Approval of Minutes of Meeting Held on March 6, 2012

Meeting Date: April 17, 2012

Agenda Item #7. Approval of Minutes of Meeting Held on March 6, 2012.

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MEETING MINUTES

 

CLOSED SESSION/REGULAR MEETING

LIVINGSTON CITY COUNCIL

MARCH 6, 2012A Closed Session/Regular Meeting of the Livingston City Council was held on March 6, 2012, in the City Council Chambers with Mayor Espinoza presiding.

CLOSED SESSIONCALL TO ORDER

Mayor Espinoza called the meeting to order at 6:04 p.m.

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 comments from the public. The Council subsequently adjourned to Closed Session at 6:05 p.m. to discuss the following matters:

1. Public Employee Appointment

(Government Code Section 54957)

Title: Chief of Police

 

2. Conference with Legal Counsel—Potential Litigation

[(Government Code Section 54956.9(b)(1)]

Number of Cases: 2

3. Conference with Real Property Negotiator

(Government Code Section 54956.8)

Property: APN Numbers: 046-250-006, 046-250-12, 047-090-12,047-090-18, 047-090-19, 047-090-24; and 047-200-004

Negotiating Party: Jose Antonio Ramirez, City Manager

Under Negotiation: Terms, Lease of Property

 

4. Conference with Labor Negotiator

(Government Code Section 54957.6)

Agency Negotiator: City Manager Jose Antonio Ramirez

Employee Organizations: All Represented City Employees

OPEN SESSION

The Council came out of Closed Session to begin the Regular Meeting.

REGULAR MEETING

CALL TO ORDER

Mayor Espinoza called the meeting to order at 7:17 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

No announcements were made.

CHANGES TO THE AGENDA

Council Member Vierra requested that Consent Agenda item 4 be pulled for discussion.

AWARDS, PRESENTATIONS, APPOINTMENTS AND PROCLAMATIONS

None.

GRANT ANNOUNCEMENTS

None.

ANNOUNCEMENTS AND REPORTS

Supervisor John Pedrozo Announcements and Reports.

Absent.

City Staff Announcements and Reports.

Community Development Director Donna Kenney announced that we may be seeing activity on Park Street because the high school is having an antenna tower installed. She will be working with Betty Cota to set up a workshop for the Council and Planning Commission to begin a review of the Livingston Municipal Code. This should take place sometime in May.

She is also working with Hector Bravo and Mrs. Grewal, Community Punjabi Liaison to form a partnership with the University of California at Santa Cruz as they have recently started a new program called Punjabi Studies.

Director Kenney reported there is currently no activity on the Gallo annexation. City staff has received a letter requesting the annexation wait until the 2025 General Plan Update.

She commented that at the last Planning Commission meeting the Livingston Family Apartments project was approved 3-1 for the Conditional Use Permit (CUP). The Commission recommended approval of the site design review and the development agreement to the City Council. However, today she received a letter of appeal on the CUP approval which will be presented to the City Council on March 20th.

Police Chief Ruben Chavez introduced School Resource Officer (SRO) Rick Maccachia.

SRO Maccachia gave an update on what has been going on at the high school. He reported that things are going great with the kids, the staff is great, and problems are down to a minimum.

City Manager Jose Ramirez announced that City Engineer Nanda Gottiparthy was not feeling well and Mike O’Conner would be filling in for him.

Engineer O’Conner gave an update on the new barbecue structure at the Sports Complex; it is nearly finished. He said a bid opening would be held at the end of the month for the recently advertised Phase II water line project.

CDF/Merced County Fire Battalion Chief Armando Rios announced that they will host the fire fighter of the year banquet on April 4 at the Merced American Legion Hall. He said this is a countywide event where they honor those fire fighters of the year from different cities and counties.

City Manager Announcements and Reports

City Manager Ramirez announced that he has been meeting with some individuals about the CFDs. He is planning to take the RFPs on the wastewater operation and maintenance to the Utility Stakeholder’s Committee for comment. City Manager Ramirez said we are looking at participating with the California Technology Fund in Los Angeles. They provide a lot of funding for digital equipment. He gave an update on the recent Washington, DC trip. City Manager Ramirez commented that also forthcoming in the future is a presentation on a preliminary audit of our energy consumption throughout the City. He said this will produce solar power in exchange for a power participant agreement with the firm with no up front costs for the City.

City Council Members’ Announcements and Reports.

Council Member Vierra noted that the Merced County Economic Development Corporation (MCEDCO) is folding and asked if the City paid any fees to them.

City Manager Ramirez responded no.

Council Member Land welcomed new Police Chief Chavez. She attended his swearing in this morning and it was nice to see him supported by so many family members and friends. She announced that next week is parent teacher conferences, therefore the children will be out of school early. Council Member Land issued a reminder that daylight savings time begins this weekend. She is doing crosswalk duty at the Livingston Middle School. The Police Department has been out there every single day, morning and afternoon and they are doing a great job. She noted they are making themselves visible and citing those who are traveling too fast. She asked that parents please be aware that the speed limit is 25 mph.

Council Member Samra also welcomed Police Chief Chavez and said he looks forward to working with him. He noted that on March 25th the Sikh parade is coming through and all are welcome to attend.

Mayor Pro-Tem Aguilar thanked and commended Police Chief Chavez for applying in our City. She announced that she, Mayor Espinoza and City Manager Ramirez had visited the U.S. capitol and had attended a variety of meetings. She asked the City Manager if they could do a power point on what they learned and saw. Mayor Pro-Tem Aguilar said they visited the U.S. Department of Justice and learned about the COPS program. She enjoyed it and they were given many ideas on how to apply for grants. Most of the departments that they visited talked about businesses and schools coming together and connecting. The U.S. Department of Labor addressed the summer youth jobs program which was promoted by President Obama. This program is to get youths off the streets and into jobs. They also visited the Department of Rural Development Housing. They focus on better homes for future farm workers and they talked about loans that are available for farm workers.

Mayor’s Announcements and Reports

Mayor Espinoza commented on the Washington, DC trip and noted that it does have more weight when there are elected officials there in person. It is beneficial to talk in person rather than talking on the phone, we learned what types of grants are beneficial. He shared that they visited the Department of Transportation where we recently were denied a grant. They received 1,000 applications from the whole country and only 47 of them were funded last year.

Mayor Pro-Tem Aguilar added that in regards to the COPS grant, one thing they are trying to implement is that they want a veteran to be hired. Therefore, if we get this grant and you apply for a police officer position, a veteran will get this position first.

PUBLIC HEARINGS

1. Review Administrative Appeal 2012-01 and Provide Staff Direction Concerning CUP 2001-16 for 444 Main Street.

Community Development Director Kenney presented the agenda item.

City Attorney Adam Lindgren gave his recommendation, given the importance of this item and after hearing all the testimony, to carry this item over and give staff direction as to which of those options Council would like implemented. Then based on all the evidence and the Council’s direction, prepare draft findings and appropriate actions. That would come back on the consent calendar or the regular calendar for the Council’s final action.

Mayor Espinoza opened the hearing for public comments at 7:53 p.m.

Katherine Schell Rodriquez, P.O. Box 163 said she would like to know what the exact reason for the appeal was. Also what conditions in the CUP or series of conditions in the CUP did the person filing the appeal find objectionable.

City Attorney Lindgren responded that the appeal form does not require that level of specificity. They have reviewed the appeal and it is in order.

Mike Warda, 2350 W. Monte Vista, Turlock, attorney for Mike Sperry commented that the basis for the appeal was that the matter was interesting. He stated that he was not sure if anyone can respond appropriately to any matter raised today. He asked to reopen the public hearing so that matters could be addressed or set it for a further hearing so that the public can address their concerns because right now the notice of appeal says that they found this decision interesting. Mr. Warda stated he never saw an appeal based on “interesting” and he wasn’t sure what advice the Mayor would have received in order to prepare that, but it is improperly vague and frankly unconstitutional. It doesn’t give Mike Sperry the opportunity to address any issue. No one knows what the issue is.

Mr. Warda commented that the second issue is timing and he feels that there was never an appeal filed with the City Clerk. The only appeal that he has seen is in the packet and it looks like it was delivered to the City Manager and somehow the planning department received it and it was stamped received. His understanding is and it is referenced in the staff report, that this appeal was filed with the City Clerk. Now, he has not seen what was filed with the City Clerk and it is not in the record. Therefore, if it was filed with the City Clerk in a timely manner, then he will take back his objection,. If it was not filed correctly, then you have a problem with the filing of that appeal.

He also added that you have several options in front of you. You could revoke a CUP that has been issued for that location.

He added that the code section indicates that any person may appeal the decision of the Planning Commission. It doesn’t say that you get to make a decision that they were given, the options that they were given and pick your own decision. The decision on a proposal is what was appealed, and the decision by the Planning Commission was to modify the CUP. So it would be his position that our review, provided the appeal was timely, to make a determination on whether or not it was appropriate for the Planning Commission to modify the CUP. If we find that it was not appropriate for them to modify a CUP, then their action would be set aside and we would still be sitting on a CUP.

Mr. Warda stated he wanted to talk about the CUP and what has happened to Mike Sperry. Mr. Sperry came to the City in June 2011 and requested a business license. The normal process for a business license is you fill out an application for a business license and the appropriate departments review the license and once the review, the zoning and the requirements are met, they sign off on that business license and then another department reviews it like the building department and fire department to make sure it is safe.

Mr. Warda stated that he never got to that step. When the Planning Commission reviewed it they reviewed it because they said no one had used this CUP in a long time and, therefore, they have the power to revoke or modify the CUP if it hasn’t been active for more than a year. We understand that, but if the business application had been processed properly, it would have been an active use and then there would be no reason to bring it back on that basis. But, the business application sat and no one returned it or made a decision on it.

Ultimately there was discussion on parking requirements and his interpretation on parking requirements although not crystal clear, indicate that when you build a new building you have to provide parking requirements. He doesn’t read it to indicate that if you have an existing structure that has gone vacant, the new business owner must comply.

Mr. Warda commented that if that is the case, you are going to kill your downtown because no new business is going to be able to comply with the parking requirements. If they are going to take an existing facility and if that is the standard maybe he misunderstood what the basis was for the parking, but he doesn’t think that he did. At some point you must have received information that the parking requirements were probably not going to be applied to this application of business.

So today we sit here and appeal when we really don’t know what the issue is, because the appeal was based on it being interesting and we don’t think it was timely filed.

Mr. Warda stated that the last issue is that he knows the Mayor filed the appeal, but he is not sure if the Mayor did it in a capacity as representing the Council or just as an individual.

The reason that it is important is because if the Mayor did it as an individual he was required to pay a fee for the appeal and if he did it in the capacity of the City Council, he doesn’t believe the code authorizes the City Council to appeal a decision of the Planning Commission. Your code says any person may file an appeal, it doesn’t say that the City Council can call up anytime that it wants a decision of the Planning Commission and review it.

So there are a few different issues here, but the most important thing for them is that they are debating an issue when they really don’t know what the issue is specifically and we are doing it before you comment. And he wants to make sure that you don’t comment and the public hearing opens again and we don’t have an opportunity to be heard.

The real objective is to find out what the problems are and address them, work with them and then open a business that satisfies your concerns so he hopes they keep that in mind during their discussions and move forward.

Mr. Warda stated they want to avoid spending a lot of money and time on lawyers and staff.. Most importantly, you could have a six-month review on this business. If something is not going well and the public is being harmed by this business you can terminate the CUP. You could further modify it, the Planning Commission just didn’t make a decision of 5-0 for no reason. Mr. Warda said he appreciates their time and we are here to answer any questions and if you comment, we would appreciate it if you let the public comment further.

Colette Alvernaz, P.O. Box 255 shared her concerns which are the same that she had shared before. By nature of a bar, people drink and she really became concerned after she made her public comments and then the acting Chief of Police got up and spoke. He said that there isn’t adequate parking and then people will park at Rite-Aid. Her mind thinks they are going to drink in the bar, they are going to leave the bar, they are going to go to their car and they are going to drive. She shops at Rite-Aid, parks in the parking lot, and she has her kids with her. She does not want to get hit by a drunk driver. It doesn’t take much alcohol these days to be considered to be driving under the influence and your Police Chief could get you more information on that. She shops at Liberty and True Value and she doesn’t want people driving in her downtown area that are under the influence of alcohol. Her question is: will this bar facilitate people driving under the influence of alcohol? By the City of Livingston allowing this bar to go into a vacant building, will it be facilitating in a small or large manner DUI’s? Another concern is she went to the parks master plan and school facilities are an important resource for recreation, as are playgrounds, sports fields, and gymnasiums, under existing resource page 28. The bar is only a finger space from this park. She doesn’t want any children hit by a drunk driver and she means that everyone needs to leave that bar sober if they are going to be behind the wheel. That is her concern. She understands having a business and she is pro-business, but she does not want to be killed. With people parking at Rite-Aid you are opening a litigation nightmare that could come back to the City.

Luis Flores, 707 Almondwood Drive stated that he didn’t believe the appeal had any merit. His understanding is that the person who submitted the appeal initially paid the $200 and then it was refunded because he filed as a Council Member.

Mayor Espinoza closed the hearing at 8:09 p.m., there being no further public comments.

Mayor Espinoza commented that he was the one that filed the appeal because he had some concerns come forward from citizens. He decided that the best interest of the community was to appeal it. He knew that he backed the project a few months before he applied for the appeal. He was in favor of it, but he had to listen to the citizens as well.

Mayor Pro-Tem Aguilar commented on safety issues and the children coming and going to school. The parking was a big concern as well. She noted that drunk drivers are going to be in town, out of town, anyone who comes out of the bar and say that they are not driving are lying. If you have a bar you are responsible for that person, the intake of alcohol and the security that that person is not going to go kill someone. She really believes that drunk driving and putting a bar there is an extra way for drunk drivers to be in our community. Also, she noted on the updated CUP with the conditions that the Planning Commission imposed, hours of operation are not stated. Also, there are the impacts to the Police Department to consider. Interim Police Chief Soria has spoken about the effect on the department. Even if you tell her that it isn’t going to have an effect, it is going to have an impact. She commended the Mayor for bringing this forward as the Council needs to look at what the Planning Commission decides on.

Council Member Vierra commented that if the Mayor hadn’t filed the appeal he would have. He noted that Mr. Sperry couldn’t figure out why it was going back to the Planning Commission. Mr. Sperry was the one that brought a presentation to the Planning Commission, it wasn’t the Council. He noted again that it was written in the statement that he couldn’t figure out why it was brought back. He agreed with Ms. Aguilar, the Tequila Club was a problem for the whole length of time it was there and just saying that you can revoke the permit after so many months doesn’t work. We were told that we can’t do this or that. The paper that says six months is not worth the paper it was written on. Also Rite-Aid was calling City Hall and the Police Department constantly about that situation. With the amount of young people we have walking downtown, he really feels that this is not what we need there. Another issue is that we stated in our code with the alcohol drinking that there is to be so many feet between each business and there is already one business doing it near that establishment. His recommendation would be to choose option number 3, revoke the CUP.

Council Member Land agreed that she too was going to appeal this to the City Council. She has the same concerns as Mr. Vierra and Ms. Aguilar. She does not have an issue with a bar as a business; her issue is the placement of the bar in the downtown area. It is too close to schools, there will be drinking and driving and public drunkenness which unfortunately just goes with the business of a bar. Also we are having an open market every week for about 7-8 months. Children will be there with their families. She noted that she did not get a clear answer as to what the hours of operation were going to be.

Council Member Samra asked Director Kenney that since the bar closed it no longer complies with the 1,000 feet condition – does Punjabi Sweets?

Director Kenney responded that Punjabi Sweets is a restaurant and not a bar.

Council Member Samra commented that he thought everyone in the community knows what happened with that previous bar and parking is a concern. He believes ultimately regardless of the decision that the Planning Commission made, the City Council is the ultimate authority so if the Council feels the Planning Commission had an error in judgment, they can call it up to the Council. Also, the Council has full authority to review any Planning Commission decision. He is trying to avoid problems. He has nothing against a drinking establishment, everyone needs a place to go and unwind and relax. He thinks that it would be better if the applicant could work out his parking issue, go work out an agreement with Rite-Aid, come in and alleviate some of the concerns of the City.

Mayor Pro-Tem Aguilar added that they did not have this information prior to the meeting and now that they do she wanted to let the residents know. One resident asked who was going to pay for the $12,200 that was already accumulated because of this establishment. She noted Mr. Sperry’s comments from the Planning Commission minutes. Mayor Pro-Tem Aguilar noted that if you are coming in to establish yourself, you do not put a tag on it and expect the residents to take it or leave it. With that comment, it really tells you what we are dealing with. She commented on one more section of the minutes and noted that Mr. Sperry was asking one of our department heads to lie.

Mayor Espinoza commented on the CUP and said the Council would like to modify the conditions. One of his requests would be to steam clean the sidewalks once a month on Main and B Streets. He noted that the upkeep of our sidewalks needed to be done. Mayor Espinoza thanked the Planning Commission and said they are doing a great job and most of them are pretty new; however, they have their own minds and they are doing a great job of addressing all the issues. They also have to address the citizens’ concerns as well. Mostly the citizens call the City Council not the Planning Commission so we need to let them do their job and when it comes to the Council we need to listen to the citizens.

Mayor Pro-Tem Aguilar added that as Council Members we need to make sure that we have in place a reimbursement agreement for the applicant. Meaning that if an applicant brings a plan forward they are bound to the agreement and they are going to pay the fees that are required. This will not be on the citizens.

City Attorney Lindgren summarized that Council has four options that are before them tonight. They are the same options that were brought before the Planning Commission. Three Council Members provided comments that appear to suggest that they may favor option 3. Two Council Members instead started working to see if there were conditions that could be added to make the permit acceptable. To further modify the existing permit would be option 2.

City Attorney Lindgren suggested that what they should do tonight is to work a bit more as a Council and deliberate more if those are the two options. He said if he was correct at interpreting from the Council’s comments, those seem to be the two options that you are focusing on. He stated to keep working on those a bit further and figure out as a Council where it would appear the majority of you end up landing on this.

City Attorney Lindgren said it seems like you think the conditions could be improved enough to get your approval or revoke. He commented that if you do want to go ahead and do one of those options , this is an important process. The sincere intention of your code and Council is to give full participation in this process.

He believes that this is why we should come back with findings that would be draft, that would be inactive, that would include a staff report. He would further offer to open up the public hearing again and allow the public, to take a look at the final findings and look at the final staff report. There are not any issues about the public notice as it exists and there is a desire from this Council and the community for full public participation. If the Council feels it is appropriate to do, he doesn’t think they are required to do that, but it would be going above and beyond the requirements to allow additional public participation.

Mayor Espinoza added that there is a lot to address. The matter still comes back to attorney fees. We could continue the item and then it comes to that he hasn’t signed any agreements with the City in regards to attorney fees. Mr. Sperry said that he is not responsible for any attorney fees and he is right. If he wants us to move forward he has to be willing to take responsibility for those fees. Mayor Espinoza didn’t see any sense in continuing the item.

Council Member Samra asked that the item be opened to the public one more time.

City Attorney Lindgren added that that was an appropriate legal course, if they wanted to not give any direction tonight and instead to continue the item and without giving staff direction the Council could decide to do that. He stated the Council could at most make a motion that would give initial direction as to one of the options and it would be initial direction to write findings and a resolution that would implement one of the options. He thought this would help to focus the Council’s discussion and set a draft finding for the options in front of them. It would help the applicant see exactly what the basis is for the Council’s conclusion and pull together the information that has already been discussed by the Council.

Council Member Samra agreed. He stated that if they allowed the public to comment one more time, we could bring it back and we could do what the attorney advised and give some sort of direction with the findings and then our decision at a later date.

Mayor Espinoza reopened the hearing for public comments at 8:33 p.m.

Katherine Schell Rodriquez, P.O. Box 163 stated that she was at the last Planning Commission meeting and she raised the issue about the $12,000 in attorney’s fees. The explanation that she was given is that the City spent extensive amounts of time researching the history of the Tequila Club and the paperwork involved. Because of the extensive history of the Tequila Club and prior uses of the project, a whole lot of attorney time got burned going through all of that. And if that is the case it is not necessarily the applicant’s fault. That is just one of those things that happens.

Because of projects in the past, the way attorney fees were done in the past, the way the paperwork was kept in the past, anyone who has ever done any tracking or requesting of documents going beyond 2004 found you often hit a black hole. She does not think from the explanation that was given, and she was there, that that large amount of money was necessarily the fault of the applicant.

Mike Warda, Attorney commented that it wasn’t a matter before the City Council. He believed it to be May 3, 2011, and what the Council considered at that time was the 1,000 foot distance between bars. It was not a consideration of this particular business, it was a decision that would impact this business, but wasn’t this business. He has never written a letter indicating that there were fees spent and then more fees to be spent, it was untrue. There is no letter that exists that he has written to anyone. This is not the application of Mike Sperry. Mike Sperry applied for a business license last summer, a very simple process and if the Council had followed that process we wouldn’t be here today.

Mr. Warda said the reason why we are here today is because the City on its own behalf brought this fee before consideration so Mike Sperry is not the applicant and he would have never been required to sign any reimbursement agreement based on that. He is not here requesting a CUP, he is not here to ask to modify a CUP. This is a City generated application, so Mike Sperry should not be blamed for it, shouldn’t be singled out to look like the public enemy of the City of Livingston because he is not. Almost every city that he has worked in the downtowns have been rejuvenated slowly by clean operations and all of these types of businesses include alcohol service. It has happened in Turlock and it has happened in every nice downtown.

Mr. Warda said now you want to consider hours of operation of service. Mike Sperry is open to that if you have conditions and we can work through this, we are open to that. If it is a meeting that you encourage staff to have to come with some conditions to propose to you, we are open to that. If the bar were to open at 5 p.m. or 6 p.m. when school is out, and he doesn’t know if there are any other locations in the City that would not be near a school. He said unless you plan to prohibit alcohol service within the City, we can work to resolve this and that is our preference.

City Attorney Lindgren stated that if the Council chooses to give us direction to meet with his counsel and work with them, he would presume the City Manager’s office is happy to do that. The staff report explains that there was in February 2004 for the then active bar use under the CUP on the property, an active process of permit review, issues being raised and modifications being required. There was an active review process going on with the Planning Commission and the Planning Commission adopted a resolution requiring additional review of the CUP after 3 months and there is no record of that review. It appears to staff that this CUP was to go back before the Planning Commission for a review of safety and public health concerns, and the bar closed before that was done.

Mike Warda stated that comments were made in 2004, but there was no public notice set for the hearing to consider the modifications that would have addressed that. That hearing was originally set for consideration of parking requirements. What happened was in his communications with one of the attorneys that was representing the City, we agreed that there was a problem with the parking, that the condition could not be imposed unilaterally on the applicant.

Somehow the business application process was turned into a building permit process and a CUP process and Mike Sperry has never been the applicant of that process. There is no application before you signed by Mike Sperry and that is who is here today.

Mayor Espinoza commented that he thought he heard Mr. Sperry had requested a CUP, and he addressed the Planning Commission so that is how the CUP is here. We were surprised.

Alex McCabe, Chamber of Commerce President stated that the Chamber does not have any opinion whether or not alcohol should be served downtown. Their concern is the revitalization of the downtown area and the parking concerns. There are two vacant buildings downtown right now. At this point he is not sure what businesses he could encourage to come to those locations that would meet the current parking requirements.

Warren Urnberg, 1331 Eighth Street commented that schools have been here for years in these locations when we have had bars and we had children running around too. He stated we have a business man that wants to put in a bar, and the Planning Commission has put conditions on the bar and you also have state laws that they have to go by. Mr. Urnberg commented that you have an owner that lives in town that wants to put in a business there and he is going to do everything under his power to make sure that it is a go with no drunks in there. He is pretty sure that whoever works in a bar will be checking on people to make sure they are not under the influence. He recommended that the Council approve it.

Luis Flores 707 Almondwood Drive addressed the littering comments; those comments were addressed to a previous owner so this has no relationship to Mike Sperry, the business owner or a history of Mike Sperry as a business owner. He stated you cannot correlate something that happened 8 years ago to someone else. Regarding the school age children passing by this establishment, everyday when he goes to work, there are school age kids passing by Mountain Mikes and they have big signs of alcohol at this establishment and on the other side of town you have Yamato which is close to Geneo’s.

Mayor Espinoza closed the hearing at 8:49 p.m. as there were no further public comments.

City Attorney Lindgren stated that if there is not a desire to further deliberate he would recommend that a motion be made to provide initial direction to staff, address findings of a resolution to bring it back at a future date.

Motion: M/S Aguilar/Vierra to provide staff direction to come back and not to take action tonight and for staff to prepare a resolution to consider at a future meeting. The motion carried 5-0 by the following roll call vote:

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

NOES: Council Members: None

ABSENT: Council Members: None

MEETING RECESS

The Council took a recess at 8:55 p.m. The meeting resumed at 9:02 p.m.

2. Introduce and Waive the First Reading of an Ordinance of the City Council of the City ofLivingston Amending Livingston Municipal Code (LMC) 5-3 Setbacks, Setback Exceptions, Maximum Site Coverage and Maximum Floor Area Ratio Concerning Residential Rear Yards.

Community Development Director Kenney presented the agenda item.

Mayor Espinoza announced that he was the one that put this item on the agenda.

Mayor Espinoza opened the hearing at 9:06 p.m. for public comments.

Mike Torres, 1616 Eighth Street commented that he attended the Planning Commission meeting because he opposed this. He stated that moving it back to 5 feet the way that Mr. Espinoza put it was that a few people complained that they didn’t have enough room for a patio.

Mr. Torres said there is a section in the code book for variances and if those people want a patio they can go through the variance procedure and pay their fees. This way you don’t have a Citywide ordinance for a handful of people. He commented that besides if a contractor came in and if the City did go back to the 5 feet and a contractor came in and built homes maximum to that 5 feet, you couldn’t put a picnic table back there.

He stated that the way that the Mayor presented it, was that a handful of people needed a patio and that was an existing situation to him. There is a variance in the ordinance and if they want it bad enough, have them bring in their application, pay the fee, go through the procedure and let them take that chance that way instead of having a Citywide ordinance.

Mayor Espinoza commented that they still have to meet their ratios for their backyards and there was more than a handful of people, there was a lot of people that addressed that.

Mayor Espinoza closed the hearing at 9:11 p.m. there being no further public comments.

Council Member Vierra asked Director Kenney about the point that Mr. Torres brought up about a contractor coming in, so he could build a larger house to fill up this space. He stated that in Fresno recently it was in the paper where one house caught fire and took three houses with it because they were built so close together. He has a concern for safety and he still thinks the variance opportunity is there if someone really wanted to have the change or a hardship. He asked didn’t we just help someone with a front porch? Council Member Vierra thinks they can come in and get that accepted, so if they change this we are letting developers do whatever they want. That is why originally they put the footage as it was, and you go to some towns and the houses are like 6 feet apart and they are going to be able to do that if we change this and it is Citywide. It will not help just one or two people. It will allow a contractor to come in and put them in like sardines.

Mayor Espinoza stated that is why he commented that they would still need to meet the maximum coverage.

Council Member Vierra responded that they just had an example a few years back on Main Street where we allowed a two story structure to go up and we really got beat up by the neighbors. They felt that that structure was so close to their fence that the people were spying on them. We really have to look at what we are doing and what it is going to cause down the road.

Mayor Pro-Tem Aguilar stated that she agreed with Mr. Torres, a variance is available and she feels that we need to always keep in mind that we have a City Manager that they can go talk to. She stated that we always get critiqued when we are up here for what we say and do, so she feels the way he was putting it forward with the certain amount of people we have to look at that. But her concerns are safety. She asked Director Kenney if she could summarize what the concerns were with the Planning Commissioners. She also asked the Fire Department what their concerns were.

Director Kenney stated that there were two concerns; one was privacy from people with two stories and then a safe place for children to play.

Fire Chief Rios stated that it has to do with distances between the structures. Also the types of material the building is made out of.

Mayor Pro-Tem Aguilar addressed safety issues and asked if there is an additional door or window that wouldn’t be a problem for the EMT to go in?

Chief Rios relayed that the concern is that fire personnel are able to move back and forth along the property lines. They need room to pass each other with pulled hoses.

Mayor Espinoza added that the City had an agreement where the back yard was only 10 feet and he agreed that 10 feet was too small so he agreed that for recreation or kids to play they needed a big yard. He noted that per the comments made it seems like they couldn’t walk around. He knows there are arguments for and against and he is just trying to get past that and address the concerns.

Council Member Vierra stated that we have some new homes that if they have a garbage can on the side of their house you cannot walk down the side. Also in the back yards they are not very wide and where are the kids supposed to play, out in the street? Council Member Vierra commented that you go out in these new developments and that is why we have even changed some of the cul-de-sacs making fewer homes on cul-de-sacs so that they didn’t play in the streets, they had some back yards. He still has concerns with making this a standardized rule for the whole City and there are ways a person can still have a variance, but you have to take it on an individual basis.

City Attorney Sanchez added that the term variance gets thrown around a lot, it is not that easy to get, and there are findings that you need to make. He explained that you need to look at the shape and you have to examine the property and see what is unique about that shape.

Motion: M/S Espinoza/Samra to introduce and waive the first reading of an Ordinance of the City Council of the City of Livingston Amending Livingston Municipal Code (LMC) 5-3 Setbacks, Setback Exceptions, Maximum Site Coverage and Maximum Floor Area Ratio Concerning Residential Rear Yards. The motion failed 2-3 by the following roll call vote:

AYES: Council Members: Espinoza, Samra

NOES: Council Members: Aguilar, Vierra and Land

ABSENT: Council Members: None

CITIZENS COMMENTS

Mike Torres, 1616 Eighth Street commented that on Peach Avenue by the new stop light, it seems to be put in the wrong place. The kids park their cars and they come out of the parking lot and they cut across that street and the light is down about 50 yards more or less. When you are coming down toward Main, the playground is where the stop light is. He added that the parking lot gate is open and that is where they come out they don’t go to the light and this happens everyday and every evening. Mr. Torres pointed out that if that light is always green for traffic you have to stop and slow down for pedestrians. He said that Atwater is good for those blinking lights on the street and we need something like that for the kids because when it gets foggy we have to do something.

City Manager Ramirez noted that he will direct the engineering staff to look into this matter.

Mayor Espinoza added that it came to Council for approval and it was quickly approved and they didn’t have enough time to go through those plans, one of those things that was overlooked.

Council Member Land commented that when she went out there to look at the light, she thought who came up with this or thought this was going to be a good idea. She said that you come out of the parking lot and then you have to walk down about 50 feet or so and then there is the stop light, so maybe we could put up a fence as they come out of the parking area.

Mayor Espinoza stated that since there are safety issues, they may have to go to the school district.

CONSENT CALENDAR

3. Resolution No. 2012- 15, Authorizing the City Manager to File a Regional SurfaceTransportation Program (RSTP) Estimate Exchange Fund Claim Form for Fiscal Year 2011/2012.

4. Resolution Designating Certain Signatures for City Investment Accounts with Wells Fargo Bank, Northern California Community Loan Fund, and One Pacific Coast Bank.

Pulled for discussion.

5. Approval of Minutes of Meeting Held on February 7, 2012.

6. Approval of Warrant Register Dated February 29, 2012.

Council Member Samra corrected item 5 on page 7 of the Minutes. Mayor Pro Tem-Aguilar corrected item 5 on pages 8 and 12.

Motion: M/S Aguilar/Land to approve consent agenda items 3, 5, and 6 with the corrections. The motion carried 5-0 by the following roll call vote:

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

NOES: Council Members: None

ABSENT: Council Members: None

Council Member Vierra commented on item 4 and asked where it says who signs on #7 and on the last sentence where it says that the warrants drawn to the individual order of any officer or person authorized to sign the same. He asked does that mean that anyone on this list can go to the bank and write a check, doesn’t it have to be approved by someone?

Mayor Espinoza added that it needed two signatures.

Council Member Vierra asked if there is any authorization by this group before any one makes a change.

City Manager Ramirez stated that the way it is currently stated there is no change, this is part of our investment proposal so you are not changing what you currently have in place.

Assistant City Manager Ortiz added that this is the same thing that we have in place and accounting does have internal controls and it is part of our internal audit process.

Council Member Vierra stated that we are talking about $9 million and he doesn’t want to get shot out there in the street and questioned as to who directs any of these people on the list to move $3 million somewhere.

City Attorney Lindgren explained that this is the standard practice that we need two signatures.

Motion: M/S Vierra/Samra to approve consent item #4 and to adopt Resolution No. 2012-17, a Resolution Designating Certain Signatures for City Investment Accounts with Wells Fargo Bank, Northern California Community Loan Fund, and One Pacific Coast Bank. The motion carried 5-0 by the following roll call vote:

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

NOES: Council Members: None

ABSENT: Council Members: None

DISCUSSION AND POTENTIAL ACTION ITEMS7.

Resolution Approving the Form of and Authorizing the Execution of a Memorandum of Understanding and Authorizing Participation in the Public Agency Coalition Enterprise (PACE) Medical Benefits Program.

Howell Southmayd representing Keenan and Associates presented the agenda item.

Mayor Pro-Tem Aguilar stated that she is happy to know that we are looking at new insurance and it begins in April. She noted that she has heard a lot of complaints and knows that the employees are going to have to have a lower deductible.

Council Member Vierra added that he didn’t see any other employees here tonight and asked how they are reacting to this.

Donna Kenney commented that from talking to some of her peers, they were disappointed with all the paperwork involved in the current plan. She was with a HMO before and appreciated that this option is here again for her.

City Manager Ramirez stated that because of the history, he wanted to make sure that we had a lot of questions and answers. He said we have had several sessions educating the employees and yes it was hard to get everyone to come. We have given them the opportunity to show up and talk and we have met with the different bargaining groups.

Council Member Land asked what the decrease was.

Mr. Southmayd responded it went from $50 a month down to $37.

Council Member Land stated that she also sat in on one of the sessions and only about 65% of the employees attended.

Council Member Samra noted that he wanted to make clear that he is not opposed to this plan. He noted that anytime we are given a better product for this cost he is all for that. He asked if employees were so concerned, how come we didn’t get 100% participation or do they think that the City is going to go through this again? His concerns were that this is a brand new JPA with no history. These rates are guaranteed for 16 months and he was not sure what the rates will be after that time period. He said if the people are happy with this, we will do this.

Mayor Espinoza added that he knew that some of the employees came to the meetings with their concerns. They had issues with the cards and they had to pay more. He knew that by switching to the current plan we saved some money and then later on we are saving a lot more.

Council Member Land asked if we could do a one-year contract instead of a two-year contract.

City Attorney Sanchez commented that the actual resolution is approving a form of MOU; he wanted to make corrections with the main terms on the MOU as usually it is a standard two-year contract and rates do not change. The change that he would like to make is in the fourth recital, to state “whereas the participation in the medical authority program requires the execution of the attached MOU.” He would like to change that to “whereas participation in the authority medical programs requires the execution of a memorandum of understanding agreement.”

Also on section two of the actual resolution he would like to change the first sentence to “the agreement to be executed and entered into by and between the entity and the authority, in a form approved by the City Attorney, is hereby approved.”

Motion: M/S Vierra/Land to adopt Resolution No. 2012-18, a Resolution of the City Council of the City of Livingston Approving the Form of and Authorizing the Execution of a Memorandum of Understanding and Authorizing Participation in the Public Agency Coalition Enterprise (PACE) Medical Benefits Program. The motion carried 5-0 by the following roll call vote:

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

NOES: Council Members: None

ABSENT: Council Members: None

8. Resolution Approving an Agreement Between the City of Livingston and the City of Gustine to Provide Dispatch Services to the Gustine Police Department.

Brenda Geary, Executive Assistant to the Chief of Police presented the agenda item.

Council Member Vierra asked what the impact would be put on our staff by adding this city.

Executive Assistant Geary responded very minimal based on their calls of 8 calls per day and 11 calls that are officer initiated which was the average in 2011.

City Manager Ramirez asked Executive Assistant Geary to share information about the dedicated line.

Executive Assistant Geary gave an explanation of the merger along with the dedicated line.

Council Member Vierra asked what happens if the call volume would go up.

Executive Assistant Geary responded that in the agreement if there is an increase of 10% or more during the year, and again everything will be tracked, they will go back and meet with the City of Gustine and discuss bringing in more funds. Also, there is the possibility of bringing on another dispatcher as well if there is an increase in call volume.

City Manager Ramirez added that this is a win-win situation for both communities and provides an opportunity for additional revenue and to work regionally as well.

Executive Assistant Geary added more information about the CAD/RMS system and what that is currently costing. The system will decrease that, but the money that is being generated with the City of Gustine minus the money that we are currently paying out of our CAD/RMS system the first year the City’s profit would be $10,991 and would increase by the end of the fiscal year to $23,136.

City Manager Ramirez noted then the total cost would be close to $55,000.

Mayor Espinoza commented that under MCAG they discussed this and this is one of the purposes to save money regionally, combine dispatch services.

Lengthy discussion followed.

City Attorney Sanchez commented that there is still a possibility that things will change a little bit. Gustine has approved going forward with this concept. However, they have not commented on the actual agreement yet. We are still trying to give them a formal agreement with all the things that most agreements have about these types of services. They may even want more clarification on a tower; let’s see the cable for maybe how that is maintained. So he needs Council to give staff flexibility for those minor details.

Motion: M/S Aguilar/Samra to adopt Resolution No. 2012-19, Approving an Agreement Between the City of Livingston and the City of Gustine to Provide Dispatch Services to the Gustine Police Department with the attorney’s recommendations. The motion carried 5-0 by the following roll call vote:

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

NOES: Council Members: None

ABSENT: Council Members: None

9. Resolution Authorizing the Purchase of CAD/RMS Software System from Sun Ridge Systems.

Executive Assistant to the Chief of Police Brenda Geary presented the agenda item.

City Manager Ramirez added that the savings will be seen in 5-7 years.

Executive Assistant Geary explained that a 5-year lease plan would be $54,796 and a 7-year lease plan would be $45,369. She noted that after talking to the City Manager it was decided to present the 7-year lease option, bringing in more revenue to the City with the project.

Council Member Samra added that he was looking at the 5-7 year term and even the best software isn’t any good in 7 years the way that technology changes. He was looking under the terms of the lease and it stated that after the second year the lease if not cancelled in the proper term which would be a 60 day notice. So if we are not happy with it in a couple of months then we could say “nice experience and then we could move on.” He asked if we had all the hardware that was needed.

Executive Assistant Geary responded correct, basically all it is is a software change and this system uses less server equipment than our current system is required to use. She added that there are over 100 agencies that are using this software.

Council Member Vierra asked again that after the second year we can cancel if we need to.

Executive Assistant Geary responded yes.

Council Member Land commented that she much preferred the 5-year plan as it aligns with the contract with Gustine. Also if we add up the savings that we had with the 7-year contract that is only $85,000 so there is a loss of about $6,000 so she recommended going with the 5-year lease rather than the 7-year lease.

Mayor Pro-Tem Aguilar asked the new Police Chief if he was familiar with it.

Police Chief Chavez responded that he spent 22 years in communications and he has learned a lot about the software and he has had a lot of use with RIMS through a lot of agencies. He has heard they are a good company and just talking to the dispatchers he believes that it is a positive thing that they are looking forward to.

Council Member Vierra commented on the 5-7 year option; he asked what if Gustine stayed with us then we have paid out $10,000 per year and if they stay we are making money if we go with 7 years.

Mayor Pro-Tem Aguilar agreed with Council Member Vierra.

Assistant City Manager Ortiz added that the 7-year lease would cost $317,000 and the 5-year lease $237,000, but if you were to go with the 5-year lease you could achieve the savings sooner. He recommended the 5-year lease.

Motion: M/S Land/Aguilar to adopt Resolution No. 2012-20, a Resolution Authorizing the Purchase of CAD/RMS Software System from Sun Ridge Systems. The motion carried 5-0 by the following roll call vote:

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

NOES: Council Members: None

ABSENT: Council Members: None

10. Resolution Approving a One Year Concessions Agreement with Paul Maurer Shows (PMS) and Authorizing the City Manager to Execute the Agreement.

City Manager Ramirez presented the agenda item and stated that the City is working with the 4th of July Committee to put on two events. One will start July 6th through July 8th and on July 7th the 4th of July Committee will have their annual 4th of July fireworks show. He is asking Council tonight to approve a good class act like Paul Maurer Shows who brings out different types of kiddie and adult rides and carnival concession stands.

City Manager Ramirez added that the 4th of July Committee is having community booths in Memorial Park, but this will be a joint effort from the stand point that it is going to be two events in one location. The high school district has said that we can use their grounds; we are coordinating between the security that the group is going to have plus our officers. We are going to have a lot of advanced sales, so the contract breaks down how much we get.

Julio Valadez, 4th of July Committee Chair commented that this is a great opportunity to work together and they need to pay for things and that is where it is going to.

City Manager Ramirez added that we will have a special fund and if there is any money left over it would be used for next year’s events.

Mayor Pro-Tem Aguilar asked if any donations have been made.

Mr. Valadez responded that they have not yet sent out any letters.

Motion: M/S Samra/Espinoza to adopt Resolution No. 2012-21, Approving a One Year Concessions Agreement with Paul Maurer Shows (PMS) and authorizing the City Manager to Execute the Agreement. The motion carried 5-0 by the following roll call vote:

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

NOES: Council Members: None

ABSENT: Council Members: None

ADJOURNMENT The meeting was adjourned by consensus at 10:44 p.m.

______________________________

City Clerk of the City of Livingston

APPROVED: April 17, 2012

______________________________

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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