Merced Development Rodeo: Team "Ol' Hoss" ropes Merced City Council and wins a prize

Submitted: Dec 26, 2014
Badlands Journal editorial board

 Although landowners would love you to believe that farming and residential development are totally different operations, farmers being salt-of-the-earth, honest, God-fearing Jeffersonian yeomen of rural America, developers being mysteriously powerful, immensely rich city slickers, farming is in fact just as much "development" as residential construction is in terms of its effects on the environment and its returns of investment.


In the October 15th Merced City Council meeting, an item appeared under "Reports" that asked for a resolution that the

City Council of the City of Merced finds that farming and planting tree crops will be an allowed interim use within Bellevue Ranch West at such time that environmental review has occurred and the property owner has obtained an Interface Conditional Use Permit from the City of Merced to ensure compatibility with the existing residential uses within Bellevue Ranch.

(It is unclear and never explained what an interface CUP is as opposed to a CUP. It's just there, swimming in the punchbowl, so to speak.  Is it more conditional, less conditional, etc? Or is it just more sophistry?-- blj)

It was presented as an alternative to the regular, lawful process for an applicant to apply for a zoning change by an "entourage" of lobbyists from a high power Sacramento lobbying firm and a lawyer/intimidator from Modesto.

The applicant, Greg "Ol' Hoss" Hostetler, a developer/farmer from the west side, never saw a law or regulation that applied to any of his manifold of business concerns. His method of dealing with elected officials is summarized in a telephone call to a county supervisor that by accident went to the wrong telephone some years ago:

Mrs. Crookham, this is Greg Hostetler calling. My cell number actually is 704-13** if you need to call me. I’m on a cell phone cause my other battery I’m trying to save that, preserve it you know. I’m into preserving things too from time to time, but anyway, uhm, I’m just calling you, uh, to let you know that…ah if you don’t already know… that we’ve had a lot of drama and trouble in the county ... everywhere I do business [inaudible] apparently I guess because of Mrs. uh…Mrs. Deirdre Kelsey ah… thinks staff may need some help, because she’s climbing all over them… using [inaudible] staff for her personal pit bulls…trying to bite our people, and our staff -- this is my opinion -- causing a lot of drama in Livingston, for the City of Livingston and we’re trying to uh in the progress of uh in the process of installing a sewer line over there. If you haven’t talked to Dee Tatum, he could fill you in on what’s going on over there. But uh this probably will not end any time soon. So, I just wanted to give you the update, and if you could give staff any help I’d appreciate it… Thank you!

That totally unpermitted sewer line was such an assault on lawful procedure that County Counsel himself -- in a highly unusual act -- wrote a scathing letter against the whole business.

Mayor Stan Thurston, an attorney, resisted this resolution which was agendized under Reports, yet required council action, which council took. But the mayor no longer has competent city-attorney counsel since Greg Diaz left for the City of Ventura. It was Diaz who insisted on drawing the council's attention to Ol' Hoss's illegal grading of this flood plain to prepare it for orchard planting in the first place. With feeble city attorneys easily thugged around and a majority of pipsqueaks afraid of everybodies' shadow on the council, Thurston was left on this occasion with only one supporter -- with whom he often disagrees vigorously -- Council Member Michael Belluomini, a former planner with deep respect for lawful processes. Council Member Noah Lor was absent, which probably shortened the discussion for at least a quarter hour.

Badlands' board members have many questions about this "procedure," but one sticks out: Has the city been indemnified by Ol' Hoss for any legal action that might arise out of this and further decisions that bound like kangaroos over lawful processes it will have to make to keep Ol' Hoss happy? -- blj







Miranda Lutzlow, Assistant Merced City Clerk: Agenda Item L 1: Resolution to allow farming activities as an interim use at the Bellevue Ranch West. And Mayor, I do have members of the audience who do wish to speak on this item.

City of Merced Development Services Director David Goncalves: Good evening, Mr. Mayer and Members of the Council, and the general public, my name is David Goncalves and I'm the Development Services Director here for the City of Merced.

Tonight, item for consideration by the City Council uh is a request from an applicant to provide some interim activities, farming, out in the Bellevue Ranch uh West, area.

(Beginning the slide show) The area identified on this map depicts in color there specific areas. It also includes the large 460 acres of planned development area, which at some time in the future could have up to 1,300 residences and uh commercial property development.

Background: For those of the public and of the council -- in 1995 the council approved PD-42, The Bellevue Ranch Master Plan. Although the Bellevue Ranch had been farmed historically for more than 100 years, ah that use was not anticipated ah with ah the proposed PD zone. Uh, at that time, 1995, and going forward, the growth rate was anticipated to be quite high. As with many other projects, that changed with the downturn of our recession. Agricultural uses were not put on the list of allowed uses at that time.

Just for clarification, agricultural uses are allowed in our city by right in R-1, R-2, and R-3 zones with a few exceptions about hog raising , selling a product on the parcel. So, as you noticed in the staff report as well, that's noted there.

Other sections in town that have some restrictions about uses are ...around parcels on Bear Creek and Eighth Street. Un, the city has two agricultural zones. They are A-T-5 and A-1-20, which obviously would allow farming as well.

Planned developments provide the council and our city the opportunity to uh approve any and all uses that uh the council deems fit. This  request would simply allow the same uses that property owners with R-1-zoned property the same property rights as they have.

Um, because of a section listed here and it was not a specific use listed in the PD zone this use currently would not be allowed um, unless this action ... tonight is taken.

Applicant's request as you can see in your packet they've requested some farming activities including tree crops uh some vines, that type of thing be allowed as an interim and transitional use uh for this Bellevue area very specifically it is only this area that this resolution affects I want to point that out to Council specifically. You'll see that in Attachment Letter 2, dated November 24.

This slide is simply outlining it without the other uses on the area that is affected uh as you can see there. I'll note that like many other application processes uh through our development services there is a vast array of approaches to things. Working with the applicants and staff we thought this was the appropriate route to give the Council the first chance at deciding if they wanted to allow a process to move forward um that would allow a public hearing a public process at a later time ... appropriate to give the council the first chance at that decision before moving through an entire process with the Planning Commission.

The draft resolution before the council would allow the consideration of farming activities um after um environmental review and after uh the public hearings and outreach that the applicant will explain tonight that they are proposing to do in that area.

A public scoping meeting I guess is a term I would use would be provided in that area as well, residents out there, as well as hearings to be conducted at the planning commission as well. So staff felt that that was due process enough allowed for enough public input to bring this proposal to the council tonight before allowing the applicant to move forward with their application.

A conditional use permit is just that, it allows conditions to be placed on uses and they're designed to put conditions on a project that the planning commission regards the nature and conditions of adjacent structures and uses.  That is how the planning commission generally  handles this type of use uh and question for them. The planning commission may deny the application for this and the commission may impose additional requirements, locations, constructions, and a vast array of other items that they may feel is appropriate uh if uh the council decides to approve this resolution tonight.

Again, the interface CUP uh is just that, to allow -- clears throat -- apologize, not feeling well tonight --

Mayor Thurston: I know how you feel ...

Goncalves: The purpose for the interface regulations is to provide means for the integration of uses along with potential and compatible zoning districts to better carry out the purposes of this title. Its purpose is to allow wholly and harmonious growth in the city while protecting land values and allowing investments in our community. As with a regular CUP uh conditions may be imposed to insure compatibility with surrounding uses, which is what staff's role is along with the planning commission. In this case agricultural uses would be considered uh and in relationship to the adjacent single family dwellings that are there currently as well as the future build out.

If this council decides to approve this resolution uh the property owners would submit an application for the CUP as they've agreed to as you can see on the attachment; the city would retain environmental consultants to do analysis on water, air, interface, chemicals -- all those types of things that we've considered.

A full environmental analysis would be prepared, uh, and, as you can see, that would be fully vetted before the uh before the planning commission could move forward.

The public hearing would be scheduled as well as other outreach meetings in the area; notices will be sent to properties within 300 feet and all of the areas within that Bellevue Corridor Area. That's well beyond what we would be legally challenged -- required -- to do but staff and the applicant feel that that would be more than appropriate since they all would be affected.

The decision by the planning commission may be appealed to the city council and I noted that the appeal fee can be waived if  hardship is considered. I have authority to do that.

No farming activities could commence before the environmental review would be done and the conditional use permit would be approved.

If the city council does not approve this, the applicant has several options: they could submit an application for a modification of the Bellevue West Ranch Master Plan, which is a General Plan amendment; and a Revision to the Official Site Utilization Plan for Planned Development Number 42 (to allow agricultural uses--blj); the environmental analysis would still be done; the public hearing would still be done; and the conditional use permit would be approved or go to the planning commission for consideration and then it would come to the council. This is why we felt it was important to bring it to you first to have your direction as to whether that is something the council would want to consider.

Mayor Thurston: Just very quickly, if this resolution is approved tonight and after all the CEQA episodes are completed, and it goes before the planning commission, and the planning commission approves it, unless somebody appeals it, this council will never see this item again, will it?

Goncalves: That is correct.

Thurston: Why would staff not want this council to have a public hearing as the final say-so? This is where people come to voice their opinion. They know little about public hearings at planning commissions and they aren't televised. Why would staff want to do that?

Goncalves: The applicant requested it and we brought you the resolution tonight.

Thurston: I understand that people requests the city all kinds of stuff but we don't do it just because they ask. Do we? I mean, I don't know whether I'm in favor of ag or not. I have no information up here. No information on air quality -- all those CEQA things that you listed there -- that's not here (motioning to his desk, reports and monitor --blj). How are we supposed to intelligently decide to permit ag use without that information? That's what public hearings are for. That's what the planning commission is for -- is to do that detailed work you put in front of us. We don't do that. We appreciate when they do it.

We've had several zone changes recently, none of them by resolution and I'm just curious why we're doing it this time. Uhhh, I dunno. I'm not against the project, because I don't have any information. I am really disturbed about the procedure. This is just awkward for the council.

When this goes forward, if we were to approve this, the open process with the residents, the word's going to get out -- "Oh, the council has already OK'd this, you do know that, don't you?"

This sends a strong message to the planning commission.

If it's appealed, we have to overrule ourselves in order to change it. That's a really hard burden to ask this council to do -- to overrule itself.  Again that's a very awkward thing to put this council in front of to do that.

Uh, that's all I can say for now. There is a technical thing I want to ask and maybe Mr. Rozell (deputy city attorney) can answer it. We were told many times that ag is only allowed within the city limits if it was there when it was annexed and if it was continuous -- that once someone discontinues ag, they can't start it again. Is that true or not?

Goncalves: Agricultural uses are principally permitted uses in R-1, R-2 and R-3 zones. I'll let Kim and Mr. Rozell go over that. But no, if you have R-1 zoned land, you can commence ...

Thurston: So what he told us is inaccurate. Is that what you're saying?

Goncalves: Who told you?

Thurston: The person standing behind you.

Goncalves: I'll let you ...

Rozell: Good evening Mr. Mayor and members of the City Council. To the extent that you are asking me to disclose information that was discussed in closed session I can't do that unless you vote to wave that but the general rule is that if you have a use and you cease that use and that use is a non-conforming use you cannot restart it. That is the general rule of law.

Thurston: So this R-1 doesn't qualify for ag use because it was discontinued.

Rozell: If the city council chooses to adopt the resolution tonight, they will be looking at the historic use of this property over the last 100 years. Based on the information in the city files for more than a century this area was farmed and ranched, and if the city council chooses, they can make the finding tonight to support the adoption of this resolution.

Thurston: But that's inconsistent with what we've told other people with dirt they wanted to farm is that if you quit farming you can't start again because you are in an R-1.

Rozell: Actually, right now the existing ordinance is in effect that if R-1, residential zone, R-2, R-3 you have an ability to farm your property. You can't raise hogs but you can farm it. So if you owned a lot you can farm that property if it is R-1.

Thurston: Well, closed session or not that is completely contrary to what you have told us many many times.

Rozell: I would respectfully disagree with that characterization.

Thurston: (throwing up his hands), OK. There are other people who want to ask questions. Councilman Murphy.

Council Member Mike Murphy: Um, My-my question is-is uh ... can you go back to the map?

Goncalves: The one with ...? This map?

Murphy (holding up map) Well, um, I'm looking at the one in the packet ("packet" is information provided council members)

Goncalves: Uh, that one

Murphy:Yeah, that one. I just wanted to make sure I don't have a conflict. Um, I live on the southern edge here. I don't live in Bellevue Ranch, but ... Is the standard 300 feet? Or 200? Three hundred feet city manager is saying. I don't ...which areas are proposed to be farmed? Because the area I live near is all developed.

Goncalves: (indicating a part of a map) That's the proposal area.

Murphy: I just wanna make sure I don't have a conflict.

Interim City Attorney Chris Diaz: The .... rule under the state's FPPC standards is 500 feet. The city may have a more, a different .. OK, I take it it's 500 feet. So,

Murphy: So I'm not within 500 feet of this (indicating "packet" map) but I am within 500 feet of the other map you showed.

Diaz: This is the actual area that is proposed to be farmed. The other map is the entire Bellevue Ranch ...

Murphy: So I'll defer to counsel as to whether ... I don't know if this covers this map or the other map, this one.

City Manager John Bramble: It would be this map. The other map just shows the entire Bellevue Ranch area. This is the actual map that would be considered for ...

Murphy: I just want to make sure counsel understands  I don't know if the zoning applies to the area that's already developed, like along Ironstone, or just this area here?

Goncalves: The conditional use permit would be explicit to the exact area that would be allowed to be farmed. It wouldn't have to necessarily cover the entire area. And that's this map that's been submitted here. The outline.

Diaz: Councilman Murphy, I would just add out of an abundance of caution that if you don't ... if we can't a clear direction if you are within 500 feet of the proposed area, I would recommend that you step out of the room.

Murphy: I have a view on it. I'd like to be involved but I also respect .. so I ... can we break for five minutes and talk about it?

Thurston: Yes. We'll take a 5-minute recess. ...

Thurston: Call the council back to order. Are there any further questions for Mr. Goncalves?

Diaz: Just if I may,,,we did confirm that Councilman Murphy is outside of the 500-foot area so he does not have a conflict on this issue. But what I would ask is for staff to clarify for the public as well as for Councilman Murphy the actual area -- assuming this will be the council's to approve -- what area will actually be allowed for interim farming uses.

Goncalves: Yes sir, and I apologize. The first map -- and I will go to for clarification for everybody -- this map, here, is simply for a pictorial view of what the entire Bellevue Ranch ... approved in 1995.

The map that is here (slide of a different map) was the area that is to be proposed for agricultural uses. Clarification from applicants just now as this issue came up ... they are not even proposing to you uh ... on the lower -- I guess the lower peninsula that's coming down .. as we go across the ponding basin there ... straight across uh .. from the line in the middle ... even this area here is still outside of the conflict area as I understand.

Thurston: Council Member Belluomini.

Council Member Michael Belluomini: So in that case the wording in the resolution needs to be modified, right? Section 2, pages 402 and 475 says that "the city council's determination that farming is an allowed interim use in Bellevue Ranch West or a portion of Bellevue Ranch West as shown in Exhibit A or something" or somehow explain the limited nature that does not include all of Bellevue Ranch West, if that is the intent.

Goncalves: That would be more precise.

Thurston: Couple of last questions. Everything that's being requested by this resolution could be granted and approved by the planning commission, is that correct?

Goncalves: The conditional use permit, after environmental review and analysis, the final action is by the planning commission.

Thurston: So the answer is yes.

Goncalves: This, the reason why we came to this council is to allow this body to make a decision whether they wanted that process to go forward or not.

Thurston: That's my point. We don't know, at least I don't know. Secondly, I know you're saying that but I am concerned that all the options were not presented to us in the staff report. This is the only one. I think that makes it incomplete and we've talked many, many times about recommendations rather than permitting council to make their decisions. I'm not going to belabor that point but I think all the alternatives, pros and cons, should have been given in the staff report.

Council Member Dossetti.

Council Member Dossetti: Since we're making changes to the resolution to be more specific, I just spoke to the city attorney and we can put in this resolution that anything that goes back to the planning commission for their review and their approval, we can put that in there to bring it -- they can make recommendations -- they have to bring it back to the council and we can schedule it for a public hearing. Is that correct? (looking to interim city attorney Diaz)

Diaz: That is correct. There is nothing precluding the council from including additional condition in the resolution that would require that the planning commission making a recommendation on the matter and then the city council having final approval authority.

Thurston: I don't see the point of doing this now at all. I-I-I, really, and I'll say this again (speaking to Goncalves) approving this resolution tonight sends a message to the planning commission that the council's onboard with this and I think it leaves them with less objectivity. And secondly, the residents -- "Oh, the council says it's OK" -- What does that do to the residents? They are already out of the loop, essentially, as far as they can see. I haven't heard from a single resident, so none of them know about it, about what we're doing tonight. They've had no pre-advance warning about this. I think this just circumvents the entire process of being visible and open about what we do. The whole thing is unnecessary. That's the point. They can get everything they want to do by going through the regular process like everyone else has the last couple -- two, three -- Any other questions?

Belluomini: Yeah, I have a question. Dave, could you go into that last side that shows that if we did not approve it their options are?

OK. So if we do not approve it, the city council, their options are to submit an application for modifications to the development plan and a revision to the original site plan for Specific Development Plan 42. And then, that would go through the usual process: public notices; go to planning commission; planning commission would recommend to city council; council would act. Right? The whole usual process for a General Plan zone change. In the staff report on page 413, uh 475, it says -- this is the eh first full paragraph about in the middle: "Municipal Code states: 'PD Zone, any and all uses are permitted provided such uses are shown on the development plan for the particular PD zone as approved by the city council.'"

My impression from reading that is that the PD zone is a zone, it's approved by the city council, and to change it is a zone change. And a zone change has its -- there's a regular process for doing that. Right. That you advertise, it goes to the planning commission, recommendation, it goes back to city council, etcetera. So ... beside the legal aspect I guess that I'm describing what the mayor is pointing out as well is that it sends the wrong message to the people who get the 300 -- or who live within 300 feet of the entire Bellevue Ranch. They get a notice that there's already been a somewhat of an approval by city council when they need to know that when they come before city council we are unbiased and have not made a decision and are waiting to get input from them as well as the other facts. So, I think it would be better to go through the regular zone-change process. Thank you.

Thurston: Are there any more questions from Mr. Goncalves? With that, I'm sure the applicant and his entourage would like to speak so ... (Ol' Hoss's entourage consists of a Modesto land-use attorney and not one but three registered lobbyists from the firm of California Strategies, LLC, probably the most powerful lobbying firm in Sacramento, founded by Bob White, former Gov. Pete Wilson's chief of staff for 32 years, nearly all of Wilson's political career in California and Washington. Ol' Hoss is putting on a full court press at a tremendous cost, doubling down on a tricky investment involving a planned development plan he must change and has been advised he can't change by the normal, legal public procedure. Hence, the entourage of Sacramento uglies. -- blj)

Assistant City Clerk Lutzlow: Yes, I have three forms, one from attorney George Petrulakis, one from Rusty Ariala, Area ...

Thurston. Areias.

Lutzlow: Array?

Thurston: s-s-s-s

Lutzlow: And then one from Carol Whiteside.

Petrulakis: Mr. Mayor and Members of the Council, my name is George Petrulakis and I am land-use counsel for Mr. Hostetler. And I'd like to clarify a few items that hopefully will some of these issues at ease. It's funny how you can have a different view of things based on where you know sitting with your staff and what's being asked and back-and-forth. But how we see tonight's action is us voluntarily agreeing to a use-permit  process where there's a lot of ambiguity on what the underlying state of farming is in this PD zone. I don't want to belabor the point but there's been a lot of water under this bridge and the effort here in fact was us to voluntarily agree to impose a public and transparent and open process so all these things would be addressed. Um, of all the farming I'm aware of in this city in residential areas there are no permits issued by the city -- it's a permitted use. The vast majority of this area, underlying this zone, is residential. So, we think it's a permitted use. But we're not belaboring that. We're not arguing about that. We're asked for a process that's public, transparent and open, so that the valid concerns about the interface between farming and our neighbors, our residential neighbors, ah, could be addressed. I think given that opportunity to go through that process, ah, the council will be very happy with the result because if we don't do our job correctly the matter will in fact be appealed to the city council. We're all giving the opportunity to do such a good job on public outreach, and public process, and addressing the issues, that at the end of that, with the interface at the planning commission, nobody appeals it, which means that everybody's done a good job. We're going to inform the neighbors, we're going to talk to them, we're going to propose the elements of the outreach program to your staff, ah, so they ah can provide input on it. That's the kind of process it's gonna be. So I think it's going to be a very healthy, good process, not ah outside ah the power of the city to engage in, so we would encourage you to go ahead and adopt the resolution allowing that. Uh, there's no prejudgment in the resolution, really, if it came back to the council, it comes back as a de novo review by the council ah you can vote yes or no to your heart's content ah should it come back ah in that form.

Ah, I'm happy to answer any questions about it but ah that's really that's really the effort here and ah uh you know it would be one thing if yeah, again, there's just two views of what needs to go on here and we are coming forward voluntarily and asking to be put through a use-permit process that, at least in my mind as Mr. Hostetler's land-use counsel, um I think there's a real question of whether he has to go through. But I'm not, you know, I'm not I prefer to be a problem solver rather than a warrior and that's the spirit that the request was made in. We're not trying to hide the ball on anybody. We're being held to a standard nobody else who farms in the city has been held to by doing a use permit. Everybody else farms by right under your code. So we've seen a very, very different way you've heard here tonight so we just hope you'll give us the opportunity to do it. Ah, you know, Mr. Hostetler has a lot of experience at this. He farms in many areas that are next to residential areas. He knows what the issues are. He's a problem solver. He knows how to solve 'em. Likewise, his entourage or his uh consulting team uh know how to do public outreach. They're very good at it as am I. I solve problems. I'm here to solve this one which there's no need to belabor in my mind. The answer is really pretty clear, it's been outlined ably I hoped in my letter, surely in the staff report, and it's a process that makes a lot of sense from our perspective. Ah,  just speakin' for myself, I was asked to take a look at this a few months ago, kind of new to the game, and I think there's a real question whether any permit is needed. The city sort of posited uh you know uh a lot of work. We went to that ... because a lot of options weren't discussed in the staff report because they're not productive options. What we've asked for and what the staff put forward is what we think is a very productive option with the whole eye being on how you get the public input that staff was very clear that the council wanted. Every time we talked to them the openness and transparency of your of your council was emphasized to us and that's how we designed this program.

(Setting the amount of financial risk in case of flooding Ol' Hoss  and his "consultant team" put the city when he illegally ripped, disked and leveled this former flood plain that had been carefully contoured by federal agencies to protect residents against floods, after this brilliant performance you wanna ask why we just don't hire the helpful and oh so knowledgeable lobbying firm of California Strategies to run the city and they can subcontract with a non-union private security firm for police and round up some kind of scab fire department. The only problem with it is that Merced could not afford "CalStrat"--blj)

Mayor Thurston: Thank you.

Petrulakis: I'm going to take responsibility if it doesn't come out in the documents uh I'll take that responsibility if I didn't put it in a correct enough way but I can assure you that everything that's been asked for in the way of public input has been ...

Thurston: Sir ...

Petrulakis: ...addressed.

Thurston: Everybody gets five minutes... I'll take it away from Carol. She said she's going to be really brief anyway.

Rusty Areias: I'm going to be very brief. Ah thank you, Mayor Thurston and ah Members of the Council,  I'm Rusty Areias, representing Baxter Ranch and even though I live in Sacramento now I spent 30 years out in Volta on the west side and 20 years in Los Banos so I feel like I know this, ah this county pretty well.  Incidentally, Mayor, upon your request I uh I texted Mike Gallo and he said he's impressed that the City's Big Cheese is interested in his cheese and that it's abundantly available at Costco, Food for Less, SaveMart and Rancho San Miguel.

Thurston: I've never seen it at Costco Merced.

Areias: It sells out quickly.

Thurston: Maybe in Turlock. But I'll look. Tell him thank you.

(much guffawing between the Capitol lobbyist and the Mayor, just two old Valley pols bonding over their common acquaintanceship with a rich guy that buys and sells politicians like Holstein heifers, just like Rusty did back before his dairy went broke and he considered selling his water rights to LA, and was shortly thereafter voted out of his seat in the state Legislature. Hostetler and Gallo had conspired successfully against Merced County to build without any permits a 42-inch sewer pipeline from the Livingston wastewater treatment plant toward new development planned by Gallo and others near Stevinson.--blj)

Areias: Carol Carol Whiteside Mayor Whiteside and I were talking over here and we thought, you know, we've come full circle. You know, I told her paper planes will make it to the moon before these seats will be filled up with people in Merced County opposing an almond orchard. I quickly googled up the ah the crop report from 2012, There're 98,000 acres of almonds in Merced County. Any other zone in this city you'd be able to to to grow almonds or farm in. All we're asking for is an equal playing field. Ah, Mr. Hostetler, I've known him a long time, practically all of my life. When I met him, back in the late Sixties, early Seventies,  he had one employee, he was self-employed, working for tips as a bartender over in Carlo's Villa in Los Banos. And I've watched this man and his late wife, Cathie, build one of the great business successes this county has ever seen. And he's been generous to his community, he's been a good neighbor. Recently I was up in Winters, California. and former Secretary of Agriculture in California and Deputy Undersecretary at the national level, Richard Rominger, is a fixture there. And I said, "Rich, how's my neighbor and friend Greg Hostetler doin'?" He said: "His farms are so incredible that he doesn't even have to put his signs on them. People know that's a Hostetler ranch because he's that good a neighbor. And that made me feel good. Ah, He's done a tremendous amount for this county. He's employed thousands and thousands of people. Right now that piece of land holds the earth together. That's all it does. This allows him to go in there and employ people, invest, and this will probably be but who knows? a temporary use until the housing market uh heats up and there's a market. It allows him to get some return on his investment in in the meantime. This is a problem solving solution uh, and like I said, I wish in my political career I could have voted for more almond orchards. Thank you very much.

Thurston: Rusty, I'd hate to be subject to one of your long speeches. Naw.

Areias: Thank you, Mayor. We all can't help ourselves.

Thurston: I understand.

(We jus' think it's plum wunnerful Ol' Hoss is such a great businesssman employing his thousands and thousands, although almonds employ less workers than any crop but cotton, we think. And jus' because he's a fabulous businessman, does that give him the right -- no, the privilege -- of rewriting the laws and regulations of public process and natural resources to suit his investment strategy? I mean is there something called the "public" left in Merced County? Of course, on the west side, where Rusty and Ol' Hoss come from, they never had none of that except for the government water projects, highways, crop subsidies, disaster payments, Agricultural Preserve property-tax subventions,  grants and loans for every conceivable agriculturally related project, subsidized duck-club water,  and government-guaranteed crop insurance, to mention but a few examples -- blj)

Carol Whiteside: Mayor and Members of the Council, thank you so much for indulging me, As I told the Mayor and a couple of Council Members, when I started my political career, which seems like a hundred years ago now (time flies when you're selling out the public to finance, insurance and real estate special interests--blj) someone advised me to be bright, be brief, and be gone. And so I promise you that will be my strategy tonight.

Um, I hope that most you know that I've been in local government for a long time. So I was on the school board, I worked on intergovernmental affairs for Governor Pete Wilson working with local governments throughout the state, and I come to that because I am a community person like you are. I care about communities, I care about neighborhoods, I care about how people feel about where they live. And so, the understanding that I have for what you all want, which is an open and transparent public process, the easy participation of the people who live in the area, makes great sense to me.

But this resolution tonight only establishes a level playing field and says -- OK planning commission and neighbors, agriculture is allowed if it meets all the criteria. And that's the piece that we don't know -- is the criteria. And that's why this process will start with an environmental review process. It will start a process of outreach. It will start a process of bringing more information in into the neighbors, into the planning commissioners, into the decision makers, so that when it comes a decision point for a permit, you have all the information that you need. And Mr. Hostetler understands that if there's a required interface hearing, a required scoping meeting, a required CEQA, all of which will be duly publicly noticed, but we're here tonight to commit to you that we will exceed the minimum requirements for notice. We will send letters. We will have meetings in the park. We will go beyond the 300-foot limit, and we will make this as broadly acceptable, as open and as comfortable a process for people to (belch) participate and learn what they need to know so that they can participate knowledgeably, not by prejudging.

So, we're asking tonight for your permission to say that agriculture could be used in this zone as it is in all the other residential zones in the city, that you level the playing field, and then Mr. Hostetler will go ahead and apply for a permit and start this process and give you and the neighbors and everyone who's interested more information.

So, if you have any questions, I would be happy to answer them but I suspect that you need to do some discussing among yourselves.

Mayor Thurston: Uh...

Whiteside: Yeah?

Thurston: First of all, where's the water supply coming from for irrigation?

Whiteside: I'm sorry, the water? That's part of the review process and when you have other farmers in the city farming they have to answer that answer that themselves...

Thurston: Then answer ...

Whiteside: ...but you will have a chance as a city to look at water and air and other farming operations and so on. Oh ...MID (Merced Irrigation District--blj), I'm told.

Thurston: I'm told that's not within MID's district therefore there's no agreement can be made for them to supply the water.

Whiteside: I think Mr. Hostetler says it is within MID ...

Thurston: I'd like to see a written agreement ..

Whiteside: But can I suggest though that's why you do an environmental review to have all that information come to you in a way that's frankly far more credible than asking me to say it at the podium because I'm not the ...

Thurston: I'm very glad that the applicant's agreeing to do all this ...

Whiteside: That's good ...

Thurston: ...but you don't need this resolution to do all that.

Whiteside: But, Mayor ...

Thurston: No "buts," yes or no. You don't need this ...

Whiteside: Well, I think we do and I'll tell you why, because if he had an R-1 zone or an R-2 zone or any other residential zone in the city, he could farm without question. But because it was not included in the original PD, we need you to say agriculture is also allowed in this PD zone. Then we'll go ahead.

Thurston: I'm not willing to do that without all that information you're talking about. But, take the people who live there, the hundreds of people who live right across the road from potential dust, fungicide, insecticide, and they're downwind.

Whiteside: (in a wailing tone as if she is being browbeaten by the mayor instead of peddling 2-bit developer sophistries) But they will have all that when they have specific information that's when their participation will be meaningful. (Who's providing this information? Is that clear from this presentation by the Hostetler Consultants Team?)

Thurston: And they will also know that the city council already said they could have ag there. That is not a fair and open process.

Whiteside: But you could ask to have it brought back to you if you wish to have the final vote.

Thurston: The same thing applies. We're prejudging the use without information.

Whiteside: I think you're only saying it's allowable.  You're not saying it's good or bad, you're saying it's allowed. (5-cent developer sophistries which are only cover for grubby little politicians on the council looking for future handouts -- blj) And that's different. But you know what?

Thurston: That begs the question. I think I've made it very clear that in my opinion that's prejudging it being allowed  ... we don't know all the CEQA impacts and the water and everything else. How can we say it's allowed without all that. The planning commission may say no, this is just too horrific to have trees as close to people living .. We don't know.

Whiteside: But in other residential zones you do have that existing.

Thurston: Yeah, but they were there when the people moved there. (like the Hostetler orchard established next to the new high school as it was being constructed -- blj) People moved here thinking they were in a subdivision in a city, not next to an orchard. If they had wanted to live next to an orchard, they would have moved out into the county.

Whiteside: I understand and my time is up. My red light is up. I would talk longer but I suspect you're going to kick me out anyway.

Thurston: Naw, I don't kick you around.

Whiteside: Thank you.

Thurston: Does anyone else want to speak on this issue.

Lutzlow: I also have a request-to-speak form from Bill Baker.

Bill Baker: I just want to say a few things. I'm a fan of Mr. Hostetler. I think he's done great things in our county. I have no objection to an almond orchard there but I don't live there. And one of my concerns is the perception that you're going to create tonight depending how you vote with reference to the procedure that you have to go through. And while I support putting an almond orchard in there I think there's a process that needs to be adhered to. If you start changing that tonight then perhaps the next person, who isn't as admirable as Mr. Hostetler is, you're going to set a precedent for this kind of activity. So I would really encourage you to follow the process. I agree with Mr. Belluomini and the Mayor. I think you have to be careful of the perception because one of the perceptions that your constituents are getting now is that the city's acting in a rogue fashion on many issues, and so I would encourage you to stick to the process and I think that I think that Mr. Hostetler is going to do a fantastic job of convincing the people in that vicinity of helping him build that and I understand why he wants to use it for ag. Likeisayidonthaveanyobjectionstoit but I'm not living right next to the project and being adversely affected by it where some others might have a different opinion. But you need to have a public hearing. You need to go through the process. Thasallihavetosay ...

Thurston: Does anyone else want to speak that hasn't already spoken? ... I presume you're part of the entourage?

Ted Harris: Yes, Mr. Mayor and Members of the Council, Ted Harris, I'm a principal at CalThreat (CalTred, CalFred, Fed -- California Strategies "CalStrat" is what he means but Harris,a folksy snob isn't sure anyone he wants the council and the public to know what rock he crawled out from under--blj)and I'm a member of the entourage. Um, I just want to clarify on folks that live in the city of Merced that move into any adjacent property that's residential -- R-1. R-2. R-3 -- at any given time that property can be farmed, on-again/off-again, all this would do would start the process that would allow uh the public participation and input that uh to consider that use for that particular area. Again, to clarify, it's just to start a process to create a level playing field that all the R-1, R-2 and R-3, can farm, not farm, uhmmidentical with any other area of Merced County (much sophisticated shrugging of shoulders, "self-evident, n'est pas?"--blj) where gluggedy - any other parcel -- gluggedyglug.

Thurston: There can't be one out of ten thousand people who know what you just said. That an orchard can be built next to my house. That's so legalistic I don't know what to say.

Harris: But again, just to clarify, all this request is is to create a level playing field for a fair process to have your planning commission and publuk partizpshun both a scoping meeting and a pubk hearing to glugglug then to impose a CUP which is not bublitnh in any other area bbblmm right to farm to then impose conditions throughout that process so's those conditions are imposed and accepted by the planning commission this will be more restrictive than other areas that can farm without a permit.

Thurston: I think though those were all there prior to annexation and they were continuous- (ly farmed). So I don't understand the level playing field. There's nobody competing against you. You're not being prejudiced by what's been there in other places. We're just saying: Go through the normal process. This doesn't unlevel the playing field. In fact it would unlevel it with everybody else that's asked for a rezone because they have not come in here with a resolution saying: We're going to approve this ahead of time as long as you meet all the conditions at the planning commission. That's not the way we've been doing business.

Harris: It's my understanding, Mayor, that there's not a single other area in the city, residential, that doesn't allow agriculture.

Thurston: That's irrelevant to this issue. They're not competing against you. They got their permission to farm in other methods. So, it's not the same. (Mayor grimaces). Thank you.

Thurston: Council Member Belluomini, is that your light?

Belluomini: Actually, I have a question for the attorney for Baxter Ranches. First thing I want to say is I'm not necessarily opposed to planting an orchard there. That's not the issue. To me it's a process issue. So I have a question I'd like you to consider and give me an answer if you can. Do you believe a change of this PD 42 zone and specific development plan to allow farming through the formal zone-change process would provide you and your client a more legally defensible position than the current council resolution to allow farming.

Ol' Hoss Mouthpiece Petrulakis: I always think there are a number of ways to skin a land-use cat. So I think there are a number of ways to proceed that have different levels of risk associated with it. I think -- I thank you for asking about ours. This whole effort was an effort to address each party's risk in a way that took into consideration public input. That was the effort. Because you get a lot of different analysis from a lot of different lawyers. I'm kind of new to this process (sez Ol' Hoss's land-use counsel--blj) But I think this is a very good way to address all the issues, not just the cherry picked issues I'm kinda hearing with a lot of certitude that I don't think these very unusual facts should lead one to assert.

Belluomini mutters something about not answering the question.

 Petrulakis: I think I did.

Thurston: He's a lawyer, what did you think? I like the word "certitude," that's pretty cool. Any other questions of this lawyer? Thank you.

Petrulakis: Thank you so much.

Thurston: Any other questions, council? Council Member Pedrozo.

Child Pedrozo (easily bedazzled by shiny suits and riches - he can scarcely conceal how clearly he sees himself someday in that entourage--blj) Thank you. Ah, I-I-I'm hearing a lot of -- I guess I'm confused and maybe ... we're ... I'm still a little confused on your position, Mayor, because I thought we were ooovn the process. so the process would be more transparent with the neighbors and with the ... what Council Member Dossetti brought up about getting that information, getting that public output, doing the outreach and then bringing it back to us for final approval.

Thurston: It's not coming back to us.

Pedrozo:  But we have the ... we can put that as a condition.

Thurston: Yes, but, why would we do that? Why not just let it go through the process? We don't have any of the neighbors here tonight. We haven't heard a single input about CEQA. And yet we're going to say, it's OK, ag's OK. When the process goes forward, everybody's going to know what we did. "Oh, Council said ag's OK, so we'll just grind through the process." It's totally unnecessary for them to get done what they want to do. Just like everybody else, they apply to the planning commission for a change in the PD to allow ag. It goes through the hearing process. They do their outreach, they do their CEQA, the planning commission holds a public hearing. They either say Yea or Nay. If they say Yes, it comes to us for final approval. We can also have a public hearing, we'll have to have a public hearing, and all the residents can come here also and we can get a full report on the CEQA which we don't have tonight.

So this is a superfluous process that short circuits the people's ability to voice their opinion because the only way it comes back is if you spend time and money and appeal the process.  In essence you'd have to hire a law firm to do that. Individuals cannot survive an appellate process from the planning commission very well. So we're putting a huge burden on the people who live there unnecessarily. That's the answer to your question.

Pedrozo: So, what you're saying is you are not in favor of agricultural uses without ...

Thurston: No I'm not saying that. I don't know whether I am or I'm not until I get all the information. The process! It's not whether I do or don't like Greg. I think he's a cool guy. It's nothing personal. It's not that I think growing these nuts on that land is good or bad. I don't know the answer. I'm just saying, Go through the normal planning process that everyone else has gone through for a zone change that I recall since I was on the council in 1996.

Pedrozo: And I-I-I understand I guess a little bit better your point but all I'm saying is, Wouldn't we be allowing ... again, agriculture, in an area that traditionally allows it, um we're just saying that we're in support of it go through the process and bring it back to us?

Thurston: What? You just made my point. "We're in support of it. Now go through the process."

Pedrozo: We're in support of agriculture in these areas. (Pedrozo, who grew up on a dairy farm that went broke, is forgetting that he's on the city council, which is supposed to support urban citizens, not the county Board of Supervisors owned completely by ag, where his father the failed dairyman was placed by the demented political machine that decides such matters determined he was adequately subject to influence, which he has proven to be and has taught his child, Council Member Josh Pedrozo -- blj)

Thurston: You just made a decision that we're going to permit ag in that area without any kind of hearing whatsoever.

Pedrozo: I'm saying that we'd support --- yeah, we support it. And I'm OK with that.

Thurston: Well, that's not a very open and transparent process because there's nobody here that lives there and we're going to tell them it's OK already.

Pedrozo: But we have the final decision. I guess that's what I'm not getting.

Thurston: No we don't have the final decision. The planning commission does.

Pedrozo: Yeah, but we could put it into conditional use so that it could come back to us so it doesn't go to the planning commission it comes to us after they get it.

Thurston: Then somebody appeals and we have to overrule ourselves if we uphold the appeal. And ...

Pedrozo: That's just ,., I-I-I think by not allowing this process to move forward with this I-I-I think we are throwing roadblocks into stuff that just doesn't it doesn't move the ball forward like we like we've requested.

Thurston: Like they requested. We didn't request it. No, the ball can be moved forward properly by applying for a PD change with the planning commission. That's what everybody else does. This resolution is unnecessary to get where they want to go. It prejudges the process without any input from the citizens and all that technical stuff that we need including the water supply which there is a dispute over even that. We'll have to straighten that out. So, uh, I just cannot disagree with you more with what you said that we're not giving permission prematurely. That's ... what else can I say?

Council Member Belluomini again.

Belluomini: My understand is that, if at a zone-change hearing you ... a council member states his approval of a zone change before the public hearing, before hearing testimony from the public, he in fact has kind of invalidated his vote because it is required by the law that the public hearing input influence the decision of the council member before he makes his decision. So. I mean, be very careful in this process that we don't give the impression that we are making a decision before we hear the public input process.

Thurston: Very good point. Council Member Murphy.

Murphy: It's an interesting discussion. Uh, um, I-I'm listening to the way this is characterized by both sides and and um in some ways it's kinda -- so what are we being asked to approve tonight um, we're not being, we're not being asked to approve a statement that ag is approved, period. We're being asked to approve that ag would be approved if you get environmental approval and you get a CUP from the planning commission which is really a truism if anything it holds true if you wanna if you wanna change from residential to commercial you know tonight and last time, I mean it's true if you pass the environmental and you ... a CUP for example if it's a different use. So I-um I guess that's sort of how I view this, we're not being asked to make a broad statement that ag is being approved, period, it's it would be approved if you go to the planning commission and you get a CUP and get environmental review so I-I-I-I agree with something that was said tonight -- 'there is a lot of water under this bridge' -- I mean this isn't the first time we've taken up the topic of this parcel and um I think you know if we, if we approve this with the condition that ,,, the other thing I am hearing is that we would be overruling ourselves if we hear this matter again but I don't think that's true because the ruling we're being asked to make tonight is that ag is approved if you pass environmental and you get a CUP. That's the decision tonight. The decision that would be potentially before us and we could state it if we want to glglglg the decision that night would be much different it would be: Have they in fact satisfied environmental and glglgl a CUP? That's not what we're being asked to discuss tonight. I think they are two different decisions.

Thurston: So why are we even doing this then? They have to do that anyway. That letter says: "City Council of the City of Merced finds and declares that farming and planting tree crops will be an allowed interim use on the Bellevue Ranch until such time glglglg"

People aren't even going to see that. They are only going to hear that we approved the use of farming. That's the way things go out there. It's not going to be clear to the people that there's conditions on this. So we put conditions on it, why don't we just let them go through the normal process and deal with the conditions. Why are we even doing this>

Murphy: Yeah. I mean I think weglglgl the process it's the same process we do with anyone ...

Thurston: No. Nobody is coming ...

Murphy: Don't cut...

Thurston: change zoning. They apply to the planning commission. Don't say that. That's not correct.

Murphy: OK I don't cut you off so I don't expect you to cut ...

Thurston: I'm sorry but I'm sick and I'm tired. I apologize.

Murphy: So I-I-I've stated so obviously we disagree but for those reasons I think we're going through the process in fact it's even a more robust process to say if we decide to do it that they're going to come back to the city council. It's a different decision ... right, on an appeal. It's a different decision. Tonight we're not being asked to make a determination whether environmental was in fact approved um, in fact I've got questions and um they should be prepared to answer hard questions, especially about water especially if there is any any idea we're going to be pulling our well water or drinking water for this purpose so that's ...

Thurston: When would you get a chance to ask that?

Murphy: Well, it's going to come that's what I'm saying there's a way ...

Thurston: If it isn't appealed, when do you get a chance to ask all those questions again? We wouldn't get a chance.

Murphy: Well, you cut me off again, so we'll have a chance to -- to answer your question -- um, it will come back to us, we can make that stipulation it's been reiterated a number of times but I just want to make the point that it's a different question, we wouldn't be overruling ourselves in any way and I can tell you that despite the fact that I have reservations about the environmental I'm not opposed to allowing them to have that environmental study done, go to the planning commission, get a CUP, and require that they come back to us.

Thurston: So are you making a motion to add that onto this?

Murphy: W-Wah I don't know if everyone's had a chance to speak but I'd be happy to when the time's appropriate.

Thurston: There's no light on (council members push a button to request to speak which connects to a board at the mayor's desk) so you're on. That's coming back to this for final approval at a public hearing?

Murphy: yeah

Thurston: I'm not sure that's it's not legally required but

Murphy: No it's not ..

Thurston: Good ..

Murphy: But I would make that a part of my motion.

Thurston: OK.

Lutzlow: OK. Motion and second, Mayor and Council Members ...

Thurston: Wait, wait, wait ...Council Member Belluomini and Council Member Dossetti would like to speak.

Belluomini: Maybe there's some confusion here about how conditional use permits get on the list of possible uses in a zone. So, um, this is not the way it is done. If the zoning for the R-1 district says here's the permitted uses and he re's another list of uses allowed by conditional use permit, that is the zoning ordinance. It is the law. It's a law. The way the law is changed is through the zone-change process. I mean there's a hearing in front of the planning commission, in front of the city council, etc. You don't add to that list of conditionally possible uses by resolution. So I mean if if I don't know, somebody who's into I don't know self-sufficiency in their home and came to us and asked us to pass a resolution saying that uh small scale slaughter houses should be allowed in the R-1 zone, so I can kill pigs that I have in my backyard, that would not be approved by a resolution of the council. I mean they would file to include that in the zoning law zone change, they could, they gotta go to the planning commission, there'd be a recommendation, they'd come to city council. That kind of thing doesn't get into the list of uses permitted by conditional use permit by simply passing a resolution. As far as I know that's not the way it's done.

Thurston: Council Member Dossetti.

Dossetti: I just wanted to reiterate I've checked with the city attorney, Mayor, and I agree with Councilman Murphy in adding that this comes back to jus for final say and a public hearing.

Lutzlow: Mayor, Mr. Hostetler would like to speak if there's still time.

Thurston: Two minutes. No, I'm just kidding. Ah, can you reset the buttons? This is a little out of ordinary and irregular but it's Greg so go ahead.

Hostetler: I want to thank the council and the public for their time tonight. And I wanna I guess in one form apologize. This is not what I thought was going to take place tonight. I thought we had followed a-a-a wish of the public and the council in what was being proposed tonight. I thought that this was the direction that the council wanted to go. This is what I thought. I didn't believe that it was going to lead to what appears a somewhat contentious meeting tonight, at least it's quite spirited at a minimum over a farming issue. And as you would know I've spent hundreds of thousands of dollars out there doing some things that never were done and grading a site and doing numerous studies out there and I didn't expect I got quite off-guard I'd heard a little bit that there were concerns on Friday and I talked to my team and we thought and I thought that this procedure and that this resolution would not be an approval of the project nor would it be approval of farming but it would be approval of a procedure which ah our team would go through through the permit process through a public hearing, through environmental review, ah to the public, outreach to the neighbors and we thought it was the right thing I thought I was doing and I didn't envision that it was going to be this contentious because this type of meeting in my opinion is not going to be beneficial to my company or the community in the future. It creates some heartburn among the council and I'm kind of disappointed in one way that we're here tonight because this is not what I thought I thought we had done everything that was asked of us over that past year and more. I never envisioned when I bought this property that we'd end up with this type of meeting and the one that took place previous to this over the past year and the circumstances that evolved from it. So I would like to ask for the support of the Council and of the Mayor to allow us to move forward with the process that we could have the outreach with the public and if the council so desires in their resolution tonight have it come back to the council. I'm glad to have that happen. I'm not afraid of that at all. I think it's appropriate. It's more than we think is required by the law and I'm willing to do that, Mayor. I certainly don't what my team here and the council in a heated debate over what I appeared to be the right thing to do. Farming is what our community's about and creating jobs and we've spent hundreds of thousands of dollars cleaning it up out there. The council or the public doesn't owe me anything for that but I'm in business ... should I do what's a benefit to that community out there I mean we spent a lot of money out there cleaning that up and it was the right thing to do and I think what we're doing on a go forward basis looking into making sure the neighborhood is happy about on a go forward basis Ijustdonwant the work the staff has put into it and what my team has put into it it was the right thing to do.

So I think my ... Oh, I got 41 seconds I don't need to say anything more I think I just think it's the right thing to do the way it's been presented I could tell Mayor that you're concerned about it and I can tell you I'm surprised about that but everybody has, but everybody has a viewpoint maybe all aren't the same. I want to apologize to you guys being here so late tonight but the staff and our team my team's gotta get back to Sacramento and that's so I was born here in 1948 just down the street about a mile and I couldn't imagine I'd be here 66 years later have a fight so I could farm. I'm quite surprised. Thank you very much.

Thurston: Thank you. We appreciate your sentiment and I hope you also appreciate those of us who revere the process and particularly in my case I have a great affection for what people think. We haven't heard from the people and I hate to prejudge things without talking to them and I will really let you and your team know as this open process goes forward one way or the other whether it's this way or the planning commission way that if I hear from the people living there that they've been told that the council's already approved ag use there and that's all they hear it's not going to fare well for your project I guarantee that. Ya understand? I hope you do. All right. I guess we can vote now.

Lutzlow: Motion and second. Mayor and Council, please cast your votes.

The vote was: Yeas: Murphy, Pedrozo, Dossetti, and Blake.

Nays: Thurston, Belluomini.  


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