March 13, 2012 Draft Minutes and Meeting Audio

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MARCH 13,2012


The regular meeting of the Livingston Planning Commission was held in the City Council Chambers on Tuesday , March 13, 2012. The meeting was called to order by Chair Flores at 7:00p.m.

Commissioners Present: Chair Luis Enrique Flores, Commissioner Harpreet Bains,

Commissioner Francisco Castellanos, and Commissioner Mario Mendoza.

Commissioners Absent: Vice-Chair Roy Soria and Alternate Commissioner Manoj Bains (excused)

Staff Present: Community Development Director Donna Kenney, Administrative

Assistant Filomena Arredondo, and Assistant City Attorney Michael Minkler.

Others Present: Council Liaison Theresa Land, Katherine Schell-Rodriguez, DavidBlevins, Dr. Tim Johnston, Dr. Grant Medafend, William Key, Bonnie Key, and others in the audience.


The pledge of allegiance to the flag was recited.



Chair Flores made a spelling correction on page 14 and asked that the statement made by Director Kenney about a partially completed well in the subdivision directly to the west be added on page 15 of the minutes.

Motion by Commissioner Mendoza, seconded by Chair Flores, to approve Resolution 2012-07 Approving the Planning Commission Report and the March 5, 2012 Minutes that will be forwarded to the City Council for Administrative Appeal2012-02 for the Livingston Family Apartments Conditional Use Permit which was approved by the Livingston Planning Commission on March 5, 2012. Motion carried 4-0, with corrections, by the following vote:

AYES: Chair Flores, and Commissioners H. Bains, Castellanos, and Mendoza NOES: None

ABSENT: Vice-Chair Soria and Alternate Commissioner M. Bains ABSTAIN: None


Director Kenney gave a brief update of the agenda items going to City Council at their March 20, 2012 and April3, 2012, regular meetings:

• March 20’11 – Conditional Use Permit Appeal, Site Plan/Design Review, and Development Agreement for the Livingston Family Apartments.

• April3’d- Zoning Text Amendment 2012-01 for the MFA Medical Clinic to be located at 1616 Second Street.


Chair Flores opened and closed the public comment period at 7:04p.m. there being no public comment.



Blaine Yagi and Meng Vue have applied for a Conditional Use Permit to continue a legal nonconforming agricultural use within City limits and to create a fruit/vegetable stand on the same property and sell the products they farm.

The property consists of two parcels (APN 024-100-059 and 047-200-022) located on approximately fifteen (15) acres at Campbell Boulevard and Hammatt Avenue. The property has, in the recent past, been a peach orchard in use by the Yagi family. Inthe last two years, it has been in rye grass for erosion purposes and to bale and sell those bales. About two months ago, the City Council approved a Conditional Use Permit process for agriculture uses within City limits. One of the conditions of approval is the property be in active farming within the last two years, therefore, Mr. Yagi has submitted an invoice for the rye seed that he has been using on that site.

Mr. Vue and his three family members wish to garden that site with various vegetables and fruit crops to be sold on-site. The fruit/vegetable stand also requires a Conditional Use Permit which is why the two uses are combined on this CUP Application.

Besides the site plan, the applicants submitted a list of the various fruits and vegetables they will be selling there. When the City Council first approved having this Conditional Use Permit process for farming within City Limits, they favored organic-type farming because it is within very short distance of single family residential units. Although the applicants would like to use some chemicals on the property (carbaryl, paraquat, methomyl), they are willing to farm without the use of chemicals if that is the desire of the Planning Commission.

Electricity currently serves the site’s deep water well adjacent to Hammatt Avenue, which will continue to be used for irrigation. The fruit/vegetable stand will not have electricity and no exterior lighting is proposed. The fruit/vegetable stand is proposed to be open daily from 7:00a.m. to 7:00p.m. when the produce is mature. The applicants propose parking on-site near the fruit/vegetable stand by Walnut Avenue, but there are no curb cuts on Walnut Avenue and the proposed parking area is not paved. However, there is street parking available on Walnut and Hammatt Avenues.

The fruit/vegetable stand and any equipment that will be used will either be removed from the site (such as tractors) or kept within the fruit/vegetable stand itself. The fruit/vegetable stand will require a building permit since it is proposed to be larger than one hundred twenty (120) sq. ft.

Applicants were not available to answer questions.

Chair Flores referred to page 3 of the staff report which states, "there is currently no opportunity to purchase fresh-from-the-garden fruits and vegetables in Livingston." He asked if they will be selling fruits and vegetables at the Livingston downtown market starting soon.

Director Kenney replied that Recreation staff is still doing some research on that since there are County regulations for selling fruits and vegetables in a farmers’ market.

Chair Flores opened and closed the Public Hearing at 7:11 p.m. as there was no public comment. Commissioner Questions/Comments:

Commissioners H. Bains

• His only concern is parking since there is no actual parking on-site. He likes the idea of selling vegetables and fruits.

Director Kenney said the advantage of using street parking is that the streets are paved and there is curb and gutter there. If a vehicle stops at the fruit/vegetable stand and is leaking antifreeze, for example, it will be on the street and not on the ground itself.

• Asked for clarification on the location of the proposed fruit/vegetable stand.

Director Kenney said it will be a little bit closer to Walnut Avenue. They will have a twenty-five (25) ft. setback all the way around the garden. However, the applicants said they are willing to place the structure on a different spot if the Planning Commission so desires.

Commissioner Castellanos

• He thinks a fence around the site is a good idea.

Director Kenney said they had not planned on fencing the site because of the cost, but they may be willing to do it if that is what Planning Commission wants.

Commissioner H. Bains

" Asked what the fruit/vegetable stand would be made out of.

Director Kenny replied it would be a metallic-type prefabricated structure.

Chair Flores said the idea is to sort of copy the one on Monte Vista Avenue in Turlock near CSU Stanislaus.

Chair Flores

• If the Planning Commission approves this CUP, he would like to add a note that the applicants will limit or refrain from the use of pesticides. Council has already verbalized that when projects like this one come forward, they would prefer no use of chemicals.

• Secured fencing is not a deal breaker for him, but he worries about vandalism that may happen to the property; however, if there is no objection from the rest of the Commission, he is okay with not having secured fencing.

• He wishes the applicants were present to answer questions.

• He had some concern about not having enough shade for the farmers on this property, but since this will be a family operation with no hired employees, he is okay with letting that go.

• They mentioned they will have port-a-potties on the property and he likes that.

Chair Flores was ready to move forward with a motion to approve this CUP adding in the motion to limit or refrain from the use of pesticides.

Assistant City Attorney Minkler wanted to make a suggestion before the Planning Commission entertains a motion. He said there are some due process concerns to deciding on a conditional use permit when the applicant is not present. His understanding from talking to City staff about this item is that the applicant wants this to go forward and also there is some time sensitivity issues- they want to get this stuff in the ground as soon as possible if the Planning Commission approves it. He wouldn’t expect it to be a problem if the Commission approves the project, but when imposing conditions on the permit without the applicant being present, that does raise some concern that the applicant might object to them.

His recommendation would be that if the Commission was to consider approving the CUP at this meeting, they add a condition to reconsider it at the next Planning Commission meeting, or in the near future when the applicant is present, so they can have the discussion about the conditions being looked at right now.

An alternative would be that they entertain a motion to approve the CUP based on the conditions in front of the Commission right now, but contact the applicants as soon as possible, and if they oppose any of the conditions, they would have the opportunity to appeal to the City Council.

So there are two options. If the Commission wants to approve the CUP, either add a condition to bring the applicants back for review in the near future and allow them to present their case to the Planning Commission, or let them know as soon as possible that if they object to any of the conditions, they would need to appeal to the City Council.

Chair Flores said the reason he wants to prohibit chemical use is because in the staff report, it says that the applicants are willing to refrain from that. If they don’t have an issue with not using chemicals and if the Council has already said they would prefer that chemicals are limited or eliminated altogether, the Planning Commission should consider it here before it goes to Council.

Director Kenney reminded him that this item does not go to the City Council. It is a Conditional Use Permit that only gets heard by the Planning Commission.

Assistant City Attorney Minkler added that it only goes to the City Council if it gets appealed. Chair Flores asked if the applicants were notified of this meeting.

Director Kenney said, "Yes."

Chair Flores would like to go forward with a motion with some sort of language about limiting the use of chemicals.

Director Kenney asked about defining "limited use." She is not sure how the Commission wants to limit it- how often it is used, how much is used, what kind is used?

Lengthy discussion followed.

Chair Flores said Public Works has submitted some very alarming information on the use of the three chemicals that were proposed, so he is concerned about public safety, especially since this project is so close to a residential area and a school.

Commissioner Mendoza asked if these chemicals are commercial pesticides. Discussion followed regarding the use of pesticides.

Assistant City Attorney Minkler suggested that based on the concerns, the Planning Commission may consider modifying the resolution by adding a condition prohibiting the use of any chemicals and then add another condition to bring the applicants back to the next meeting (or within ninety days) just to give the applicants the opportunity to have a hearing in front of the Planning Commission and make their case for the limited application of chemicals.

Chair Flores liked that option. He thinks it is applicant friendly and also public safety cautious. Commissioner H. Bains asked if at that time, they can still add a condition that they put fencing around it.

Assistant City Attorney Minkler said they could add any condition when the applicant comes back to the Planning Commission for reconsideration. It would be similar to the 444 Main Street permit that was a reconsideration of the CUP where the Planning Commission had the opportunity to add or change conditions at that time.

Director Kenney mentioned that condition "b." in the proposed resolution reads, "Proposed herbicides and pesticides of carbaryl, paraquat, and methomyl shall not be used. Any other proposed chemicals shall be reviewed and approved by Public Works’ trained chemical applicator." So maybe they can add language that states that if the applicants are not happy with the decision on chemicals, they can come back within ninety (90) days.

Discussion followed.

Following discussion, it was moved by Chair Flores, seconded by Commissioner Mendoza, to approved Resolution 2012-08, adding that the applicants may return to the Planning Commission during the ninety (90) days after the date of this approval (at no cost) to plead their case for chemical usage. Motion carried 4-0 by the following vote:


Chair Flores and Commissioners H. Bains, Castellanos, and Mendoza None

Vice-Chair Soria and Alternate Commissioner M. Bains None


MFA has applied for a Zoning Text Amendment and a Conditional Use Permit to operate a medical clinic to be located at 1616 Second Street, in a Low Density Residential (R-1) zoning district.

Director Kenney presented staff report. She stated currently medical clinics are not permitted in the Low Density Residential (R-1) zoning district. This project is similar to the one presented to the Planning Commission a year ago for the Livingston Medical Group. They were a non­ conforming use in the Public Facility (PF) zone and had interest in moving to another (PF) zone.

The item was heard by the Planning Commission and City Council and the Code was amended to allow a medical clinic in a (PF) zone with a Conditional Use Permit. Similarly, this item would move forward to the City Council amending the Zoning Code to allow medical clinics as a conditional use in the (R-1) zoning district.

The clinic currently has several locations that they are operating in the nearby areas and they wish to move into this currently vacant home that was used by Grace Nursing Home to care for some disabled children. When this project came forward with children, staff spent quite a bit of time within the home doing inspections and insuring it was a good, solid structure.

The clinic proposes one doctor, one assistant, and one receptionist. They plan to see approximately 3-4 patients an hour. An aerial view of the site was attached to the staff report. You can see very few cars parked on that street during the daytime.

One positive thing about having a clinic in this area would be the walkability from the residential area, Grace Nursing Home, and the high school.

The Planning Commission does need to keep in mind this change would be Citywide. It may, however, benefit other businesses, such as Dr. Carter’s dental office expansion plans. He has been trying to find an alternate location in the City to move into and expand his office. If this item gets approved, it would provide him with an opportunity to increase the scope of his search and be able to stay in Livingston.

The clinic is proposed to run for five days a week, Monday through Friday, 8:00a.m. to 5:00p.m. They will consider longer hours and Saturdays depending on the response from the community.

Besides amending the Use Table, which would add a conditional "C" on Table 2, underneath the R-1 zoning district, we are also proposing an amendment to LMC 5-2-2, definitions. This would add number (14.) as a new use "Office, Medical: An office engaged in medical, dental, or related services." This classification would include chiropractic, dental and doctors’ offices, and medical laboratories, so it does narrow the scope of what can go in there.

This project is consistent with the General Plan. The CUP process has four required findings for approval. In the future, if this were to pass through City Council and become an amended ordinance, MFA would still have to come to Planning Commission for a Conditional Use Permit where conditions would be added to their proposed use.

The applicant and his support group were present to answer questions.

Commissioners’ Questions/Comments: Commissioner Mendoza

• He thinks this is a great idea. This would be similar to Merced and Turlock where they already have doctors’ offices in residential areas.

Commissioner H. Bains

• Asked what kind of services they will provide to the Livingston citizens.

• They have to keep in mind Livingston is a low income community. Chair Flores opened the Public Hearing at 7:33p.m.

Dr. Tim Johnston, Medical Director and President of MFA Medical Group, stated they are a primary care group. They have a couple pediatricians, Obstetrics/Gynecology, and internal medicine. The core group of family physicians teaches the residency program in Merced. He is a medical professor at UC Davis. They teaches the residency program and they also offer health care services to communities.

He explained they have several small clinics throughout Merced and Mariposa Counties. One of their physicians helps out in Chowchilla. They have been in operation since 1995. They also provide help to the Livingston Medical Group on Friday afternoons. Up until a few years ago, almost every doctor that worked at Livingston Medical Group came from their residency program. They admit all the Livingston Medical Group patients to Mercy Hospital in Merced and they also carry privileges at Emmanuel Medical Center in Turlock.

Dr. Johnston said he recently received a telephone call from Dr. Grant Medafind expressing interest in working in the Livingston area. He is from the Cressey/Ballico area. His father was a beloved teacher at Atwater High and his grandfather was a very beloved surgeon in Merced. Grant went through their residency program for three years, graduated, and became board certified. He worked in Mendota for three years.

When Dr. Medafind called him and asked if he had work for him, he thought about Livingston.

His group just started working with Grace Nursing Home, taking care of all their patients, and here he has a physician that wants to work in Livingston. So they began looking for space and they found this nice facility. They walked the neighborhood and talked to the neighbors in the area already to see if they had any concerns. There were some concerns, but after they talked to some of the neighbors, he thinks those concerns have vanished.

In regards to parking, MFA would like their staff to park across Peach Avenue by Value Market. He thinks there is enough parking in the driveway of 1616 Second (four spaces) and on Second Street to accommodate three (3) patients an hour. So their plan is to have Dr. Medefind park at Value Market along with his medical assistant and his receptionist. This will most likely be a rural health clinic eventually with some extra help from the state. It will be a very qualified health clinic.

William Key, 1601 Second Street, stated he lives right across the street from the proposed clinic. Dr. Johnston mentioned that they talked to the neighbors, but he doesn’t remember anyone coming to his residence.

He asked where they are going to park.

Dr. Johnston (from his seat in the audience) said they were hoping staff could park at Value Market or along Peach Avenue.

Assistant City Attorney Minkler said people need to speak into the microphone for recording purposes. He asked Mr. Key to make all his comments at once and staff would keep track of them and then the applicant can come to the podium and respond to them.

Mr. Key said he has lived on Second Street since 1970. It is a real nice, quiet, peaceful neighborhood and he and his neighbors are concerned about the congestion and the traffic if a clinic opens there. He raised the same concerns when Grace Nursing Home used that facility for disabled children. He lives in Livingston for a reason and that is because it’s a nice, small community. There is no congestion with people corning and going. Three patients an hour, eight hours a day, can create congestion in the neighborhood.

He asked what type of patients will be seen there. Is this for low income or is it for everybody? Bonnie Key, 1601 Second Street, said she is against changing the zoning district. It is low density.

They have lived there for over 40 years. It’s a nice family neighborhood. There are kids running around. The people next door have a son that is one year old. The people across the street have several children. She likes the idea of the medical clinic, but not in her neighborhood. This is a residential area. Once they change it, somebody else will come in, and then somebody else, and pretty soon they will Jose their neighborhood that has been a family neighborhood for many years. Many of the neighbors are talking about this. They were not able to attend this meeting, but they are all are very concerned about changing the zoning in their neighborhood. She asked that the Planning Commission think heavily about this.

Commissioner Mendoza asked City staff if any comment letters were received from the neighbors. Director Kenney replied staff was contacted by one person down the street who did not get a public notice. When staff checked on it, he was outside of the 300-ft. radius which is why he did not get a notice. Every property owner within 300 feet of 1616 Second Street was sent a public hearing notice. If you go north on that block, the last three houses at the end of the block did not get public notices. Notices were not required as this change would apply citywide. Notices were sent by staff as a courtesy.

Mr. and Mrs. Key said they did not get a notice. They asked staff for a copy of the notice.

Director Kenney pulled the list of property owners that were notified from the file. The Keys’ name and address was on the list.

Director Kenney clarified that this is not a rezone. The amendment does not change the zoning designation for the neighborhood; it only allows another use "conditionally" within the R-1 zone.

Mr. Key asked what the difference is.

Director Kenney explained there is a table in the zoning regulations that has a list of the different uses that are permitted in each zoning district and it lists the uses that are "conditionally" permitted, too, which means that there may be some sort of impact to the district from a use and the Planning Commission can put conditions on it to minimize that impact.

Mr. Key asked (from his seat in the audience) why the need then for zoning if they can put there whatever they want.

Director Kenney asked Mr. Key to ask his questions at the podium using the microphone. Dr. Johnston replied to the many questions that were raised.

In response to the questions about parking, this facility is located near the comer of Second Street and Peach Avenue. He has never seen much traffic on the days he has been there. There is very little traffic going west on Peach, so he thought staff could park either there or across the street where there is a dirt area just off the road. He wants to negotiate with Value Market for the privilege of parking there and have staff walk to the clinic from there.

Regarding patients seen at the clinic, they will take all patients with and without insurance. They contract with every insurance company: Blue Cross, Blue Shield, Medicare, Medical, Aetna, etc. They are the largest primary care group in the Valley. They have 65 providers including Physician Assistants and Nurse Practitioners. Their organization has about 260 employees. They have been in business for about twenty-three (23) years. They mostly have small clinics in rural areas.

This facility is specially suited for their use. It has wheel chair accessible ramps already. It has a nice little walking area around the back and a nice, little garden. There is also parking at the site (a 2-car garage and a long driveway.) They can easily park four cars in the driveway.

Dr. Johnston stated they did go to the Key residence to talk to them but they were not home that day. He apologized for not talking to them about this project, but they did talk to some of the other neighbors and they were very accepting of them. He added they would like to be good neighbors and asked the Planning Commission for their support.

Chair Flores closed the public hearing at 7:52p.m. Commissioners Questions/Comments: Commissioner Mendoza

• He likes this project and was under the impression that the residents in the neighborhood supported it. Now that he has heard opposition to the project, he would like to personally talk to the neighbors (within 300 feet) to see how they feel before he makes a final decision.

Commissioner Castellanos

• He would also like to get more feedback from the neighbors. Chair Flores

• This is a big decision because if the Planning Commission approves this item, it will not only impact that neighborhood, but all Low Density Residential districts in the City.

Director Kenney said that is correct. She reminded the Planning Commission this would be a recommendation to the City Council and then the City Council would review it for two public hearings. Because it is an ordinance amendment, it requires a first and second reading.

Assistant City Attorney Minkler explained this is a text amendment to the Zoning Code so this would apply citywide. To address Mr. Key’s question, the difference between a condition in the zoning code and changing the underlining zoning is for the most part the same restrictions. There are certain uses that only are permitted with conditional approval from the Commission, so this text amendment essentially adds this as one of the uses that may be conditionally approved under the Zoning Code.

He added there will not only be two hearings by City Council, but prior to the applicant actually being able to use this property as a clinic, they would have to come back to the Planning Commission for approval of a Conditional Use Permit.

The process here is amending the text of the zoning code to create the ability for them to obtain a Conditional Use Permit. If the Council approves that text amendment, the applicant would come back to the Planning Commission with a Conditional Use Permit application so they would have another public hearing by the Planning Commission and, at that time, if the Planning Commission wanted to impose conditions regarding parking or traffic or safety, it would give them the opportunity to do so.

• He was thinking about approving this project, but now he is not sure.

• He asked about page 2 of the staff report, the second from the bottom paragraph, where it refers to Table 3, Land Use- Commercial Zoning. The last sentence says, "Medical offices are currently prohibited in the R-1 and other residential districts." He is curious about the history of that prohibition.

Director Kenney would need to research that; this has been enforced for many years.

• He asked what color on the zoning map indicates the R-1 zoning district.

Director Kenney said the R-1 zones are the pale yellow color.

• He likes the idea of having another medical clinic and the Commission just approved an affordable housing project near this proposed site, so he thinks that will be convenient for those families. However, he needs to acknowledge the concerns that were raised by the neighbors. He reiterated this is a very long process. If they do recommend approval to the Council, it still has to come back to the Commission for a Conditional Use Permit.

Director Kenney explained that is correct. Whether or not the Planning Commission recommends approval tonight, it does go to the City Council at their next meeting with the Planning Commission’s recommendation. If the City Council approves this amendment to the Zoning Code to allow a conditional use like this, the applicant will still need to come back to the Planning Commission for a Conditional Use Permit.

Chair Flores said it doesn’t really matter what the Planning Commission’s recommendation is. It is up to the City Council’s discretion and if that body approves it, it will go back to the Planning Commission in June.

Assistant City Attorney Minkler said he wouldn’t say it doesn’t matter. He would expect that the City Council would pay very close attention to the Planning Commission’s recommendation, especially with this much deliberation and input from the community. That is why this process is in place.

He indicated this item will be on the next City Council agenda with a positive or negative recommendation from the Planning Commission. If the Council approves the amendment, the applicant would have to apply for a Conditional Use Permit and that action would stop at the Planning Commission unless there is an appeal.

If the Council approves the amendment, this item would come back in a couple of months and at that time the Planning Commission could impose additional conditions. They also have to make the findings that are required by the Code for a Conditional Use Permit, so if it turns out that there is not enough parking to provide for this conditional use, they have to take that into consideration because that is a required finding for a CUP.

Commissioner Castellanos

• He asked if staff knows how many parking spaces are needed for that building.

Director Kenney said for a medical and dental office, the requirement is one parking space for each 200 square feet of floor area plus one additional space for each employee. However, the City does have the ability to reduce parking standards. If there will be people carpooling, taking a bus, walking, or riding a bike to work , parking can be reduced for those reasons.

Chair Flores

• Mentioned the affordable apartment complex the Planning Commission approved on March 5, 2012, has a surplus of parking spots and it’s available nearby.

• The definition for Item 14. "Office, Medical" reads, "An office engaged in medical, dental or related services. This classification includes chiropractic, dental and doctors’ offices, medical laboratories." He asked if"mental health" or some kind of psychological services could be inserted in this category. Would that fall under "doctor"?

Assistant City Attorney Minkler replied he thinks it would fall in that category, but he will check to make sure.

Director Kenney said they have medical, dental, and related services, so she thinks they could put mental health in there.

Chair Flores said he thinks putting mental health somewhere in there would be good to promote support for that within our community.

Commissioner Mendoza

• Asked if the Planning Commission recommends approval, would it give the Council direction to go and talk to some of the neighbors? If they think many of the neighbors disapprove of it, they can actually turn it down or approve it, correct?

Director Kenney explained Council will have two public hearings, a first reading and a second reading. Staff will send out public notices to the neighborhood and they can either submit comments by e-mail, mail, they can drop them off at City Hall, they can talk to planning staff, or they can come to the public hearings and voice their concerns. There are many avenues available for submitting comments to the Council.

Chair Flores

• Ask if they can add a condition on the approval to expand the public hearing notice beyond 300 feet. He thinks 300 feet is too limited because the impact of traffic congestion would pass 300 feet.

Director Kenney said she would notice the 300 feet again and include the houses at the end of the block.

Bonnie Key said it is a 3-block-long block. It goes from "J" Street to Peach Avenue. Discussion followed.

• For transparency and getting better communication with the whole community, can we notify other neighborhoods as well with the idea that medical or professional offices may set up a shop there, too?

Director Kenney said we do notice it on Channel 2, at City Hall, and on the City Website. She thinks the only consideration of mailing to everyone would be a lot of postage to pay to cover the whole or most of the City.

Commissioner Bains

• Asked if this would be positive or negative for the Livingston Medical Group (LMG).

Will they be taking customers from them?

Director Kenney said she had some recent communication with LMG and tllis proposed clinic did not come up in the conversation.

Lengthy discussion followed about the Livingston Medical Group wanting to expand. Assistant City Attorney Minkler noted that normally there wouldn’t be the 300 feet notice distribution for a zoning text amendment which is what this is. That is a requirement that is usually attached to conditional use permits, which is actually not in front of the Commission tonight. This 300-foot notice was given as a courtesy because, in the future, this CUP would be contemplated.

He responded to the question about how easy it would be in the future for other similar offices to locate in the R-1 districts. They would have to apply for a Conditional Use Permit and the Planning Commission would have to make the required findings to approve the permit and would have the opportunity to impose any conditions at the time that they approve the permit.

William Key wanted to ask one more question.

Chair Flores reopened public comment at 8:09p.m.

William Key asked if they have R-1 zoning and if anyone can come in and start a clinic or start a business or something and all they have to do is go through the process and it is going to be approved to go into R-1, what is stopping it from happening all over the City? So what is the purpose of having zoning if all you have to do is go through the process and get it changed so you could move your business in?

Director Kenney explained that the planning community is moving more toward mixed use zoning and further away from rigid zones with only one type of use in each zone. When folks start looking at reducing traffic and many more people are walking, biking, and taking busses to places,

they need more mixed use zones in order to promote that type of healthy activity. She thinks in the future, not only in Livingston, but in a lot of other cities in the valley, you will see a move toward mixed uses to get those folks out of their cars and to be able to have a grocery store down the street within walking distance, and a clinic, and a school, all within walking distances.

Mr. Key said he can understand that happening in other cities, but you must be realistic about Livingston. How far do you have to walk to go to the grocery store now? It doesn’t make any sense to him.

Chair Flores said in that side of town, there is a school and now there will be the proposed medical clinic, a library nearby, all within walking distance.

Mr. Key said if the Planning Commissioners want to go talk to more neighbors before the Planning Commission makes a decision to approve or disapprove this project, he can give them the names of the neighbors they can talk to.

Commissioner Mendoza said they have a list. If the Planning Commission recommends approval, there will still be two more meetings in front of the City Council.

Mr. Key said he is not real familiar with how Planning Commissions work, but he would think that if the Planning Commission approves this, it would carry some weight to the City Council. If not, what is the purpose of approving it if the City Council is not going to listen to the Planning Commission?

Director Kenney explained the Planning Commission is not approving or disapproving. They are making a recommendation to the City Council.

Chair Flores closed the public hearing at 8:12p.m. He explained they are sending a recommendation to the City Council for approval or denial.

Chair Flores asked the Planning Commission how they feel.

Commissioner Mendoza

• There are still two public hearing meetings to go at City Council level. Council will get their feedback. The public notice will be sent again and neighbors will be notified. He will personally go notify them that there is Council meeting coming up and he wants them to be there to hear their comments and City Council can go from there on this issue.

Assistant City Attorney Minkler clarified the applicant would eventually apply for a Conditional Use Permit if the Zoning Ordinance Amendment is approved by the City Council. What really is in front of the Planning Commission right now is a recommendation to the City Council on whether this type of use should be conditionally permitted in these zones throughout the City, not specific to this particular item.

Motion by Chair Flores to adopt Resolution 2012-09, a Resolution of the Planning Commission of the City of Livingston Recommending to the City Council Amendments to Section 5-3-2 and Table 3 of the City of Livingston Municipal Ordinance and Recognizing Consistency of the Amendments with the Livingston 1999 General Plan and 2025 General Plan Update, and include the verbiage "mental health" to number 14, as another possible use. He mentioned that in terms of smart planning design, having mixed use communities is a new trend, so that is where he is coming from and that is why he motioned to approve. The motion was seconded by Commissioner Mendoza, and carried 4-0 by the following vote:

AYES: Chair Flores and Commissioners H. Bains, Castellanos, and Mendoza NOES: None

ABSENT: Vice-Chair Soria and Alternate Commissioner M. Bains ABSTAIN: None

Chair Flores recommended neighbors attend the Council meetings and voice their concerns. Commissioner Mendoza said he personally will go to notify neighbors on Second Street prior to the April3, 2012, Council meeting.


Assistant City Attorney Minkler gave a quick overview of the status of the mural ordinance. He stated they still don’t have a draft ordinance for the Commission’s approval, but he wanted the opportunity to discuss it further and solicit more input from the Commissioners.

He explained, for the record, that the Planning Commission did some revisions to the sign ordinance in the summer of 2011. During this time, there was a discussion about murals within City limits. Since there is currently no mural language in the City Code, the Planning Commission wanted to add some language that would allow murals in the City. The reason it was pulled was because City staff and the City Attorneys were not quite comfortable with the language.

He explained mural regulations are a heavily litigated area within constitutional law, so this is something that has to be very carefully drafted. The real test is to come up with an ordinance that gives the City some sort of discretion or control over the types of murals that are permitted within the City, but not infringing on Constitutional rights.

Because of the limitations on murals, a lot of cities prohibit them. If murals are allowed, essentially what the City can do in terms of regulations is place what are known as time, place and manner restrictions on the application for a permit, or on the murals themselves. The City can regulate things such as design characteristics, types of materials, sizes of the murals (things that do not have to do with public safety), but as soon as there is any control over the content of the mural, that is where you cross the line of Constitutional law, so they have to be content neutral.

The City Attorneys have done a lot of research and pulled up some case law on it. They found that one City that has had to litigate this for several years is Portland, Oregon, so they pulled what has survived ofthat sign ordinance just to see what they ended up with. They found that they do have limited discretionary approval over the content of the murals. It’s really types of materials, design characteristics, and things like that, but nothing that would regulate the content of the mural.

So the one area where there is a little more flexibility is if the City just wanted to allow murals on non public forums, or even public forums, government owned property, and City owned property. So if this wall is City owned property, but it’s in a public forum, you would still have some place and manner restrictions. If it’s City offices or the hallway at City Hall and places like that, the City would have the ability to exercise a lot more discretion over places like that. It is, "Are they using the right materials?" Is it limited to a certain size?" Things like that that the City can require, but not the content in the mural itself. So that is for the approval of a mural that is going to be citywide or on the sides of buildings or things like that.

Assistant City Attorney Minkler thinks that what they need at this point is a little bit more clarification or direction from the Planning Commission as to what types of murals they would like to see allowed within the permitted scheme and just some general guidelines they would like, and then staff can take that and draft it into the design criteria.

Chair Flores said this could be their homework so they can share it at their next regular meeting. He thinks it’s important to add the mural language in the City Code. They have been talking about it for a long time. He is happy that this was brought up at last.

Assistant City Attorney Minkler said they have done extensive research on murals. The reason why this has taken so long is because they have been cleaning up the sign ordinance and they have a lot of Planning projects that have been priority, but he thinks they are at the point where they are about ready to start drafting an ordinance. They just want a little bit more direction from the Commission as to what kind of mural details they want to incorporate into a permit.

Chair Flores said he is concerned about the mural at the Del Vaile Market on Main Street. Two years ago, they were out of compliance because there wasn’t a code that addressed murals. He wants to make sure they add language to the Code so that Del Valle is not fined for having it there or forced to remove it.

Director Kenney said code enforcement was standing down from enforcement to allow this process to work itself out. She added the store owners who had the mural painted are no longer the owners of the business, but the mural is still there.

Assistant City Attorney Minkler said that another city in the Los Angeles area is having the same struggle, trying to shape a mural ordinance and they took the position that pre-existing murals should be defined as vintage art in their ordinance and essentially allows them to remain and be repaired.

Lengthy discussion followed.

Chair Flores said the Commissioners will report their mural details to City staff.


Planning Commissioners

Commissioner H. Bains Nothing to Report. Commissioner Castellanos He will be out of the Country from April 1st through May 151and will miss the April 1Oth and May 8th Planning Commission meetings.

Commissioner Mendoza

Nothing to report.

Chair Flores

" He thanked City staff for posting the "Save the River Parks" flyer on the City Website. He hopes they will be able to raise the necessary funds to keep these two Merced River parks open.

City Staff

Community Development Director Kenney

• The Rancho San Miguel and Livingston Commons project is still moving forward. The applicant will be sending elevation plans to the Planning Department in the near future. If changes are minimal, they will be approved at staff level; if they are substantial, they will have to go back to Site and Design Review. They hope to start construction August 2012.

• The Building Department has reviewed and approved the Taco Bell plans. Public Works is currently reviewing their landscape plans to insure that they have City approved trees and shrubs and they are working with the City Engineer on their grading permits.

• She attended Ralph Nader’s discussion at UC Merced on March I2’ was very well attended. He talked about students getting involved in the community and making a difference. There were about 200 people there.

Administrative Assistant Arredondo

Nothing to report.

Assistant City Attorney Michael Minkler

• His law firm, Meyers Nave, made a small donation to the "Save the River Parks" fundraiser organization. He thinks Cindy Lashbrook’s presentation at the Planning Commission meeting of February l4th was very interesting and it seems people are very supportive of that cause. He recently spoke with Cindy Lashbrook and she stated there is an 80% chance they will be able to save the parks and although they are a little behind where they currently want to be in their fundraising, they are very optimistic.

• He wanted to acknowledge and thank Administrative Assistant Filomena Arredondo for the rush she endured last week in preparing the minutes of the special meeting of March 5, 2012. As he explained to the applicant, this is something that normally takes weeks and she got it done in three days and did a fantastic job.


The regular meeting was adjourned by consensus at 8:30p.m.

APPROVED: May 8, 2012

clip_image001clip_image002Chair, LUIS ENRIQUE FLORES Secretary of the Planning Connnission,


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 qfficial record of the meeting’s proceedings. Digitally recorded verbatim minutes are available, upon request, and may be obtained at Livingston City Hall.

Planning Commission Audio Part One

Planning Commission Audio Part Two


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