The First District Court of Appeal has published its decision upholding a slow-growth initiative approved by Alameda County voters in November 2000. The decision to publish the opinion regarding Measure D came after the court rejected developers' challenges early this year, reconsidered that decision, and then stood by its ruling in an unpublished opinion issued July 1. The lengthy ruling published at the end of July rejects developers' contentions that the initiative broke the single-subject rule, violated state housing law and was an unconstitutional taking of land. Nearly three years ago, 57% of Alameda County voters backed Measure D, a Sierra Club-sponsored initiative that drew tight growth boundaries around cities and unincorporated communities in central and eastern Alameda County (see CP&DR, December 2000, October 2000). Importantly, the boundary excluded the territory of the North Livermore specific plan, where the City of Livermore, the county and developers had constructed a plan for 12,500 housing units (see CP&DR Local Watch, June 2000). After the election, Shea Homes and one landowner, the Lin family, filed a lawsuit alleging the election and planning law deficiencies while Trafalgar, Inc., filed a separate suit that also included a takings claim. The trial court ordered the lawsuits combined and then ruled against the developers. Shea, the Lins and Trafalgar appealed, and a unanimous three-judge panel of the First District, Division Five, upheld the lower court. The First District first dealt with the argument that Measure D violated the single-subject rule found in Article II, section 8(d) of the state constitution. The developers argued that Measure D on one hand tightened the urban growth boundary and altered land use designations, while on the other hand the initiative amended the county's solid waste management policies, in part by prohibiting the planning of landfills with more than 15 years of capacity. Developers argued land use and garbage policies were separate subjects. The court disagreed, citing Measure D's "numerous findings pertinent to its stated purpose." Those findings included the necessity of protecting open space, the uneconomical nature of scattered development, the environmental degradation caused by "sprawl," the environmental impact and ugly nature of landfills, and the ability of recycling to reduce the need for land disposal of trash. "Given these findings, the provisions of Measure D that limit landfills and require the county's Board of Supervisors to conform and coordinate East County Area Plan solid waste policies and those of other county agencies (the Recycling Board and the Waste Management Authority) are eminently germane to Measure D's purpose of enhancing and protecting the open space and agricultural lands of East County and the Canyonlands," Presiding Justice Barbara Jones wrote for the court. In fact, state law requires general plans to designated land for solid and liquid waste disposal facilities, she noted. The intent of the single-subject rule "is to avoid voter confusion and subversion of the electorate's will," Jones continued. "An initiative that is entitled ‘Save Agricultural and Open Space Lands' reasonably and naturally encompasses provisions that will (1) limit a use of the land at issue, such as a landfill, that is incompatible with this title, and (2) promote an activity, such as coordination of solid waste recycling and management, that fosters this title by reducing a cause for encroachment on open space." The court then considered developers' arguments regarding state housing law. At issue were four sections of the Government Code — § 65913.1, which requires a housing element to designate sufficient land for residential uses to meet housing needs; § 65008, subdivision (c), which prohibits the county from discriminating against low- and moderate-income residential development; § 65584.5, which allows one jurisdiction to transfer some of its share of regional housing needs to another jurisdiction only if certain conditions are met; and § 65915, which requires the county to grant a density bonus if a portion of a development serves low-income households. The court found that Measure D violated none of the sections. Developers argued that the proposed North Livermore development would provide a mix of housing units, and the initiative offered no substitute locations. But the court said no because the housing element in effect at the time specifically excluded North Livermore as a site for development. The court also rejected the argument that the initiative's downzoning of land outside the growth boundary discriminated against affordable housing development. In fact, Jones wrote, Measure D requires projects of 20 units or more to include affordable units and requires the county to impose a fee for very low-income housing on builders of market-rate units. The initiative did not directly or by implication transfer Alameda County's housing obligation to another jurisdiction, the court ruled. As for the density bonus argument, the court ruled, "Measure D's low density limitation of one specific region within East County does not preclude accommodation of the state policy promoting low-income housing construction in other regions of the county." Finally, the court turned to Trafalgar's takings claim. The developer, which had been trying for years to develop 77 acres in an area near Castro Valley known as the Canyonlands, contended that the initiative on its face was an unconstitutional taking. The court said that a facial challenge can succeed only if the regulation does not "substantially advance legitimate state interests" or denies the owner economically viable use of the land. The court ruled that preservation of open space and discouraging the environmental impacts of urban sprawl were clearly legitimate state interests. As for use of the property, the court noted that Measure D did not change the "agricultural" designation on Trafalgar's land. That designation allows one house per parcel, secondary units, public and recreational uses, quarries and agricultural structures. Additionally, Measure D specified that its provisions would not apply if they deprived a person of constitutional or statutory rights, Jones wrote. Trafalgar tried to turn its takings argument into an "as applied" challenge, but the court refused to consider the argument because Trafalgar had not submitted a development application since Measure D's passage. The Cases: Shea Homes Limited Partnership v. County of Alameda, and Trafalgar, Inc. v. County of Alameda, Nos. A097072, A097387, A097454. 2003 DJDAR 8397. Filed July 1, 2003. Ordered published July 29, 2003. The Lawyers: For Shea: Kathy Banke and Jayne Fleming, Crosby, Heafey, Roach & May, (510) 763-2000. For Trafalgar: David Lanferman, Sheppard, Mullin, Richter & Hampton, (415) 434-9100. For the county: Lorenzo Chambliss, senior deputy county