AWARDS, PRESENTATIONS, APPOINTMENTS AND PROCLAMATIONS

1. Presentation by Glenn Tomasyan Regarding Solar Power at the Domestic Wastewater Treatment Plant.
Glenn Tomasyan presented the information and provided an introduction to solar power. Mr. Tomasyan provided his background information and the benefits of solar power.

2. Presentation of Certificates of Appreciation to 4th of July Committee Members.

Mayor Espinoza presented Certificates of Appreciation to members of the 4th of July Committee.
Mayor Espinoza thanked the Committee members for the great fireworks display and noted that in spite of hurdles, everything turned out great.

Mayor Pro-Tem Aguilar stated this group worked so hard and was assisted by City Staff. She commended each Committee member for being at the meeting tonight. Mayor Pro-Tem Aguilar commented that as a Council Member she promised a few months back that the event would happen and it did due to all of the supporters. Mayor Pro-Tem Aguilar thanked Mayor Espinoza for being present at the event and to everyone for making her promise come true. She noted that it was because of people like this that make this City a great place to live.

Julio Valadez thanked the community for making the event happen. He also thanked everyone at City Hall, Police, Public Works, vendors, and the families of the Committee members. Mr. Valdez thanked everyone who donated with a special thank you to Katherine Schell Rodriguez for the donations for the children. Mr. Valadez noted that Monica Aguilar, Mike and Theresa Andam and Joylynn Peterson could not attend the meeting, but he wanted to thank them and everyone as well.

ANNOUNCEMENTS AND REPORTS

Supervisor John Pedrozo Announcements and Reports.

Brenda Valenzuela-Porras, Administrative Assistant to Supervisor Pedrozo reported there was a meeting for the high-speed rail last week and it went very well. She reported that Supervisor Pedrozo had been appointed Vice Chair of the California Highway Patrol Advisory Board. Ms. Valenzuela-Porras reported the Board of Supervisors had narrowed the redistricting plans down to two. There would be two more meetings to discuss redistricting on Wednesday, July 20 at 7:00 p.m. and on Thursday, July 21 at 7:00 p.m. at Merced Tri-College Center and there would be follow up meetings in August.

Council Member Vierra commented on an email the City Council received and noted that from what he could see, E and F are two tracts that are east of Dwight Way and still not in Supervisor Pedrozo’s district.

Brenda Valenzuela-Porras stated she was informed by Supervisor Pedrozo that the Board of Supervisors was trying to keep all of Livingston in District 1 and she would follow up on that.

Council Member Vierra stated that some of the people in those areas didn’t vote in the election because they had to go to the election office in Merced to vote because they were not in Supervisor Pedrozo’s district.

Mayor Espinoza stated this was a big deal to Livingston citizens because some of the citizens could not vote in the City and had to go somewhere else within the County to vote.

City Staff Announcements and Reports.

Community Development Director Donna Kenney thanked everyone who participated in the three monthly Citywide yard sales. She reported last year there were 75 participants at one event and this year there were about 45 participants for each event. She thanked everyone who participated.

City Engineer Nanda Gottiparthy provided an update on the Peach Avenue improvement project. City Engineer Gottiparthy reported the landscaping and irrigation were completed last week. The next step would be to assemble a punch list of things to be completed. City Engineer Gottiparthy indicated this process typically took 2-3 weeks to complete. He anticipated by the next meeting the project should be brought back to the City Council for approval. City Engineer Gottiparthy indicated the contractor is aware the City was anxious to complete this project and open the street.

A lengthy discussion ensued on various issues and concerns on the project. Ultimately, Mayor Espinoza indicated Peach Avenue should be open by the first City Council meeting in August.

Community Development Director Kenney reported the Planning Commission had been reviewing the Sign Ordinance and was attempting to solicit input from the community and business owners. She invited all those interested to the next Planning Commission meeting at 7:00 p.m. on August 9th.

Interim City Manager Announcements and Reports.

Interim City Manager Vickie Lewis reported staff was diligently working on the budget and it was anticipated that City Staff would provide the numbers to the Utility Stakeholders Committee on the capital improvements project so review of utility rates could start moving forward soon.

City Council Members’ Announcements and Reports.

Council Member Land reported at the last Planning Commission meeting on July 12th the Commission approved a Resolution by a 3-0 vote stating the City Council must approve the Resolution of Intent by the Planning Commission prior to initiation of the project. She also stated a Resolution was approved by a 3-0 vote determining general plan consistency and with a recommendation to implement the programs in the 2009-2014 Housing Element.

Mayor’s Announcements and Reports.

Mayor Espinoza introduced City Attorney Adam Lindgren who was covering for City Attorney Jose Sanchez. He also stated at the last meeting the City Council approved a land lease agreement for 40 acres the City owns on Vinewood Avenue. Mayor Espinoza asked to setup a separate fund where funds from the land lease could be placed so that those monies would be kept track of separately.

Interim City Manager Lewis stated that this was rental property at the domestic wastewater treatment plant, so the rent money would go back to the wastewater fund. She commented that if the City Council had a particular interest in setting aside those revenues for a particular project, City Staff could set revenues aside and then carry the funds forward from year to year with its own line item.

Mayor Espinoza stated he thought it would be a good idea to set the funds aside.

Interim City Manager Lewis stated the funds would remain in the same fund and would have a revenue line item.

PUBLIC HEARINGS

3. Introduce and Waive the First Readings of Ordinance Nos. 591 and 592 of the City Council of the City of Livingston Amending Livingston Municipal Code (LMC) Title 5, Chapter 5, Table 12, Permit Requirements for Wireless Communication Facilities, and LMC Title 5, Section 5-6-9, Subsection F, and LMC Title 5, Section 5-6-10, Subsection D, relating to Appeal Hearings for Conditional Use Permits and Variances.

Community Development Director Donna Kenny presented the public hearing item.

Mayor Espinoza opened the hearing for public comments at 7:55 p.m.

Katherine Schell Rodriguez, P.O. Box 163, Livingston referred to the cell phone tower and the addition of antenna parts and commented if the City Council adopted this recommendation then it meant that unless someone was present at the Planning Commission meeting at which a Conditional Use Permit (CUP) was approved unless that person might be against it and physically had to be at the meeting they could not appeal the decision to the City Council. So the process would skip the City Council entirely and the person would have to pony up the fee if necessary to appeal, so someone might not be able to make the meeting and had concerns or a City Council member might have concerns, then it was taken away from them. That was her understanding.

Community Development Director Kenney explained that a person didn’t need to be physically present, they could have someone represent them or voice their concern in writing.

City Attorney Lindgren added it also didn’t prevent someone, once there was an appeal, from actually speaking once the appeal was presented to the City Council.

Katherine Schell Rodriquez commented that unless there was an actual appeal and someone spent money for an appeal the matter would not go to the City Council. She asked for the cost of an appeal.

Community Development Director Kenney stated $200 and if the person won the appeal they would get back $100. She noted that the City Council did have the authority to waive the cost of the appeal.

Kathryn Schell Rodriquez asked if the City Council could make an appeal themselves.

City Attorney Lindgren replied no, the language did not include a City Council call up provision.

Mayor Espinoza stated in the past any Council Member could appeal to the City Council. He said it might not be in the Code, but he thought this was a policy of the past.

City Attorney Lindgren stated he was just looking at portions of the Municipal Code.

Mayor Espinoza asked if the City Council did appeal would the appeal go back to the Planning Commission.

City Attorney Lindgren asked Community Development Director Kenney if it was already codified that there was a call up provision somewhere else in the Code. He stated he was not sure if this was something the City Council wanted, but the provision could be added if this was the desire of the City Council.

Community Development Director Kenney commented she was not aware of any such provision.

City Attorney Lindgren stated at the City Council’s pleasure, they could call up those items of concern. He said if it had been a desired practice of the City Council, it would probably be a good idea to add the provision as a quick ordinance change.

Council Member Vierra stated he didn’t think it was wise for all five Council Members to be at a Planning Commission meeting to listen so that they could appeal. He said he would not want to put the City Council in that position.

Mayor Espinoza stated he agreed that a liaison should be there.

Council Member Samra commented that Council Member Vierra was right. Council Member Samra said he did not attend Planning Commission meetings because the City Council wants the Commissioners to do their jobs. He commented if the call up provision was in the Code now, it needed to be codified. Council Member Samra added that in the future, if the City Council Commission wished to bring it up they could, as he did not have a problem with the Conditional Use Permit.

Luis Flores, 707 Almondwood Drive stated he would recommend approval of the items before the City Council. He added he had concerns with how the term “neighbor” was defined.

Community Development Director Kenney stated there were some concerns with the Planning Commission on the phrase about an “interested party.” For instance, if someone from Atwater or Planada came in and spoke they were an interested party, they could have influence. Community Development Director Kenney stated staff has been bringing Resolutions of Intent and amendment changes to the City Council. City Attorney Sanchez had mentioned if we were to get this far and there were significant changes, that it may have to go back to the Planning Commission. Would this be significant?

City Attorney Lindgren stated if it related to a topic that was never discussed or brought up, it didn’t necessarily have to be a topic written in or where someone would be adding new language, then it would have to go back to the Planning Commission. He also commented that with respect to this appeal issue this wasn’t really an issue that would go beyond just the narrow issue of these particular permits. City Attorney Lindgren stated his recommendation would be to go ahead with the action tonight as purposed and his firm would work with the City Manager’s office to write a simple ordinance to be introduced and give the City Council that call up authority on all planning matters. He said there would be a couple of sentences of actual change, but this would be done as a separate stand alone item. City Attorney Lindgren stated the City Council would not be voting or approving the call up provision item tonight. The City Council would be directing staff to write the provision.

Community Development Director Kenney stated the City requires a Resolution of Intent for any ordinance amendments so staff could be directed to come back with a Resolution of Intent at the next meeting.

City Attorney Lindgren commented that staff should bring back a Resolution of Intent at the next meeting.

Council Member Vierra asked does that resolution then go back to the Planning Commission.

Community Development Director Kenney replied that it does, but this would be a different section.

Council Member Vierra commented that would take two months to complete and asked why the City Council could not include it in the ordinance tonight.

City Attorney Lindgren explained the City Council could place the provision on the ordinance being considered tonight and added one additional suggestion, if that process for the Resolution of Intent is only required of changes having to do with the zoning code, one way of not triggering a Resolution of Intent would be to put the call up provision in the administrative section of the municipal code so that it would apply across the board and not only in Chapter 5.

Warren Urnberg, 1331 Eighth Street recalled that two or three years ago an item came before the Planning Commission which they passed and the Planning Commission directed the Community Development Director to appeal before the City Council. Mr. Urnberg asked if anyone else remembered the incident. He further asked how staff would put that in the language.

Community Development Director Kenney commented that she was once asked to bring an appeal forward on behalf of the City Council and that it didn’t go forward.

City Attorney Lindgren stated that the logic was that if you were making a change that affects the power or the responsibility of the Planning Commission, it wouldn’t make sense to put that in the municipal code where you first had to ask the Planning Commission for their permission. He commented that the City Council was the boss of the Planning Commission so if the City Council wanted to change something of the fundamental way they operate, the City Council could generally put that in a place within the municipal code.

Mayor Espinoza closed the hearing for public comments at 8:10 p.m.

Council Member Land stated that initially the proposal was for a new tower to change from a Conditional Use Permit to a Design Review and she liked to keep it that way. She added that this was an initial proposal and it meshed well. Council Member Land said she would like to see the Design Review come back before the City Council.

Mayor Pro-Tem Aguilar commented on the current tower location and noted that she too was requesting a Design Review versus a Conditional Use Permit because the City Council was able to listen to the issue at hand twice. Also the City Council was able to look more in depth into the project. Mayor Pro-Tem Aguilar asked Community Development Director Kenney that on the staff report for this item, the Planning Commission had deleted Footnote #2. If a Conditional Use Permit was approved that meant the Planning Commission actually agreed to let it go through without Council Members making that last decision on whether it was going to impact the neighbors or the environment. She felt the City Council should stick to the Design Review.

Council Member Vierra stated that if you had the choice to call it up before the City Council, you wouldn’t have that problem.

Mayor Pro-Tem Aguilar commented that on Page 3 of the staff report the Design Review was cancelled out and on Page 1 of the Ordinance she also thought that that the City Council was agreeing on the Design Review.

Community Development Director Kenney stated she was sorry, but had submitted the Planning Commission draft Ordinance.

Mayor Pro-Tem Aguilar stated one of the arguments was how tall the tower was going to be and as the City Council, they did not have a say in the matter.

City Attorney Lindgren asked if the City Council was clear on the Planning Commission’s recommendation.

Council Member Samra commented that he understood what the Planning Commission was proposing, but he had to agree with Council Member Land and Mayor Pro-Tem Aguilar that the tower needed to be a Design Review instead of a Conditional Use Permit. He added if someone had enough reason they could call and relay their concern to the City Council. Council Member Samra commented he would like to see a Design Review on the tower. He noted the City Council did need to leave the fees for the appeal, not for the City Council, so it would prevent a delay if someone didn’t like someone.

Council Member Vierra added that it could not be appealed by the City Council in the manner it was written now.

Council Member Samra commented, but if the City Council adds the call up provision then it could be appealed whether it was a Design Review or Conditional Use Permit.

Mayor Espinoza stated he wanted a Design Review for the tower.

City Attorney Lindgren stated that as he understood the City Council, on the first Ordinance on Page 1 identified as Table 12 the last two rows, all of those zones would be changed to Design Review, and that the motion would make that single amendment, and then adopt the Ordinance as requested with that same change being made to Exhibit A of that Ordinance identified as Item 1. City Attorney Lindgren said again, the motion would be to introduce both Ordinances and with respect to amend Table 12 towers and tower co-location so that it was Design Review in all columns and make the same change to Exhibit A where it was identified again in the same Table 12. Also to include the restoration of the language in footnote 2 on Page 1 of the first Ordinance and on Exhibit A of the first Ordinance.

Community Development Director Kenney reminded City Attorney Lindgren that the change did not apply to any residential columns where towers are prohibited. Council Member Vierra asked if the City Council was adding the call up provision.

Council Member Samra commented that he would like to add the call up provision, but this would just be a directive to the City Manager’s office.

Motion: M/S Espinoza/Vierra to Introduce and Waive the First Readings of Ordinance Nos. 591 and 592 of the City Council of the City of Livingston Amending Livingston Municipal Code (LMC) Title 5, Chapter 5, Table 12, Permit Requirements for Wireless Communication Facilities, and LMC Title 5, Section 5-6-9, Subsection F, and LMC Title 5, Section 5-6-10, Subsection D, relating to Appeal Hearings for Conditional Use Permits and Variances. The motion carried 5-0 by the following roll call vote:

AYES: Council Members: Espinoza, Aguilar, Land, Samra, Vierra

NOES: Council Members: None

ABSENT: Council Members: None

CITIZEN COMMENTS

Katherine Schell Rodriquez P.O. Box 163, Livingston relayed a thank you to the City Attorney who was here at the last City Council meeting for answering her questions and especially for clarifying that no, a city does not have to translate anything and everything into any language, dialect or slang just because someone asked as stated in the Merced Sun-Star. She added that it could be really frustrating when false and misleading statements and information was put out to the public because it creates false impressions unreasonable expectations and we end up wasting time arguing over the wrong things. Ms. Schell Rodriguez had questions regarding the April 7th Merced Sun-Star article that talked about Foster Farms dropping its lawsuit and that jogged her memory and a question. If she remembered correctly the closed session announcement about that was this case was dismissed without prejudice. She asked wasn’t there a difference with something being dismissed with prejudice and something being dismissed without prejudice. Didn’t without prejudice mean that that case could be brought back later unless there was a time limit and if there was a time limit when was or is Foster Farms’ time limit up. She also added additional questions as to general and eligibility requirements for boards, commissions, committees and city councils. Ms. Schell Rodriguez asked if it was true that a felony conviction would prohibit someone from being appointed or elected to Council and if so, what would happen if the criminal record was discovered after a person with a felony conviction took office. Finally, she asked if the Gilton contract was going out to bid this year.

Luis Flores 707 Almondwood Drive, asked if there was something on the books that pet owners need to have their pets on leashes and pick up after them.

Interim City Manager Lewis explained there were no signs posted to this effect, but there were a number of pages in the municipal code that dealt with animal control. She stated that Mr. Flores was addressing what was being left behind from the pets and this was not acceptable and the waste needed to be picked up by the pet owner. She added that she had spoken to Interim Police Chief Soria regarding this today, so Mr. Flores might let the individuals know that they could call the City immediately and the officers could respond and the pet owner could be cited. This was only enforced in the parks and was not enforceable Citywide.

Public Works Superintendent Kathryn Reyes commented that if someone knew of residents that had concerns about any matter they could fill out a citizen’s complaint form which lets the City keep a record of the concerns of incidents within the City and gives City staff an opportunity to address the concerns. She noted she would look into posting signs and disposable waste bags and suggested that information be placed on Channel 2 for public awareness.

Council Member Land stated that she was at Gallo Park and had talked to Lowrie Bickford from Public Works about putting up signs indicating that walking 3 laps would equal one mile. She noted there were some existing posts located at the park where the signs could be posted.

Public Works Superintendent Reyes added that Mr. Bickford was actually installing the signs in question in two locations at the park. She added there were a lot of walkers out there so that was good information for them.

Interim City Manager Lewis commented that she was working on the Request for Proposals for solid waste services currently contracted with Gilton Solid Waste Management and this would be looked into when the new City Manager came on board.

Mayor Espinoza added that the City Council was moving forward and was going out for Requests for Proposals and the City Council had been waiting seven years for this day to come.

Interim City Manager Lewis commented that even with the City Attorney’s opinion on that, there was a lot of discussion about if in fact that was the case. Currently the City Attorney was reviewing their opinion or attempting to.

CONSENT CALENDAR

4. Resolution No. 2011-49 Authorizing the Interim City Manager to File Regional Surface Transportation Program (RSTP) Funds Claim for Fiscal Year 2010/2011.

5. Resolution No. 2011-50 Awarding Construction Contract to Shannon Pump Company, Merced, California, Approving the Expenditure of Construction Funds for the Energy Efficiency and Conservation Block Grant (EECBG) – Replacement of Motors at Water Wells 8,9,11 and 13 – Grant No. CBG-09-093 and Authorizing the Interim City Manager to Execute a Construction Contract and Any Change Orders Thereto with Shannon Pump Company.

6. Approval of Minutes of Meeting Held on July 5, 2011.

7. Warrant Register Dated July 13, 2011.

Mayor Espinoza pulled Item No. 6 for a correction to the Minutes of July 5, 2011.

Motion: M/S Vierra/Aguilar to approve consent agenda items 4, 5, and 7. The motion carried 5-0 by the following roll call vote:

AYES: Council Members: Espinoza, Aguilar, Land, Samra, Vierra

NOES: Council Members: None

ABSENT: Council Members: None

Mayor Espinoza stated that on Page 5 of 7 of the Minutes his comment should state that “people in the community continue to keep farming.”

Motion: M/S Espinoza/Samra to approve consent agenda Item No. 6. The motion carried 5-0 by the following roll call vote:

AYES: Council Members: Espinoza, Aguilar, Land, Samra, Vierra

NOES: Council Members: None

ABSENT: Council Members: None

DISCUSSION AND POTENTIAL ACTION ITEMS

8. City Council to Provide Staff Direction for Appointment to the Livingston Parks and Recreation Commission.

Interim City Manager Lewis presented the item. She indicated that one application had been received and the Council could decide to appoint the applicant, Ashley Bates or continue to recruit and advertise again.

Motion: M/S Aguilar/Vierra to appoint Ashley Bates to the Livingston Parks and Recreation Commission. The motion carried 5-0 by the following roll call vote:

AYES: Council Members: Aguilar, Samra, Vierra, Espinoza, Land

NOES: Council Members: None

ABSENT: Council Members: None

9. Approve Resolution 2011-___, a Resolution Approving Amendment 1 to the Livingston Senior Citizens Center Lease at 420 Main Street and Authorizing the Interim City Manager to Execute the Amendment.

This item was pulled from the agenda and continued to the next meeting.

ADJOURNMENT

The regular meeting adjourned at 8:39 p.m. to continuation of the Closed Session.

CONTINUATION OF CLOSED SESSION IF NECESSARY

Mayor Espinoza opened the Closed Session at 8:40 p.m.

OPEN SESSION

The Council came out of Closed Session at 10:37 p.m. City Attorney Lindgren stated no reportable actions were taken.

ADJOURNMENT

The meeting was adjourned by consensus at 10:37 p.m.

________________________________

City Clerk of the City of Livingston

APPROVED: August 2, 2011

______________________________

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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