Full text of Initiative

The people of the city of Fremont ordain as follows.

Section I – Name: This measure shall be designated as the Protect Fremont Private Open Space Initiative of 2012.

Section II – Purpose: The purpose of the Protect Fremont Private Open Space Initiative of 2012 is to protect private open space within the City of Fremont - open space that was designated as private open space through a public process - while protecting the rights of the property owner.

Section III - Findings:  1) The 2011 Fremont General Plan update emphasized the promotion of high density, transit oriented development close to the City’s center, and the preservation of existing open space within the city; 2) Public and private open space serve important functions in the City of Fremont. Providing planned areas for public and private enjoyment recreation, habitat for birds, animals, plants and other visual resources; 3) Private open space within a planned development serves a critical function in providing balance within the housing development and was taken into account as part of the approval process for the development; 4) Private open space within a planned development contributes to the overall value of each home within the development and the overall value of the entire development. Therefore, there is the presumption that requiring land to remain as private open space does not constitute a taking of private property without just compensation: 5) Allowing private open space that has been designated and approved by the City through a public process, and may have been a condition of approval of the planned development, to be re-designated for other uses is a significant deviation from past and current policy priorities, and therefore should be properly referred to the voters of Fremont for approval.

Section IV—General Plan Amendment
: The Land Use Element of the Fremont General Plan is hereby amended to add policy 2-6.9-A as follows:

A. Land designated as private open space, either by the general plan, through zoning, or through approval as part of a planned development, shall not have its open space use changed to another use except under one of the following two circumstances:
  1. Through approval of a ballot measure by the voters of Fremont at a regular municipal election, or
  2. Through the approval of the change by the Fremont City Council, after prior review by the Fremont Planning Commission and receipt of its recommendation, and based on City Council findings that failure to re-designate the land would result in the taking of private property for public use without just compensation. Any such approval shall be limited to the minimum amount of development required to avoid a taking of private property.

B. The findings required under subsection A.2 of this policy must be supported by clear and convincing evidence.

C. The determinations of the City Council under subsection A.2 of this policy must be unanimous.

D. This policy shall only apply to contiguous areas of at least two acres in size that are designated as private open space and are not within a transit oriented development overlay area as defined by the General Plan. 

E. Within one year of the passage of this measure, the land use designations in the general plan, zoning, and planned development plans within the City shall be brought into conformity in accordance with the provisions of this policy.

Section V - Severability: 
If any section, subsection, provision, or application of this measure is found to be invalid by the final judgment of a court of competent jurisdiction, that section, subsection, provision, or application shall be severed from the remainder of this measure and its application and the remainder of this measure and its application shall remain in full force and effect.  To that extent, the voters of the City of Fremont declare that they intend all of the provisions of this measure to be considered severable and that they would have adopted the remaining provisions of this measure even in the absence of any section, subsection, provision, or application found to be invalid. 

Section VI. – Construction:
  This measure is not intended to result in the taking of private property for public use without just compensation, and shall be construed, as a matter of law, to that effect and shall be enforceable up to but no further than the maximum possible extent consistent with state and federal law and constitutional requirements, even if that construction is not readily apparent, but such constructions are authorized only to the extent necessary to save the measure or its provisions from judicial invalidation. 

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