Item 3a. Action Meeting Minutes from the December 17, 2014, Planning Commission Special Meeting.

Note from TheGardeningSnail. This page was prepared by running a PDF Image File through software that converts image to text. I may also have broken up some of the longer paragraphs for ease of reading. Sorry about any textual gremlins that may have crept in.



A special meeting of the Livingston Planning Commission was held in the City Hall Conference Room, on December 17, 2014. The meeting was called to order by Chair Luis Enrique Flores at 7:00 p.m.


Commissioners Present: Chair Luis Enrique Flores, Vice-Chair Mario Mendoza,

Commissioner Francisco Castellanos, Commissioner Warren Urnberg, Commissioner Ranjeet Jhutti, and Alternate Commissioner Francisco Mendoza-Gonzalez.

Commissioners Absent: None

Staff Present: Planning Director Holly Owen and Sr. Administrative Analyst

Filomena Arredondo.

Others Present: Katherine Schell-Rodriguez


The pledge of allegiance to the flag was recited.

Chair Flores announced the appointment of Alternate Commissioner Francisco Mendoza­ Gonzalez to the Planning Commission .

Newly appointed Alternate Commissioner Francisco Mendoza-Gonzalez introduced himself. He said he grew up in Livingston and attended Livingston schools. He got a degree in architecture with a minor in City Regional Planning from UC Berkeley. He did a one-year internship in the City of Livingston and then was hired as a Planner at the City of Merced. He looks forward to bringing his knowledge, experience, and education to his home town and contribute to his community.


Commissioner Jhutti welcomed Alternate Commissioner Mendoza-Gonzalez and added he is glad to see young energy in town.



Motion by Commissioner Urnberg, seconded by Vice-Chair Mendoza, to approve the minutes from the Regular Meeting of August 12, 2014. Motion carried 5-0, by the following roll call vote:

AYES: Chair Flores, Vice-Chair Mendoza, and Commissioners Castellanos, Jhutti, and Urnberg.

NOES: None



Chair Flores opened the public comment period at 7:03 p.m. Katherine Schell Rodriguez, P.O. Box 163, Livingston.

• She noticed that Hostetler was in the news again. She saw the article in the Merced Sun Star of how he went to the City Council for a tentative zoning change so that he could do agriculture on land that he planned to develop, but hadn’t develop yet. And that reminded her of the special planning area that was included in Livingston’s 2025 General Plan Update in exchange for funding for paying for the 2025 General Plan Update that would eventually allow for the development and would allow for a population of well over 100,000 people.

Everyone knows that ended up with parts of it being tossed out by a judge. She is hearing there are plans of getting back into the General Plan Update process again. It seems there are those that may not have learned from the mistakes of the past. She wants to repeat what she and others have repeated throughout the General Plan Update mess, and that is that a General Plan is not just a plan. It is not something to just put through and get it done so that we can have it in paper and we can amend it four times a year if we want to.

Just because the General Plan can be amended four times a year doesn’t mean it necessarily will and Livingston has several examples already of either waiving certain requirements, such as in the downtown commercial area, so that people who have residences in the Downtown Commercial zoning can keep them as residences and have received permission from the Council to waive the requirement of having that converted into a business if it’s vacant for a certain time or damaged over a certain amount.

Why? Because the dream did not match the reality. The same thing happened with some of the agricultural areas –the dream of turning it all into housing has not encountered the reality of the economics of the times. Other parts of the argument are, "Do we really want to pave over all of our agricultural land?" That is a whole other discussion in itself.

She is concerned that as Livingston starts moving forward into trying to get the General Plan Update fixed, it gets sucked into another boring text of over planning and planning so big to where years after we are trying to undo the mess created in the present. There are unintended consequences down the road and you can’t call a General Plan just a plan. It is not just a plan.

Chair Flores closed the public comment period at 7:09 p.m.



This item was brought before the Planning Commission to determine General Plan consistency and consider an amendment to the Livingston Municipal Code amending Sections 5-2-3, 5-2-4, 5-3-15, Tables 3 and 4, and the addition of Section 5-5-13 under specific Use Regulations.

The proposed Zoning Code text amendments would add to certain sections of the City of Livingston Zoning Ordinance a description of smoke shops/smoking lounges and the zoning district in which such use would be allowed with a Conditional Use Permit.

Planning Director Owen presented the staff report and recommended approval of Zoning Ordinance Text Amendment 2014-03.

She said this Zoning Ordinance Text Amendment is an addition to our current Zoning Ordinance. This follows on an action taken by City Council. There was a one-year moratorium placed on smoke shops and smoking lounges and then City Council put in place an emergency ordinance. It was in response to two business license applications submitted to the City within the same week and it cost the Council to consider whether or not this was a use that was already in our tables, and, if so, where would it go and if not, where did they want to see it in the City.

She added this has been a fairly fresh issue in other cities she contacted. As she reviewed their ordinance language, she realized some cities are more restrictive than others. Some cities have already had to go back and revise what was already in place because of the popularity of the e-cigarettes.

Livingston is not prohibiting smoke shops and smoking lounges entirely. They are being allowed in the Limited Industrial (M-1) zoning district and staff set some restrictions about where that shop could be located with respect to gatherings that would attract minors such as schools, youth centers, or churches.

A Conditional Use Permit would be required and some restrictions were placed on Section 5-5-13 Development Standards. City staff and the City Attorney drafted the proposed language in Exhibit ‘A". She believes this language suffices to accomplish what is good for a city this size. This is staff s recommendation. Itwill be taken to City Council with any recommendations from the Planning Commission for their final consideration.

Commissioners’ Questions/Comments

Commissioner Jhutti

• Asked what areas are covered under the Limited Industrial (M-1) zoning district.

Planning Director Owen pointed on the zoning map the areas zoned M-1. It is mainly on Industrial Drive.

• Asked where the two smoke shop applicants wanted to open their business.

Planning Director Owen replied in the Downtown Commercial (DTC) zoning district.

She added there are some uses that are not encouraged in the City’s downtown, such as bars and smoke shops and cigarette lounges.

Commissioner Urnberg

• Asked what the age limit was for entering these establishments.

Chair Flores said age limits for hookah lounges are 18 years and over.

• Asked if there can be any restrictions placed on drug paraphernalia being sold.

Commissioner Jhutti said the association of smoke shops with other drugs and drug paraphernalia is the key block that Council and other citizens have, but he doesn’t think an ordinance can just prohibit outright the sale of certain items and not other items.

Based on what he has seen in flea markets and other shops, including liquor stores, they are selling drug paraphernalia openly and there isn’t a law against it.

Planning Director Owen said there are some City ordinances that come down to the nitty­ gritty about the type of space that can be made available and that is the direction staff is seeking from the Planning Commission and City Council. Ifthey feel they need to take it to that level, then staff will go back and revisit other City ordinances.

She mentioned that she made the assumption that the age limit to sell cigarettes was already in place, so she did not include the age limit, but the way she wrote the proposed language, minors are not prohibited from entering these establishments.

Chair Flores

• He thinks there is a distinction between smoke shops and smoke lounges. Smoke shops sell it and smoke lounges provide it for consumption in the premises and that is not distinguished here. It is like saying a mini mart and a bar.

Planning Director Owen said the proposed language indicates smoke shops and/or smoking lounges meaning it covers both those uses. Ifyou wanted to open a hookah bar in the M-1 district, you can do so if age 18 and over.

Discussion followed.

Alternate Commissioner Mendoza-Gonzalez

• There is a distinction on smoke shops and smoke lounges, so in terms of parking, you would have two different situations. He asked if parking was considered during the review process.

Planning Director Owen said that will be considered as part of the conditions of approval in the Conditional Use Permit process. They could also add the restriction on age and anything else the Commission desires.

Chair Flores opened and closed the public hearing at 7:24 p.m. as there was no public comment.

Chair Flores

• In terms of finding General Plan consistency, he fills we are delegating everything to the M-1 District -training centers, tow trucks, and now smoke shops and/or smoking lounges. When he thinks of smoke shops and/or smoking lounges, industrial doesn’t come to mind. He referred to Livingston Municipal Code Section 5-2-4: INDUSTRIAL, which states, "All industrial uses may include either direct or incidental (accessory), outdoor storage, and uses." He thinks this is more of a commercial use. He added City of Merced and City of Turlock have them in the Downtown Commercial zoning district and that makes sense to him.

Alternate Commissioner Mendoza-Gonzalez

• Agrees that it is very common to see smoke shops and/or smoking lounges in the downtown, but every city is different and Livingston’s downtown is more like a


neighborhood commercial type of zone because it is very family-oriented and something like a hookah lounge in the downtown would probably not be appropriate.

Discussion followed regarding buffer zone for alcohol serving locations in the Downtown Commercial (DTC) zoning district.

Vice-Chair Mendoza

• We shouldn’t have to babysit. Adults 18 and over need to take responsibilities for their actions. The City of Livingston is never going to grow if we are always trying to stop business from coming in.

Commissioner Jhutti

• Livingston does have a reputation for being safer than other neighboring cities. There is a lot of potential for drug use in this area, so people are just concerned that these establishments might feed that habit. He is glad we are not banning this use completely. We don’t want to stop businesses from coming to Livingston. He thinks regulating such use is a good step.

Chair Flores

• There is language in the proposed amendment to allow for that protection -the 500 feet buffer zone.

Commissioner Urnberg

• He agrees with keeping it in the M-1 district and putting the age limit on it, 18 or 21.

Alternate Commissioner Mendoza-Gonzalez

• He is sort of torn in between because although he does feel that Livingston has established a reputation (like Vice-Chair Mendoza mentioned), he thinks that is the reason why Livingston has become a desired family community, but besides looking at it from a social standpoint, you have to look at it from an economic standpoint and he is not sure that this type of business would be successful in the M-1 zone because they wouldn’t get too much visibility. That being said, he thinks having the opportunity to also locate it in the downtown with a Conditional Use Permit is not necessarily a bad thing because the Planning Commission can evaluate it when the moment comes and they will have the opportunity to shut it down if they feel it is necessary.

• Asked for clarification on how the 500 feet between establishments would be measured. 6

Planning Director Owen replied from wall to wall of each building. Discussion followed.

Chair Flores

• Recommended also allowing them in the DTC zoning district along with the M-1 zoning district with a Conditional Use Permit, acknowledging what Alternate Commissioner Mendoza-Gonzalez said that when applicants come, the Planning Commission can review the application on applicant by applicant basis. He feels applicants should have more options.

Commissioner Jhutti

• In Livingston visibility is not all that great within the downtown area. It does not have a lot of foot traffic. A smoke shop even in the M-1 zoning district may actually do well if there is demand. He is of the opinion that let’s leave it in the M-1 and let’s see if a smoke shop comes and let’s evaluate it in the M-1 and then once we have some data and evidence on how it does, then open it up in other areas. That is just him being cautious.

Chair Flores

• That is a good cautionary note, but it took a lot of staff time for this ordinance to be prepared; it’s in front of the Planning Commission; they may have more important issues later; it just costs a lot of money to prepare these things.

Discussion followed.

For clarification, Planning Director Owen asked if the Planning Commission recommendation was that the age limit of 18 and under be added to Section 5-5-13 (C), and to amend Section 5-3-15 Table 3 and Table 4 with a CUP in the DTC zoning district in addition to the M-1 zoning district.

Chair Flores replied, "Yes."

Motion by Chair Flores, seconded by Vice-Chair Mendoza, to adopt Resolution 2014-08, Determining General Plan Consistency and Recommending to the City Council Approval of Zoning Ordinance Text Amendment (ZOTA) 2014-03 Amending Livingston Municipal Code Sections 5-2-3, 5-2-4, 5-3-15, Tables 3 and 4, and the Addition of Section 5-5-13 and the addition of the changes recommended by the Planning Commission. Motion carried 5-0, by the following roll call vote:


AYES: Chair Flores, Vice-Chair Mendoza, and Commissioners Castellanos, Jhutti, and Umberg


None None


Court Theater Property, 620 Main Street

Chair Flores said his intent for placing this item on the Agenda as a discussion item is he is trying to be a diligent Planning Commission Chair and make sure that the Zoning Ordinance is being followed. He knows this property is being used differently than what is allowed in its current zoning of Downtown Commercial (DTC). He asks that the Planning Commission direct staff to look into what is needed to be in line with Title 5, zoning regulations, either in Section

5-2-6 , Temporary Uses (City sponsored activities), or 5-3-12 Parks and Open Space.

Planning Director Owen explained that what is there now is only a little sod that was laid and some cement crosswalks and that parcel is being enjoyed by a regular group of our citizens.

Chair Flores said the issue is not the open space; it is the current zoning of DTC does not allow that use.

Planning Director Owen stated that when this was brought to her attention, she did some research and she found that there are cities that have pieces of property that were created with some volunteer work or a grant to make public space, but they are not necessarily zoned Public Facility (PF). The underlined zoning remains. Why is that? Mainly because of the expense in changing it and making it a more permanent change.

We all know the history of the court theater building. Grants were applied for and received, but over the course of several years, it was determined that the building needed more work than the City and the grants could cover. The decision was made by Council to demolish the building and at that point open space became available in the downtown area.

A number of consultants have come through (AIA and their study group, the Congress for New Urbanism, and other consultants) who look at the downtown area of many cities and provide recommendations. The current use of this parcel is certainly in keeping with the current philosophy, especially in Planning, of what makes an active and lively downtown. It is an area that people can gather without having to pay money; they can also use it occasionally for temporary uses, City sponsored or not; there’s been some discussion about showing movies there in the summer; there’s been talk about a mural being painted there, and, in fact, the mural ordinance was researched and written as part of that larger effort to improve the downtown.

That said, for the City to allow the current use would take several actions. One of them would be to issue a Temporary Use Permit. The way the Zoning Ordinance is written now, that would require the Planning Director to administratively review and renew that Temporary Use Permit once every 30 days and keep renewing it until the City decides to do something else with that property. This option would cost about $22.50 per month of the Planning Director’s time.

The second option is to issue a Conditional Use Permit (CUP) to allow the current use. A CUP will run with the land. That would cost the City approximately $2,000.

The third option is continue business as usual which is typically done in other cities. They look at it as a temporary use until they sell the property at a later time.

These are the three options to bring that particular piece of property into alignment with our land use table. However, any changes of this nature would require Council direction due to cost.

Chair Flores said it sounds like Planning Director Owen is discouraging the Planning Commission from following the Zoning Ordinance.

Planning Director Owen assured him that is not the case and said she is only informing them of the cost of the action.

Commissioner Urnberg said he is a member of the Historical Society Museum Committee and they brought up discussion about naming that park. They were going to bring it up to the City Manager.

Vice Chair Mendoza said it doesn’t matter what the Planning Commission says because ultimately it is all up to the City Council.

Commissioner Urnberg stated that several years back where Rite Aid is located now, there were commercial buildings there, then there was an alley and on the other side of the alley, there was a large parking lot and then a park, so why can’t we have a park here?

Chair Flores said this is not a park. It is a fundraiser. The City is collecting funds to put up Christmas trees there.

Planning Director Owen said currently it is open space. She would not call it a fundraiser as a use in any long term sense.

Chair Flores said he just wants to do the right thing and follow what the Planning Commission is supposed to be doing here.

Planning Director Owen said if the Planning Commission has a recommendation, she can take it to City Council.

Chair Flores asked what other Commissioners think about it.

Commissioner Jhutti asked if taking the trees out and just having sod there was in violation of the Code.

Alternate Commissioner Francisco Mendoza-Gonzalez asked if it cannot be used as a park, will the other option be to just keep it as an empty lot.

Planning Director Owen replied it is really about what the definition of a park is. All they have out there is a few tables, some concrete, and grass. From a Planner’s perspective, it seems to be serving a use for not just the regulars; it also opens up the downtown.

Chair Flores said he is not against the park. It is just not the right zoning and he is concerned that a precedent is being set here and he is also concerned that another precedent has been set where dollar amounts have been associated with options presented to the Planning Commission.

Planning Director Owen said she thought dollar amounts would be useful to the Planning Commission.

Discussion followed.

Chair Flores asked who is liable if somebody gets hurt there. There are some older folks there using the park. What if they sue the City and since it was never zoned the right way, that can come back to the Planning Commission.

Commissioner Jhutti said maybe they should table this item and do more research on it and bring it back for further discussion later.

Chair Flores opened the meeting for public comment at 8:07 p.m.

Katherine Schell-Rodriguez, P.O. Box 163, Livingston, suggested that in the short run while all of this is being researched, this item be brought up to the Council asking them to temporarily waive the conditions of the zoning of that piece for six months or a year, just like they waived the conditions for residential in the Downtown Commercial zone.


Planning Commission Commissioner Castellanos

• Nothing to report.

Commissioner Jhutti

• Nothing to report.


Commissioner Urnberg

• Wished everyone a Merry Christmas and Happy New Year.

Alternate Commissioner Mendoza-Gonzalez

• Nothing to report.

Vice-Chair Mendoza

• Nothing to Report.

Chair Flores

• Nothing to Report.

City Staff

Sr. Administrative Analyst Arredondo

• Nothing to report.

Planning Director Owen

• Rite Aid Temporary Conditional Use Permit

Planning staff issued a Temporary Conditional Use Permit to Rite Aid, 500 Main Street, for the placement of four shipping containers on their parking lot to use as temporary storage of construction materials they will be using for their interior remodeling taking place in the next couple of weeks.

• Livingston Commons Site Plan (copies provided to all Commissioners)

The site plan for the Livingston Commons Project (Rancho San Miguel, Auto Zone, CVS Pharmacy, and other uses) was approved in 2006, but they are now barely moving forward with construction, so Planning staff felt that it is useful for the Planning Commission to review the site plan and familiarize themselves with the project as was approved by the City. It is still unknown what other uses will occupy future Pad A. City Staff is doing their best to help end up with an attractive product.

Discussion followed regarding traffic congestion on Winton Parkway.

• City staff is being approached by projects that have been on hold for years and are now interested in getting started again.

Commissioner Jhutti asked what other funding sources the City has besides MCAG to make some of the modifications.

Planning Director Owen replied the Regional Transportation Impact Fees were just approved by City Council on November 20, 2014. She added the City Engineer would know more about other funding sources.

Commissioner Jhutti thinks the Regional Transportation Impact Fees are excessively high.

• In an effort to comply with the safety of their pipelines, PG&E has been identifying the current pipelines that run throughout the City and they found that there are trees that are planted too close to the pipeline; therefore, City staff is going through the downtown area identifying some of the empty tree boxes. PG&E is proposing to donate replacement trees to the City for the trees that are slated for removal.

Chair Flores said we should get water resistant trees.

Planning Director Owen said she is actually considering tall, ornamental grasses as replacement for trees. PG&E will allow the City to plant grasses or shrubs. They just don’t want trees too close to their easement.


The meeting was adjourned by consensus at 8:19 p.m.

APPROVED: February 10, 2015


Secretary of the Planning Commission, HOLLY R. OWEN

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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