FEBRUARY 14, 2012 Draft Minutes



FEBRUARY 14, 2012 7:00P.M.

Note: This page was prepared by taking a PDF Image File and running it through a program that converts Image to Text. So if a few textual gremlins crept in during the process, sorry about that.


The regular meeting of the Livingston Planning Commission was held in the City Council Chambers on Tuesday, February 14, 20 12. The meeting was called to order by Chair Flores at 7:04p.m.

Commissioners Present: Chair Lu i s Enrique Flores, Vice-Chair Roy Soria, Commissioner Harpreet Bains, Commi ssioner Francisco Castellanos, and Commissioner Mario Mendoza.

Commissioners Absent : Alternate Commissioner Manoj Bains (excused)

Staff Present: Community Development Director Donna Kenney , Administrat ive

Assistant Filomena Anedondo, and Assistant City Attorney Michael Minkler.

Others Present: Council Liaison Theresa Land, Kenneth Koss, Mike Tones, David Blevins, Mike Kelley, Katherine Schell-Rodriguez, Mike Speny, Genaro Pulido, Diego Castillo, Cindy Lashbrook, Jean Okuye, Mike Torres, and others in the audience.


The pledge of allegiance to the flag was recited.


Chair Flores pulled item (lb.) Action Minutes from the December 29,2012, Special Meeting, and requested they vote on that item separately.

Assistant City Attorney Minkler wanted to clarify that item (1c.) consisted of a staff report, resolution, and the Planning Commission minutes from the January 10,2012 meeting which indicated the approval by the Planning Commission of Conditional Use Permit (CUP) 2012-02 for the sale of alcohol at 444 Main Street. Since the Planning Commission’s decision to approve this CUP was appealed to the City Council, a Planning Commission report with minutes from the relevant meeting must be approved by the Planning Commission and submitted to the City Clerk in order for the appeal to be placed on the City Council agenda.



Motion by Commissioner Mendoza, seconded by Vice-Chair Soria, to approve the minutes from the Regular Meeting of December 13,2011, and to approve Resolution 2012-03 approving the Planning Commission Report and the January 10,2012 Minutes to be submitted to the City Council with Administrative Appeal2012-0l.

Motion carried 5-0 by the following vote:

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

NOES: None

ABSENT: Alternate Commissioner M. Bains ABSTAIN: None


Motion by Vice-Chair Soria, seconded by Commissioner Mendoza, to approve the minutes from the Planning Commission Special Meeting of December 29,2011.

Motion carried 4-0-1 by the following vote:

AYES: Vice-Chair Soria and Commissioners H. Bains, Castellanos, and Mendoza NOES: None

ABSENT: Alternate Commissioner M. Bains

ABSTAIN: Chair Flores


Director Kenney gave a brief update on City Council actions from their last regular meeting of February 7, 2012.

" Discussion concerning downtown commercial houses and the possibility of reinstating the non-enforcement of the nonconforming use section which requires said houses to come back as commercial if they remain vacant for longer than six months. Council approved the reinstatement for a two-year time period.

• Staff discussed amendments to the Municipal and Zoning Codes and got direction from Council to combine items in order to reduce cost to the City and to have a more efficient process.

• The City Council voted to approve a 5-year lease between the City and the Livingston Chamber of Commerce to allow them to use the storage building between the Council Chambers and the taco truck on Main Street. This location would be the Chamber’s main office and will be used as a small business incubator for the next five years.

Chair Flores asked when they were having the grand opening.

Director Kenney replied it would still be a while because the Chamber will have to do all the necessary electrical upgrades, since they will be installing computers and other office equipment, and they will need to do some fundraising for that.

• Taco Bell has submitted their building plans. They got Planning approval and they are just finishing up on the building review. They anticipate to start building by mid spring or early summer.

• The Minor Subdivision Review Committee completed the Parcel Map for the Rancho San Miguel grocery store parcels, so that one parcel is now four parcels. Rancho San Miguel will keep one parcel; Livingston Commons has perspective tenants for two other parcels; and the remaining parcel is for sale (approximately 5,000 sq. ft.)

Chair Flores asked for an explanation of the appeal process for Conditional Use Permit 2012-02 (444 Main Street).

Director Kenney explained the approved staff report and minutes will be forwarded to the City Clerk to place on the March 6, 2012, Council meeting agenda.


Chair Flores opened the public comment period at 7:10p.m.

Cindy Lashbrook, 12230 Livingston-Cressey Road, spoke on behalf of a group of concerned citizens joined together in an effort to raise money and recruit people to help keep the McConnell and Hatfield State Parks open. These parks are two of the seventy (70) State Parks slated to close in California by June 30, 2012, unless they can raise $65,000 by March 31, 2012, to cover the difference between gate receipts and the costs of maintenance and staffing.

These parks are valuable resources. They have campsites, hiking, picnic areas and beaches. There is a huge number of our local working families that spends time at these parks. If closed down, the vacant properties will draw crime and vagrants. Additionally, Merced and Stanislaus Counties will lose business dollars and tax income from local and out-of-area residents that use these parks.

It costs approximately $155,000 to run these two parks and they have already gotten about $90,000, so they are trying to find a way to make up the remaining $65,000.

Ms. Lashbrook encouraged everyone to join their group effort and to donate to the cause. She distributed informational postcards and invited everyone to attend a special "save the parks" meeting they are having on Wednesday, February 15,2012, at 7:00p.m.

Chamber of Commerce member, Mike Sperry, 1328 First Street, gave an update on the status of the building they are leasing from the City. He said they do not have the key to the building yet because the City is still trying to move out files and recreation equipment that is being stored in the building. They are scheduled to take possession on March 15, 2012. He mentioned the City has been very helpful expediting the process.

Chair Flores closed the public comment period at 7:20p.m.



The Pacific Companies has applied for Site Plan/Design Review, a Conditional Use Permit and a Development Agreement for 49 affordable apartment units and a community center to be located on a 4-acre parcel (APN 047-310-028) just south of Peach Avenue and the MID canal on the west side of Main Street.

Director Kenney mentioned staff has been actively working with the developer to finish up the negotiations on the Development Agreement, and so this item will be a "discussion only" item at this time and the applicant is aware of this.

The applicant was in attendance to answer any questions.

Director Kenney game a brief overview of the project. The Livingston Family Apartments project is approximately 4.3 acres and forty-nine (49) apartment units, some of which will be specifically for handicap individuals. There is a community center, a pool, a tot lot and other amenities with this project.

She pointed out a wording error on page two (2) of the staff report which says, "All units have patios, storage space, and washers and dryers." It should say, "All units have patios, storage space, and washer and dryer hook-ups." Per Livingston City Code, the developer of a multi­ family project must provide either one washer and dryer for every five units or washer and dryer hook-ups in every unit, and so for this project they intend to provide the washer and dryer hook­ ups.

Director Kenney said Mr. Harold Crowell’s letter was the only public comment received by City staff. Mr. Crowell was present at the meeting.

Chair Flores clarified for the record that this is a regular meeting and not a special meeting as noted on the staff report heading.

Director Kenney said the zoning designation R-3, High Density Residential, is correct for this project. The General Plan Designation is also correct. Staff has reviewed the site plan and elevations and found they are quite nice. They are providing many amenities in this project. One big positive for this project is that it is within walking distance of the high school. Some of these units will be family units, so that is a great location for them.

Staff received comments back from Livingston Union School District and Merced Irrigation District which were pretty standard. The Conditional Use Permit that was mentioned is required by the City’s General Plan for any projects that have more than twenty-four (24) units.

Commissioners Questions/Comments:

Vice-Chair Soria

• Asked if the $200,000 donation for the skate park was included in the Development Agreement.

Director Kenney explained that in 2009, when City staff first started negotiating this Development Agreement, there was a discussion about a $200,000 donation for the skate park and $5,000 toward Recreation programs. However, due to economic reasons, it is her understanding that the developer can no longer provide these funds.

• He asked staff to elucidate on the developer’s desire to pay 50% of the development fees at building permit time and 50% when the project is completed.

Director Kenney explained that is something staff has discussed in relation to other projects as well, and it is not something they are concerned about. Therefore, if instead of paying 100% at building permit time they want to only pay 50% and then pay the other 50% before the City releases their occupancy permit, it is still the same benefit to the City, so the City may allow them to do that to encourage this project to move forward.

Director Kenney said part of the reason this is just a discussion item tonight is the staff report is somewhat confusing and it did not get the complete legal review it needed to have.

Chair Flores

• Asked for clarification on what the Planning Commission is doing now and what they are expected to do next time this discussion comes back as a public hearing.

Director Kenney replied they can consider this item a public hearing right now and take public comment. The people who came to this meeting for this project that do not want to come to the next meeting can give their comments tonight for the record. City staff will continue to take public comment by phone or mail between now and the next public hearing. Tonight there will only be a discussion, but at their next meeting, the negotiations on the development agreement should have been completed and the

Planning Commission will be able to vote on the item.

Assistant City Attorney Minkler explained the bullet points on page 4 of the staff report and also the language underlined in bold, are essentially deal points they are finalizing. They are still negotiating the Development Agreement (DA) which is why they decided to turn this into a discussion item tonight instead of an actual vote. They didn’t want the Planning Commission to have to recommend or approve a CUP or make a recommend­ation on the DA when the DA is not yet finalized.

Vice-Chair Soria

• Asked about the parking requirement of one (1) visitor space per ten (10) residential units. He doesn’t think this is sufficient.

Director Kenney replied this requirement is per City Code. Chair Flores said he agrees with Vice-Chair Soria.

" He thinks this project consists of quite a few units for 4.3 acres: Sixteen 2-bedroom units (916 sq. ft.), twenty-four 3-bedroom units (1,240 sq. ft.), eight 4-bedroom units (1,387 sq. ft.), and a community building (2,460 sq. ft.). He asked if this conforms to City guidelines.

Director Kenney replied it does.

Commissioner Mendoza

• Asked if the ratio of units to parking spaces on this apartment complex is equal to the Olive Tree Apartments on Olive Avenue and the Harvest Garden Apartments near Yamato Colony School.

Director Kenney said she will have to look up that information as those apartment complexes were already occupied when she began working for the City.

Commissioner Castellanos

• Asked if there will be designated spots for visitors.

Director Kenney replied, "Yes." Commissioner H. Bains

• He agrees with Mr. Carroll’s comment. How can we build more apartments when the City has so many vacant apartments and houses?

• Asked how long is this process going to take. Is it going to be in phases? If they build Phase 1 and it doesn’t rent out, will they stop building Phase 2 and Phase 3?

Director Kenney said her understanding is the apartment complex will all be built in one phase. Staff has been working with the Fire Department recently to put together a proposed program of yearly apartment inspections and part of the reason that this has come up, besides state law, is that much of our apartment housing stock is in very bad shape and really needs some upgrades. This complex will be a good addition to the community. It will be safe, clean, comfortable and affordable housing.

• He asked about the rents.

Director Kenney said the rents will be restricted on how much they can raise them and that is part of what’s leading this discussion on the development agreement. There are certain conditions that the City normally puts on all projects that maybe shouldn’t apply to affordable housing projects.

Chair Flores

• Asked for clarification on page 1 of the resolution. If forty-nine (49) units are being proposed for this project, under the last "Whereas," Subitem 1, it says the density is 12.1 units per gross acre. When he divides forty-nine (49) units by 4.3 acres, he gets 11.39. That is out of the range and is not consistent with the General Plan at 12.0-29 dwelling units per gross acre. He has concerns about this project not being consistent with the General Plan.

Director Kenney said she would have to check that. The number of proposed apartments has changed over the various revisions of the site plan.

Assistant City Attorney Minkler said he wanted to make a clarifying comment that they are in the process of negotiating this Development Agreement and coming up with a final draft. Because of timing constraints the applicant has in terms of obtaining funding, grants, and things like that for this project, the Planning Commission hearing on that item may have to take place before the next regular meeting, so there is a possibility they have to come back at a special meeting.

Chair Flores opened for public comment at 7:36p.m.

Chair Flores said he is concerned that many projects are coming through very, very rushed, such as the Gallo 350-acre project. It seems rushed to add a special Planning Commission meeting at the end of the year, between holidays and now this project has some errors and it’s also being rushed. He added it is a lot of work for the Planning Commission to be looking at something that is not even finished.

Katherine Schell Rodriguez, P.O. Box 163, Livingston, said she was at the City Council meeting when original plans came forth to Council in 2009, and referencing the staff report on page 3 and page 4, she has a question on removing the required undergrounding of the canal. When she looks at the outside agency comments on page 3, it seems MID wants the canal undergrounded. Yet in the development agreement negotiations, there is something about removing that requirement, so she is wondering if that requirement can be removed.

She understands the removal of the payment towards a skate park, but she is concerned about the payment of public safety taxes for fire and police services within the districts modified to cap at

$50,000. She asked, "Is that $50,000 total or $50,000 per year?" We have already had people coming up before the City Council upset that they have certain fees and taxes and their benefit districts that they have to pay and others do not. If she remembers the 2009 discussion correctly, the developer originally wanted to pay an upfront fee of $750,000 and then pay nothing thereafter. During the Council discussion, the point was raised as to what happens after that $750,000 get used up and the rest of the residents end up bearing the cost for these items. She mentioned she has the minutes from that meeting up on her blog if anyone would like to look at them.

The other item she talked about is the item having to do with Bonds- Modified to "Not Required." She is curious as to what bonds would have been required before and why they might not be required now.

Chair Flores asked if she had any comments on the legal fee cap.

Katherine Schell Rodriguez replied none other than making sure that the City doesn’t end up getting any legal fees. It would be a shame that if there were additional legal fees required, the City would have to absorb the cost.

Director Kenney replied she is correct about the undergrounding of the canal being a requirement by MID. It is her understanding that the City Manager was going to meet with MID and discuss this with them. It is the request of the applicant to not underground the canal.

Director Kenney explained the requirement of annexing into special districts is one of the things that the City is still discussing with the developer since there are Council and community members who are concerned about development paying their way. The bonds will be for the off-site improvements, like the roads and sidewalks, and it is very difficult now for many developers to obtain those bonds. Title companies and banks have tightened their requirements. The legal fee cap is a request by the developer as well.

Mike Torres, 1616 8th Street, Livingston said he was told this project was a good step towards financing the skate park. At that time, it sounded real good for the City. He thinks the skate park donation is what made this project great. He asked if they are going to have a live-in manager and about the undergrounding of the canal. At that time, it had to be undergrounded if the project was approved, and then they dropped out of sight. Now they come back and they want to change everything they had agreed to in 2009. He said the City needs to watch out. With all the shootings we’ve had, there are a lot of troubles coming with this project. And now we are losing conditions and they should raise their requirements on this already. All he is going to say is keep your eyes open.

Director Kenney said there is an apartment unit for an onsite manager.

Jean Okuye, 10181 W. Olive Avenue, expressed concern about this project. She said everything you do in the City affects not only everyone that lives in the City, but those outside the City, as well. She often has to deal with issues from items getting stolen to finding dead animals or refrigerators getting dumped on her property. Houses cost money. The infrastructure is more expensive than what the taxes bring in. Is there a need for this project? Elected officials are to make decisions in the best interest of the people in the community and without a study of the City’s water quality and traffic patterns, how can they be representing the residents of Livingston and also the people in general?

She looked up the purpose of a Conditional Use Permit. It says a Conditional Use Permit allows a city or a county to consider special uses which may be essential or desirable to a particular community, but which are not allowed as a matter of right within a zoning district through a public hearing. It provides flexibility within the zoning ordinance and it enables a municipality to control certain uses which could have detrimental effects to the community. It seems to her a Conditional Use Permit is more for the benefit of the community than for the benefit of the developer, so she really would like the Planning Commission to think seriously about approving this project.

Chair Flores asked Director Kenney when the General Plan Update was coming back for review. Director Kenney replied she’s working for the end of March.

Mike Sperry, 1328 Prusso Street, said he would like to hear from the developer. Why does he want to build in Livingston? He doesn’t think this project is being rushed through. It has been on the books since 2009. He supports the project.

Kenneth Koss, TK Development, 6420 Via Del Cerrito, Rancho Murrieta, CA, said he works with the project developers, Pacific West Communities. Pacific West builds affordable housing for a living. They were the 5th largest builder in the United States for affordable housing in the year 2010. They don’t come to a community just for the sake of building units. With affordable housing, it is not like you are going to get rich over night. It takes a long time to get your investment back. Before anything is even done, before they make any applications for financing, the first thing they do is do a market study to see if there is even a need for units here. Livingston is like Riverbank, California. It has a lot of older units. It has a lot of vacant units that could probably be turned into house rentals or duplexes, but they have to be brought up to code before anyone can move in. Riverbank built sixty-five (65) units that leased up in forty-five (45) days and has people on the waiting list. Pacific West Communities is not coming to Livingston just to build an apartment complex here; they are going to be here for the long term because they stay in to manage the project.

Mr. Koss said he understands there are always concerns from the citizens when someone comes in with large projects, but forty-nine (49) units is not a large project.

He discussed topics of concern.


They are providing eighty-nine (89) parking spaces for forty-nine (49) units. In this project, there is one covered parking space for every unit that is assigned to that unit, and then they have another half space or sometimes one full space.


On the occupancy, they are not concerned at all. These units are going to rent as fast as they can get the certificates for occupancy. They conducted a market study and it indicated a need for two-, three-, and four-bedroom units at this location, so that is what they are building.

Residential Density –

In reference to the density per unit, if need be, they can ask for a bonus density which is allowed by state law- up to 35% bonus density on a project. They may just have to make some small adjustment unit wise.

Undergrounding of the MID Canal-

The portion of undergrounding the MID canal is still in negotiations. It looks like they will be required to underground it; they are just trying to figure out how they are going to be able to pay for it, so that is not an issue anymore.

Bond Issue-

In 2009, the City wanted them to install all of the infrastructure (roads, water, sewer, storm drain), build a pond, etc., before they pulled any building permits. Like most people !mow, you need to have a building permit in order to get a construction loan to build. Now they would be more than happy to post a bond for that infrastructure between the time it is approved here and until they get a building permit.

Development Impact Fees-

The development impact fee paid to the City for infrastructure is going to be about $900,000, so this 49-unit project is going to pay its fair share of development fees for water and sewer. They are going to make the improvements on Newcastle Drive (curb, gutter, sidewalk, landscape and lighting) in order to make that an actual street rather than just a 20-foot wide piece of pavement. Additionally, they will make the improvements on Main Street.

As well as the washer and dryer hookups that they have in each one of the units, there is also a laundry facility in the recreation building (about five washers and five dryers), so if there is somebody that doesn’t have their own washer and dryer, laundry will be provided on site. Again, they will have all the amenities that Director Kenney talked about (a swimming pool, a computer lab, a recreation building), and they have a considerable amount of open space around all of the buildings. If the Planning Commission wanted to cut down some of the open space and put in some more parking, he is sure they can do that.


Rents for this project are going to be at 30%, 50%, and 60% of the median income. The easiest way to kind of relate to that is if a market rate ran for $1,000 a month, the 50% rents would be $500. It goes according to income. Every tenant is income qualified. The laws to rent an affordable housing development nowadays are stringent for the tenant as well as the landlord. They won’t have a lot of troubles there because they have management onsite 24-7, 365 days a year.

Commissioners’ Questions/Comments:

Vice-Chair Soria

• He asked about the perimeter, the block wall on the north side.

Mr. Koss said the block wall goes along the MID canal. The rest of it will be wrought iron fence that has three (3) sq. ft. pilasters, five (5) ft. wide with a twenty (20) ft. wrought iron fence opening.

Director Kenney mentioned this will be like the wall on "F" Street at the Mansionettes Subdivision.

" Asked if that wrought iron fence is going to accommodate the houses on Somerset 1 that will be abutting the development.

Director Kenney said there will be an extra large setback because a multi-family project is going in next to a single family project. They will have at least a 35-foot setback and enhanced landscaping in the area between the two developments, so there will be a buffer zone.

• Asked if there will be access for kids running around and if that is going to create a situation in the future.

Director Kenney said that children from the apartment complex could play in that buffer space.

Commissioner Castellanos

• Asked if they can put up a tall wrought iron fence along the canal instead of spending so much money to underground the canal.

Director Kenney said the canal along Emerald Way is the last canal that was not undergrounded. Since then, MID has required all canals be undergrounded. There are negative impacts associated with leaving the canal above ground such as the possibility of children falling in and trash collection, among others.

Commissioner H. Bains

• Asked if the amenities will be open to the public or only to the apartment residents.

Mr. Koss replied only to the apartment residents due to liability insurance.

• He likes the idea of the computer room because there are students that cannot afford a computer.

Mr. Koss said one of the requirements of the 90% tax credits that they are going after is that they provide special services. They will provide computers for the students living in the complex and there will be people available to teach them how to use the computers.

Director Kenney said that ties into some of the public comments about the rush on this project. This project has been around for a while, but there are certain financing deadlines that are coming up for grants and tax increment financing that the developer is trying to meet.

Chair Flores

• One of his main concerns about this project is how it’s going to be financed. He knows that in Riverbank they have a similar project. According to the Modesto Bee, construction began in early 2008 with a budget of $17.4 Million. The Redevelopment Agency contributed $3.2 million dollars toward the project. The Council okayed the $3.2 million dollar commitment only if the developer secured the $10 million dollars in tax credits. This is a lot of money and he is concerned that with the way the Redevelopment Agency and the economy are now, this project may not be the wisest thing to do at this time.

California’s rental vacancy from 2010-2011 has gone down significantly. In 2010 the rental vacancy was 7.5% and last year it was 6.1%. That means California and the Central Valley were harder hit. People are renting less. Homeownership has gone up. In Livingston, actually, from 2006-2010, homeownership is 61.8% and in California it is 57.4%, so that is saying that people in Livingston are renting less, but are homeowners more. He wants to echo one of the points that Mr. Crowell made in his letter about if there is really a need for this project when there are so many vacancies in town.

He would like the City to rejuvenate the old parts of the City rather than to expand to the new parts. He is really concerned about the need for an EIR on this project, especially since they need a Conditional Use Permit. He is also concerned about the traffic, water, and air quality.

This project is similar to what they proposed in the City of Gustine. He spoke to their City Planner and he stated the community said "No" to the project and Gustine is way smaller than Livingston.

Director Kenney replied to his concerns about the vacancy numbers and said she does not believe it is appropriate to compare homeownership with apartments in general. If you were going to do a comparison, one might choose Las Casitas del Sol apartment complex, which is traditionally filled all the time, because it is an affordable housing project.

Mr. Koss said that as far as funding goes, if the Livingston Redevelopment Agency had some money to spare, they would be more than happy to take it. He added they do have a USDA commitment for financing on this project. He said, "When a market study is done, USDA will tum you inside out, upside down, backwards and forward and then slash it on the market study before they give you the dollars." He assured the Planning Commission that this project is going to rent out quickly and that there is a huge need for affordable rentals.

• He said he read an article in the "West Side Connection" magazine about a similar project in Gustine. It said one of the reasons why the community and the City voted against that similar project was that it added unneeded units to a local housing market already hit hard by vacancies.

Mr. Koss said he went to Gustine and did a market study himself there for a project last year. They have a huge number of family units and there isn’t a need for more. That is the reason they didn’t build there, but there is a need here for family units. That is why they are asking the Planning Commission for their recommendation of approval.

Vice-Chair Soria

• Asked if the apartments will be open for Section 8 holders.

Mr. Koss replied, "Yes," and added that under federal law, they have to rent to Section 8 certificate holders. He said on average about 33% of the units will be rented to Section 8 certificate holders.

Commissioner Mendoza

" He wanted to address Mr. Crowell’s comment letter in reference to rising crime rate in the City of Livingston.

He stated that with the outstanding job that the Livingston Police Department does, he is pretty sure that the crime rate will not go up. He cannot even get away with parking wrongfully in front of his house without getting a parking ticket at 3:00a.m. These apartments will come with their own management and that is a positive thing because the citizens will have to keep everything nice, similar to Las Casitas Del Sol, unlike the apartments that are self owned, such as the apartments on "F" and 8th Streets, where the landlords don’t maintain them. He thinks these kinds of apartments will be beneficial to the City.

He said crime goes wherever you go, but if you want to stop it, you can stop it no matter what.

Commissioner H. Bains

• Asked if there will be some sort of curfew set for the residents in the complex.

Mr. Koss said they don’t have a curfew set, but people pretty much know the rules. Criminals don’t want to come into a place that only has one way in and one way out. That is one good thing about their project. They have one entrance coming in off of Newcastle Drive and then they have an emergency ingress/egress off of Main Street. He agreed with Commissioner Mendoza that crime is going to happen somewhere all the time, but you

do your best when you design a project to design it so that the criminals stay out. The fact

that they have on-site managers, as well as maintenance people that will live there, helps them keep crime to a minimum.

• Asked if they will install surveillance cameras.

Mr. Koss replied they are not.

Chair Flores closed the public comment period at 8:11 p.m.

Chair Flores asked for clarification on the total acreage for this project. He said the copy of the revised Development Agreement that was given to the Planning Commission right before the start of this meeting looks the same as the one in their packet. He noticed under recitals, letter B, it says, "4.23 acres," but everywhere else it says, "4.3 acres," so he wondered why the discrepancy.

Director Kenney said this Development Agreement was the final document in 2009 so it’s not the same as the one in their packet. She printed this 2009 version to provide additional information to Planning Commission as to the items in question. She will verify that all the details are correct when she receives the final negotiated version.

Chair Flores asked for clarification of the location of the property. In the conditions of approval for the Site Plan/Design Review, it says this project is on the southwest comer of Peach and Lincoln, yet he thought it was Main Street, not Lincoln Blvd.

Director Kenney said Lincoln Blvd. is actually Main Street now up to Newcastle Drive. Chair Flores would like the property owner present at the next meeting.

Director Kenney said she will have to verify that he is still the owner and not the bank, and if he is still the owner, she will try to contact him.


The City Council asked the Planning Commission, through Resolution of Intent 2011-71 to take public comment, determine General Plan consistency, and make a recommendation to the City Council concerning an amendment to reduce residential rear yard setbacks from a minimum of fifteen (15) feet to a minimum of five (5) feet. The Planning Commission, at their regular meeting of December 13,2011, voted 5-0 to recommend retaining the existing fifteen (15) foot rear yard setback. The City Council, at their regular meeting of January 3, 2012, requested the Planning Commission review the materials again and make recommendation concerning the inclusion of a second story rear setback for the R-1 zoning district in addition to a revised first story setback.

Director Kenney presented staff report and stated that when City staff reported Planning Commission’s recommendation to the City Council to retain the existing fifteen ( 15) foot rear yard setback, they asked what the Planning Commission’s concerns were. Staff explained their main concern was the privacy issue with the neighbors – If a house was built to the five (5) foot setback line, would the second story be able to look over the fence? Following their discussion, the City Council asked that this item be brought back to the Planning Commission to see if it would make any difference if the first story would be allowed to build to the five (5) foot setback, but then the second story would respect a ten (10) foot setback or the existing fifteen (15) foot rear setback.

Chair Flores opened the Public Hearing at 8:17p.m.

Mike Torres, 1616 gth Street, strongly urged the Planning Commission to keep the rear setback at fifteen (15) feet. If they change the setback, it will be Citywide. If Mayor Espinoza put this item on the agenda because a couple of citizens couldn’t build a patio in the rear yard, he should know that in the zoning ordinance, there is Section 5-6-10 called the zoning variance. If these people want to make a patio in their fifteen (15) foot rear setback, then they can go through a zoning variance application and if the Planning Commission and the City Council approve it, they can build it. He feels there is no need to have a five (5) foot setback when there is a section in the Code already for hardships like that.

If a family with children wanted to put a swing set in their back yard and the setback was five (5) feet, there would not be any room. Five (5) feet is the size of a bathtub. It is nonsense to do this Citywide. Residential areas are for families. There needs to be fifteen (15) or twenty-five (25) feet in the rear yard. He recommends Planning Commission leave the rear setback the way it is.

Director Kenney said she wanted to clarify that a variance only goes to the Planning Commission; it does not move on to the City Council. The variance is one of two items that the Planning Commission can approve or deny without having to go to Council. With a variance, there are some findings that need to be made and are very difficult to make. Basically, the variance was created to help someone with an oddly shaped piece of property who cannot build something that their neighbor is able to build in the same zoning district. Therefore, not everybody who applies for a variance would be able to get one. There would definitely be some tough findings to make.

Mike Torres said he thinks a variance is a better solution than changing it citywide. If they change the rear setbacks, the back yard is gone. Your side yard setback will be larger than the back yard.

Commissioner Mendoza said in Merced County most of the setbacks are five (5) feet.

Chair Flores said the staff report says other Merced County cities have a minimum setback of fifteen (15) or twenty (20) feet.

Director Kenney said she got that information from the city websites she checked. Chair Flores closed the public hearing at 8:24 p.m.

Chair Flores said he personally thinks five (5) feet is too small. He asked staff if she knew how many residents complained to Mayor Espinoza.

Director Kenney said she does not know the total number. She is aware of one person, but Mayor Espinoza did not share that information with her.

Discussion followed regarding the appropriate wording on the Resolution to keep the fifteen (15) foot setback.

Motion by Chair Flores, seconded by Vice-Chair Soria to approve Resolution 2012-04, a Resolution of the Planning Commission of the City of Livingston Recommending Low Density Residential Rear Setbacks Remain a Minimum of Fifteen (15) Feet for Both First and Second Story residential units. Motion carried 5-0, by following vote:

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

NOES: None

ABSENT: Alternate Commissioner M. Bains ABSTAIN: None



Director Kenney presented the staff report. She explained this is a discussion item similar to the one on the Downtown zoning district houses where if there is a vacant house for more than six months in the commercial zoning district, then it is required to come back commercial. City Council determined that they were not going to enforce this requirement for two years.

Similarly, there is situation in the C-3 zoning District. There is someone in the community who is interested in treating a property and similar properties in the C-3 zoning district just like they are now treating the houses in the downtown commercial district by basically suspending that enforcement for two years. In order to do this, the person would need to file an application and pay the fees for a zoning ordinance text amendment that would change it for all the C-3 districts or come before the Planning Commission and state his case to see if the Planning Commission would direct staff to ask the City Council for a resolution of intent.

Chair Flores asked if they had the option to table this item.

Director Kenney replied they did have that option. She mentioned the interested parties were sitting in the audience.

Chair Flores opened the item for public comment at 8:30p.m.

Mike Torres, 1616 8th Street, asked what parcel they were referring to.

Director Kenney replied the parcel that brought up this discussion is located on "F" Street directly east of the Blueberry Hill Cafe and the WIC building. There is a house and several smaller units there that were originally farm labor housing. A couple of years ago, the County Health Department closed it down because the septic system had failed and because there was no heat in those units. The tenants were evicted and the property has been vacant since. Currently, the property owner has an offer from someone interested in purchasing the property. They would be willing to make the necessary upgrades to keep it Residential rather than bringing it back Commercial which is required by the nonconforming section of the City Code.

Discussion followed regarding the property.

Director Kenney explained that in order to remedy some of the Health Department’s concerns, they would have to hook up to City sewer and water, but this would require a lot of pipe work on "F" Street at a substantial cost to the property owner.

Genaro Pulido, 1680 Heather, Turlock, stated he is a realtor known as "The Handsome Man." The property in question is located at 4351 "F" Street. This property was occupied by farm workers for many years. When he purchased the property, he rented it out as studio units. One of the occupants complained to the health department and the health department went to do an inspection and found some problems with the septic tank and other issues, so he had to spend a lot of money making repairs. Currently, he has an offer on the table for this property, but the buyer wants to keep it residential. Therefore, he requests the Planning Commission allow him to keep the property residential and to give the buyer the option to either put in a new septic tank or to hook up to City sewer. He thinks this would be a great opportunity to keep the property free from vandalism.

Commissioners Questions/Comments:

Commissioner Castellanos

• He asked if the buyer wants to connect to the City sewer or to install a new septic tank.

Diego Castillo (buyer), 1023 First Street, said he would like to have both options. If the Planning Commission allows him to go back to residential use, in the future, when he attempts to bring the units back to code, he would get a well and septic inspection and if the well and septic are functioning in good quality, he would like to get it back to the way it was before without having to hook up to the City line if he does not have to.

Lengthy discussion followed.

Vice-Chair Soria

• He doesn’t see a problem bringing this property back to residential if other properties in that area still remain residential.

Director Kenney reminded the Planning Commission that this would apply to all vacant buildings in the C-3 zoning district and not just to this specific property. She indicated there is still a non-conforming residence in that area which belongs to Ms. Pollock. If the City suspends the enforcement of the C-3 district regulations for two years, this would allow Ms. Pollock’s property to basically be conforming for two years. Currently, a non­ conforming residence in a commercial zone can only spend up to twenty-five percent (25%) of the value of the property to keep it up to code where that would no longer apply. She would be able to spend whatever amount she wants on upgrades to her house. This would equally apply to all other properties in the C-3 zoning district.

Director Kenney indicated that if the Planning Commission directs staff to take this item to the City Council, they are going to want to know all the facts discussed by the Planning Commission.

Mike Torres, 1616 8th Street, said he has lived in Livingston for a long time and he remembers the history of this area. He described what took place over the years. He added that he is almost sure those properties are still on septic tank.

Vice-Chair Soria remembers that area being called "The Tortilla Flats."

Chair Flores asked how many properties are currently in the C-3 zoning district in Livingston. Director Kenney replied the C-3 zoning district is the areas in red on the zoning map and they are scattered all over town. There are some parcels just north of Highway 99 on Main Street that are still C-3 zoning even if they are no longer connected to the highway.

Vice-Chair Soria said he would like to have everyone in the area notified to see if they have any concerns.

Chair Flores said it would be a change citywide, so the whole City would have to be notified. Director Kenney said the point of this meeting is to see whether or not staff should go to City

Council and ask for a resolution of intent to work on this item and not have staff put in a lot of time and then, when they get to Council, they don’t want to hear the project.

Assistant City Attorney Minkler explained they are not having them rezone that district. It is just not enforcing the legal nonconforming use of it, so the residents currently living in those zones wouldn’t necessarily be affected other than they wouldn’t be facing issues of legal nonconforming use expiration or enforcement. They would be allowed to continue living there and, as Director Kenney said, if they wanted to remodel, upgrade their sewer, or do other things like that, they would be allowed to do that and not be in violation of the legal nonconforming use provision in the zoning ordinance which is what stops them from doing it now.

Chair Flores clarified what Planning Commission is doing is giving City staff the green light to go to City Council to see if they support it so staff can work on it.

Assistant City Attorney Minkler said presumably when the City rezoned that area "commercial," there was a reason why they wanted it to eventually convert to commercial. Not enforcing a non­ conforn1ing use sort of entrenches the residential uses that are there, which is why they are asking this question to the Planning Commission and the City Council as a policy detern1ining issue. Do they want to allow the residential uses to remain residential and become more entrenched or do they want to encourage the conversion to commercial?

Commissioner Castellanos asked if that change would be temporary.

Director Kenney said if this is treated as the downtown commercial project staff recently worked on, it would be for a temporary two-year period to see how it works out and then it could be extended for a longer period.

Vice-Chair Soria thinks they should move forward to City Council for a Resolution of Intent.

The Planning Commission agreed, by consensus, to direct staff to take the item to the City Council per LMC 5-6-2 (B) asking for permission to have staff draft a Resolution of Intent for Planning Commission review, recommendation, and a determination of general plan consistency.

Director Kenney said considering there is a purchase on the table, City staff will try to move it forward expeditiously.


Planning Commissioners Commissioner H. Bains Nothing to report. Commissioner Castellanos Nothing to report. Commissioner Mendoza Nothing to report.

Vice-Chair Soria

• Wished everyone a Happy Valentine’s Day. Chair Flores

• Asked if the mural language will be placed on the agenda for the March regular meeting.

Assistant City Attomey Minkler said they are making progress, but they keep getting this item pushed back by other projects.

• Asked if there is a stop sign on Park and Main Streets yet.

Director Kenney replied, "No." City Staff

Community Development Director Kenney Nothing to report.

Administrative Assistant Arredondo Nothing to report.

Assistant City Attorney Michael Minkler Nothing to report.


The regular meeting was adjourned by consensus at 8:50p.m. APPROVED: May 8, 2012

clip_image001clip_image002Chair, LUIS ENRIQUE FLORES 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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