Action Minutes from the December 11, 2012 regular meeting

Note from TheGardeningSnail. This page was produced by taking a PDF file and bouncing it through a program that converts PDF to Word. My apologies in advance to any textual goofs, gaffs, and gremlins that may have crept in.




The regular meeting of the Livingston Planning Commission was held in the City Council Chambers on Tuesday, December 11, 2012. The meeting was called to order by Chair Flores at 7:00p.m.

Commissioners Present: Chair Luis Enrique Flores, Vice-Chair Roy Soria and Commissioners Harpreet Bains, Francisco Castellanos, and Mario Mendoza.

Commissioners Absent: Alternate Commissioner Manoj Bains (Excused).

Staff Present: Administrative Analyst Filomena Arredondo, Contract Planner Patrick Kelly, Assistant City Attomey Michael Minkler and City Manager Jose Antonio Ramirez.

Others Present: Ken Koss, TK Development (Livingston Family Apartments); Mike Torres, and others in the audience.


The pledge of allegiance to the flag was recited.



Motion by Vice-Chair Soria, seconded by Commissioner Mendoza, to approve the minutes from the Regular Meeting of October 9, 2012. Motion carried 5-0 by the following roll call vote:

AYES: Chair Flores, Vice-Chair Soria, and Commissioner H. Bains, Castellanos, and Mendoza

NOES: None

ABSENT: Alternate Commissioner M. Bains


Chair Flores opened and closed the public comment period at 7:02p.m. there being no public comments.


Variance 2012-01- Livingston Family Apartments

Pacific West Communities applied for a variance to allow for a reduced rear yard setback for a previously approved 49-unit affordable apartment project including a community center to be located on a 4-acre parcel (APN 047-310-028) just south of Peach Avenue and the canal on the west side of Main Street (previously Lincoln Blvd.) City staff received two comment letters against the variance approval- one from Yagi Brothers Produce, Inc., 5614 N. Lincoln Blvd., and the other from Harold Crowell, 1906 Main Street.

Project applicant Ken Koss, with TK Development, was in attendance at the meeting to answer questions.

Chair Flores presented the item.

Vice-Chair Soria asked if the canal will still be under grounded. Ken Koss replied it would be.

Assistant City Attorney Minkler explained the project itself is not changing. The property essentially will physically look the same as it did in the plans when the Planning Commission approved the project. The canal will still be undergrounded. The only difference is that Merced Irrigation District (MID) may not be able to convey the land to the apartment project once the canal is undergrounded as originally expected and the property line may not change as it was scheduled to. The variance is just to create an exception to the zoning code for that rear yard setback from the property line.

Chair Flores opened the public hearing at 7:05p.m.

Mike Torres, 1616 8th Street, Livingston, asked if the applicant had paid the application fee for a variance.

Assistant City Attorney Minkler replied the applicant did pay the required application fee for a variance.

Mr. Torres asked why this issue did not come up when the property was surveyed. Chair Flores said he also wondered why this issue was not addressed earlier.

Ken Koss explained the survey conducted when the project was moving forward only identified the location of the property line. During negotiations with MID, it was always intended that MID would grant the back half of the canal property to the project once the canal was undergrounded. Nobody saw any kind of problem with it at that time. The problem occurred when nobody could find the owner of the 40-foot wide piece of property. There is no parcel number or tax number assigned to it. There have been no taxes paid on this piece of land for the last 30 years.

MID has a written easement agreement from an owner back in 1928, and that is why MID had agreed to grant back the half of the canal property to the Livingston Family Apartments once the canal was undergrounded.

However, being that there is no owner, they cannot tie anybody to the property. The only solution to this problem is to do what is called a "Quiet Title." When a quiet title is done, they have to advertise, wait for a 30-day period, advertise again, wait for a 30-day period, and advertise again. Then they have to wait for a court date so that a judge can give them the quiet title. This process can take as long as 18 months to complete.

Mr. Koss added that MID has been collaborating with them. The title company has already issued a special title insurance policy that covers quiet title action. They are only waiting for the documents, so it is something that is anticipated to happen, but it will probably take as much time to get that title done as it did to get the project approved.

Commissioner Castellanos asked if there will still be 40 feet there once the canal gets undergrounded.

Mr. Koss replied, "Yes," and stated that nothing will ever be built over the canal. This area will be landscaped. They will plant trees there, but they will put a heavy ground cover so the tree roots don’t get into the canal. Everything is going to stay the same as it originally was, except now they need a 15-foot variance, per City code, before they can pull their building permits and start construction.

Mr. Torres asked where their hash mark is located.

Mr. Koss replied it comes right to the corner of the building. Mr. Torres asked if that is going to impact the building.

Mr. Koss replied it is only going to impact the patios; it will not do anything to the buildings. It is just open space.

Contract Planner Patrick Kelly clarified the hash mark in question was just a representation. It was intended to show where the buildings would project into the required 15-foot setback. Lengthy discussion followed.

Mr. Torres asked who is going to own the property when this is all completed.

Assistant City Attorney Minkler replied it would be ultimately owned by the Livingston Family Apartment project.

Mr. Torres asked how much setback they are going to have from the third building to the property line or to the fence they are building there.

Contract Planner Kelly said the fence is going to be placed down the center line of the canal, so if the center of the canal is 20 feet from the current property line, then the setback will ultimately be between 25 and 30 feet from the fence to the building. The 20 feet from the center is what would have been deeded to the project site.

Assistant City Attorney Minkler explained there will be a 25- to 30-foot rear yard setback from the building to the future fence down the middle of the canal right-of-way once the conveyance takes place and there will be between 40 and 50 feet from the apartment buildings to the buildings on the adjacent property across the canal.

The only difference between now and when the quiet title action is done is the legal title of the property. The project does not change from when it was approved previously. A variance is needed only because the property line will not change in time to issue the building permit which is a requirement in order to get project financing.

Chair Flores closed the public hearing at 7:19 p.m.

Commissioners’ comments/questions:

Commissioner Castellanos

" Asked if there is any type of contract on the easement MID has.

Ken Koss replied MID has written documentation and a contract for the canal easement from the original owner dated back in 1928. That is the reason they did not see a problem originally. MID was just going to deed that easement to the Livingston Family Apartment project. Once the canal is undergrounded and the quiet title work is done, MID will add an easement to the road that goes down the canal so they can have access when they need to work on the canal, but the property itself will actually be a portion of the project’s property.

Chair Flores

• On page 3, under the Variance subheading, the first paragraph states, "City code State law requires that the Planning Commission make findings with respect to granting a variance." He asked if all four findings listed have to be made or if only one would suffice.

Assistant City Attorney Minkler replied the Commission needs to make the four findings of fact to grant the variance.

" He asked for clarification of the meaning of "enjoyment" in finding 3 which states, "Such variance is necessary for the preservation and enjoyment of the substantial property right possessed by other property in the same vicinity and district denied to the property in question.’

Assistant City Attorney Minkler explained this essentially means that the property owner can utilize his/her property right to enjoy or use the property for the intended use. It is not a precise term.

• He expressed concern with Finding 4, "The granting of such variance will not be materially detrimental to the public welfare or injurious to the property or improvements in such vicinity."

• The fourth paragraph of the resolution says, "Technically, this is inconsistent with the required 15-foot rear setback requirement." He asked Assistant City Attorney Minkler to expand on the meaning of this statement.

Assistant City Attorney Minlcler said this statement somewhat explains the need for the variance. A variance gives flexibility in the zoning code requirement, so as long as the Commission can make the required findings and they can relax a requirement that is in the zoning code, they can grant the variance. In this case, because of the complications with the title, the property line is going to be closer than the 15-foot rear yard setback requirement until the quiet title action is completed, so that is a technical inconsistency. Basically, the line on the paper is not going to be moved in time, so that is the justification for the variance.

Commissioner Castellanos

• He asked what would happen if they are not granted the 20 feet.

Assistant City Attorney Minkler replied the variance runs with the land, so it will survive whether they get the quiet title action or not. This is a utility corridor. Nothing is going to obstruct that setback whether they get title to the property or not. It is just a question of whether or not they are able to transfer the property and move the property line.

Ken Koss said one thing that gives them real motivation to get the quiet title done as soon as possible is that the permanent lender is not going to do the permanent loan until the quiet title action is completed, so they will be working as hard and fast to get this done as they did to get the project approved. It is not just to get the variance and then walk away and let it go by itself.

Chair Flores

• He asked if this type of situation happens often. Is there a record of who has a deed or who doesn’t? Who owns a property or who doesn’t? Does this only happen in certain parts of town or only on canals?

Ken Koss replied this situation is very uncommon. He has been involved in well over 100 land transactions and this is the first time he has encountered this type of situation.

Chair Flores opened the public comment period again at 7:30p.m.

Mike Torres, 1616 8th Street, Livingston, questioned if all future projects will also have the same problem since the canal runs all the way down Peach Avenue.

Vice-Chair Soria said they are now aware of the problem for when the next project develops. Mike Torres asked if the other half of the canal property will be legally deeded to the property owner on the other side as well.

Assistant City Attorney Minkler replied it is his understanding that they will convey that property to the adjacent landowner." He added that it is not necessarily true that because this property has this problem all the other properties adjacent to the canal will also have similar quiet title issues.

Mr. Koss said the project is actually going to end up owning the entire width of the canal (the 40 feet) and then they are giving the easement back to MID for the maintenance road.

Assistant City Attorney Minkler said that is not what he understood when the project was approved; however, that does not necessarily impact this variance.

Mr. Koss said it doesn’t change anything from what originally was done. The fence is going to be in the same location. Everything is going to be exactly the same as when the project was approved.

Chair Flores closed the public hearing at 7:35 p.m.

Vice-Chair Soria asked if anybody has been paying property taxes on that particular piece of land.

Assistant City Attorney Minkler replied he doesn’t think anybody has been paying property taxes or they would have been able to trace the title.

Ken Koss said there is no parcel number or tax number for the canal property.

Chair Flores asked for clarification of the motion to be made by the Planning Commission. Assistant City Attorney Minkler explained the motion for the variance approval must be made stating that the Planning Commission approves the variance consistent with Section 5-6-10 of the Livingston Municipal Code, subject to the four findings listed on the resolution of approval.

Motion by Vice-Chair Soria, seconded by Commissioner Mendoza, to Approve Resolution 2012-13, A Resolution of the Planning Commission of the City of Livingston Approving Variance 2012-01 for the Rear Yard Setback at 1972 Main Street (APN #047-31 0-028). Motion carried 4-0-1-1 by the following roll call vote:

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

NOES: None

ABSENT: Alternate Commissioner M. Bains

ABSTAIN: Chair Flores

Contract Planner Kelly said the next step is for staff to issue a signed copy of the resolution of approval after the 10-day appeal period.


Planning Commission Commissioner H. Bains Nothing to report.

Commissioner Castellanos Nothing to report.

Commissioner Mendoza

" Wished everyone a Merry Christmas and Happy New Year.

Vice-Chair Soria

• He attended the Campus Park School Christmas program at the Community Center on Prusso Street. He really enjoyed listening to all the kids singing Christmas carols.

• The City Christmas parade was a great success. There were many people in attendance.

Chair Flores

• Asked when the deadline for Planning Commission applications was.

Administrative Analyst Arredondo replied the deadline was December 7’h

" The high speed rail is having an information session on Thursday, December 13, 2012, at 4:00p.m. at the Business Civic Center in Merced, for anybody interested.

City Staff

Contract Planner Kelly

• Nothing to report.

Administrative Analyst Arredondo

• Wished everyone a Merry Christmas and Happy New Year.

Assistant City Attorney Minkler

• Wished everyone happy holidays.

City Manager Jose Antonio Ramirez

• He gave a quick update on the Planning Commission vacancies. There are three vacancies on the Planning Commission and only two applications were submitted. Staff will bring those applications before the City Council and they may want to extend the deadline.

• The Christmas Parade gets bigger and better every year. This year they had more floats and there was quite a bit of participation. Staff is considering incorporating other things to try to raise some funds such as a dance after the parade so people can go out and have a good time.

• He gave a brief overview on City development:

•!• As it relates to residential development, there are about 408 constructible lots ready to go. The City is anticipating a new proposal for residential redevelopment pretty soon.

•!• Staff has been addressing infrastructure, looking at new policies and considering revising some ordinances.

•!• City staff is also looking at recruiting companies into the area. One of those potential companies is an RV sales company that got displaced in Merced.

•!• Rancho San Miguel is looking at breaking ground in April 2013. Some of the neighboring partners should follow pretty quickly and that will foster other successes.

•!• Gallo is looking at providing ten (10) additional commercial lots as there has been quite a bit of interest on commercial property.

• He invited the Planning Commission to the City Christmas luncheon scheduled for December 21st, at 12:00 Noon.


The regular meeting was adjourned by consensus at 7:45p.m.

APPROVED: January 8, 2013



Secretary of the Planning Commission, PATRICK KELLY (Contract Planner)

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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