Filed 8/28/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

DANIEL WALKER, as Trustee, etc., et al.,

 Plaintiffs and Appellants,

v.

CITY OF SAN CLEMENTE et al.,

 Defendants and Appellants.

 G050552

 (Super. Ct. No. 30-2012-00591239)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Thierry 

Patrick Colaw, Judge. Affirmed.

Rutan & Tucker, Jeffrey M. Oderman, Robert O. Owen and Ajit S. Thind 

for Defendants and Appellants.

Spach, Capaldi & Waggaman and Madison Spach, Jr.; Brad Malamud and 

Paul Rosenfield for Plaintiffs and Appellants.

* * *
2

The Mitigation Fee Act (Gov. Code, § 66000 et seq.; Act)1 authorizes a 

local agency to impose fees on specific development projects to defray the cost of new or 

additional public facilities that are needed to serve those developments. The Act 

establishes a variety of requirements to ensure local agencies timely use these fees to pay 

for public facilities that serve those very developments rather than divert the fees for 

general revenue purposes. For example, when establishing a development fee, a local 

agency must identify both how it will use the fee and the relationship between its use and 

the developments on which the fee is imposed. Moreover, the local agency must make 

new findings every five years to justify its continued retention of any fees it has collected 

but failed to use. If the agency does not make these five-year findings, the Act requires 

the agency to refund the unused fees to the current owners of the affected properties.

In 1989, defendant and appellant City of San Clemente (City)2 created the 

“Beach Parking Impact Fee” because the City anticipated that substantial residential 

development proposed for the City’s inland areas would significantly increase the 

demand for public parking at the City’s beaches. The City therefore imposed the Beach 

Parking Impact Fee on all new residential developments outside the City’s coastal zone to 

defray the cost of acquiring and constructing new beach parking facilities. Between 1989 

and 2009, the City collected nearly $10 million in Beach Parking Impact Fees and 

accrued interest, but the City spent less than $350,000 to purchase a vacant parcel on 

which it has not constructed any parking facilities.

Plaintiffs and respondents Daniel Walker, as Trustee for the 1997 Walker 

Family Trust, and W. Justin McCarthy (collectively, Plaintiffs) filed this action to compel 

 

1 All statutory references are to the Government Code unless otherwise 

stated.

2 The City Council of San Clemente also is a defendant and appellant, but we 

simply refer to the City for ease of reference.
3

the City to refund the unused portion of the Beach Parking Impact Fee. Plaintiffs alleged 

the five-year findings the City made in 2009 failed to satisfy the Act’s requirements and 

did not justify the City’s continued retention of the unexpended Beach Parking Impact 

Fees because the increased parking demand had not materialized over the ensuing 

20 years. The trial court agreed and entered judgment ordering the City to refund 

approximately $10.5 million in unexpended impact fees to the current property owners on 

which the fees were imposed.

We affirm because the City failed to make the five-year findings the Act 

required and the statutorily-mandated remedy for that failure is the refund of all 

unexpended Beach Parking Impact Fees. The City contends it satisfied the Act’s 

requirement of five-year findings when it “receive[d] and file[d]” a 2009 staff report. We 

disagree. The report’s findings were mere conclusions, not the specific findings required 

under the Act. Consequently, the City failed to justify its continued retention of the 

unexpended impact fees.

Plaintiffs also appeal, challenging the trial court’s decision to deny 

(1) Plaintiffs’ claim the five-year findings the City made in 2004 were untimely; 

(2) Plaintiffs’ request for an order compelling the City to sell the vacant lot it purchased 

and refund the sale proceeds with the unexpended Beach Parking Impact Fees; 

(3) Plaintiffs’ request for an order compelling the City to reimburse the Beach Parking 

Impact Fee account for the administrative overhead costs the City charged; and 

(4) Plaintiffs’ request for a judicial determination the City improperly commingled the 

Beach Parking Impact Fees with other City revenues. As explained below, we affirm the 

judgment because these claims lack factual or legal merit.
4

I

LEGAL BACKGROUND: THE MITIGATION FEE ACT

The Legislature passed the Act “‘in response to concerns among developers 

that local agencies were imposing development fees for purposes unrelated to 

development projects.’” (Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 864 

(Ehrlich).) The Act creates uniform procedures for local agencies to follow in 

establishing, imposing, collecting, accounting for, and using development fees. (Centex 

Real Estate Corp. v. City of Vallejo (1993) 19 Cal.App.4th 1358, 1361-1362 (Centex).) 

In passing the Act, the Legislature found and declared that “untimely or improper 

allocation of development fees hinders economic growth and is, therefore, a matter of 

statewide interest and concern.” (§ 66006, subd. (e).)

The Act defines a development fee as “a monetary exaction other than a tax 

or special assessment . . . that is charged by a local agency to the applicant in connection 

with approval of a development project for the purpose of defraying all or a portion of the 

cost of public facilities related to the development project . . . .” (§ 66000, subd. (b).) “A 

fee shall not include the costs attributable to existing deficiencies in public facilities, but 

may include the costs attributable to the increased demand for public facilities reasonably 

related to the development project in order to (1) refurbish existing facilities to maintain 

the existing level of service or (2) achieve an adopted level of service that is consistent 

with the general plan.” (§ 66001, subd. (g).) “‘Public facilities’ includes public 

improvements, public services, and community amenities.” (§ 66000, subd. (d).)

To establish a development fee a local agency must identify “the purpose of 

the fee” and “the use to which the fee is to be put.” (§ 66001, subd. (a).) The agency 

also must determine that both “the fee’s use” and “the need for the public facility” are 

reasonably related to “the type of development project on which the fee is imposed.” 

(Ibid.; see Home Builders Assn. of Tulare/Kings Counties, Inc. v. City of Lemoore (2010) 
5

185 Cal.App.4th 554, 561 (Home Builders).) “The Act thus codifies, as the statutory 

standard applicable by definition to nonpossessory monetary exactions, the ‘reasonable 

relationship’ standard employed in California and elsewhere to measure the validity of 

required dedications of land (or fees in lieu of such dedications) that are challenged under 

the Fifth and Fourteenth Amendments.” (Ehrlich, supra, 12 Cal.4th at p. 865.)

To impose an established development fee as a condition of approval for a 

specific development project, a local agency must “determine how there is a reasonable 

relationship between the amount of the fee and the cost of the public facility or portion of 

the public facility attributable to the development on which the fee is imposed.”

(§ 66001, subd. (b).) The agency also must “identify the public improvement that the fee 

will be used to finance.” (§ 66006, subd. (f).)

Each development fee a local agency collects must be deposited “in a 

separate capital facilities account or fund in a manner to avoid any commingling of the 

fees with other revenues and funds of the local agency.” (§§ 66006, subd. (a); 66001, 

subd. (c).) A local agency must expend all development fees its collects “solely and 

exclusively for the purpose or purposes” the agency identified when it imposed the fee on 

a development project (§ 66008; see § 66006, subd. (a)), and the public facilities built or 

established with the fee must serve the developments on which the fee was imposed

(Home Builders, supra, 185 Cal.App.4th at p. 566). A development fee may not be 

“levied, collected, or imposed for general revenue purposes.” (§ 66008; see § 66006, 

subd. (a).)

At the end of each fiscal year, a local agency must separately account for 

each development fee it collected by providing the public certain information, including a 

brief description of the fee and its amount, the beginning and ending balance of the 

account in which the fee was deposited, the amount of fees collected and interest earned, 

an identification of each public improvement on which the fee was expended, and an 

approximate date when construction will begin on any incomplete public improvement 
6

identified when the fee was imposed if the agency determines it has collected sufficient 

funds to finance the identified improvement. (§ 66006, subd. (b)(1).) If the agency does 

not provide an approximate start date for construction within 180 days of determining it 

has collected sufficient funds, the agency must refund the unexpended portion of the fee 

and all accrued interest to the current owners of the properties on which the fee was 

imposed. (§ 66001, subd. (e).)

For all unexpended development fees, the agency must make findings every 

fifth year that identify how the fee will be used, demonstrate a reasonable relationship 

between the fee and the purpose for which it is charged, identify all sources and amounts 

of funding anticipated to complete financing for incomplete improvements that were 

identified when the fee was established, and designate the approximate dates for that 

funding to be deposited into a dedicated account. (§ 66001, subd. (d)(1).) The public 

agency must make these findings “in connection with” the annual report the Act requires 

the agency to provide. (§ 66001, subd. (d)(2).) If these findings are not made, “the local 

agency shall refund the moneys in the account or fund” to the then current owners of the 

affected properties on a prorated basis plus accrued interest. (§ 66001, subds. (d)(2) & 

(e); see Home Builders, supra, 185 Cal.App.4th at pp. 565-566.) 

Any party may protest a local agency’s decision to establish or impose a 

development fee by tendering any required payment and serving the agency with notice 

of the protest within 90 days of the fee being established or imposed. (§ 66020, 

subds. (a) & (d)(1).) Any party who timely serves a protest may file an action to “attack, 

review, set aside, void, or annul” the fee within 180 days of serving that protest. 

(§ 66020, subd. (d)(2).) “Thereafter, notwithstanding any other law to the contrary, all 

persons are barred from any action or proceeding or any defense of invalidity or 

unreasonableness of the imposition.” (Ibid.)
7

II

FACTS AND PROCEDURAL HISTORY

In the mid-1980’s, several real estate developers proposed large residential 

developments outside the City’s coastal zone that had the potential to nearly double the 

City’s population. Concerned that those developments east of the Interstate 5 freeway 

could significantly impact the availability of public beach parking, the City directed the 

developers to prepare a study evaluating the potential problem. The study concluded that

public beach parking was at or above capacity on summer weekends and holidays, 

35 percent of beach users were City residents, and the proposed developments in the 

City’s noncoastal zone would require approximately 360 new parking spaces to maintain 

the City’s current level of beach parking. 

Based on the parking study, the City in April 1989 adopted an ordinance 

establishing the Beach Parking Impact Fee. Under the Act, the City identified the fee’s 

purpose as “mitigat[ing] the impact of the increased demand on beach parking caused by 

new residential development in that portion of the City of San Clemente which lies 

outside the City’s coastal zone,” and the fee’s use as financing “the acquisition and/or 

construction of parking facilities at or near the beach.” The City set the fee at $1,500 per 

dwelling unit, subject to annual adjustment based on the Consumer Price Index, and 

identified the construction of parking structures at “the Pier Bowl, North Beach, or State 

Park” as the intended new parking facilities. 

The City collected over $300,000 in the Beach Parking Impact Fee’s first 

year and continued to collect substantial sums each year as residential development in the 

City’s noncoastal zone progressed. In 1994, the City used approximately $337,000 in 

Beach Parking Impact Fees, and approximately $138,000 in Local Drainage Fund 

monies, to purchase a vacant lot on El Camino Real adjacent to the City’s North Beach 
8

parking lot. The Local Drainage Fund monies were used because a drainage channel ran 

under the lot. 

In the early 1990’s, the City continued to study the demand for public 

beach parking and possible remedies. By 1995, these studies determined the parking 

structures the City originally contemplated were no longer needed because there was a 

surplus of parking in the City’s North Beach area, beach parking “was in equilibrium at 

the Pier,” and parking needs in those areas could be satisfied with existing parking 

facilities and “functional parking improvements.” In April 1996, the City therefore 

adopted an ordinance to reduce the Beach Parking Impact Fee to $750 per dwelling unit, 

subject to annual adjustments based on the Consumer Price Index. The City maintained 

the fee’s purpose as “mitigat[ing] the impact of new development on beach parking,” but 

the City broadened the fee’s use to financing improvements to beach parking. When it 

reduced the Beach Parking Impact Fee, the City already had collected approximately 

$2 million. 

The City continued to collect the reduced Beach Parking Impact Fee 

throughout the 1990’s and the 2000’s, but it did not construct any new public beach 

parking facilities, not even on the vacant lot it purchased near the City’s North Beach 

parking lot. Instead, the City conducted additional studies about the adequacy of its

public beach parking. None of these studies identified or predicted the parking shortage 

the City envisioned when it originally established and began collecting the Beach Parking 

Impact Fee. To the contrary, these studies recognized the City had adequate beach 

parking. The City continued to monitor and study its public beach parking, but it did not 

construct any new facilities or make any significant improvements.

In 2004, the City “receive[d] and file[d]” the “Five-Year Required Report 

Mitigation Fee Act City of San Clemente” (2004 Five-Year Report). The City’s staff 

prepared the report to comply with the Act’s requirement that the City make findings to 

justify its continued retention of the collected but unexpended Beach Parking Impact Fees 
9

it had held for more than five years. In 2009, the City again “receive[d] and file[d]” a 

“Five-Year Required Report Mitigation Fee Act City of San Clemente” (2009 Five-Year 

Report) to comply with the Act’s five-year findings requirement. This second report was 

identical to the first. 

By the end of 2009, the City’s noncoastal zone was essentially built out and 

the City had collected nearly $6 million in Beach Parking Impact Fees, plus more than 

$3 million in interest. Nonetheless, the City still had not constructed any new public 

beach parking facilities, and it did not have a specific plan for using the impact fees. 

In August 2012, Plaintiffs filed this action for declaratory and mandamus 

relief to compel the City to refund the unexpended Beach Parking Impact Fees. Because 

the statute of limitations expired on any challenge to the City’s decisions to establish and 

impose the impact fee and impose it on specific development projects, Plaintiffs did not 

challenge those actions by the City. Instead, Plaintiffs alleged the City must refund the 

Beach Parking Impact Fees because it did not timely use the fees for the designated 

purpose of constructing new beach parking facilities and the City failed to justify its 

continued retention of the fees. To the contrary, Plaintiffs alleged the City repeatedly had 

determined that there was no need for new beach parking facilities caused by the 

development of the City’s noncoastal zone and that zone was essentially built out. 

Plaintiffs also claimed the unexpended impact fees must be refunded because the City’s 

2004 Five-Year Report was two years late and its 2009 Five-Year Report failed to make 

the requisite findings.

After a bench trial, the trial court entered judgment against the City and 

ordered it to refund the unexpended impact fees to the current owners of the properties on 

which the fee had been imposed. The parties estimated the amount of unexpended fees 

together with accrued interest totaled approximately $10.5 million, and the judgment 

established a formula to determine the refund amount and each owner’s pro rata share. 

The court found the City must refund the unexpended Beach Parking Impact Fees 
10

because (1) the 2009 Five-Year Report failed to make all required findings, and (2) the 

City’s statements in the 2009 Five-Year Report constituted a determination that the City 

had sufficient funds to complete the beach parking improvements, but it failed to identify 

a start date for the construction of those improvements. The court rejected Plaintiffs’

claim the City belatedly adopted the 2004 Five-Year Report because that claim was

time-barred based on the four-year catchall statute of limitations in Code of Civil 

Procedure section 343. The court also denied Plaintiffs’ request for an order compelling 

the City to (1) sell the vacant lot it purchased with Beach Parking Impact Fees and 

include the sale proceeds in the refund; and (2) repay administrative overhead charges it 

made against the account holding the Beach Parking Impact Fees. This appeal by the 

City and Plaintiffs’ cross-appeal followed. 

III

DISCUSSION

A. Standard of Review

A local agency’s establishment of a development fee under the Act is a 

quasi-legislative measure reviewed under the narrow standards applicable to ordinary 

mandamus (Code Civ. Proc., § 1085), as opposed to the broader standards applicable to 

administrative mandamus (Code Civ. Proc., § 1094.5). (Home Builders, supra, 

185 Cal.App.4th at p. 561; Warmington Old Town Associates v. Tustin Unified School 

Dist. (2002) 101 Cal.App.4th 840, 849 (Warmington); Garrick Development Co. v. 

Hayward Unified School Dist. (1992) 3 Cal.App.4th 320, 328 (Garrick).) Judicial review 

is limited to determining whether the local agency’s action “‘was arbitrary, capricious or 

entirely lacking in evidentiary support, or whether it failed to conform to procedures 

required by law.’” (Warmington, at p. 850; see Home Builders, at p. 561.) “The action 

will be upheld if the [agency] adequately considered all relevant factors and demonstrated 

a rational connection between those factors, the choice made, and the purposes of the 
11

enabling statute. [Citation.] This issue is a question of law.” (Home Builders, at p. 561.) 

“‘On appeal, we independently review the agency’s decision and apply the same standard 

of review that governs the superior court.’” (SN Sands Corp. v. City and County of San 

Francisco (2008) 167 Cal.App.4th 185, 191 (SN Sands); see Cresta Bella, LP v. Poway 

Unified School Dist. (2013) 218 Cal.App.4th 438, 451 (Cresta Bella).)

Neither the parties nor our own research has disclosed any authority 

discussing the standard of review on whether a local agency properly made the five-year 

findings required under the Act to retain collected but unexpended development fees. We 

conclude the same arbitrary and capricious standard used to review the decisions of a 

local agency also applies to the required five-year findings because they constitute a 

quasi-legislative action equivalent to the initial establishment and imposition of the fee.

We review de novo any challenge based on an interpretation of the Act’s 

requirements. (See Warmington, supra, 101 Cal.App.4th at p. 849.) We apply the 

substantial evidence standard to review any factual findings the trial court made. (Hensel 

Phelps Construction Co. v. San Diego Unified Port Dist. (2011) 197 Cal.App.4th 1020, 

1029-1030.)

B. The Trial Court Properly Ordered the City to Refund the Unexpended Beach 

Parking Impact Fees

1. The City Failed to Make the Required Five-Year Findings

The City contends its 2009 Five-Year Report contained all the necessary 

findings the Act required for the City to retain the nearly $10 million in unexpended 

Beach Parking Impact Fees it still held 20 years after it started collecting the fee. We 

disagree because the City misconstrues both the five-year findings required under the Act

and the City’s own 2009 Five-Year Report.

As explained above, when a local agency has not used all of a development 

fee within five years of the date it started to collect the fee, the agency must make 
12

findings that (1) identify the agency’s purpose in holding the unexpended balance; 

(2) demonstrate a reasonable relationship between the unexpended balance and the 

purpose identified when the agency assessed the fee; (3) identify the sources and funding 

anticipated to complete any incomplete public improvement identified when the fee was 

established; and (4) designate the approximate date the agency expects that funding to be 

deposited in the account holding the unexpended balance. (§ 66001, subd. (d)(1).) These 

findings therefore require the local agency to affirmatively demonstrate that it still needs

the unexpended fee to achieve the purpose for which it was originally imposed, and that 

the agency has a plan on how to use the unexpended balance to achieve that purpose. 

These findings are due at the end of each five-year period if the agency continues to hold 

an unexpended portion of a development fee. (Ibid.) The Act requires the agency to 

refund the unexpended fees to the current owners of the affected properties if it fails to 

make the five-year findings. (§ 66001, subd. (d)(2).)

The five-year findings requirement establishes “a mechanism . . . to guard 

against unjustified fee retention” by a local agency (Home Builders, supra, 

185 Cal.App.4th at p. 565; see Garrick, supra, 3 Cal.App.4th at p. 332), and it ensures 

the agency “refund[s] any portion of [a development] fee not expended within five years

unless the local agency can demonstrate a reasonable relationship between the 

unexpended fee and its purpose” (Centex, supra, 19 Cal.App.4th at p. 1361). The 

Legislative Counsel’s Digest when the Act was initially enacted confirms the requisite 

five-year findings require a local agency to “reexamine the necessity for the unexpended 

balance of the fee, as specified, every 5 years, and refund to then current owner or owners 

of the development project any unexpended portion of the fee for which need cannot be 

demonstrated at the time of this review, together with any accrued interest.” (Legis. 

Counsel’s Dig., Assem. Bill No. 1600 (1987-1988 Reg. Sess.) 4 Stats. 1987, ch. 927, 
13

p. 301.)3 This reexamination and refund requirement prevents a local agency from 

collecting and holding a development fee for an extended period of time without a clear 

and demonstrable plan to use the fee for the purpose it was imposed.

Here, the City’s 2009 Five-Year Report failed to make the specific findings 

the Act required.

4 For example, the Act required the City to make a finding 

demonstrating a reasonable relationship between the unexpended Beach Parking Impact 

Fees and the purpose for which the fee was originally charged. (§ 66001, 

subd. (d)(1)(B).) In an attempt to make that finding, the 2009 Five-Year Report states, 

“New parking facility improvements are determined by the City Engineering department 

and cost estimates established. The fee is calculated based on the number of new 

residential dwelling units planned through build-out of the City.” This finding fails to 

discuss the relationship between the nearly $10 million balance in the Beach Parking 

Impact Fee account and the purpose for which the fee was established, let alone 

demonstrate a reasonable relationship between the unexpended fees and their purpose. 

The 2009 Five-Year Report says nothing about any impact residential development in the 

City’s noncoastal zone has had on the City’s public beach parking 20 years after the City 

 

3 “‘“The Legislative Counsel’s Digest is printed as a preface to every bill 

considered by the Legislature.”’” (People v. Vega (2014) 222 Cal.App.4th 1374, 1382.) 

It “‘constitutes the official summary of the legal effect of the bill and is relied upon by 

the Legislature throughout the legislative process,’ and thus ‘is recognized as a primary 

indication of legislative intent.’” (In re M.G. (2014) 228 Cal.App.4th 1268, 1277, fn. 7.) 

“‘Although the Legislative Counsel’s summary digests are not binding [citation], they are 

entitled to great weight.’” (Mt. Hawley Ins. Co. v. Lopez (2013) 215 Cal.App.4th 1385, 

1401.)

4 Plaintiffs concede the City made findings when it “receive[d] and file[d]” 

the 2009 Five-Year Report, but argue the findings set forth in that report do not satisfy 

the Act’s requirements. We accept Plaintiffs’ concession and examine whether the 

findings in the 2009 Five-Year Report comply with the Act. We express no opinion on 

whether the City actually made any findings by simply “receiv[ing] and fil[ing]” the 

2009 Five-Year Report the City’s staff prepared.
14

started collecting the Beach Parking Impact Fee, the current condition of the City’s public 

beach parking, the status of any of the improvements identified when the City established 

the fee, or what the City has done in the last 20 years or future plans for public beach 

parking. As the trial court found, the report “dodges the question.” 

The Act also required the City to make findings that (1) identified the

sources and funds anticipated to complete financing for incomplete beach parking 

improvements that were identified when the Beach Parking Impact Fee was established,

and (2) designated the approximate dates when it anticipates receiving that funding. 

(§ 66001, subd. (d)(1)(C) & (D).) In an effort to make these findings, the 2009 Five-Year 

Report states, “This funding source is anticipated to be sufficient to complete the 

financing of identified improvements” and “Not applicable.”5 Neither of these findings 

satisfies the Act’s requirements. The first finding is sufficient to the extent it limits the 

sources of funding for beach parking improvements to the Beach Parking Impact Fee, but 

the finding fails to identify the amount of funding needed to complete the improvements

and generally refers to “identified improvements” without specifying or describing those 

improvements. The second of these findings also falls short because it fails to designate 

when the City anticipates receiving the additional Beach Parking Impact Fees needed to 

complete the financing for the incomplete beach parking improvements. The City’s 

findings simply did not include the findings section 66001, subdivision (d)(1)(C) and (D) 

required.

 

5 The trial court concluded these two findings meant the City determined it 

had collected sufficient funds to finance incomplete beach parking improvements 

identified when the Beach Parking Impact Fee was imposed. Based on that conclusion, 

the trial court ordered the City to refund the unexpended Beach Parking Impact Fees 

because the City failed to provide an approximate start date for construction of the 

improvements within 180 days of the 2009 Five-Year Report. (§ 66001, subd. (e).) We 

do not address this aspect of the trial court’s ruling because the City’s failure to make the 

five-year findings is sufficient to support the judgment requiring the City to refund the 

unexpended impact fees. (§ 66001, subd. (d)(2).)
15

The City’s findings in the 2009 Five-Year Report, made 20 years after it 

established and began collecting the Beach Parking Impact Fee, fail to demonstrate the 

City still needs the nearly $10 million in fees and interest it collected to address public 

beach parking issues created by new development in the noncoastal zone. The report also 

fails to show how it will use those funds to address beach parking issues, what 

improvements the City intends to construct with the funds, the cost of those 

improvements, whether the City requires more money, and if so, when the City 

anticipates receiving that money. This is information the Act required, but the City failed 

to provide.6

The City contends its finding about the relationship between the 

unexpended Beach Parking Impact Fees and the fee’s purpose is adequate because it 

“summarize[s] the methodology the City used in determining the ‘reasonable 

relationship’ between the [Beach Parking Impact] Fee and the improvements to be 

constructed with the fee.” According to the City, the Act did not require it to provide any 

further detail because the City “was still in the process of identifying specific beach 

parking improvement projects to be funded,” and therefore nothing of any significance 

had changed since the City made its original findings to support establishing the fee in 

1989 and to support amending it in 1996. Not so.

As explained above, the five-year findings requirement imposed a duty on

the City to reexamine the need for the unexpended Beach Parking Impact Fees to finance 

 

6 The City contends the trial court never found the City’s five-year findings 

were deficient, asserting that the court solely based its judgment on the City’s purported 

failure to identify a start date for construction within 180 days of the 2009 Five-Year 

Report because the City had collected sufficient funds to finance the projects. We 

disagree. The trial court clearly found the City failed to make the five-year findings 

required by section 66001, subd. (d)(1). Moreover, we review the City’s action, not the 

trial court’s, and we are not bound or limited by the trial court’s ruling. (SN Sands,

supra, 167 Cal.App.4th at p. 191; Cresta Bella, supra, 218 Cal.App.4th at p. 451.)
16

beach parking improvements that purportedly were required by the new development in 

the City’s noncoastal zone. The City may not rely on findings it made 20 years earlier to 

justify the original establishment of the Beach Parking Impact Fee, or the findings it 

made 13 years earlier to justify reducing the amount of the fee. Instead, the Act required 

the City to make new findings demonstrating a continuing need for beach parking 

improvements caused by the new development in the noncoastal zone. The City failed to 

do so.

Similarly, the City’s claim it had not yet identified the specific 

improvements it intended to finance with the Beach Parking Impact Fee does not make 

the City’s finding adequate. When the City established the Beach Parking Impact Fee in 

1989 the Act required the City to identify how it would use the fee. (§ 66001, 

subd. (a)(2).) Because that use was financing “the acquisition and/or construction of 

parking facilities at or near the beach,” the Act also required the City to identify the 

facilities it would acquire or construct. The City could have generally identified by type 

or category the public facilities it intended to acquire or construct, but specific 

construction or improvement plans were not required. (Home Builders, supra, 

185 Cal.App.4th at pp. 564-565; Garrick, supra, 3 Cal.App.4th at p. 335.) Starting in 

1997, the Act also required the City to identify the public improvement that the fee would 

finance each time the City imposed the Beach Parking Impact Fee as a condition of 

approval for a specific development project. (§ 66006, subd. (f); Stats. 1996, ch. 569 

(S.B. 1693), § 2, p. 3182.) Accordingly, in 2009, the City could not claim it did not know 

what projects it intended to finance with the unexpended Beach Parking Impact Fees and 

continue to retain those fees.7

 

7 We express no opinion on whether the City could have satisfied the Act’s 

five-year findings requirement by claiming beach parking conditions had changed and 

therefore the City was studying whether it could satisfy the purpose of the assessment by 

financing different projects. The City’s findings would have to explain that situation, but 

the 2009 Five-Year Report provides no such explanation. 
17

The City also contends the 2009 Five-Year Report’s findings about the 

source and amount of additional funding and the approximate date on which it would 

receive that funding complied with the Act’s requirements. According to the City, the 

Act did not require it to specify the amount of additional funding it anticipated needing or 

when it would receive that funding because the City “had not yet identified or prepared 

cost estimates for the specific parking improvement projects it was planning to 

construct.” We disagree. The Act clearly required a finding that “identif[ied] all sources 

and amounts of funding anticipated to complete financing in incomplete improvements.” 

(§ 66001, subd. (d)(1)(C).) The Act provides no exceptions or limitations on this 

required finding. Moreover, as explained above, the Act required the City to identify the 

public facilities it intended to finance with the Beach Parking Impact Fee when it 

originally established the fee in 1989. (§ 66001, subd. (a)(2).) Starting in 1997, the Act 

also required the City to identify the public improvement it intended to finance with the 

Beach Parking Impact Fee each time it imposed the fee as a condition of approval for a 

specific development project. (§ 66006, subd. (f); Stats. 1996, ch. 569 (S.B. 1693), § 2, 

p. 3182.) Accordingly, the Act does not allow the City to identify no public improvement 

projects it intends to finance with the Beach Parking Impact Fee 20 years after 

establishing the fee and still retain the unexpended balance.

2. A Refund Is the Statutorily-Mandated Remedy

The City contends the trial court should have remanded the matter to the 

City to make new findings correcting the “technical deficienc[ies]” in the City’s five-year 

findings rather than requiring the City to forfeit the unexpended impact fees that the City 

properly had collected. The Act’s plain language prohibits this remedy.

Section 66001, subdivision (d)(2), unmistakably declares, “If the findings 

are not made as required by this subdivision, the local agency shall refund the moneys in 

the account or fund.” (Italics added.) A statute’s clear and unambiguous language 
18

controls, and therefore we need not resort to extrinsic sources or rules of statutory 

interpretation to determine the statute’s meaning. (Huntington Continental Townhouse 

Association, Inc. v. Miner (2014) 230 Cal.App.4th 590, 598-599; People v. Pellecer

(2013) 215 Cal.App.4th 508, 512.) In any event, the Act’s legislative history repeatedly 

confirms that in passing section 66001, subdivision (d), the Legislature intended that a 

local agency must refund unexpended development fees if the agency failed to make the 

required five-year findings. (See, e.g., Legis. Counsel’s Dig., Assem. Bill No. 1600

(1987-1988 Reg. Sess.) 4 Stats. 1987, ch. 927, p. 301; Legis. Counsel’s Dig., Sen. Bill 

No. 1693 (1995-1996 Reg. Sess.) 6 Stats. 1996, ch. 569, pp. 214-215.)

The City does not claim section 66001, subdivision (d), is ambiguous, nor 

does the City cite to any other provision of the Act or its legislative history that allows 

any remedy other than a refund when a local agency fails to make the required five-year 

findings. Instead, the City claims a remand is ordinarily the remedy ordered when a local 

agency applies an incorrect legal standard (see SN Sands, supra, 167 Cal.App.4th at 

p. 194) or fails to make “required legislative findings” (see Manufactured Home 

Communities, Inc. v. County of San Luis Obispo (2008) 167 Cal.App.4th 705, 715 

(Manufactured Home); Respers v. University of Cal. Retirement System (1985) 

171 Cal.App.3d 864, 873 (Respers); Mountain Defense League v. Board of Supervisors

(1977) 65 Cal.App.3d 723, 731-732 (Mountain Defense); Hadley v. City of Ontario

(1974) 43 Cal.App.3d 121, 128-130 (Hadley)). What may or may not be the ordinary 

remedy, however, is irrelevant when the Legislature unambiguously establishes the 

statutory remedy for a violation of its laws. 

Moreover, the cases on which the City relies do not apply to the current 

facts. SN Sands does not apply here because the City did not use an incorrect legal 

standard in making its five-year findings. The City properly identified the findings the 

Act required it to make, but simply failed to make those specific findings.
19

Manufactured Home, Respers, Mountain Defense, and Hadley do not apply 

because they involve administrative mandamus proceedings under Code of Civil 

Procedure section 1094.5 (section 1094.5) rather than traditional mandamus proceedings 

under Code of Civil Procedure section 1085 (section 1085). (Manufactured Home, 

supra, 167 Cal.App.4th at p. 710; Respers, supra, 171 Cal.App.3d at p. 870-871;

Mountain Defense, supra, 65 Cal.App.3d at pp. 731-732; Hadley, supra, 43 Cal.App.3d 

at pp. 127-130.) In administrative mandamus proceedings, a court reviews a public 

agency’s adjudicatory decision to determine whether the evidence supports the agency’s 

findings and whether the agency’s findings support its ultimate decision. Section 1094.5 

requires the agency to make findings to bridge the analytic gap between the raw evidence 

and the ultimate decision. When a public agency fails to make findings to support its 

decision, remand is an appropriate remedy because a court cannot review the agency’s 

decision without knowing how it analyzed the evidence to reach its decision. (See, e.g., 

Hadley, at pp. 127-128.) 

As explained above, however, judicial review under section 1085 is much 

more limited: a court does not review the agency’s analytical route, but rather defers to 

the agency’s decision unless it is arbitrary, capricious, or totally lacking in evidentiary 

support. (Home Builders, supra, 185 Cal.App.4th at p. 561.) Section 1085 does not 

require an agency to make findings to support its legislative and quasi-legislative 

decisions unless another statute specifically requires findings. (Anaheim Redevelopment 

Agency v. Dusek (1987) 193 Cal.App.3d 249, 261.) Here, section 66001, subdivision (d),

required the City to make findings to support its quasi-legislative decision to retain the 

unexpended Beach Parking Impact Fees, and that statute also specified the remedy for the 

City’s failure to do so. Case law allowing a remand in a different legal context does not

permit us to disregard that statute’s clear mandate. (See Garrick, supra, 3 Cal.App.4th at 

p. 328 [“‘precedents drawn from administrative mandamus proceedings should probably 

still be applied with caution to the review of findings in a quasi-legislative context. 
20

Procedural or evidentiary requirements drawn from analogy to judicial proceedings 

would appear peculiarly inappropriate . . .’”].)

The City also argues the trial court should have remanded the matter for the 

City to correct its findings because the law abhors forfeitures and therefore requires 

statutes imposing them to be strictly construed. (See Enfantino v. Superior Court (1984) 

162 Cal.App.3d 1110, 1113; Hernandez v. Temple (1983) 142 Cal.App.3d 286, 290.) 

Although it is true forfeitures are disfavored, it does not logically follow that forfeitures 

are unenforceable. To the contrary, courts must enforce unambiguous statutory 

forfeitures and may not avoid them by rewriting the statute under the guise of statutory 

construction. (People v. Indiana Lumbermens Mutual Ins. Co. (2010) 190 Cal.App.4th 

823, 829-830.) Assuming section 66001, subdivision (d)’s refund provision constitutes a 

forfeiture, the City offers no strict or other construction of the provision that would allow 

the City to avoid refunding the unexpended Beach Parking Impact Fees based on its 

failure to make the required five-year findings.

Finally, the City contends section 66001, subdivision (d)(2), does not apply 

because the City made findings and we simply have concluded those findings were 

insufficient. According to the City, section 66001, subdivision (d)(2), requires a refund 

only when a local agency fails to make any findings. Not so. Section 66001, 

subdivision (d)(2), requires a refund when “the findings are not made as required by this 

subdivision.” (Italics added.) For example, the subdivision required the City to 

specifically demonstrate a reasonable relationship between the unexpended development 

fee and the purpose for which the fee was charged. As explained above, the City’s 

findings do not identify any relationship between the unexpended Beach Parking Impact 

Fees and the purpose for which the fee was charged, let alone a reasonable relationship. 

The City therefore did not make findings “as required by this subdivision,” and the 

statute requires the City to refund the unexpended impact fees. If we accepted the City’s 

contention, a local agency could avoid refunding unexpended development fees by 
21

making any findings no matter how inadequate, and the only repercussion would be 

another opportunity to repeat the process. That is not what the statute’s clear language 

requires.

C. Plaintiffs’ Appeal From the Trial Court’s Judgment Lacks Merit

Although the trial court entered judgment in Plaintiffs’ favor and ordered

the City to refund the entire unexpended balance of the Beach Parking Impact Fee, 

Plaintiffs also appealed from the judgment. They argue the trial court erroneously denied 

additional relief they sought. We find these claims unpersuasive.

1. The Statute of Limitations Barred Plaintiffs’ Claims Regarding the 

2004 Five-Year Report

Plaintiffs contend the trial court erred in finding the four-year limitations 

period in Code of Civil Procedure section 343 barred Plaintiffs’ challenges to the City’s 

2004 Five-Year Report. Plaintiffs, however, do not contend the trial court applied the 

wrong limitations period or miscalculated when that period expired. Instead, Plaintiffs 

contend the trial court erred in failing to apply the equitable doctrines of estoppel and 

unjust enrichment to prevent the City from asserting the statute of limitations as a 

defense. Plaintiffs fail to meet their burden of establishing error.

A party may be equitably estopped to assert the statute of limitations when 

his or her conduct induced another not to file a lawsuit within the applicable limitations 

period. (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 

132 Cal.App.4th 1076, 1089.) Plaintiffs, however, point to no conduct by the City during 

the applicable limitations period that induced them not to bring an action challenging the 

2004 Five-Year Report. The only conduct by the City that Plaintiffs identify is a letter 

from the City’s attorney that stated the City filed the 2004 Five-Year Report in 2003, but 

that letter was sent in 2012 — several years after the limitations period already had 

expired.
22

Plaintiffs similarly fail to explain how applying the statute of limitations 

unjustly enriched the City. The trial court ordered the City to refund the unexpended 

Beach Parking Impact Fees based on other claims, and therefore the trial court’s 

application of the statute of limitations does not unjustly enrich the City.

2. The City’s Deficient Five-Year Findings Do Not Require the City to Sell 

the Vacant Lot It Purchased With Beach Parking Impact Fees

Plaintiffs contend the trial court erred in denying their request to compel the 

City to sell the vacant lot it purchased adjacent to its North Beach parking lot and refund 

the sale proceeds to the affected property owners. According to Plaintiffs, the Act 

required the City to use the Beach Parking Impact Fee for the designated purpose of 

acquiring and constructing public beach parking, but the City’s purchase of a vacant lot 

failed to further the purpose of the fee because the City did nothing with the lot for 

approximately 20 years. Plaintiffs, however, fail to cite any authority that would have 

allowed the trial court to order the City to sell the lot.

When a local agency fails to make the required five-year findings, 

section 66001, subdivision (d)(2), requires the agency to “refund the moneys in the 

account or fund as provided in subdivision (e).” Section 66001, subdivision (e), provides 

that the local agency shall refund “the unexpended portion of the fee, and any interest 

accrued thereon” to “the then current record owner or owners of the lots or units, as 

identified on the last equalized assessment roll.” (Italics added.) 

Here, the vacant lot the City purchased is not an “unexpended portion” of 

the Beach Parking Impact Fee. To the contrary, the City expended a portion of the 

impact fee to purchase the lot and Plaintiffs concede no one challenged that purchase. 

Nothing in the Act or any other authority Plaintiffs have cited authorized the trial court to 

order the City to undo what was at the time a valid use of the impact fees. The City has 

not yet constructed any public beach parking on the vacant lot, but it also has not used the 

lot for any purpose inconsistent with public beach parking. 
23

The only limitation the Act places on the use of a development fee is the 

requirement that the local agency use the fee “solely and exclusively for the purpose or 

purposes . . . for which the fee was collected.” (§ 66008; see § 66006, subd. (a).) 

Plaintiffs failed to show the City violated this command or that a compelled sale of the 

vacant lot is the appropriate remedy for the City’s failure to construct beach parking on 

the lot over the past 20 years. If the City seeks to use the vacant lot in the future for a 

purpose inconsistent with the Beach Parking Impact Fee’s purpose, Plaintiffs then may 

challenge the City’s action.

3. The Act Did Not Prohibit the City From Charging the Administrative 

Overhead Costs Associated With the Beach Parking Impact Fee

Plaintiffs contend the trial court erred in refusing to order the City to return 

administrative overhead costs it charged the account holding the impact fees. In 

Plaintiffs’ view, the City must return these administrative costs before it refunds the 

unexpended Beach Parking Impact Fees because the Act required the City to use the 

impact fees exclusively for acquiring and constructing public beach parking, and that 

purpose does not include paying administrative overhead costs. We do not find this 

argument persuasive.

The Act requires a local agency to expend development fees “solely and 

exclusively for the purpose or purposes . . . for which the fee was collected” and prohibits 

an agency from levying, collecting, or imposing a development fee “for general revenue 

purposes.” (§ 66008; see § 66006, subd. (a).) The parties cite nothing in the Act or its 

history that guides us in determining what it means to use a fee exclusively for a specific 

purpose, and we have uncovered no authority that sheds any light on the subject. 

Nonetheless, we conclude using a portion of a development fee to facilitate 

compliance with the Act’s requirements constitutes a use that furthers the purpose for 

which the fee was collected. For example, the Act requires that a local agency establish a 

separate account for each development fee it collects and account for the fee to ensure it 
24

is not commingled with any of the agency’s other funds. The administrative costs to 

comply with these requirements further the purpose for which the fee was collected 

because those costs ensure the fee is available for the designated purpose once sufficient 

funds are collected. Indeed, without the administrative costs of accounting for the fee, 

the local agency would not know how much it has collected.

Here, the City established a cost allocation plan and began charging many 

of the programs it runs for the administrative costs associated with the programs. For 

example, the City established a formula for charging each program for the accounting 

services required to maintain the program’s accounts and also for any other services the 

City’s staff provided. The City worked with an independent consultant to create its cost 

allocation plan and it annually reviews the allocations for accuracy. The City’s financial 

services officer testified the charges made against the Beach Parking Impact Fee account 

were allocated to pay for staff time and other costs associated with maintaining the 

account, accounting for the funds, and other administrative expenses directly related to 

the Beach Parking Impact Fee. 

Plaintiffs point to nothing in the administrative record that shows the City 

used any portion of the Beach Parking Impact Fee for general revenue purposes. Indeed, 

Plaintiffs do not challenge the reasonableness or the necessity for any of the 

administrative costs the City charged. Plaintiffs simply argue no portion of a 

development fee may be used to pay administrative costs as a matter of law. We decline 

to impose such a broad prohibition without some clear basis in the Act, and Plaintiffs 

have pointed to none.

Plaintiffs contend the only administrative costs expressly permitted under 

the Act are the costs associated with conducting the public hearing required to establish 

the fee. (See § 66018, subd. (b).) According to Plaintiffs, the Legislature authorizing a 

local agency to recover those specific administrative costs prevents an agency from using 

a portion of a development fee to pay any other administrative costs. Not so.
25

Although Plaintiffs do not cite any legal authority or identify a principle of 

statutory interpretation to support their construction of the Act, Plaintiffs implicitly rely 

on the statutory interpretation maxim expressio unius est exclusio alterius, “which means 

‘“the expression of certain things in a statute necessarily involves exclusion of other 

things not expressed.”’” (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1411.) This 

maxim is “a ‘mere guide’ to be utilized when a statute is ambiguous”; it “‘is no magical 

incantation, nor does it refer to an immutable rule.’” (Ibid.; see In re Christopher T.

(1998) 60 Cal.App.4th 1282, 1290.) It “is generally applied to a specific statute [that] 

contains a listing of items to which the statute applies” and prevents courts from implying 

additional exceptions to a general rule when a statute specifies other exceptions. 

(Sabrina H., at p. 1411; see Christopher T., at p. 1290.) The maxim, however, “does not 

apply when no reasonable inference exists that items not mentioned were excluded by 

deliberate choice.” (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 126; 

see Barragan v. Superior Court (2007) 148 Cal.App.4th 1478, 1484, fn. 3.)

Here, Plaintiffs point to nothing in the Act or its history that shows the 

Legislature intended to prohibit a local agency from using a portion of a development fee 

to pay administrative costs directly related to the fee and the agency’s compliance with 

the Act. Section 66008’s mandate that a local agency use a development fee exclusively 

for the purpose for which the fee was collected and Section 66018’s authorization to use 

a portion of a fee to recover the cost of conducting the public hearing required to 

establish the development fee are found in separate parts of the Act. Section 66008 is 

part of a chapter in the Government Code that solely addresses a local agency’s

establishment, imposition, and use of development fees (§§ 66000-66008), and 

section 66018 is part of a separate chapter that addresses procedures for a local agency to 

adopt a variety of different types of fees and charges (§§ 66016-66019). Moreover, in 

concluding the City may recover administrative overheard related directly to the Beach 

Parking Impact Fee, we are not creating an exception to section 66008’s limitation on the 
26

use of a development fee; rather, we merely are interpreting what the Legislature meant 

when it stated a fee shall be expended “solely and exclusively for the purpose or purposes

. . . for which the fee was collected.” Accordingly, the maxim of expressio unius est 

exclusio alterius has no application here and the trial court did not err in refusing to 

require the City to reimburse the Beach Parking Impact Fee account for the 

administrative overhead costs the City incurred.

4. Plaintiffs Failed to Establish the City Improperly Commingled Beach 

Parking Impact Fees With Other City Revenues

Plaintiffs contend the trial court erred in finding the City did not improperly 

commingle the Beach Parking Impact Fee funds with other City funds. Although 

Plaintiffs concede this challenge “does not affect the refund,” they nonetheless contend 

the trial court should have ordered the City to segregate the impact fees from other City 

funds because the Act prohibits a local agency from commingling a development fee with 

other revenues. This contention lacks merit because substantial evidence supports the 

trial court’s finding the City did not commingle the funds.

Section 66006, subdivision (a), provides, “the local agency receiving the 

[development] fee shall deposit it with the other fees for the improvement in a separate 

capital facilities account or fund in a manner to avoid any commingling of the fees with 

other revenues and funds of the local agency.” To comply with this mandate, a local 

agency must deposit a development fee “into ‘a separate capital facilities account’ to 

avoid commingling with the local agency’s other revenues and funds.” (Home Builders, 

supra, 185 Cal.App.4th at p. 561.)

The City’s financial services officer testified the Beach Parking Impact Fee 

is collected from a developer as part of a lump sum payment to cover four separate 

development fees. Upon receipt, the City places the funds into a “Public Facilities 

Construction Fee Fund” and separates the funds into four separate accounts for each of 

the development fees. The funds in each account are tracked separately and not 
27

commingled. According to the financial services officer, the “Public Facilities 

Construction Fee Fund” consolidates the four accounts for financial reporting purposes 

only, but the accounts are maintained separately. This testimony constitutes substantial 

evidence supporting the trial court’s ruling. (See, e.g., WorldMark, The Club v. 

Wyndham Resort Development Corp. (2010) 187 Cal.App.4th 1017, 1029 [“‘Substantial 

evidence is evidence that is “reasonable, credible, and of solid value”; such that a 

reasonable trier of fact could make such findings. [Citation.] [¶] It is axiomatic that an 

appellate court defers to the trier of fact on such determinations, and has no power to 

judge the effect or value of, or to weigh the evidence; to consider the credibility of 

witnesses; or to resolve conflicts in, or make inferences or deductions from the 

evidence’”].)

IV

DISPOSITION

The judgment is affirmed. Plaintiffs shall recover their costs on appeal. 

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.