JANUARY 10, 2012 Draft Minutes

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JANUARY 10, 2012

7:00 P.M.

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

Chambers on Tuesday, January 10, 2012. The meeting was called to order by Chair Flores at 7:04 p.m.

Commissioners Present:  Chair Luis Enrique Flores, Commissioner Roy Soria, Commissioner Francisco Castellanos, Commissioner Harpreet Bains, and Alternate Commissioner Manoj Bains (late).

Commissioners Absent: Vice-Chair Mario Mendoza (excused)

Staff Present: Community Development Director Donna Kenney, Administrative Assistant Filomena Arredondo, Interim Police Chief Chris Soria, and Assistant City Attorney Michael Minkler.

Others Present: Council Liaison Theresa Land, Mayor Rodrigo Espinoza, Katherine Schell-Rodriguez, Colette Alvernaz, David Blevins, Mike Sperry, Brandon Friesen, and others in the audience.


The pledge of allegiance to the flag was recited. CONSENT AGENDA


Motion by Commissioner Soria, seconded by Commissioner Castellanos, to approve the minutes from the Joint City Council and Planning Commission Special Meeting of December 5, 2011.

Motion carried 4-0, by the following vote:

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

NOES: None

ABSENT: Vice- Chair Mendoza

LATE: Alternate Commissioner Manoj Bains


Director Kenney congratulated Planning Commission Member Luis Enrique Flores for his reappointment to another 4-year term on the Livingston Planning Commission, which commences January 1, 2012 and ends December 31, 2015.


Chair Flores called for nominations for new Chair for the year 2012.

Commissioner Soria nominated Chair Luis Enrique Flores to remain Chair for the year 2012.

Nomination was seconded by Commissioner H. Bains. Motion carried 4-0, by the following vote:

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

NOES: None

ABSENT: Vice-Chair Mendoza

LATE: Alternate Commissioner M. Bains

Chair Flores called for nominations for new Vice-Chair for 2012.

Commissioner Castellanos nominated Commissioner Soria for Vice-Chair for 2012. Nominationwas seconded by Commissioner H. Bains. Motion carried 4-0, by the following vote:

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

NOES: None

ABSENT: Vice-Chair Mendoza

LATE: Alternate Commissioner M. Bains


Director Kenney gave a brief update on City Council actions.

The City Council has asked the Planning Commission to take a second look at residential rear yard setbacks. Council is asking the Planning Commission to consider a minimum five (5) foot setback for the first story (lower floor) of a house and come in five (5) feet or more for the second story (upper floor) setback. This item will come before the Planning Commission at their next regular meeting of February 14, 2012.

City Council approved Site Plan/Design Review 2011-01 for a Taco Bell restaurant.

Following this approval, the Project moves forward with their Conditional Use Permit (CUP) application for a drive-thru which is being discussed by Planning Commission at this meeting.


Colette Alvernaz, P.O. Box 255, Livingston, commented on the Special City Council and Planning Commission Joint Meeting held December 5, 2011, pertaining to the City of Livingston Vision for the Future.

She expressed her disappointment in the minutes of that meeting since there was no mention of preserving agriculture. Livingston was built by agriculture. She hopes this was an oversight since farms create jobs. Employees include seasonal and year round workers, college educated and some that cannot even sign their name.

Livingston has granite in its soil, perfect to grow polished sweet potatoes. Because of the dam, the community has the access to water and its soil needs to be protected.

A 42-inch sewer trunkline was approved without County residents knowing and without CEQA. The City of Livingston is not a good neighbor for agriculture and discriminates. She hopes this was not intentional.

Chair Flores said it was an oversight that Agriculture Preservation was not mentioned as much as it should have been in the minutes. He knows he personally discussed it. The City of Livingston does value agriculture and preserving agriculture land.

Director Kenney said staff is currently processing its first Conditional Use Permit (CUP) to allow farming within City Limits. This will be in front of the Planning Commission in the near future.

The public comment period closed at 7:17 p.m.


CONDITIONAL USE PERMIT 2011-02 OCAT, INC. of Modesto requests a Conditional Use Permit for a drive-thru for the Taco Bell restaurant to be located on Joseph Gallo Drive west of Winton Parkway and north of the truck stop.  

Director Kenney presented the staff report. She explained that Taco Bell has already been through Site Plan/Design Review. The Planning Commission recommended approval and City Council heard the item in a public hearing and approved the project. The only thing left is the Conditional Use Permit (CUP) for their drive-thru feature. Unfortunately the applicant’s representative, Mark Tanis, was not able to attend the meeting tonight, but staff does have his phone number to contact him with questions if necessary.

Their plans show seven (7) spaces in the drive-thru stacking area. A total of fifty (50) parking spaces are proposed which is more than is required.

Chair Flores asked if any public comments were submitted beforehand. Director Kenney replied no public comments were submitted.

Commissioners’ Questions/Comments

Commissioner Soria

• He sees no change in the ingress and egress, which is one of his concerns. Perhaps in the future they can keep them separate.

Director Kenney said comments were forwarded to the applicant. Their response was that the driveway into the site was twice as wide as they normally would build it. In speaking with the City Engineer, she learned there is room to do some connectivity to the north once the new hotel is built, so there may be an opportunity yet to make modifications.

Chair Flores opened the public hearing to the public at 7:20 p.m.

Colette Alvernaz, P.O. Box 255, Livingston, said she is not opposed to the project, but traffic on Winton Parkway is over taxed. She expressed concern about pedestrian traffic from the schools. She is concerned about water and air quality.

Director Kenney said the City installed an asphalt sidewalk along the south side of "B" Street and there is a crosswalk at the traffic light at "B" and Winton Parkway for pedestrians to cross.

Chair Flores closed the public hearing comment period at 7:23 p.m.

Commissioners’ Questions/Comments

Chair Flores

0 Asked who represents the Gallo architecture review board.

Director Kenney replied she knows two of the board members are Frank Borges and Greg Thompson.

Motion by Commissioner Soria, seconded by Chair Luis Enrique Flores, to adopt Resolution 2012-01, A Resolution of the Planning Commission of the City of Livingston Approving Conditional Use Permit 2011-02 for Taco Bell. Motion carried 5-0, by the following vote:

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

NOES: None

ABSENT: Commissioner Mendoza


The bar at 444 Main Street has been closed for approximately seven years. The bar retains Conditional Use Permit 2001-16 for the sale of alcohol-by-the-glass in the 5,488 square foot building. Michael Sperry desires to open a bar at this site pursuant to his presentation to the Planning Commission on November 8, 2011. Pursuant to LMC Sections 5-6-1(D)(3) and 5-6-1(D)(5) the Planning Commission will consider whether to modify, revoke, or reapprove the CUP.

Director Kenney presented the staff report. She said the review of this CUP came from the presentation that Mr. Sperry gave to the Planning Commission in November 2011. It was on the agenda for the December meeting and the applicant pulled it, so staff moved it to this date.

She said the Planning Commission is looking at four options tonight.

• Option One: Modify the existing CUP.

• Option Two: Modify the existing CUP and impose the new parking requirement.

• Option Three: Revoke the existing CUP.

• Option Four: Do not revoke or modify the existing CUP.

Director Kenney provided the details for the discussion. She said she has been working with the Interim Chief of Police to develop conditions for the Conditional Use Permit if that is the direction the Planning Commission chooses to go. Background information on the site led to the new conditions.

Mr. Sperry was present to answer questions.

Director Kenney said Mr. Sperry would like to move forward and open his business, but the main problem is that he cannot meet the parking requirements in the Downtown Commercial District.

Chair Flores asked if any public comments had been submitted to City staff beforehand on this project and if neighbors were notified of the public hearing.

Director Kenney replied that no comments were received by staff. She added that a notice of public hearing was mailed out to all property owners within 300 feet of the project.

Chair Flores opened the public hearing at 7:29 p.m.

Katherine Schell-Rodriguez, P.O. Box 163, Livingston, asked how was it that the attorney bill for November’s meeting was over $12,200, and who is paying for it.

Assistant City Attorney Minkler replied that there is more than just the review of this particular item included on the bill. There is a long history of multiple businesses using this building, so it is a pretty substantial file to review. It took their office a fair amount of time just to sort through it and get the facts straight on how this project has unfolded over the last several decades. There were complicated land use questions that came up that required research. The City Attorneys want to make sure that they present the City with all possible options and that they have the right answers.

In response to who will be responsible for the bill, his understanding is that Mr. Sperry is not responsible for those charges because staff was directed to bring the CUP back to the Planning Commission for review.

Colette Alvernaz, P.O. Box 255, Livingston, said she has nothing against the applicant, but she does not like bars. She recalled a DUI accident that caused the death of a 21 year old boy. She asked that if the Planning Commission approves this Conditional Use Permit (CUP), the City would be militant about never allowing anyone to drive drunk. She is concerned about children and avoids going near bars with her children. She believes alcohol and drugs are used by Satan to destroy families.

Brandon Friesen, 321 Second Street, Livingston, said this building is right around the corner from his hardware store so it has the least impact to his business. He thinks this is a tough situation.

With the building vacant for seven years, no business in there will ever meet the current parking requirements. The City might as well change or modify the parking ordinance. As for the type of business, he would be more concerned about the aesthetics than about it being a bar. That’s freedom of choice. He hopes the Planning Commission does due diligence and review the CUP for security, but not so much parking.

Mike Sperry, 1328 First Street, said he didn’t ask to come back to the Planning Commission.

Someone else directed this item back. He received an e-mail to attend and isn’t sure why he is here.

Commissioners Questions/Comments

Alternate Commissioner M. Bains

® The Planning Commission asked Mr. Sperry a lot of questions at his presentation, so they understand his vision is to open a bar and how he wants to run that business. They addressed a lot of the concern of children going into the bar. Obviously, it’s going to be a tough task.

Mr. Sperry wanted to reiterate a few things about himself. He is 40 years old. He has lived in Livingston for 39 1/2 years. He is familiar with every law enforcement facility in this area. He currently holds a California Weapons’ Permit (CCW). He just applied for a business license to open a gun shop in Livingston and it was approved within three days. He has held an ABC liquor license in his name for over eight years. He has had no infractions. Alcohol and Beverage Control (ABC) is ready to approve his Alcohol permit at this facility. All they are waiting on is an updated CUP and a final inspection. They are happy to give him a permit. He is a responsible applicant. He strongly suggests they give him a chance to make this work. He will be careful.

Mr. Sperry added that on December 17th, his attorney sent a letter to the two City Attorneys, Director Kenney, and City Manager Ramirez. He stated the $12,200 bill is not it; that bill will increase and that is only the beginning. He is costing the City money and he has not even started to generate money. Who is paying for that? All City residents.

Chair Flores asked Mr. Sperry which of the four options presented tonight he would prefer.

Mr. Sperry said when he made his presentation, he asked for a three-year waiver. He thinks the Planning Commission just has to say the parking requirements have been met. He wants Director Kenney to sign off on his business license and it would end tonight.

Chris Soria, Interim Chief of Police for the City of Livingston, said he has discussed this issue with Director Kenney, Mr. Sperry, and a lot of other people and he knows there has been a stigmatism regarding what happened at this site in the past. He is not against Mr. Sperry; he has been in this community for a long time and he is a responsible person. However, Mr. Sperry knows that with a bar coming in, things are going to happen that can get out of control. They are going to get a lot of police calls out there. He feels they have to put for some guidelines on it. He said he helped Director Kenney put together some conditions for the CUP.

Two things of importance are:

1. He would like to have better lighting, not only for the patrons, but for the officers, as well,so they can see what’s going on (Condition #9, on the resolution).

Director Kenney read condition #9 for the record.

"The operator of the bar shall consult with the police department regarding the adequacy of interior lighting and shall ensure interior lighting is adequate to create a safe atmosphere for police officers, patrons, and employees."

2. Parking issue – He knows bad things have happened in the past. People are going to park at Rite Aid. With that, he is going to get complaints from Rite Aid because that is a private parking lot, so that can become an issue. It has happened in the past.

Commissioner Castellanos asked what time Rite Aid closes. Mr. Sperry replied 9:00 p.m.

Commissioner Castellanos asked Mr. Sperry what time he would open his bar.

Mr. Sperry said typically most people start coming in at 9:00 pm or 10:00 pm.

Interim Chief of Police Soria said in the past, he had to address cars left behind for days and even weeks.

Chair Flores asked about Condition #5 on the Resolution, which states, "A bar operated on-site shall provide one designated security person for each 50 patrons." He asked if that ratio was a good one.

Interim Chief of Police replied for dances they currently require two security persons per 100 patrons, which is the same ratio.

Director Kenney said that requirement is in the City Code.

Assistant City Attorney Minkler said Interim Chief Soria had provided comments on proposed conditions and staff incorporated those conditions in the draft resolution that is before the Planning Commission tonight.

Theresa Land, 995 Hilltop Avenue, Livingston, asked the applicant what his hours will be.

Mr. Sperry replied he is looking at opening primarily on Friday, Saturday, and Sunday for the first four to six months. If he gets strong support, maybe he might branch into another day. He said the bar business has changed. People don’t have the funds anymore to go out and spend. He plans to open at about 3:00 pm or 4:00 pm, at the earliest, but he is willing to discuss it if it becomes an issue.

Director Kenney asked if he intends to serve dinner.

Mike Sperry said he will have no food to start, except for toaster and microwave items – only food that would prepare in 3-4 minutes because he does not have a kitchen. In the future, if things go well, he would like to add a full kitchen with a full menu and it will be something other than what we currently have in this town so people have the option of something different.

Chair Flores closed the public hearing at 7:55 p.m.

Assistant City Attorney Minkler said he wanted to clarify what options were in front of the Planning Commission and where they are with the parking requirements.

Of the four options, only one of them would actually impose the City’s new parking requirement and that option would be imposed as a new additional condition on the permit. Essentially, what the Commission is looking at tonight is the opportunity to review the existing Conditional Use Permit and the first option is to update the Conditional Use Permit so that it does not refer to Club Tequila anymore and it imposes the new conditions. The second option adds the City’s new parking requirements as an additional condition of approval. The third option is to revoke the CUP entirely which would mean Mr. Sperry wouldn’t have permission to sell alcohol at 444 Main Street. The fourth option is to leave the existing CUP in place.

Director Kenney stated that if the Planning Commission were to choose option #4, which would be to leave the CUP alone and say the parking is okay, she could sign the business license.

Commissioners’ Questions/Comments

Alternate Commissioner M. Bains

• Asked if the conditions of approval that Interim Chief Soria referred to were already incorporated in the resolution should they approve modifying the existing CUP.

Assistant City Attorney Minkler clarified that Option #1 does not impose the City’s parking requirement. Option #1 gives the Planning Commission the opportunity to modify it, add additional conditions, and update the CUP without imposing the new parking requirement. The conditions that were adopted from Interim Chief of Police Soria’s recommendation are in the proposed conditions of approval in the resolution included in the packet.

He added that the Planning Commission is not necessarily limited to those conditions. If there is something about those conditions that they want to change, they can. These were staff’s proposals. It includes the proposals recommended by Interim Chief Soria. Ultimately, the Planning Commission decides which conditions to impose on the permit, so they are not necessarily limited to these conditions.

Mike Sperry asked Director Kenney if a copy of the resolution was emailed to him.

Director Kenney replied she emailed him the staff report and the resolution.

Mike Sperry said he did not see the resolution. He did not know that Interim Chief of Police Soria or anybody else had updated the resolution. He would like to look over the resolution for three minutes.

Director Kenney helped find the resolution in the agenda packet for him.

Chair Flores asked about condition #11, which states, "The Planning Commission shall review the CUP at least every six (6) months and take any action necessary to ensure compliance with all applicable laws and conditions." He felt the review of the CUP every six months was too often.

Director Kenney said that condition is a carry over from the original Tequila Club CUP.

Assistant City Attorney Minkler explained that one of the reasons the condition was carried over from the original CUP is because when the Tequila Club closed, it was during that CUP review process and the Planning Commission at the time had shortened the review time to six (6) months in order to verify certain issues were addressed. They brought that condition back with the thought that if the Planning Commission felt they were seeing that item too much and there were no problems, they could extend it and if there were frequent problems and they wanted to keep a closer eye on it, they could shorten it.

Chair Flores said he was thinking that after the fifth year of business, they could review it every year rather than every six months.

Alternate Commission M. Bains said that is something they can change later. They can leave it as six months now and if everything looks good after six months, they can extend it to a year or longer.

Mr. Sperry said he has no problem with the conditions of approval, but he doesn’t see anything about parking.

Assistant City Attorney Minkler said the staff report shows four (4) options that are in front of the Commission. The conditions in the draft resolution reflect option #1. As you look at option #2, the language proposes a 12`" condition, included in the staff report, which would impose the City’s new parking requirement. That is one of the options in front of the Planning Commission, but the draft resolution attached to the Staff Report does not include that option.

Mr. Sperry asked if the Planning Commission was trying to make the parking requirement disappear or trying to cut it down to a more reasonable number. If they were trying to cut it down, that was still not going to work because there is no parking.

Director Kenney said that is what these different options reflect. Some include the new parking, some include the old. parking, and one says don’t mess with the existing CUP.  

Mr. Sperry said he liked that last option.

Chair Flores asked if that would be option #1 or #4.

Assistant City Attorney Minkler explained option #1 updates the CUP and adds the additional conditions of approval, but does not impose the new parking requirement.

Chair Flores said he wants to do what is favorable for business people regardless of the applicant. There is just not enough infrastructure downtown to require so much parking.

Discussion followed regarding available options.

Vice-Chair Soria would like to go with option #2 to modify the existing CUP and impose the new parking requirement.

He would like to go back to what was required in 2001. In 2001, the City only required one (1) parking space for every two hundred (200) square feet of dining, waiting, and lounge areas, plus one (1) parking space for each two (2) employees. He thinks they have to have some kind of control and regulation in the parking.

Chair Flores asked if what Vice-Chair Soria is suggesting is they require one (1) parking space for every two hundred (200) square feet, so if this business has around 4,000 square feet, they will need about sixteen (16) parking spaces.

Discussion followed.

Alternate Commissioner M. Bains asked what is different from 2001 to now. Where did they have all those parking spaces?

Assistant City Attorney Minkler replied that, unfortunately, the 2001 staff report for the CUP is very unclear about how staff determined, at the time, that the parking requirement was met and further complicating things, they didn’t exclusively say that finding in the original CUP either.

The Planning Commission approved the CUP and the Tequila Club, both owned and operated under that CUP, and it was presumed they satisfied the 2001 parking requirement. That is why in the staff report, one of the considerations if the new parking requirement would be imposed was to give credit for those fifteen (15) parking spaces that would have been required in 2001 and reduce the number of parking spaces that would be required by the new parking requirement by that number.

Commissioner Castellanos said he heard they had an agreement with Rite Aid to share the parking lot. 

Chair Flores agrees with Vice-Chair Soria to deal with the parking now rather than in the future and have this situation arise again. He still thinks that one (1) parking space for every two hundred (200) square feet is not the best and would like to change that ratio.

Mr. Sperry asked Vice-Chair Soria about his negative comments.

Vice-Chair Soria replied the City has to have some control. He has nothing against Mr. Sperry or the business. He wants to see a more favorable downtown. Why do we need a Planning Commission or a City Council if there is no control?

Mike Sperry said all they need is common sense to resolve this issue. He asked what options he has. Like he mentioned before, moneys have been paid in parking-in-lieu fees that the City cannot allocate. He was told that there is no proof that what he is saying is accurate, meaning nobody has ever been charged for parking, so then why are they asking him to pay for parking?

Chair Flores asked how many parking spots the neighboring businesses have – Punjab Sweets and Del Valle Super Market.

Director Kenney said unless they have parking behind their building in the alley, it would all be street parking.

Mr. Sperry said Punjab Sweets has no parking in the rear of the building. They have multiple catering trucks and they have a big 20-foot trailer parked in the back. Nobody has ten spots or anywhere near that.

Francisco Castellanos asked about the possibility of leasing Mr. Mull’s lot across the Frontier Communications building for parking.

Mr. Sperry said Mr. Mull gave him authorization to use his lot to fulfill the parking requirement, so he discussed that possibility with Director Kenney, but she said a drain and an oil separator are required and it needs to be paved. He thinks that is a minimum of $100,000 so it’s not even feasible.

Assistant City Attorney Minkler explained what Mr. Sperry is referring to is in the Code under parking standards. It allows for some offsite parking, but the parking lot has to meet certain standards to be used as parking.

Chair Flores asked the Planning Commission to vote on one of the four (4) options.

Commissioner H. Bains said Mr. Sperry has been asking for approval. As Mr. Friesen said, it’s going to be the same problem with parking for other businesses coming in. His recommendation is option #4.

Assistant City Attorney Minkler clarified that Option #4 does not include any of the indicated conditions of approval listed in the resolution. Only option #1 includes the conditions of approval, but does not impose any parking requirement.

Commissioner H. Bains changed his recommendation to take Option #1 to modify the existing CUP.

Motion by Commissioner H. Gains, seconded by Commissioner Castellanos, to adopt Resolution 2012-02, a Resolution of the Planning Commission of the City of Livingston Amending Conditional Use Permit 2001-05, Approved by Resolution 2001-16 and Amended by Resolution 2004-01, for the Sale of Alcohol at 444 Main Street. Motion carried 4-0 by the following vote:

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

Alternate Commissioner M. Bains.

NOES: None

ABSENT: Commissioner Mendoza

Chair Flores asked the applicant if he wanted to make any final comments.

Mike Sperry thanked the Planning Commission for being open minded and said that he will make it work.

Mr. Sperry asked Assistant City Attorney Minkler to clarify the parking issue.

Assistant City Attorney Minkler explained the action the Planning Commission just took is to modify the existing CUP for this site. It gives Mr. Sperry permission to sell alcohol by the glass as a bar and operate as a bar and it doesn’t impose any additional parking requirements.

Director Kenney reminded Mr. Sperry that there is a ten-day appeal period for the Planning Commission’s decision, so she will not be signing the business license until the ten days pass.

Assistant City Attorney Minkler added the building inspection and all other issues still have to be met.

Chair Flores asked Mr. Sperry what his establishment will be called.

Mr. Sperry said he thinks he will call it Mardi Gras. He wanted to create a name that sparks some interest. Furthermore, there are three colors that are associated with Mardi Gras – Green, which is his favorite color, and purple and gold which are the Livingston High School color s. He invited everyone to stop in.


Plannin Commissioners

Alternate Commissioner M. Bains

• Welcomed everyone back. He hopes they all had a good Christmas and he wishes everyone a Happy New Year.

Commissioner H. Bains

Nothing to report.

Commissioner Castellanos

• Wished everyone a Happy New Year.

• Encouraged everyone to work together to have a better City and a better community. Vice-Chair Soria

• Welcomed everyone back.

Chair Flores

. Welcomed everyone back and wished all a Happy 2012.

City Staff

Community Development Director Kenney

• One item coming before the next Planning Commission meeting in the near future is a proposed CUP for farming within City limits. Another item coming at a later date is a proposed medical clinic. This will possibly be a zoning text amendment and a CUP. Staff will be working with these applicants for a while before it comes to the Planning Commission.

Administrative Assistant Arredondo

Nothing to report.

Assistant City Attorney Michael Minkler

® He had planned to bring back murals to the Planning Commission this meeting, but they have been too busy with other projects. He hopes to have it back to the Planning Commission in February.


The regular meeting was adjourned by consensus at 8:28 p.m. APPROVED: February 14, 2012


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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