October 3, 2006 > Measure K - Comments from Fremont City Attorney Harvey Levine

In debates of the merits and consequences of Measure K, proponents and opponents often refer to statements by Fremont City Attorney Harvey Levine regarding city liability to reimburse both Cargill and the Patterson family for lost development potential. The following is a copy of Mr. Levine's "impartial analysis" of the measure. Emphasis has been added to wording that is believed especially relevant to the arguments for and against Measure K.



Initiative to change the Open Space and Restricted Industrial General Plan Designations for a portion of Fremont's Northern Plain Planning Area to agriculture.


This Initiative applies to approximately 520 acres of land held by two owners located in Fremont's Northern Plain Planning Area. The Initiative proposes to change the General Plan land use designations of "Open Space," "Restricted Industrial" and "Private Open Space" to "Agriculture." The area is bounded by the Alameda Creek Flood Control Channel, the Southern Pacific Railroad, Paseo Padre Parkway, State Route 84, Dumbarton Quarry and the Coyote Hills Regional Park. It is adjacent to existing residential and business park developments and public open space.

The "Agriculture" designation would increase the minimum parcel size for new parcels to 80 acres. As a result, the area could be subdivided into approximately 9 parcels. New structures could cover up to 2 acres of any parcel. Uses permitted under the Initiative include: one single-family residence per parcel, grazing, horticulture, floriculture and arboriculture, but not commercial vineyards or Christmas tree farms. Some commercial recreation is permitted.

Alternatively, the Initiative allows owners to donate property west of Ardenwood Boulevard (approximately 425 acres) to public agencies, and receive, in exchange, the right to develop up to 120 residential units east of Ardenwood Boulevard. The Initiative provides that to the extent courts determine the Initiative violates constitutional rights, including "taking" of property, the Initiative's provisions would not apply and the City would be required to determine what minimum development would avoid the constitutional violation.

The Initiative states it shall not be applied to preclude City compliance with State mandated obligations to provide for housing. It limits the City's discretion to use the area to meet its housing responsibilities and shifts the obligation to other parts of the City (except the Hill Area), except under specified circumstances. No substantive changes to the Initiative's regulations may be made without another citywide vote.

There are three existing land use designations on the site. Approximately 290 acres are "Open Space/Study Area/Urban Reserve" which allows 1-acre parcels and provides that the City may permit urban development under certain conditions. The change to "Agriculture" increases the 1-acre minimum parcel size to 80 acres. Another 90 acres are currently designated "Restricted Industrial."

The owner has been and will continue to be assessed by the City for its share of completed infrastructure improvements. The City could face refund claims if the owner loses the benefit of the assessment by being designated "Agriculture." The remaining 140 acres is currently designated as "Private Open Space." This area is the subject of an existing dispute between the City and property owner and the Initiative will complicate the resolution of the dispute.

The impact of the Initiative is unpredictable. The Initiative would likely subject the City to litigation. It restricts land use and simultaneously specifies scenarios under which its restrictions might not apply. Therefore, it is difficult to determine the amount and intensity of development that may result.