DECEMBER 29, 2011 Draft Minutes

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DECEMBER 29, 2011

7:00 P.M.

The special meeting of the Livingston Planning Commission was held in the City Council

Chambers on Tuesday, December 29, 2011. The meeting was called to order by Vice-Chair Mendoza at 7:00 p.m.

Commissioners Present: Vice-Chair Mario Mendoza, Commissioner Roy Soria,Commissioner Francisco Castellanos, Commissioner Harpreet Bains, and Alternate Commissioner Manoj Bains.

Commissioners Absent: Chair Luis Enrique Flores (excused).

Staff Present: Community Development Director Donna Kenney, Administrative Assistant Filomena Arredondo, and Assistant City Attorney Michael Minkler.

Others Present: Council Liaison Theresa Land; Greg Thompson, Joseph Gallo Farms; Frank Borges, Joseph Gallo Farms; Katherine Schell-Rodriguez; David Blevins; Colette Alvernaz; Nicole Alvernaz; Bob and Shirley Olson; Jean Okuye; Amanda Carvajal, Cindy Lashbrook; and others in the audience.


The pledge of allegiance to the flag was recited.


Vice-Chair Mendoza opened the public comment period at 7:05 p.m.

Assistant City Attorney Minkler clarified the public comment period is only for items not on the agenda.

Jean Okuye, P.O. Box 102, Cressey, asked who had called this special meeting.

Assistant City Attorney Michael Minkler explained this item was on the Planning Commission agenda of December 13, 2011. Given that the Environmental Review Document/Mitigated Negative Declaration was not ready in time for that meeting, it was turned into a discussion item and no action was taken. After that meeting, City staff contacted three (3) of the Planning Commissioners and coordinated a special meeting for December 29, 2011. Since the Planning Commission Chair was out of the country, he was unable to attend the special meeting; however, he did e-mail City staff a written comment to be read into the record.

Colette Alvernaz, P.O. Box 255, Livingston, stressed the importance of conserving water. She is very concerned about the water in our regional area. She was recently informed that some of the water we are consuming is 1,000 year old water. Let’s do our best to preserve our water.

Mrs. Alvernaz announced their sweet potato farm has been put in a permanent agriculture conservation casement. This is land owned by her father-in-law who is known as "Sweet Potato Joe." Mrs. Alvernaz expressed concern about the 42" trunkline which has not been CEQA’d yet. She asked where was the water for such a large pipe coming from. Water is a statewide issue and it’s very important to our community.

Mrs. Alvernaz stated that when the Livingston 2025 General Plan Update was in process, many State and County agencies and members of the community came together – developers, attorneys, people from Valley Land Alliance, Farm Bureau, California Women’s for Agriculture, and others) and it was great. The Planning Commission should not want to sterilize things. Livingston needs to have an identity. She asked the Planning Commission to think about that.

Mrs. Alvernaz also expressed concern about what is going on at the Domestic Wastewater Treatment Plant. It looks like there is a factory with cement trucks going in and out of there.

Director Kenney explained the City has been temporarily leasing some square footage at the Domestic Wastewater Treatment Plant to a business that was previously located at the former Castle Air Base. The business needed a spot to store their cement trucks and equipment and some of their cement, so they approached the City and were able to negotiate a month-to-month lease.

Colette Alvernaz said the property is not zoned for that. She asked Director Kenney if the property was rezoned and if the County was notified.

Director Kenney replied the property was not rezoned. Merced County was consulted because they were involved in the business moving out of the Castle location.

Mrs. Alvernaz asked if it was safe to have this business at the Domestic Wastewater Treatment Plant.

Director Kenny replied she knows of no accidents reported during the time they have been there.

Vice-Chair Mendoza closed the public comment period at 7:13 p.m.


Michael Gallo proposes a general plan amendment and to annex and prezone approximately 334.7 acres into the City of Livingston located north of Vinewood Avenue, west of Robin Avenue, south of Highway 99 and east of the Livingston Domestic Wastewater Treatment Plant.

This meeting is continued from the regular meeting of December 13, 2011. Director Kenney presented the staff report.

She stated this application has been with the City of Livingston since 2004. Since the City was moving forward on the 2025 General Plan Update at that time, Gallo agreed to wait for the 2025 General Plan to be adopted which was predicted to take approximately nine (9) months. It has been almost nine (9) years that Mr. Gallo has been waiting. The previous site plan for this project included approximately 5,000 housing units, a lot of commercial and multi-family housing.

Since the economy is different, they are now looking at job creation and focusing on commercial and industrial uses.

On December 6, 2011, Mr. Gallo requested City Council’s permission to process this application under the 1999 General Plan. Their new proposal consists of the largest portion of the property to remain industrial with new commercial as a buffer in between the existing commercial and new industrial. The low density residential at Robin and Vinewood is to protect the existing Gallo compound and several houses along Vinewood Avenue. Since this property was previously analyzed as mostly industrial under the 1999 General Plan EIR, the City Council found it appropriate to have this project move forward and approved Mr. Gallo’s request through Resolution 2011-79.

At the same time, City staff has been working with PMC consultants on revising the 2025 General Plan Update per the judge’s orders. This update is in draft form now and is expected to come in front of the City Council at the end of February 2012. Director Kenney explained that this Special Meeting came about due to the scheduling necessary for the 2025 General Plan Update meetings. She discussed at length the meetings and public noticing requirements that need to take place before the 2025 General Plan Update is adopted by Council.

Director Kenney stated Mr. Gallo is moving forward with this project in an effort to bring jobs to the Livingston community. Apparently there are consultants driving up and down SR 99 every month looking for project locations and Livingston is missing out on opportunities to bring in projects such as a Blue Diamond plant that would bring in 20-50 new jobs.

Gallo representatives Frank Borges and Greg Thompson were present to answer questions.

Director Kenney announced the written comment received from Chair Luis Enrique Flores will be shared for the record during the public comment section.

Director Kenney explained Planning Commission is a recommending body. No final decision will be made at this meeting. They will discuss their review of the documents provided to them and they will be making a recommendation to the City Council and determining General Plan consistency. This item will then move forward to the next regular City Council meeting.

Frank Borges, representing Michael Gallo, thanked the Planning Commission for this special meeting. He stated that with housing construction down, Mr. Gallo is getting inquiries on industrial land, so he would like to revert back to what they were originally planning for and what they feel is appropriate at this time. He requests the Planning Commission recommend approval to the City Council so they can move forward and get this finished before the 2025 General Plan Update comes forward. He added they would be happy to answer any questions.

Vice-Chair Mendoza

• Asked if they have thought about how they will handle traffic at Winton Parkway.

Mr. Borges replied they are not talking about any specific project right now; they are merely talking about annexing the land into the City limits. Obviously, they will have to submit a traffic report when a specific project comes forward.

Director Kenney clarified there is no construction or development proposed at this time, and if this project is brought into the City, any specific development projects that come forward on that site will have additional analysis.

Commissioner Soria

• He is concerned about the amount of trips that will be generated on Winton Parkway and Hammatt Avenue, but he understands they are not dealing with any specific project at this time.

Mr. Borges said that is an issue that will have to be dealt with at a later date when a project comes forward.

Vice-Chair Mendoza opened the public hearing for public comment at 7:27 p.m.

Director Kenney read the comment letter submitted by Chair Luis Enrique Flores.

Chair Flores, 707 Almondwood Drive, Livingston, expressed concern about this special meeting being held two days before the year’s end. He said it appears to him this item is in no way time-sensitive or urgent. He requests that this item be moved to the regularly scheduled Planning Commission meeting of January 2012 to allow everyone more time to read over and carefully examine the documents, for the public to be in attendance, and for a full Commission to be present.

Colette Alvernaz, P.O. Box 255, Livingston, stated she likes the idea of using the 1999 General Plan and she supports it. She doesn’t think the 2025 General even needs to be done. The only problem is that the 1999 General Plan has a 1999 General Plan EIR in it. The CEQA law, which she spent hours studying, says that you cannot use an EIR older than five years, especially if there are significant effects that have changes that are taking place. A lot of buildout has occurred on the Winton Parkway exit area. The 42" sewer trunkline has not been CEQA’d. There has been no City Council action to vote to accept that pipeline. The Merced County Counsel and the Merced County Grand Jury says you have to CEQA it. She needs clarification on this.

Mrs. Alvernaz said this EIR is called a programic environmental review. She looked all over CEQA and she cannot find those words. She cannot find a program EIR that things are tiered off of, and that is very similar to a Master EIR. It needs to have a full EIR done. There is no mitigation for the 42" sewer trunkline. It’s on prime agriculture land. They don’t have the right; they don’t have the money; it’s going to bankrupt the City; and yet, it slipped into this.

Director Kenney replied the trunkline is not part of this project. It is only mentioned in background information.

Colette Alvernaz said she understands it is not part of this actual project, but she thinks they must look at the project as a whole. She asked how the wastewater is going to get transported. It doesn’t say it’s not going to use the 42" sewer trunkline and this is going to be growth inducing. It’s by Merced River, a state significance; it’s federally protected land.

She asked where is their water coming from and where is their wastewater going. The 2025 General Plan was looking at expanding to the west of the Domestic Wastewater Treatment Plant – prime agricultural land that is not in the Sphere of Influence; it’s under the Williamson Act.

Mrs. Alvernaz said City staff needs to look at Section 15155. Also, Section 15168 is the program EIR. It needs to go to Caltrans and it needs to have longer than a 20-day review period. The California Department of Fish and Game must be contacted and it needs to go to the State Clearinghouse.

Mrs. Alvernaz stated for the record that she was submitting six letters.

Director Kenny mentioned that the mitigated negative declaration was already at the State Clearinghouse. It was also submitted to Caltrans and to many other agencies and it’s up for a 30-day comment period.

Jean Okuye, 1081 W. Olive Avenue, Livingston, said she has been involved with Livingston for a long time. She was in the Citizen’s Advisory Committee for three years and it is always a pleasure to be involved because the people are concerned about the community.

Ms. Okuye said the comment period closing date listed is January I I"’. She asked if that was 30 days from the time it was posted.

Director Kenney said the staff report has a typo in it. It should say 30 days. It was sent to the State Clearinghouse for 30 days and posted at the Merced County Clerk’s office for 30 days.

Jean Okuye stated as a board member of Valley Land Alliance, she recommends the Planning Commission postpone a recommendation on this proposal until the public has had an opportunity to comment and the Planning Commission members have had time to study her concerns.

The City of Livingston lost a lawsuit filed by Merced County Farm Bureau in 2009. The General Plan Update was found to be inadequate. There also was a Grand Jury investigation which determined the 42-inch sewer line should have had an Environmental Impact Report.

California Environmental Quality Act’s (CEQA) purpose is "to foster transparency and integrity in public decision-malting while forcing consideration of the full scope of the impacts development activities have on our natural and human environments." (Bill Lockyer, past California Attorney General) Valley Land Alliance believes this proposed annexation, prezone, and mitigated negative declaration of the Gallo property should require a full Environmental

Impact Report (EIR). As mentioned in the background information, there is a 42-inch sewer line near the proposed property. In 2006-2007, a Grand Jury investigation determined this pipeline was illegally put in. An EIR was not done.

Under 4.0 in this proposed amendment, there is concern of significant impacts in several areas. The hydrology and water quality and quantity issues should be analyzed. Is this property in a f l ood zone? The Merced River borders the north side.

Ms. Okuye said other issues of concern include low density housing not contiguous to other housing which is required to prevent leap frog, air quality degradation from trip miles travelled, congestion on Winton Parkway, possible environmental issues along Merced River, and limitation of expansion of the Domestic Wastewater Treatment Plant to the cast.

Amanda Carvajal, Executive Director from Merced County Farm Bureau, expressed discontent for having only a week’s notice about this meeting and it being during her vacation. She has a letter to present to the Planning Commission and she will summarize her thoughts briefly.

Ms. Carvajal stated there is a lot of concern. She feels this is not a good time to have this meeting. She has had difficulty just contacting farmers on the phone, let alone people in the community because a lot of people are on vacation. She doesn’t think this is a decision that needs to be made right now.

Ms. Carvajal added that when observing the maps provided in the staff report and the initial report, she noticed only the maps of what they are going to do were provided. Everything on the acreage and zoning has changed for Industrial, Limited Industrial, Residential, but there is no original. That, in her mind, says there is just drastic change to what was evaluated in the 1999 General Plan. Had they done 100 acres of residential, and whatever was proposed for Commercial and Limited Industrial, they could easily go through a Negative Declaration, but not now. They are 70 acres less of residential, which means a lot more industrial. This report was done in 1999.

She understands this is a problematic area and when it gets to the projects, it’s going to be more specific, but you are looking at the random picture now and she doesn’t have an accurate assessment of where we are today.

Ms. Carvajal stated she was pretty sure in looking at previous environmental reports, industrial zoning in that area versus residential was completely different emission levels for air quality and so that averaging out really made her nervous, that assumption that was in there.

In the biological section of the report, it repeatedly says that there are less than significant impacts for natural habitat and conservation. There is an industry going to be right on the Merced River. We have water quality issues that are repeatedly regulated by the Regional Water Board.

Industry is a completely different spectrum and also the flood plains need to be addressed.

The Farm Bureau understands the reasons for wanting to move forward with this, but they have concerns. This is on the 1999 General Plan; however, they don’t see the rush on going forward.

Ms. Carvajal said she was submitting several copies of her letter for the Planning Commission.

Katherine Schell-Rodriguez, P.O. Box 163, Livingston, said she wanted to summarize very briefly what she was hearing from members of the community particularly those who will be living or farming or know people close to this area.

They have some concerns and having been part of the process during the 2025 General Plan Update, she can remember how over and over members of the farming community would come to the podium with concerns and their concerns were brushed aside. There is a history here. A history of not being listened to, pushed aside, and concerns not being addressed, which is resulting in a whole lot of distrust.

Ms. Schell-Rodriguez said she does not want to advise one way or another or ask them to do one thing or another, but she does want to say that she understands where they are coming from when they are asking for transparency and there is a sense that because this meeting was called at the last minute during the holidays, it’s almost like trying to slide something under the door a little bit to quick and a little bit to slick. She asked that their issues be addressed and not discounted.

Frank Borges said in response to all the comments, he doesn’t feel the sense of trying to push something forward. This is a process that he has been involved with on a monthly basis for eight (8) years. It always has been the original application – industrial zoning, that’s what the City wanted. There has been staff review. The environmental documents are ready. It’s within the Sphere of Influence. They have been to LAFCO for that. The 1999 General Plan fits what they want to do.

The 2025 General Plan has nothing to do with what they want to do with this parcel of land when originally it was indicated it should be to provide more jobs for the City. That is what this is all about. Project wise, they have to do everything according to proper procedure and law as far as EIR’s, traffic reports, and air quality in all parcels of the project. However, they are not even looking at that tonight. They are looking at zoning, rezoning, and annexation within the sphere of influence and the process is being fulfilled with a mitigated negative declaration.

What he is asking the Planning Commission, on behalf of Mr. Gallo, is to simply forward this to the City Council so they can meet the deadline and not get involved with the 2025 General Plan update, creating confusion or getting into the arguments of population and density that will be part of the 2025 General Plan. That’s what they want to maintain so they can create industrial uses on that parcel near the freeway and they will comply with all the CEQA guidelines in a transparent way.

Director Kenney reminded everyone that the Planning Commission is a recommending body.

They will be reviewing and making recommendations to the City Council. They do not approve annexations. There are no specific approvals at this meeting.

Nicole Alvernaz said she wants to make sure she understands what has been said. She asked for clarification.

Director Kenney explained thoroughly.

Director Kenney stated the City has data from 1999 General Plan EIR and data from the 2025 General Plan EIR.

Nicole Alvernaz asked if the consultants are compiling the two.

Director Kenney replied the City is using all available data specific to this property.

Nicole Alvernaz expressed concern about the use of some data from the 1999 General Plan because it’s from twelve (12) years ago and there may be things that have changed.

Director Kenney clarified the 1999 document being referred to is the 1999 General Plan and its policies. The Mitigated Negative Declaration that was done for this project uses information from both the 1999 General Plan EIR and the 2025 General Plan Update EIR.

Michael Minkler added a little bit of clarification on the CEQA process. He said EIRs don’t actually expire, but when you come back for subsequent discretionary approvals, such as this, the analysis that is required is that you look at the previous environmental document, which, in this case, was the Environmental Impact Report and you do an analysis to determine whether what this project is requesting would result in more significant impacts or new significant impacts that weren’t analyzed in the previous environmental document.

As long as any potentially significant impacts and new action can be mitigated to less than significant, then a new EIR is not required and mitigation can be included in the negative declaration and that is what is in front of the Planning Commission tonight.

There is a public comment period required for Mitigated Negative Declarations, which is the 30-day period they have been referring to. The document has been circulated to all the relevant state agencies and anybody else who requested a copy of it. It is also posted at the County Clerk’s office, and that public comment period is still open. Regardless of what action the Planning Commission takes tonight, the public still has the opportunity to submit comments on the Mitigated Negative Declaration and the City will accept and review those comments until the end of the 30-day public comment period.

Director Kenney clarified that what they are looking at is the impacts of bringing this land into the City and not any projects that will be built on it in the future because they don’t know what those projects are. This is just moving the land from the County into the City.

Vice-Chair Mendoza closed the public comment period at 7:59 p.m.

Commissioner Questions/Comments

Commissioner M. Bains

• Asked Assistant City Attorney Minkler if everything is in order from the legal standpoint.

Assistant City Attorney Minkler replied the environmental impacts of the zoning that was done in accordance with the 1999 General Plan was reviewed in the 1999 General Plan EIR.

The changes that are being requested for this project are what were analyzed in the Mitigated Negative Declaration in front of the Planning Commission. City staff had a private consultant prepare the Mitigated Negative Declaration. He added there are always issues that can come up during the comment period that they are receptive to and will continue to review, but at this point he feels they have complied with the process and are getting feedback on the Negative Declaration.

• Asked what other body has to approve this project if the Planning Commission recommends approval to the City Council and the City Council approves it.

Assistant City Attorney Minkler explained that what Council would approve would be an application to the Local Agency Formation Commission (LAFCO).

The City itself cannot change its own sphere of influence without LAFCO approval, so the application will go to LAFCO. In most instances LAFCO will rely on the same environmental review that the applying agency has done unless they see some problem with that review. He added there is another opportunity for public comment during the LAFCO process.

Commissioner Soria

• They have been working on this for a while. He feels they have to move forward with legal counsel recommendation. The Planning Commission is an advisory committee. The City Council will have to make the final decision to approve or deny and that allows for more public comment.

Vice-Chair Mendoza

• Asked the Planning Commission for a recommendation or motion.

Alternate Commissioner M. Bains said Mrs. Alvernaz brought up a good point about businessescoming there in the future. He asked Mr. Borges if he can say what businesses expressed interest.

Mr. Borges replied. at this point in time they cannot release this information, except that a trend of industrial users was interested.

Assistant City Attorney Minkler made a recommendation to change the 30-day comment period end date from January 11th to January 23rd, as there was a typo in the resolution.

Motion by Commissioner Soria and seconded by Commission Castellanos, to adopt Resolution 2011-14, A Resolution of the Planning Commission of the City of Livingston Recommending that the City Council Adopt a Mitigated Negative Declaration and Approve a General Plan Amendment and Prezone for the Gallo Property and Direct Staff to Prepare an Annexation Application to LAFCO. Motion carried 5-0, by the following roll call vote:

AYES: Vice-Chair Mendoza and Commissioners H. Bains, Castellanos and Soria andAlternate Commissioner M. Bains.

NOES: None

ABSENT: Chair Luis Enrique Flores


Director Kenney announced there will be another opportunity for public comment when this item goes in front of the City Council.


The regular meeting was adjourned by consensus at 5:10 p.m. APPROVED: February 14, 2012

Vice-Chair, MARIO MENDOZA Secretary of the Planning Commission,


The written meeting minutes reflect a summary of specific actions taken by the Planning Commission. 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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