MARCH 05, 2012 Draft Meeting Minutes




MARCH 5, 2012

7:00 P.M.

The special meeting of the Livingston Planning Commission was held in the City Council Chambers on Tuesday, March 5, 2012. The meeting was called to order by Chair Luis Enrique Flores at 7:00 p.m.

Commissioners Present: Chair Luis Enrique Flores, Vice-Chair Roy Soria, Commissioner

Commissioners Absent: Francisco Castellanos and Commissioner Mario Mendoza.

Staff Present: Commissioner Harpreet Bains and Alternate Commissioner Manoj Bains (excused).

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

Council Liaison Theresa Land; Kenneth Koss, TK Development, LLC; Rob Stevens, PMZ Commercial Real Estate; Mike Kelley, The Pacific Companies; Katherine Schell-Rodriguez; DavidBlevins; Barbara Edkin; Jean Okuye; Tom Santos; Harold Crowell; Monique Crowell; Mike Torres; and others in the audience.


The pledge of allegiance to the flag was recited.


Chair Flores opened the public comment period at 7:02 p.m.

Katherine Schell-Rodriguez, P.O. Box 163, Livingston, announced there was a notice from PG&E in the Merced Sun Star about a possible severe storm with high winds coming through the valley. She encouraged everyone to check for preparedness items in case of a power outage.

People should have plenty of water and, if possible, extra ice to preserve food. If high winds come in, the risk of a blackout is very possible.

Public comment closed at 7:04 p.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 canal on the west side of Main Street (previously Lincoln Blvd.)

Director Kenney presented the staff report. She explained the proposed project is a 49-unit apartment complex. Included in that total is sixteen (16) 2-bedroom units, twenty-four (24) 3-bedroom units, eight (8) 4-bedroom units, a 3-bedroom manager unit, and a community building and pool. There are some offsite frontage improvements that need to be completed as well as landscaping onsite. City staff has been working with the applicant on a Development Agreement to take care of those items. The draft document will be presented to the City Council at their regular meeting of March 20, 2012, with Planning Commission’s recommendation from this meeting.

Mike Kelley, with The Pacific Companies, and Kenneth Koss, with TK Development, LLC, representing the Applicant, were present to answer questions.

Chair Flores asked if there had been any other comments submitted to staff in addition to Harold Crowell’s written submission on February 7, 2012.

Director Kenney replied City staff had not received any other public comments.

Mike Kelley, The Pacific Companies, 555 Capitol Mall, Suite 410, Sacramento, CA, thanked everyone for taking the time to accommodate them on this special hearing and added they are on a critical timeline that they have to meet. He gave a quick overview of his company and its accomplishments and spoke about the financing structure that they propose.

Mr. Kelley and Mr. Koss provided a PowerPoint presentation.

Mr. Kelley explained they are developers for affordable multi-family housing. They have 30 full time employees. They have 5,000+ units and over 90 complexes spread throughout California.

They were ranked number six in the nation and number one in California by the Affordable Housing Finance Magazine. They have completed fourteen projects (more than any other firm in the United States). About 90% of their projects have some type of redevelopment funds associated with them. Since that is potentially a thing in the past, they are structuring new opportunities that don’t necessarily involve redevelopment funds, such as with this project.

He introduced the various projects The Pacific Companies has completed, the closest being a 65-unit project in Riverbank, CA and a 75-unit project in Merced, CA that is currently underway.

He explained how the company is set up. They own and operate all of their projects. They don’t sell or intend to sell any of their units. They have a variety of state-regulated funding sources so they have very strict requirements on their financing set up.

Operation Oversight/Partnerships – On a project like this, they will have about five different entities overseeing the operations of the project:

• The Pacific Companies, owners of the project.

• The City of Livingston.

• USDA Rural Development – The project has been awarded $1 Million in USDA funds, so USDA will be making sure the project was finished appropriately.

• The State Cash Credit Allocation Committee which is the provider of the equity They will be involved on this project for the life of the project.

• The investors who invest in the tax credits.

Mr. Kenneth Koss, TK Development, 6420 Via Del Cerrito, Rancho Murrieta, CA, indicated the location of the project and stated the project is 4.3 acres. After dedicating some land to the City for streets, they will have 3.4 acres to develop. The MID canal along the north side of their property will be undergrounded. They will make some road improvements to Newcastle Drive and Main Street. They will be extending utilities that are now in Newcastle Drive. The recreation/office facility will be located right off of Newcastle Drive. It will have a computer room, a meeting room with a kitchen, women’s and men’s restroom facilities, a learning center and an exercise room. Next to the recreation/office facility will be the swimming pool. They will have a barbeque area with 50 tables and green space around it for the children to play. Each one of the units is equipped with a washer and dryer hookup. In the event that the tenant doesn’t have a washer and dryer, they will have washers and dryers in the recreation/office building available for their use. In addition, they will have approximately 71 covered parking spaces and there will also be 24-hour onsite management.

He added that unit amenities are energy star – refrigerator, range with oven, dish washer, microwave, and disposal. Each unit will have exterior private storage and a private balcony or a patio. They will use all green building materials on the site.

Mike Kelley explained their project’s critical timeline. He said they are competing for tax credits so they are on a timeline specified by the Tax Credit Allocation Committee. They have two rounds of tax credits each year. One is coming up March 22w’ and the other one is mid July.

Based on tonight’s Planning Commission meeting and the City Council meeting on March 20th they will be able to apply for tax credits on March 22nd

They competed for USDA funds about three years ago and out of about seven or eight awarded in the entire state of California, they were one of them. So USDA is now basically saying, "You build this project or you send us the money back." That is why they are here today to seek approval from the Planning Commission for this project. If they can apply on March 22nd and are successful, they will apply again in July. If they are awarded the funds, they will be able to break ground around August 2012, and construction will be completed towards the end of 2013.

Mr. Kelley explained Debt/Equity Stack Comparison and the distinction between affordable housing and market rate housing. Debt and equity is the difference between market rate housing and affordable housing. Because rents are so low, debt has to be very low. Market rate housing is much like a home purchase – they have an 80% debt and 20% equity. With affordable housing, because the rents are so low and are restricted for 55 years, they have 20% debt and 80% equity that is generated from the tax credits they are competing for. The other component is other fiends such as development funds, state funds, and, in this case, USDA Rural Development funds. They have some challenges and they have a very lean budget, but it is also very nicely funded.

Their impact fees to the City of Livingston will be approximately $900,000 to $1 Million. For affordable housing, their rents are restricted for 55 years. They cannot raise the rents as the market demands. Therefore, if expenses overcome their income, their project is out of balance.

This is why they made a proposal to the City of Livingston relative to assessment district fees.

He explained what they proposed is an annual assessment of $19,345.00. The project itself can only afford to pay $9,800/year. They can make an initial deposit of $525,000 that shall be applied to the Financing District Assessments and the City can just drop drown incrementally for whatever period of time they like to pay that difference between the $9,800 and the $19,345. In order for them to move forward, this is really a must have. Their investors or lenders do not move forward with any project where there is no certainty, and by not having this, there will be no certainty over a long period of time.

Mr. Kelley added it is standard practice for them to hire locally. Chair Flores open the public hearing at 7:28 p.m.

Katherine Schell-Rodriguez, P.O. Box 163, Livingston, asked if the rents are restricted to 55 years, what happens to the project at the 55-year point. She also asked for clarification on how the tax credits work.

It was agreed to wait until the end of the public comment period for the Applicant to reply to all the questions.

Barbara Edkin, 1616 Sapphire, Livingston, said it seems to her that for the last six to nine months, there have been projects pushed through with what she calls a used car salesman attitude. She is concerned that the City is using two different general plans, the 1999 General Plan and the 2025 General Plan. She is concerned that there is no CEQA. She also expressed concern about the security of the pool and would like to see a higher than normal fence around it.

She is concerned about traffic. She doesn’t see any sidewalks down the street. She asked if the City is also considering the expense of keeping up this dedicated area that they will have.

She would like the agenda packets to be more readily available for people that are not computer literate.  

Director Kenney said we are using the 1999 General Plan. She clarified there are three parts of the 2025 General Plan that are being revised and updated, but the other sections are fine. Many of the policies that are in that 1999 General Plan also appear in the 2025 General Plan and that is why they both are cited in the document.

Mike Torres, 1616 8th Street, is concerned with the Development Agreement pertaining to the three items that they were going to contribute to – the skatepark, the undergrounding of the canal, and the widening of the street. He asked how much of the canal they were going to underground.

Director Kenney said there are six items staff has been working on with the applicant, three of them are: the development impact fees to be paid 50% at building permit time and 50% before occupancy; a $200,000 payment toward the skatepark that was proposed at one time and $5,000 for Recreation’s general programs; and the undergrounding of the canal adjacent to their property.

Ms. Kenney explained that at one time the City was working with several property owners in that area hoping to get them all onboard and engineer the entire segment which extends from Peach, dropping down on Main, and back up to Peach. It was hoped that the canal could be underground all at one time, but with the bad economy, some projects moving slower and others moving faster, that didn’t happen. The high school has already undergrounded their portion.

Mike Torres said it is going to be like an island because Value Market will never develop their land. He feels developers get what they want and the City stays in limbo. He also thinks it is a hardship for people like Mr. Crowell and Mr. Santos. They’ve got wells out there and they are going to have to spend money to hook up to City water and sewer. He asked who is going to pay for that.

Director Kenney replied it is not until property owners move forward to do work on their property, either replacing or adding structures, that the City requires them to hook up to sewer and water, and install curb, gutter and sidewalk. It’s standard practice in the City.

Mike Torres expressed concern about traffic. If there are going to be 49 apartments out there, and if each person in there has two cars plus the visitors’ cars, there will be a lot of traffic on that road. It will be a hardship for the people down the road that have been in Livingston for many years.

He asked if there is going to be a high concrete fence in the back part of the property adjacent to that R-1 residential area.

Director Kenney said a large buffer is planned for that side with additional landscaping.

Mike Torres said these types of units will be bringing in children. They are going to be running all over the streets. Some of the kids will probably be going to high school. They will have sidewalk on one side, but not on the other. He feels developers coming in always get their way and the long time City residents are left out.

Mr. Torres does not see the need for a special meeting when the next regular Planning Commission meeting is in one week.

Director Kenney explained they needed to fit in the special meeting because of the applicant’s tax timeline, plus the 10-day appeal period and the noticing requirements. This will help the Applicant meet their objective of going before City Council on March 20tH

Jean Okuye, 10181 W. Olive Avenue, Livingston, asked what the rush was in pushing this through. Why use both the 1999 General Plan and the 2025 General Plan? She expressed concern with water and transportation in the City. She asked if the project can be considered infill development when it is right next to an agricultural zone.

She added she looked up CEQA guidelines focusing on the EIR section for specific projects and she thinks this project should have an EIR done. She recommends the Planning Commission not approve this project. She also recommends to the City Manager that there be some training done on CEQA for elected officials and City staff.

Tom Santos, 946 6th Street, Livingston, said 100 feet of his property borders the canal on these apartments. He has been there since 1958. He is a sweet potato farmer and he has equipment there. He is concerned about liability insurance. When they build the canal pipeline, it is going to be passing by his property. He has a lot of problems already with people stealing. He is concerned about foot traffic going into his property and somebody getting hurt on his land.

He also expressed concern with traffic which is already bad enough and that area is a bad place to cross a street on a foggy morning. He has seen a lot of accidents there.

When he was annexed into the City in 1994, he had to change his farming operation around.

He said this project looks good on paper, but after a while it is not going to look good. They are going to have a lot of crime and gang-related problems in that area.

Robert Stevens, Commercial Real Estate Broker with PMZ in Modesto, CA, said he is the broker that listed this property for the sellers and he also partially represents the purchaser/developer.

He said before he listed this property, he did a rent survey and looked at the current affordable housing stock in Livingston. He can say there is a shortage of good quality, clean, and new affordable housing. Most of the City’s housing stock is quite old and not well managed. He looked at many other projects because the seller had a lot of offers and he only wanted to deal with a serious buyer that would be able to finish what they started. The Pacific West Companies are really trying to do everything they can to work with the City of Livingston to develop a clean, affordable housing project for the citizens of Livingston who don’t want to live in some of the old dilapidated housing stock that Livingston currently has. They are one of the largest affordable housing developers in the State. Their management consists of very thorough credit checks. They have a 24-hour property manager. This is not one of those projects where there is going to be high crime. He thinks the City can be very, very proud that someone is spending time and energy and money to try to build a beautiful, new, affordable housing project in this City.

Mr. Stevens said about 18 months ago, they had not only a $1 Million USDA grant, but they also had a $3 Million federal grant to develop this project and because of resistance from certain politicians in the City of Livingston, they couldn’t get it done in time and they had to return the $3 Million to the federal government. There is no rush to approve here. They are just doing what they have to do. If they don’t meet their deadline, in two weeks they will have to return the other $1 Million and then there will be no project no new, good, and affordable housing. He added that 49 units are not going to cause a traffic catastrophe for the City of Livingston.

Harold Crowell, 1906 Main Street, asked how tall would the buffer fence be. What is the distance from the center line and the existing fence? What happens to that land when the canal gets undergrounded?

Director Kenney said once the canal is undergrounded, there will be a fence down the middle. Half of the property will go to the property owner on one side and the other half to the property owner on the other side. Their property that is gained by the canal going underground will become part of the setback for their project. The fence will be at least six foot high. It will be at the property line and there will be landscaping.

Monique Crowell, 1906 Main Street, said she has lived in Livingston for over 50 years. This town has grown and in the last couple of years the part that has grown looks real bad. She drove around several days ago looking at part of what she thought was affordable housing or lower income housing in Livingston and it is dilapidated and the yards are full of trash and cars and the reason it is like that is because of the occupants. She thinks the occupants this development is going to bring in are basically the same. Those houses that they are in now were nice and new years ago, but they are not nice any more because of the occupants that are living there, so it is going to be the same with these apartment units. You drive around Livingston and that is what you see. That is how those people are. That is the way they live. They don’t take care of anything. They are not vested in this town. The majority of them don’t have a job. They don’t have income that pays taxes, so they don’t care.

Director Kenney stated she was homeless for fourteen years and her house looks just fine. Chair Flores asked the Applicant to respond to the questions from the public.

Mike Kelley explained the project can remain affordable after 55 years or it can then convert to market rate. If an investor comes along and they want to buy the project, they can do so and then they can either raise their rents and it becomes a market rate project or they can apply for new tax credits and put new affordability covenants on for another period of time.

One of the requirements they have is the tenants have to be employed. This is a tax credit project, so tenants have to be employed. They pay a percentage of their income and income has to be frugal. They do background checks, credit checks, and employment checks. He added one of the reasons they do not have the challenges that are problematic is not because of the type of tenants, but because of oversight. Most projects do not have the regular oversight this project has – the State Tax Credit Allocation Committee, Investors, USDA, and City.

Tax credits are their equity. They take the tax credits and they sell them to investors, but they don’t get that credit right away; they get them over a period of ten years. That is why they are constantly looking over their shoulder making sure the project is operating correctly because if not, the IRS will recapture the credits.

He added the Central Region is not a desirable area for investors from both the potential debt standpoint and the tax credit investor standpoint. Investors want to build in bigger cities like San Jose, San Diego, or Los Angeles. They are not excited about Livingston unless they have competent operators like they are.

This company has been around for a couple of years working on this project. They applied for USDA funds and HOME funds two years ago. They came to the City a number of times. This is not a new proposal for the City.

They have completed CEQA requirements and they are also doing NEPA, which is a federal version of CEQA and, in many cases, more cumbersome than CEQA. The State environmental coordinator for USDA Rural Development signed off on this project.

Kenneth Koss addressed the fencing on the south side of the canal. There will be a six (6) foot high wrought iron fence. On the west side that borders the single family development, there will be a six (6) foot high masonry fence and that also has an additional twenty-five (25) feet of setback requirement when an R-3 district butts up to an R- 1 district, so there will be twenty-five (25) feet of additional landscaping in there as well. On the south side, on Newcastle Drive, there is going to be a six (6) foot wrought iron fence and then every twenty (20) feet there will be a six (6) foot masonry column and on the east side on Main Street, there will be a six (6) foot wrought iron fence.

He stated he has been doing this for a number of years and one thing he knows is that criminals do not like to enter a place where there is one way in and one way out. For this project, they have their main entrance on Newcastle Drive, the rest of the property is going to be fenced in with a six (6) foot fence, so that means there is no quick way for a criminal to get into the project and out of the project. If a criminal is anywhere in there and somebody calls the police, they are going to have the front gate shut before he gets out the door. He admitted it is not going to be crime free. It’s no different than a single family residential neighborhood of 48 units. It is going to happen, but they are going to do their best to make sure it doesn’t happen often. There will be an emergency exit on Main Street, but it will have a locked gate and it will only be accessible to Emergency vehicles.

He said traffic is always a huge concern for everybody, but single family residential units create more traffic than multi-family units. Multi-family creates 6.47 car trips per day and single family residential creates 10.3 car trips per day, so a 48-unit single family development would create 35% more traffic than their project would.

On Main Street and Newcastle Drive, they will do curb, gutter, sidewalk, landscape and lighting, plus half a street. That is included in the area that they will dedicate to the City.

They are going to be connecting to the newer sewer line that has been installed in Newcastle Drive for the single family development to the west. They are going to improve the water pressure by making a connection between the new water lines in Newcastle Drive to the water lines in Main Street, so this will actually boost the pressure, a real positive thing for the City.

Mike Torres asked if they will have a count of how many people will be living in each unit. Mr. Koss replied, "Yes."

Mr. Torres asked what happens when someone living there brings in more occupants than what were originally approved.

Mike Kelley said that is one of the most problematic things that happen in affordable housing units. People move in and then they bring in their friends because they want to take advantage of the low rents. That is a legitimate concern, but it is also a concern that they are very aware of. This is something their 24-hour management will correct as fast as they can because this is a direct violation of compliance for them as owners. They have a risk of losing tax credits if that happens. What they can do is they either evict them for violation of the lease agreement or they can move them if there is a larger unit available.

Mr. Koss said everybody is concerned about, "We don’t want these people in our back yard" because of the junk in the back yard or them putting up the temporary clothes line or something in that nature. He can testify to not only The Pacific Companies, but to another company that he worked for that did nothing but affordable housing. The people that build affordable housing for a living do it for a reason. They keep the properties for themselves. That is the reason why you see this project completely fenced all the way around. They have onsite managers 24 hours, 365 days a year. The other projects Ms. Crowell drove by have no onsite management or onsite amenities. Probably the property owner is only concerned about rent; he really doesn’t care about the development. The tenants don’t have anybody to answer to, but this multi-family development has to answer to five different agencies every month, every quarter, every six months, every year, so they get used to doing the things they have to do.

Mr. Koss stated that if someone comes to them with a Section 8 certificate, they have to take it. It doesn’t matter if you have a high end market rate project or the worst piece of property for rent. By law, you have to take the Section 8 certificate.

Mike Kelley said you cannot discriminate. Many Section 8 folks are employed. They qualify for the lower income bracket. Out of 5,000 units they have, about 5% have Section 8 tenants.

Chair Flores closed the public comment section at 8:15 p.m.

Chair Flores stated for the record that he has commented negatively on this project in the past and he also acknowledges that there have been some changes to it and he knows staff has worked really hard on this project by revising the Development Agreement. He will consider this project with an open and fair mind.

Commissioners Comments

Commissioner Castellanos

No comment.

Commissioner Mendoza

• The last time this project came in front of the Planning Commission, there were people saying that low income apartments were going to bring crime to the City of Livingston.

That project itself will be low income so he decided to conduct research. He has all the crime reports from the Livingston Police Department and he can assure everyone these low income communities such as Casitas del Sol, the Harvest Garden Apartments, and the Olive Tree Apartments have no reports of crime whatsoever. As for the family-owned apartments that have no onsite managers, there are several pages full of reported crimes, so nobody can say that there is going to be a big crime rate in this apartment complex only because they will be low income. There are bad people around everywhere, but not only low income.

• He asked the developer if they had originally offered the City the $200,000 donation toward the skatepark and the $5,000 donation toward Recreation activities.

Mr. Kelley replied they did not offer it. The previous City Manager asked for it and inserted it in the Development Agreement. He added that he had never before been asked to contribute funds to a skatepark, so when they presented that to the investors, they said they would not fund a skatepark fee that has no impact on their project.

He said one thing he did offer in a Council meeting is if there is a way they can inflate one of their alternate fees, like an impact fee, and the City can revert those funds to the skatepark or to some other infrastructure that they are interested in, that is something they can agree with.

• He hears people complain about traffic. There is not going to be a lot of traffic. Traffic is over at Winton Parkway. That is what you call traffic and it’s not only in the morning, it’s all the time.

Vice-Chair Soria

• Asked for clarification of the language on Page 11, section "f’ of the Development Agreement, in reference to reimbursement for the canal improvements.

Director Kenney explained this canal undergrounding fee is a way for the applicant to be able to fund the undergrounding of the canal up front, so you can think of it as a pass through. You get the funds from them as a fee for the undergrounding just so they can finance it upfront.

Mike Kelley explained how this would work.

This project does have some structural challenges – half a million dollar fee to underground the canal is not something they normally can afford to do. One way of doing that in affordable housing finance is to create an impact fee. So the way that works is the City charges them a fee and they are eligible for more tax credit equity, so that is how they are able to afford such a cost to the project. So what they ask MID and the City is to charge them a fee for it. They create a fee for $500,000 and then they go to their investors and say there is a $500,000 fee for this, so they are eligible for $500,000 more in tax credit equity. Then the project receives the $500,000 in extra equity and they have to pay the fees to the City and the City will give that back to them and then they build the canal, so that is how it works.

He said they did that in Riverbank. They built a 2 million dollar well there, so what they did is the City created a $2 Million well impact fee and the project was eligible for $2 Million more in financing. The project got the $2 Million, gave it to the City and the City in turn refunded them the $2 Million. He added this is the only way that type of infrastructure can work and it doesn’t cost the City anything.

Chair Flores said it reads, "The City shall rebate to the Developer the difference between $500,000 and the actual Developer’s costs," so he thinks that wording may have seemed as if the City was going to give away a lot of money.

Mr. Kelley said that number was a number very close to what MID quoted them.

• Asked for clarification on Page 13, section 7, in reference to the 55-year life of the affordability covenants. There is a question that came about on the 55 years on the assessment district. "During the term of the affordability covenants, Developer’s annual Financing District Assessment fees payable to the City shall not exceed $19,345.45 ($9,800 + $525,000 pro-rated over the 55-year life of the affordability covenants)." He asked if after the 55 years, they will no longer pay the City an assessment fee.

Mr. Kelley said the intent is that after 55 years, the project can convert to market rate. If it converts to market rate, they can raise the rents to absorb the additional assessment fee.

• Asked if every assessment district is for eternity.

Assistant City Attorney Minkler referred to page 13, at the end of section 6 which reads, "Upon termination of any affordability covenants recorded against the Property, increases in the Financing District Assessments shall no longer be limited by this Agreement." So in the event that the affordability covenants expire and the project returns to market rate, the project will pay the assessment fee that will be equal to any multi-family assessment fee in the City that is charged at a market rate, so it would either go up to whatever everybody else is paying at the time or if they were able extend the affordability covenants, at that time, they would renegotiate an amendment to this Development Agreement, but it doesn’t mean that they pay nothing.

Discussion followed.

• Referred to page 14, section "G", regarding Development Fees which reads, "All Development Fees set forth in this Agreement and in Exhibit C shall be paid by the Developer as follows: 50% upon issuance of building permits and 50% prior to issuance of Certificate of occupancy." He asked if that is something the City has already agreed on.

Director Kenney replied the City Manager said that would be agreeable to the City. Chair Flores asked what was the percentage before.

Director Kenney replied it was 100% at building permit time.

• Referred to page 15, section "H", in reference to Related Expenses, which reads, "Past due legal fees shall be capped at $10,000. All other past due fees, as well as all processing fees accrued in 2012 shall be paid by Developer prior to the effective date of this agreement in order for this agreement to take effect." He asked if the developer currently has past due fees.

Director Kenney said they did have some past due invoices. She added this is one point the Applicant proposed and is something that the City Council can consider if they want the project to move forward.

Chair Flores

• He asked for clarification of how many total acres there are.

Director Kenney said 4.3 acres.

• So this project is within the City limits and according to the staff report, currently the existing land use is Agricultural Use. He thought there could not be any agricultural use within the City limits.

Director Kenney replied the residence is abandoned and there are some agricultural buildings on the property that are also vacant.

• Asked Director Kenney why there is no need for CEQA review. Director Kenney explained there was CEQA review. A phase one assessment was submitted which was reviewed by City staff and the City Attorney’s office. It was determined they would be able to do an infill exemption on this project.

Assistant City Attorney Minkler said that if the project is consistent with its zoning and its General Plan designation, the project can be referred to the General Plan and Zoning EIRs. The idea is that environmental impacts of a project such as this were contemplated by the General Plan FIR, so it’s not that the project hasn’t been subject to CEQA in the past.

In addition, they determined that the categorical exemption in the CEQA guidelines that best fits is Section 15332 In-Fill Development Projects and there are several criteria a project has to meet in order to be considered for the categorical exemption. For this project, they looked at those criteria and the project meets the criteria. There are several exceptions to the exemption. None of the exceptions apply in this case, so the categorical exemption applies and the project can rely on previous EIRs.

Barbara Edkin said that on the CEQA list that she has, there is something that says there is a five-year requirement.

Assistant City Attorney Minkler said there is no five-year requirement for reliance on a previous EIR.

Assistant City Attorney Minkler said the only analysis that takes place under Section 21083.3 is whether there are impacts peculiar to this project that were not contemplated under the previous EIR and this project is consistent with what the General Plan contemplated for this parcel. If there was a finding limitation on a project relying on a General Plan EIR, you’d have to redo the General Plan EIR every five years and he can assure that does not happen. This is not a project level EIR. We are talking about a General Plan level EIR which is not a project level EIR.

Lengthy discussion followed.

• He was under the assumption that if this project had come to the Commission 2 1/2 years ago, that the EIR was done then. If it was done, it could be applicable now within the five-year span.

Assistant City Attorney Minkler said there has never been an EIR done for this project. Chair Flores asked why not.

Assistant City Attorney Minkler replied because of the CEQA categorical exemption, the infill exemption, and Section 21083.3.

Chair Flores said traffic will be affected. Noise pollution will be raised. Air quality will be down as well as water quality. That is part of 15332 In-fill Development, so he would argue that is not exempt from infill development.

Director Kenney said the property was zoned R-3, Multi-family, when the 1999 General Plan and 2025 General Plan Update were both reviewed for CEQA. That project was reviewed as a multi-family parcel, so the impacts of the multi-family project were taken into consideration during those reviews for the General Plans.

• Asked why wouldn’t the number of units be increased to 50 in order to comply with the General Plan.

Assistant City Attorney Minkler said staff would revisit the calculation and if it worked out that it required 50 units to meet the density requirement, it wasn’t a problem.

Mr. Koss said if there is a serious problem with the density issue, they will make one of the buildings a three-story building and add four more units to it and it will take care of the density issues. He added they have two buildings there that are eight unit buildings right now. In order to meet the General Plan classification for the density, they will make one of the buildings a 12-unit building, so it will raise it from 48 units to 52 units.

• At the last Planning Commission meeting, there was a discussion that there were washer and dryer hookups available, but on the staff report, there is no mention of hookups. It says, "All units have patios, storage space, and washers and dryers."

Director Kenny said she could have been clearer. There are washer and dryer hookups, but they also have washers and dryers available in the community center.

Mr. Koss said at the last Planning Commission they addressed that issue. He believes they corrected that at that time and he is sure it is just a typographical error.

Chair Flores said he just wanted to clarify that there were washer and dryer hookups and not actual machines in the units.

Mr. Koss said there is a washer and dryer hookup in every unit and then in the Recreation facility, there are an additional five washers and five dryers for those people that don’t have washers and dryers.

• This company prides itself on been EcoGreen. On page 8, section 4 of the Development Agreement, Landscaping, he wonders if there will be a large section of landscape on this property.

Director Kenney said the landscape plans are a condition of approval; therefore, the applicant will be working directly with staff on the landscape plans, so they will take that into consideration.

Chair Flores questioned the water feature at the front of the entrance. With the City’s history with water and if we are looking at our water costs going up and there is a water feature there, it might attract some children so he questioned the value of having that water feature there.

Mr. Koss said if the Planning Commission would approve this project, they will eliminate the water feature.

Chair Flores said he would encourage them to use gray water, if possible. He suggested green vehicle parking spots. Since there are going to be so many on this property, it would be good to have some designated to green vehicles; this is the new trend.

• He is really concerned that if the grants aren’t received, how will this project be funded?

• He asked if this 49 or 52 unit complex expects to have enough water. There is an MID canal there, but he wonders how they are going to get their water to this project.

Director Kenney said the subdivision directly to the west (Somerset 1) has a well and this project has fair share of cost towards that well. They will be hooking up water through Somerset 1.

• If this CUP is approved and the project is not finished, can this land be used for something else and rezoned differently?

Assistant City Attorney Minkler replied if the CUP is approved, they can add an assumption that the Development Agreement was also approved, which would mean the Developer would have a vested right to build the project, and even if the City changed the underlining zoning, it would be the Developer’s right to build the project.

• Asked what the Communities Amenities Fund is.

Director Kenney replied it is a standard practice for all of the development projects in the City to pay toward this fund. She believes it is 3% of the project cost and the fee gets divided up, 75% goes to the Court Theater and 25% goes to other City projects.

Chair Flores said his biggest concerns are the funding of the project; the Conditional Use Permit; that this project is CEQA exempt and he would argue that it is not CEQA exempt if they are using section 15322, Infill Development Projects. He would really like an EIR done on this project and if an EIR was done in the past five years, he would like to see that.

Mr. Kelley stated if they don’t get those credits, they don’t build the project. If they don’t get funded this next round, there is a chance the USDA funds get revoked and they will be out of the City and it is not likely that any other project will come in there in the near future.

Chair Flores said that given the Central Valley’s recent history with foreclosure and undeveloped lots, he just feels this project is not in Livingston’s best interest from a Planning perspective.

Vice-Chair Soria mentioned that no matter what the project is, there will always be opposition.

He knows it is hard for some of the people that have been in the City for many years, including himself. Sometimes they have to make some hard decisions, but they must move forward.

Director Kenney recapped what the Planning Commission was considering tonight which could be an approval for a Conditional Use Permit and recommendations to the City Council on Site Plan/Design Review and the Development Agreement.

Assistant City Attorney clarified the Site Plan/Design Review is one resolution and it also involves the recommendation to the Council on the Development Agreement. The second resolution is the Conditional Use Permit.

Motion by Commissioner Mendoza, seconded by Commissioner Castellanos, to adopt Resolution 2012-05, Approving Conditional Use Permit 2009-03 for the Livingston Family Apartments

Project and adopt Resolution 2012-06, Recommending to the City Council the Approval of Site Plan/Design Review 2009-03 and Development Agreement 2009-01 for the Livingston Family Apartments Project. Motion carried 3-1 by the following roll call vote:

AYES: Vice Chair Soria and Commissioners Castellanos and Mendoza

NOES: Chair Flores

ABSENT: Commissioner H. Bains and Alternate Commissioner M. Bains ABSTAIN: None

Chair Flores wanted to re-state for the record his concern that the project is using an exemption from CEQA.

Chair Flores asked Director Kenney what steps were next.

Director Kenney explained the approvals tonight have a 10-day appeal period and staff will submit the public notice to the newspaper for this item coming before the City Council at their regular meeting of Tuesday, March 20, 2012.

Chair Flores asked Director Kenney to explain the appeal process. Director Kenney explained the appeal process.

Chair Flores asked if there are criteria for what an appeal can be.

Assistant City Attorney Minkler noted there are no criteria. The Code only says that the appellant has to submit a written statement to the City. There is no specific format or specific identification of issues that must be noted. There is a $200 appeal fee.

Barbara Edkin asked about the time limit for the appeal.

Director Kenney replied it is ten days from this meeting. She added, for clarification, that this project is going in front of the City Council on March 20th; however, because the Development Agreement is adopted by ordinance, this item will be in front of the City Council twice, so there will be ample time for people to voice their concerns.

Commissioner Mendoza stated he had plenty of extra copies of the crime results from every apartment building in the City of Livingston if anybody was interested in getting a copy.


Planning Commission

Vice-Chair Soria

Nothing to report.

Commissioner Castellanos

Nothing to Report.

Commissioner Mendoza

Nothing to report.

Chair Flores

® Asked Director Kenney if it is true that the Gallo Annexation project is postponed indefinitely.

Director Kenney replied it is not postponed indefinitely. They are going to move forward under the 2025 General Plan Update instead of the 1999 General Plan.

City Staff

Community Development Director Kenney

Nothing to report.

Administrative Assistant Arredondo

Nothing to report.

City Attorney

Assistant City Attorney Minkler

Nothing to report.


The regular meeting was adjourned by consensus at 8:58 p.m. APPROVED: March 13, 2012

Chair, 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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