Hamilton and High, LLC v. City of Palo Alto ( 2023 )


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  • Filed 3/20/23
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SIXTH APPELLATE DISTRICT
    HAMILTON AND HIGH, LLC, et al.,                    H049425
    (Santa Clara County
    Plaintiffs and Appellants,              Super. Ct. No. 20CV366967)
    v.
    CITY OF PALO ALTO, et al.,
    Defendants and Respondents.
    In this appeal, we consider the application of the Mitigation Fee Act (Gov. Code,
    § 66000 et seq. 1 (Act)) to the City of Palo Alto (City or Palo Alto)’s refusal to refund “in-
    lieu parking fees” to plaintiffs, developers who paid the fees years earlier as a condition
    of approval of a building project. Plaintiffs contend the City failed to make certain five-
    year findings statutorily required by section 66001, subdivision (d), of the Act and is
    therefore required to refund their unexpended fees.
    The City counters that the in-lieu parking fee, charged when the developer elects
    not to provide parking directly, is not a “fee” subject to the Mitigation Fee Act.
    Consequently, the City contends that the five-year finding and refund provisions set forth
    in section 66001, subdivision (d), do not apply, and the City has no obligation under the
    Act to return the fees.
    1
    Unspecified statutory references are to the Government Code.
    In addition to this principal claim, the City makes a number of alternative
    arguments. It maintains that, even if the Act does apply, plaintiffs’ claim for relief is
    barred by the statute of limitations and lacks a statutory basis. The City also contends
    that it complied with the Act’s requirements by belatedly adopting five-year findings.
    Finally, the City asserts that plaintiffs have not satisfied section 65010, subdivision (b), a
    “harmless error” provision applicable to parts of the Government Code.
    We conclude that the City’s imposition of in-lieu parking fees in connection with
    plaintiffs’ development project is subject to the Mitigation Fee Act, and plaintiffs’ action
    is not time-barred. We decide that the City’s failure to timely make five-year findings
    under section 66001, subdivision (d) with respect to the parking fund at issue triggers the
    refund provision of the Act for the unexpended parking fees paid by plaintiffs. Finally,
    we determine section 65010, subdivision (b), does not require that plaintiffs make an
    independent showing of prejudice for a violation of section 66001, subdivision (d).
    We reverse the judgment of the trial court and remand with directions to enter a
    new judgment granting the mandate petition directing the refund of plaintiffs’
    unexpended fees in accordance with applicable statutory provisions, granting the cause of
    action for declaratory and injunctive relief, and dismissing the cause of action for
    equitable relief.
    I. FACTS AND PROCEDURAL BACKGROUND 2
    A. The City of Palo Alto In-Lieu Parking Fees and Parking Fund
    In 1985, the Palo Alto City Council (city council) adopted an ordinance which
    established the “Commercial Downtown (CD)” zoning district and created detailed
    parking regulations set forth in the Palo Alto Municipal Code (municipal code or code).
    These regulations included “in-lieu parking provisions” (capitalization omitted). These
    2
    These facts are taken from the largely undisputed evidence presented at the
    bench trial and summarized in the trial court’s statement of decision, including those
    exhibits subject to judicial notice.
    2
    provisions allowed for “payment of an in-lieu monetary contribution to the city to defray
    the cost” of new, off-site parking spaces in an assessment district for “sites which would
    otherwise be precluded from development due to parking constraints.” (Palo Alto Mun.
    Code, former § 18.48.100(d).)
    In 1995, the city council adopted Ordinance No. 4256, which recognized the need
    to further address parking demand and mitigate insufficient parking facilities in
    downtown Palo Alto (downtown). Ordinance No. 4256 added chapter 16.57 to the
    municipal code to establish an in-lieu parking fee for new, nonresidential development in
    the “University Avenue parking assessment district” (capitalization omitted) as an
    alternative to satisfying downtown parking requirements. (Ordinance No. 4256, adopted
    Jan. 17, 1995, § 1B; see Palo Alto Mun. Code, ch. 16.57.) Ordinance No. 4256 provided
    that the purpose of the in-lieu parking fee was “to establish a mechanism for funding the
    provision of parking to serve new, nonresidential developments which are not able to
    meet the parking requirement” set forth in the code. (Ordinance No. 4256, § 1(E).) It
    specified that the in-lieu fees are to “be used to finance the construction of new parking
    facilities to meet the increased parking demand caused by new nonresidential
    developments.” (Id., § 1(F).)
    The municipal code defines “ ‘[f]ee’ ” for purposes of chapter 16.57 as “a payment
    in lieu of the provision of required parking spaces.” (Palo Alto Mun. Code,
    ch. 16.57.020(d).) Chapter 16.57 creates a special fund, the “University Avenue parking
    assessment district in-lieu parking fund . . . into which all fees, and any interest thereon,
    shall be deposited” (parking fund). (Id., § 16.57.050.) The parking fund must “be
    maintained as a separated capital facilities account in a manner to avoid any commingling
    of the fees with other revenues, funds or accounts of the city.” (Ibid.)
    The City requires new, nonresidential development to provide off-street parking
    facilities “for new uses and enlargements of existing uses, proportional to the need
    created by each use, in order to alleviate traffic congestion.” (Palo Alto Mun. Code,
    3
    § 18.52.010.) The code establishes minimum off-street parking requirements for the
    University Avenue parking assessment district. (Id., § 18.52.040) New commercial
    development in the University Avenue parking assessment district may meet these
    requirements by providing on-site or off-site parking spaces, or “by payment of an in-lieu
    monetary contribution to the [C]ity to defray the cost of providing such parking.” (Id.,
    § 18.52.070; see also id.,§ 16.57.010 et seq.) The option to pay the in-lieu parking fee is
    not available in all development scenarios but only where specified criteria exist due to
    site or other physical constraints. (Id., § 18.52.070(d).) In those cases, building permit
    applicants may “pay a fee for each required onsite parking space that they do not provide
    for their development projects, due to site constraints, in the Commercial Downtown
    (CD) district.” (City of Palo Alto Office of the City Auditor, Audit of Parking Funds,
    Dec. 15, 2015.)
    The City calculates in-lieu parking fees based on the projected cost of one new
    parking space, which includes land acquisition, construction, and administrative costs.
    The municipal code provides for the initial calculation and later recalculation (to reflect
    actual design costs based on an awarded construction contract) of the in-lieu parking fee.
    (Palo Alto Mun. Code, § 16.57.030(a), (b).)
    The City’s fiscal year “begin[s] on the first day of July each year and end[s] on the
    last day of June of the subsequent year.” (Palo Alto Mun. Code, § 2.28.010.) The
    municipal code provides for annual review by the city council of the “uses proposed for
    expenditure of the moneys in the [parking] fund.” (Id., § 16.57.070.) City staff has
    periodically submitted “five-year findings” on the parking fund, consistent with the
    Mitigation Fee Act’s reporting requirements for development impact fees. (See generally
    § 66000 et seq.) However, the relevant chapter of the City’s municipal code does not
    include a provision related to the five-year reporting requirement of section 66001,
    subdivision (d) (hereafter, section 66001(d)). (See Palo Alto Mun. Code, ch. 16.57.) As
    4
    plaintiffs’ principal claims against the City are based on its alleged violation of section
    66001(d), we examine the provision in detail below.
    Following adoption of Ordinance No. 4256, in the fiscal year that ended on June
    30, 1996, the City collected $231,400 in in-lieu parking fees. Between 1995 and 2003,
    the City collected over $1.6 million in such fees, which largely went toward the
    construction of two downtown parking garages. From 2003 through May 2012, the City
    did not collect in-lieu parking fees due to the availability of parking exemptions during
    that time. Between 2012 and 2015, in‐lieu parking fees collected in connection with five
    development projects were paid into the parking fund. The collected fees totaled
    $4,455,750 and included plaintiffs’ payment in 2013 of $972,000 (later reduced to
    $906,900). The parking fund had a positive balance of unexpended fees for the fiscal
    year that ended on June 30, 2014, through the fiscal year that ended on June 30, 2020.
    The record shows that the parking fund has continuously had a positive balance of
    unexpended fees since the fiscal year that ended on June 30, 1996.
    B. Plaintiffs’ 2013 Payment of In-Lieu Parking Fees
    In 2013, plaintiffs Hamilton and High, LLC, the Keenan Family Trust, and
    Charles J. Kennan, III (aka Chop Keenan) (collectively, plaintiffs) obtained city approval
    to develop a mixed-use building at 135 Hamilton Avenue in downtown Palo Alto (the
    property). The property is located within the City’s University Avenue parking
    assessment district.
    The City approved the development of the property, subject to numerous
    conditions of approval. Two of these conditions addressed parking requirements and
    development impact fees. Condition No. 8 required plaintiffs to comply with the City’s
    parking requirements, which called for 40 parking spaces. Condition No. 9 required
    plaintiffs to pay development impact fees, estimated at more than a half of a million
    dollars, prior to issuance of the project’s building permits. In December 2013, plaintiffs
    paid the City $1,560,475 in impact fees for the property, including $972,000 in in-lieu
    5
    parking fees (equivalent to 16 off-street parking spaces). Following a 2015 audit and
    other corrections, the City issued refunds of $4,460 and $60,460, bringing the total in-lieu
    parking fees plaintiffs have paid to $906,900.
    C. Proposed Development of the 375 Hamilton Avenue Downtown Garage
    In June 2014, the city council authorized staff to proceed with strategies to
    improve parking supply for the downtown University Avenue district, including use of
    the estimated $4 million in the parking fund balance as of the end of the 2014 fiscal year.
    The city council approved plans to construct a new downtown parking garage at 375
    Hamilton Avenue (Hamilton garage), and designated and transferred $1.3 million from
    the parking fund for that purpose.
    In February 2019, following the design review and commission of an
    environmental impact report (EIR) for the Hamilton garage, staff recommended that the
    city council adopt a resolution certifying the EIR, approve various related land use
    actions, and authorize a contract with the selected vendor for design services. The staff
    proposal budgeted $29.1 million for the garage, which included $6.8 million in in-lieu
    parking fees. However, the project stalled after a public hearing in February 2019 in
    which some citizens and councilmembers expressed concerns about the cost,
    environmental impacts, and need for the proposed garage.
    The city council voted at the February 2019 public hearing to certify the EIR and
    approve the architectural review for the Hamilton garage but did not approve contracts to
    proceed with its additional design and development. Instead, city council directed city
    staff to return to the policy and services committee “with a parking management strategy
    and options to address [d]owntown parking needs.” The council provided no timeline for
    submission of this information to the council.
    The City’s subsequent annual capital budgets continued to reflect prospective
    development of the Hamilton garage without a specific timeline. As of the filing of this
    appeal, the City had not adopted any plan to proceed with the Hamilton garage.
    6
    D. The City’s Five-Year Findings for the Parking Fund
    The Mitigation Fee Act imposes certain requirements on cities and other local
    agencies when they impose fees “as a condition of approval of a development project.”
    (§ 66001, subd. (a).) Among these requirements, the city or agency must make findings
    every five years where such fees have been collected but not yet expended. (§ 66001(d).)
    We examine the requirements of the Act in detail, post.
    Historically, the City treated the in-lieu parking fee as subject to the requirements
    of the Act. City staff reports, submitted to the city council in 2003, 2009, and 2014,
    addressed the parking fund in connection with the Mitigation Fee Act’s annual reporting
    and five-year reporting requirements. In the 2003 report, city staff explained that the Act
    applied to the parking fund for the University Avenue parking assessment district but
    asserted that because all in-lieu parking fees in the fund were received in the prior fiscal
    year (2002), no findings were required for them.
    In the 2009 and 2014 reports, city staff recommended that the city council make
    findings for the unexpended University Avenue in-lieu parking fees and stated that failure
    to do so could potentially obligate the City to refund the fees. The city council adopted
    the recommended five-year findings in January 2009 and January 2014 (for the fiscal
    years that ended on June 30, 2008, and June 30, 2013, respectively).
    The City made its next set of five-year findings in a resolution adopted on January
    22, 2019, for the fiscal year that ended on June 30, 2018 (Resolution No. 9816, hereafter
    January 2019 five-year findings). The January 2019 five-year findings addressed various
    transportation and traffic impact fees but omitted any mention of the parking fund.
    Consequently, the City did not make five-year findings for the unexpended fees in the
    parking fund for the fiscal year that ended on June 30, 2018.
    In January 2020, Chop Keenan requested that the City refund the in-lieu parking
    fees, with interest, that plaintiffs had paid in December 2013 in connection with the
    development of the property at 135 Hamilton Avenue. Keenan’s letter stated that a
    7
    refund was “required under state law” because it had been more than five years since the
    fees were imposed and collected, and the City had “not used those fees for parking
    facilities nor provided the findings and public accounting required by Government Code
    sections 66001 and 66006.”
    The City, through its city attorney, denied the request. The City’s letter, dated
    February 24, 2020, stated the request for a refund was “untimely” and the parking in-lieu
    fees were “currently committed to the construction of the” downtown parking garage,
    based on the city council’s certification of the EIR and approval of land use actions in
    February 2019.
    Plaintiffs responded in a letter dated April 27, 2020, providing a detailed timeline
    regarding plaintiffs’ payment of “ ‘impact fees’ ” in December 2013, including those
    characterized by the City as “ ‘University In-Lieu Parking Fees,’ ” and the legal basis for
    their claim. Plaintiffs asserted that their refund request was “valid and timely” and
    requested that the City reconsider its position.
    On May 11, 2020, following plaintiffs’ demand for a refund, the city council
    adopted a resolution making additional five-year findings under section 66001(d), for the
    fiscal year that had ended on June 30, 2019. 3 (Resolution No. 9887, hereafter May 2020
    five-year findings).
    The May 2020 five-year findings included recitals and findings in connection with
    the parking fund and its anticipated use to construct a garage “pending further discussion
    3
    The staff report accompanying the draft of Resolution No. 9887 provides this
    explanation for the failure to make findings in 2019: “Staff has recently revised the
    procedure used to calculate fund balances for the purposes of the findings the City is
    required to adopt under Government Code section 66001. This change will generally
    increase the amount stated it [sic] the resolution adopting such findings. Under the
    former methodology, it did not appear that findings were required and therefore a
    resolution was not prepared in December 2019/January 2020. The revised methodology
    would, however, require findings.” The report does not specify the “procedure” change
    that resulted in the requirement for new findings. At oral argument, the City suggested
    these findings had been made in response to plaintiffs’ threat of litigation.
    8
    by the City Council regarding downtown parking management.” The city council
    acknowledged that “under Chapters 16.57 and 18.18 of the Palo Alto Municipal Code,
    the City has collected a fee known as the ‘University Avenue Parking In-Lieu Fee’ for
    the purpose of constructing public parking spaces within the University Avenue parking
    assessment district to serve the parking needs of the district created by the developments
    that paid the fees.” Further, “[t]he sum of $6,117,748 represents the most recent audited
    total of fees collected pursuant to Chapter 16.57 that remain unexpended, together with
    accrued interest thereon (‘the unexpended [] University Avenue Parking In-Lieu Fee
    funds’).” The May 2020 findings did not distinguish the fees that had been in the parking
    fund for more than five years from those that had been deposited within the past five
    years.
    E. Plaintiffs’ Action For Refund of the Unexpended In-Lieu Parking Fees
    On May 22, 2020, plaintiffs filed this action against the City. The combined
    petition for writ of mandate and complaint (collectively, petition and complaint) sought
    mandamus, declaratory, and injunctive relief based on the alleged failure of the City and
    city council (together, defendants) to provide timely or complete public accountings or
    findings for the in-lieu parking fees after the city council voted in February 2019 to
    “abandon” plans for construction of the downtown parking garage.
    In the mandamus cause of action (Code Civ. Proc., § 1085), plaintiffs alleged that
    defendants failed to comply with their mandatory duties to refund the unexpended in-lieu
    parking fees after failing to make the public reports and findings required by sections
    66001 and 66006 of the Mitigation Fee Act. Plaintiffs further alleged that defendants’
    unlawful retention of the in-lieu parking fees warranted declaratory, injunctive, and
    equitable relief. The City generally denied the allegations in the petition and complaint.
    The parties stipulated to a briefing schedule and hearing date for a writ hearing and bench
    trial.
    9
    In their points and authorities, plaintiffs asserted that the City failed to provide
    timely and legally adequate findings under the Mitigation Fee Act justifying the retention
    of the in-lieu parking fees. In its opposition, the City asserted multiple independent
    reasons that plaintiffs were not entitled to a refund of the in-lieu parking fees, including,
    that (1) the in-lieu parking fee is not subject to the Mitigation Fee Act’s five-year finding
    requirement; (2) the City’s five-year findings issued in January 2019 did not include the
    in-lieu parking fees because those fees had not yet been held for five years; (3) this action
    was not filed within the one-year statute of limitations applicable to a claim for penalty or
    forfeiture, under the reasoning set forth in County of El Dorado v. Superior Court (2019)
    
    42 Cal.App.5th 620
    , 625 (El Dorado); and (4) the City’s adoption of five-year findings in
    May 2020 adequately complied with the requirements of section 66001 and was
    supported by substantial evidence.
    On September 7, 2021, the trial court issued its final statement of decision. The
    court denied relief as to both the petition for writ of mandate and the complaint for
    declaratory and other relief. First, the trial court rejected plaintiffs’ argument regarding
    the applicable statute of limitations under Code of Civil Procedure sections 343 or 338.
    The court instead followed the reasoning of the appellate court in El Dorado, concluding
    that the obligation to refund fees under section 66001(d) for failure to adopt adequate
    five-year findings constitutes a penalty or forfeiture and is therefore subject to the one-
    year statute of limitations under Code of Civil Procedure section 340, subdivision (a).
    Next, the trial court found, as “a separate and independent basis” for denying the
    petition, that the City’s in-lieu parking fee does not come within the “narrow statutory
    definition[]” of a fee subject to the five-year findings requirement of section 66001(d).
    The court reasoned that, unlike the parking fee at issue in Walker v. City of San Clemente
    (2015) 
    239 Cal.App.4th 1350
     (Walker), the in-lieu parking fee provides an “optional
    alternative to compliance with City requirements for developer-constructed parking” and
    is therefore not imposed as a “ ‘condition of approval’ ” within the meaning of section
    10
    66001. The court decided that the availability of the election to provide parking or pay
    an in-lieu fee removes the in-lieu parking fee from the statutory definition of a “fee” or
    “ ‘exaction’ ” with the meaning of section 66000 and makes it more akin to a traditional
    land use regulation.
    Recognizing that its resolution of the principal issues would be subject to de novo
    review on appeal, the trial court addressed the merits of the Mitigation Fee Act claim “in
    the interest of judicial economy in the event of reversal.” The court assumed, for this
    purpose, both the applicability of section 66001(d) to the in-lieu parking fee and the
    timeliness of plaintiffs’ claim. It concluded that the city council’s adoption of the May
    2020 five-year findings (Resolution No. 9887) was untimely as a matter of law and could
    not be cured by remand. The court also doubted the adequacy of the City’s 2020 five-
    year findings, noting in a footnote that the belated findings were “questionable” given the
    lack of specificity regarding the planned expenditures. The court agreed with the City,
    however, that its transfer of $1.3 million from the parking fund in fiscal year 2016 for
    planning and design costs was not improper and thus concluded that any refund required
    under section 66001 would be limited to the “unexpended funds” from plaintiffs’
    December 2013 fee payment. Regarding the application of a harmless error standard
    (§ 65010), the court found that the City had offered “no authority” for its assertion that
    the doctrine of harmless error should apply to any error or omission in its findings.
    Finally, the trial court rejected plaintiffs’ non-statutory claim for equitable restitution,
    finding that the “present evidentiary record” did not support a finding that the City had
    “wholly failed to proceed” or had “effectively abandoned its plans to use the fee
    proceed[s] to construct parking.”
    In accordance with the statement of decision, the trial court entered judgment in
    favor of the City. Plaintiffs timely appealed.
    11
    II. DISCUSSION
    Plaintiffs contend the trial court erred as a matter of law in deciding three key
    issues underlying the judgment. First, plaintiffs argue that the court erred in concluding
    the in-lieu parking fee is exempt from the requirements of the Mitigation Fee Act.
    Second, plaintiffs assert that the court mischaracterized the gravamen of the action in
    ascertaining the cause’s accrual date and relied on inapt case authority in reaching its
    conclusion that plaintiffs’ action was time-barred under the one-year statute of limitations
    for penalty actions. Third, plaintiffs maintain the trial court abused its discretion by
    denying restitution despite the City’s de facto abandonment of the Hamilton garage and
    refusal to refund the fees that it collected for the purpose of constructing new parking in
    the University Avenue parking district. Plaintiffs assert that each of these erroneous
    rulings serves as an independent basis for reversal, which plaintiffs contend should result
    in reversal of the judgment and remand with directions to mandate the refund of their
    unexpended in-lieu parking fees.
    The City disagrees with plaintiffs’ legal analysis and urges this court to uphold the
    judgment in the City’s favor for the reasons stated in the trial court’s statement of
    decision. In the event this court declines to do so, the City disputes the merits of
    plaintiffs’ refund claim and asserts that plaintiffs have not attempted to show prejudice,
    as required by the Government Code’s “harmless error” provision (§ 65010, subd. (b))
    (hereafter, § 65010(b)) for matters coming under title 7 (Planning and Land Use).
    This court sought supplemental briefing on whether section 65010(b) applies to
    this action. In response, plaintiffs contend it does not. Plaintiffs argue that section
    65010(b) applies only where a court is asked to “ ‘hold invalid or set aside’ ” an action of
    a public agency, whereas here the court is asked to enforce an express statutory directive
    to refund unexpended fees. Plaintiffs maintain that applying the harmless error standard
    in this context would effectively nullify the Legislature’s express specification of a
    refund remedy under section 66001(d). The City counters that section 65010 applies to
    12
    procedures under the Mitigation Fee Act and dictates that any remedy for an alleged error
    (such as untimely findings) must be interpreted consistent with section 65010(b)’s
    standard of prejudice.
    We consider each of these arguments below, beginning with the statutory
    framework for plaintiffs’ claims.
    A. Statutory Framework: Mitigation Fee Act
    The Mitigation Fee Act applies to a monetary exaction imposed by a local agency
    as a condition of approval of a development project to defray public facility costs related
    to the project. (§§ 66000, subd. (b), 66001.) 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 (plur. opn. of Arabian, J.) (Ehrlich).) “The Act creates
    uniform procedures for local agencies to follow in establishing, imposing, collecting,
    accounting for, and using development fees.” (Walker, supra, 239 Cal.App.4th at
    p. 1357.) It also establishes “procedures for protesting the imposition of fees and other
    monetary exactions imposed on a development by a local agency.” (Ehrlich, at p. 864
    (plur. opn. of Arabian, J.).)
    The Act defines a “ ‘[f]ee’ ” 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).) For
    purposes of the Act, a “ ‘[d]evelopment project’ ” “includes a project involving the
    issuance of a permit for construction or reconstruction, but not a permit to operate.” (Id.,
    subd. (a).) Under the Act, “ ‘[p]ublic facilities’ ” refers to “public improvements, public
    services, and community amenities.” (Id., subd. (d).)
    The requirements embodied in the Act apply at various stages of the fee
    imposition and development process. Section 66001, subdivision (a), applies when the
    13
    city or local agency first adopts a fee for a type of development project. (Garrick
    Development Co. v. Hayward Unified School Dist. (1992) 
    3 Cal.App.4th 320
    , 336
    (Garrick).) To establish a development fee, a local agency must identify the fee’s
    purpose and the use to which it will be put. (§ 66001, subds. (a)(1), (2).) The agency
    must also determine that the “fee’s use” (id., subd. (a)(3) and the “need for the public
    facility” are reasonably related to “the type of development project on which the fee is
    imposed.” (Id., subd. (a)(4); see Walker, supra, 239 Cal.App.4th at p. 1358.) A
    development fee must be used “solely and exclusively for the purpose or purposes” the
    agency identified when it imposed the fee on the development project. (§ 66008; see
    § 66006, subds. (a), (f).) It may not be “levied, collected, or imposed for general revenue
    purposes.” (§ 66008; see § 66006, subd. (a).)
    Section 66001, subdivision (b), applies to “adjudicatory, case-by-case actions” in
    which the agency ascertains the public facility cost attributable to a particular
    development. (Garrick, supra, 3 Cal.App.4th at p. 336.) To impose an established
    development fee as a condition of approval for a specific project, an 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); see Walker, supra, 239 Cal.App.4th at
    p. 1358.) At the time the agency imposes a development fee on a specific project, it must
    also “identify the public improvement that the fee will be used to finance.” (§ 66006,
    subd. (f).)
    Once a local agency collects a fee, it must abide by certain requirements for its
    deposit, use, and accounting. (§§ 66001, subd. (c), 66006, 66008.) “In general, the local
    agency must deposit the fee collected ‘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 . . . .’ (§ 66006, subd. (a).)”
    (Home Builders Assn. of Tulare/Kings Counties, Inc. v. City of Lemoore (2010) 185
    
    14 Cal.App.4th 554
    , 573 (Home Builders).) Under section 66006, subdivision (b), the local
    agency must provide annual accountings of the funds into which it has deposited fees
    collected under section 66001.
    Each year, within 180 days of the end of the fiscal year, the local agency must in a
    regularly scheduled public meeting inform the public about the development fee fund or
    account. (§ 66006, subd. (b)(1), (2).) The annual public accounting must describe the
    type of fee in the fund, the account balance and interest earned, and provide an
    approximate date when construction will begin if the agency determines it has collected
    sufficient funds to finance the public improvement identified when the fee was imposed.
    (§ 66006, subd. (b)(1)(A)–(F).) Section 66006 does not include any explicit remedy if
    the local agency fails to comply with this annual accounting requirement.
    In addition to the annual accounting requirement under section 66006, section
    66001(d) imposes a five-year accounting requirement. It provides, “For the fifth fiscal
    year following the first deposit into the account or fund, and every five years thereafter,
    the local agency shall make all of the following findings with respect to that portion of
    the account or fund remaining unexpended, whether committed or uncommitted: [¶]
    (A) Identify the purpose to which the fee is to be put. [¶] (B) Demonstrate a reasonable
    relationship between the fee and the purpose for which it is charged. [¶] (C) Identify all
    sources and amounts of funding anticipated to complete financing in incomplete
    improvements identified in paragraph (2) of subdivision (a). [¶] (D) Designate the
    approximate dates on which the funding referred to in subparagraph (C) is expected to be
    deposited into the appropriate account or fund.”
    These five-year findings under section 66001(d) must be made “in connection
    with” the annual public accounting required by section 66006, subdivision (b). (§ 66001,
    subd. (d)(2), hereafter § 66001(d)(2).) In contrast to section 66006, section 66001(d)
    includes a specific remedy for failure to comply. It states, “If the [five-year] findings are
    15
    not made as required by this subdivision, the local agency shall refund the moneys in the
    account or fund as provided in subdivision (e).” (§ 66001(d)(2), italics added.)
    Section 66001, subdivision (e) contains a separate refund provision. It states that
    “when sufficient funds have been collected . . . to complete financing on incomplete
    public improvements . . . and the public improvements remain incomplete, the local
    agency shall identify, within 180 days of the determination that sufficient funds have
    been collected, an approximate date by which the construction of the public improvement
    will be commenced, or shall refund to the then current record owner or owners of the lots
    or units, as identified on the last equalized assessment roll, of the development project or
    projects on a prorated basis, the unexpended portion of the fee, and any interest accrued
    thereon.” (§ 66001, subd. (e).)
    Sections 66020 and 66021 of the Act set forth procedures to protest the initial
    imposition of a development fee (or other exaction) on a development project and include
    strict time limits in which to file an action to review or set aside the fee imposition. (See
    Barratt American Inc. v. City of Rancho Cucamonga (2005) 
    37 Cal.4th 685
    , 691, 696
    (Barratt American); Sterling Park, L.P. v. City of Palo Alto (2013) 
    57 Cal.4th 1193
    ,
    1207, 1209 (Sterling Park).) However, the Act does not specify procedures for a protest
    action or refund demand based upon a local agency’s purported failure at a later stage to
    comply with public information and refund procedures under sections 66006 and
    66001(d). Furthermore, there are few reported cases examining these latter provisions.
    The trial court decided that plaintiffs are not entitled to relief under section
    66001(d). We next consider the standards applicable to our review of that conclusion.
    B. Standard of Review
    Courts generally review a local agency’s establishment or imposition of a
    development fee under the Mitigation Fee Act under the rules of ordinary mandamus
    review (Code Civ. Proc., § 1085). (Garrick, supra, 3 Cal.App.4th at p. 328; accord
    Walker, supra, 239 Cal.App.4th at p. 1362; Boatworks, LLC v. City of Alameda (2019) 35
    
    16 Cal.App.5th 290
    , 298.) Only one reported appellate decision has considered the standard
    of review for a challenge based upon the retention of unexpended development fees
    under section 66001(d). In Walker, the court reasoned that an agency’s compliance with
    the Mitigation Fee Act’s five-year findings requirement is subject to the same standard of
    review as the agency’s initial adoption of a development fee under the Act. (Walker, at
    p. 1363.) We agree. Consistent with Walker, we consider an agency’s five-year
    findings—and any subsequent decision to issue (or refusal to issue) a requested refund in
    connection with those findings—to be a quasi-legislative action subject to review under
    the standards applicable to ordinary mandamus. (Ibid.)
    Under those principles, we apply the same standard of review as the trial court and
    review the City’s action de novo. (Walker, supra, 239 Cal.App.4th at p. 1362; McIntyre
    v. Sonoma Valley Unified School Dist. (2012) 
    206 Cal.App.4th 170
    , 179.) The standard
    applicable to ordinary mandamus 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.” ’ ” (Walker, at p. 1362;
    American Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 
    54 Cal.4th 446
    , 460 (American Coatings).) Where, as here, the relevant facts are largely undisputed
    and the issue is one of statutory interpretation, the question is one of law which we
    review de novo. (Walker, at p. 1363; see California Charter Schools Assn. v. City of
    Huntington Park (2019) 
    35 Cal.App.5th 362
    , 369; Small Property Owners of San
    Francisco Institute v. City and County of San Francisco (2018) 
    22 Cal.App.5th 77
    , 84.)
    C. Applicability of the Mitigation Fee Act
    We first consider whether the in-lieu parking fee meets the Act’s statutory
    definition of “fees.” Plaintiffs contend that it clearly does so, based on both the plain text
    of the Act and its legislative history. Furthermore, plaintiffs emphasize that the City
    itself, prior to 2019, consistently recognized and treated in-lieu fees as subject to the same
    procedures and requirements as other development impact fees. The City counters that,
    17
    although it historically “voluntarily adopted” five-year findings for the parking fee fund,
    it “was not required to do so.” Instead, the City argues that the Mitigation Fee Act does
    not apply to this type of in-lieu fee, which a developer voluntarily elects to pay in
    exchange for being relieved of a statutory requirement (here, the requirement to provide
    on- or off-site parking spaces in connection with new development).
    For the reasons explained below, we decide that the in-lieu parking fee—as
    established in the City’s municipal code and imposed on plaintiffs to mitigate the impact
    of their development project on parking congestion in the University Avenue assessment
    district—is a fee subject to the Mitigation Fee Act.
    The construction of a statute and its applicability to a given case are questions of
    law subject to our independent review. (Sierra Pacific Industries v. Workers’ Comp.
    Appeals Bd. (2006) 
    140 Cal.App.4th 1498
    , 1505 (Sierra Pacific).) We interpret the Act
    according to established principles of statutory construction. Our primary task in
    construing the statute “is to ascertain the intent of the Legislature so as to effectuate the
    purpose of the law.” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 
    43 Cal.3d 1379
    , 1386 (Dyna-Med).) We “look first to the words of the statute [], giving to
    the language its usual, ordinary import and according significance, if possible, to every
    word, phrase and sentence in pursuance of the legislative purpose.” (Id. at pp. 1386–
    1387.) If the meaning remains uncertain, we may consider “the consequences that will
    flow from a particular interpretation.” (Id. at p. 1387; see Mejia v. Reed (2003) 
    31 Cal.4th 657
    , 663 (Mejia).)
    Applying these principles, we note that the Mitigation Fee Act applies broadly to
    “any action” in which a “fee” is imposed “as a condition of approval of a development
    project by a local agency.” (§ 66001, subd. (a).) A “ ‘[f]ee’ ” subject to these provisions
    is defined as “a monetary exaction other than a tax or special assessment . . . charged by a
    local agency to the applicant in connection with approval of a development project for the
    18
    purpose of defraying all or a portion of the cost of public facilities related to the
    development project.” (§ 66000, subd. (b).)
    By its plain terms, the Act applies when “a monetary exaction” (§ 66000, subd.
    (b)) imposed in connection with an applicant’s development project for the purpose of
    defraying the cost of public facilities related to the development project is charged by a
    local agency “as a condition of approval of a development project by a local
    agency . . . .” (§ 66001, subd. (a).)
    According to the adopting ordinance and municipal code, the in-lieu parking fee
    allows certain new, nonresidential developments in the University Avenue parking
    assessment district to satisfy downtown parking requirements by funding the provision of
    parking through the in-lieu mechanism. (See Ordinance No. 4256, adopted Jan. 17, 1995,
    § 1(E); Palo Alto Mun. Code, chs. 16.57.010, 18.18.090, 18.52.070(d).) The resulting
    parking fund is designated to “be used to finance the construction of new parking
    facilities to meet the increased parking demand caused by [the] new nonresidential
    developments.” (Ordinance No. 4256, § 1(F).) The collected fees are limited to use “for
    construction of public parking spaces within the assessment district to serve the parking
    needs . . . created by the developments that paid the fees.” (Palo Alto Mun. Code,
    § 16.57.060.) Further, payment of the fee established by the in-lieu parking fee
    regulation “shall be a condition of the approval of or permit for any new development.”
    (Id., § 16.57.010.)
    The municipal code provisions and ordinance adopting the in-lieu fee together
    confirm that the in-lieu parking fee is a type of “monetary exaction . . . 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).) The municipal code expressly states, for
    eligible developments, that payment of the in-lieu parking fee “shall be a condition of the
    approval of . . . any new development.” (Palo Alto Mun. Code, § 16.57.010.)
    19
    Further clarifying this application, among other conditions, the City conditioned
    its approval of the project at 135 Hamilton Avenue on plaintiffs’ compliance with the
    parking requirements set forth in the City’s municipal zoning code. Condition No. 8
    specifically addressed plaintiffs’ need to comply with the parking requirements, either by
    paying the in-lieu fee or obtaining approval for off-site or underground parking, or “some
    combination thereof.”
    Our determination based on the plain language of the Act makes it unnecessary to
    resort to extrinsic interpretive aids such as the legislative history of the statute. 4 (See
    Lungren v. Deukmejian (1988) 
    45 Cal.3d 727
    , 735.) Moreover, the option of paying an
    impact fee “in lieu” of some other form of mitigation of the public impact attributable to
    new development is unremarkable in the context of development impact fees. As the
    United States Supreme Court observed, “[s]uch so-called ‘in lieu of’ fees are utterly
    commonplace [citation], and they are functionally equivalent to other types of land use
    exactions.” (Koontz v. St. Johns River Water Management Dist. (2013) 
    570 U.S. 595
    ,
    612 (Koontz).) 5
    4
    We nevertheless grant plaintiffs’ unopposed request that this court take judicial
    notice of two committee reports comprising legislative history relating to the enactment
    of the Mitigation Fee Act in 1987. (See Sen. Local Gov. Com., on Assem. Bill No. 1600
    (1987-1988 Reg. Sess.) July 1, 1987; Sen. Rules Comm., Off. of Sen. Floor Analyses, 3d
    reading analysis of Assem. Bill No. 1600 (1987-1988 Reg. Sess.) as amended Aug. 26,
    1987.) The legislative history provides reinforcement for our determination that the
    statute’s plain meaning comports with its purpose and is moreover relevant in
    understanding later amendments to the Act, discussed post. (See pt. II.E.)
    5
    In Koontz, the Supreme Court extended the Nollan/Dolan analytical framework
    under the unconstitutional conditions doctrine to permitting approvals conditioned on
    payment of a monetary fee. (Koontz, 
    supra,
     570 U.S. at p. 612.) Nollan v. California
    Coastal Commission (1987) 
    483 U.S. 825
     and Dolan v. City of Tigard (1994) 
    512 U.S. 374
     arose in the context of takings challenges under the Fifth Amendment and concerned
    the right to just compensation for property exacted by the government as a condition of
    land-use permit approval. Together, Nollan and Dolan establish that the government may
    not condition the approval of a land-use permit on the owner’s relinquishment of a
    portion of his property unless it can establish a “ ‘nexus’ ” and “ ‘rough proportionality’ ”
    20
    Our review of the extensive body of case law concerning these types of fees and
    similar government exactions has revealed no case in which the “in lieu” or elective
    aspect of the imposition changes the nature of the fee or exaction for purposes of the Act.
    In Ehrlich, the California Supreme Court evaluated certain monetary exactions imposed
    by the city council in connection with its approval of a new residential development,
    including payment of a $280,00 recreation fee in lieu of the construction of tennis courts,
    as well as a $33,200 fee in lieu of providing public art. (Ehrlich, supra, 12 Cal.4th at
    pp. 862–864 (plur. opn. of Arabian, J.).) The court considered the appropriate standard of
    scrutiny for these exactions, including the applicability of the Nollan/Dolan test for a
    compensable regulatory taking to nonpossessory monetary exactions. (Id. at p. 859.) A
    majority of the court addressed the relationship between the Nollan/Dolan framework
    and the substantive standard imposed by the Mitigation Fee Act. (Ehrlich, at pp. 860,
    865–867 (plur. opn. of Arabian, J.); id. at p. 898, fn. 2 (conc. opn. of Mosk, J.).) In
    synthesizing these standards, a majority of the court appeared to acknowledge that in-lieu
    fees are subject to the Act, which the court explained is “for the most part procedural in
    nature” (id. at p. 865 (plur. opn. of Arabian, J.)) but “also embodies a statutory standard
    against which monetary exactions by local governments subject to its provisions are
    measured.” (Ibid.)
    More specifically, the plurality explained that the Act “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 imposed in lieu of such dedications) that are
    challenged under the Fifth and Fourteenth Amendments.” (Ehrlich, 
    supra,
     12 Cal.4th at
    p. 865 (plur. opn. of Arabian, J.), italics added.) The majority in Ehrlich agreed “that to
    the extent a development mitigation fee is not subject to heightened scrutiny under
    between its demand and the effects of the proposed land use. (Koontz, 
    supra,
     570 U.S. at
    p. 599.)
    21
    Nollan and Dolan, there must nonetheless be a ‘reasonable relationship’ between the fee
    and the deleterious impacts for mitigation of which the fee is collected.” (San Remo
    Hotel L.P. v. City and County of San Francisco (2002) 
    27 Cal.4th 643
    , 667 (San Remo),
    citing Ehrlich, at pp. 865, 867 (plur. opn. of Arabian, J.); Ehrlich, at p. 897 (conc. opn. of
    Mosk, J.).)
    In subsequent cases, including California Building Industry Assn. v. City of San
    Jose (2015) 
    61 Cal.4th 435
     (California Building), the California Supreme Court has
    clarified aspects of its decision in Ehrlich as well as the standards applicable to various
    types of fees. These cases support our reading of the Mitigation Fee Act that the offering
    of an election (or in-lieu alternative) does not, as a matter of law, remove the fee from the
    purview of the Act.
    In San Remo, the court upheld the application of the Act to a city ordinance which
    imposed a “housing replacement” requirement on development seeking to convert
    residential units to tourist use. (San Remo, supra, 27 Cal.4th at pp. 668–669.) A
    developer could choose to comply with the ordinance “by constructing or bringing onto
    the market new units; by sponsoring such construction by a public or nonprofit private
    housing developer; or by paying, in lieu of such construction, a fee to a designated City
    housing fund.” (Id. at p. 668.) In rejecting the developer’s takings challenge, the court
    noted that under the majority’s holding in Erhlich, and pursuant to the Mitigation Fee
    Act, a mitigation fee that is not subject to the heightened scrutiny of Nollan and Dolan
    must nonetheless satisfy the generally applicable “reasonable relationship” standard
    between the fee, its intended use, and the “deleterious public impact of the development.”
    (San Remo, at p. 671, citing § 66001; see also Sheetz v. County of El Dorado (2022) 
    84 Cal.App.5th 394
    , 409 [noting, under San Remo, that legislatively imposed development
    impact fees not subject to the Nollan/Dolan test “remain subject to the means-end judicial
    review under the” Act].) The high court applied the “reasonable relationship” standard to
    the in-lieu fee paid by the developer and concluded it was consistent with the impacts in
    22
    loss of housing units based on the developer’s proposed change in use. (San Remo, at
    pp. 678–679.)
    In Sterling Park, the California Supreme Court considered a developer’s challenge
    to the city’s inclusionary housing program, which required certain developments to
    provide 20 percent of units below market rate by electing one or more of certain
    alternatives. (Sterling Park, 
    supra,
     57 Cal.4th at p. 1196.) Among the options was “a
    cash payment to the City’s housing development fund in lieu of providing below market
    rate units or land.” (Ibid.) At issue on appeal was the timeliness of the developer’s legal
    challenge to the below market housing requirement, which in turn depended on whether
    the requirements at issue “constitute[d] the imposition of ‘any fees . . . or other exactions’
    under section 66020, subdivision (a),” of the Mitigation Fee Act. (Id. at p. 1195.)
    In deciding that section 66020 applied to the below market housing requirement,
    the California Supreme Court clarified that “other exactions” under section 66020
    includes “conditions on development a local agency imposes that divest the developer of
    money or a possessory interest in property, but not restrictions on the manner in which a
    developer may use its property.” (Sterling Park, supra, 57 Cal.4th at p. 1207.) The court
    stated that either of the two options available to the developer (paying an in-lieu fee, or
    providing the city an option to purchase below market rate units) “would constitute an
    exaction.” (Ibid.) It further observed that “[t]he imposition of the in-lieu fees is certainly
    similar to a fee.” (Ibid.)
    We recognize that in Sterling Park our high court was not asked to consider, and
    did not decide, whether the below market rate housing program’s in-lieu fee option was
    in fact a “fee” imposed as a condition of approval of a development project under section
    66001. (See California Building, supra, 61 Cal.4th at p. 482.) Even so, the court’s
    recognition that the in-lieu fee was an “exaction” for purposes of section 66020 and
    “similar to a fee” (Sterling Park, 
    supra,
     57 Cal.4th at p. 1207) strongly supports that
    possibility. At a minimum, we do not interpret the court’s qualifying language “similar
    23
    to” as precluding a determination that an in-lieu fee may constitute a “fee” under the Act.
    Rather, we read the language in Sterling Park as wholly consistent with the statutory
    framework, whereby “ ‘[f]ee’ ” represents a specific type of exaction, namely, “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).) When such a fee is imposed as a condition
    of approval of a development project (§ 66001, subd. (a)), the procedural requirements of
    the Act apply.
    The California Supreme Court’s more recent decision in California Building also
    supports our reading of the Act. There, the court held that conditions of a City of San
    Jose inclusionary housing ordinance, which required new residential development
    projects to sell a percentage of the for-sale units at a price affordable to low- or moderate-
    income households, did not effect an “exaction” under the takings clause of the federal or
    state Constitution but rather constituted a constitutionally permissible, legislatively
    imposed land use regulation related to the public welfare. (California Building, supra, 61
    Cal.4th at pp. 442–444, 461.) The court specifically distinguished the type of in-lieu
    monetary fee at issue in San Remo (where the high court applied the statutory “reasonable
    relationship” standard) from the restrictions imposed by the San Jose ordinance. (Id. at
    p. 444.) It explained that whereas the condition in San Remo involved “an lieu monetary
    fee . . . imposed to mitigate a particular adverse effect of the development proposal under
    consideration” (ibid.), the conditions imposed by San Jose’s inclusionary housing
    ordinance “do not require a developer to pay a monetary fee but rather place a limit on
    the way a developer may use its property.” (Ibid.) The high court emphasized that the
    purpose of a development mitigation fee (such as in San Remo) “is to mitigate the effects
    or impacts of the developments on which the fee is imposed” (id. at p. 472), consistent
    with the Mitigation Fee Act’s statutory definition and use of the term “ ‘fee’ ” in sections
    24
    66000, subdivision (b), and 66001. (Ibid.) By contrast, the court clarified that “[t]he
    term ‘fee’ does not purport to encompass use restrictions, and certainly not use
    restrictions that are imposed for a different purpose.” (Ibid.)
    The appellate court’s decision in 616 Croft Ave., LLC v. City of West Hollywood
    (2016) 
    3 Cal.App.5th 621
     is consistent with our reading of the Act. Like California
    Building, 616 Croft involved a challenge to the city’s inclusionary housing ordinance.
    Unlike the San Jose ordinance in California Building, the West Hollywood ordinance in
    616 Croft provided an election for developers “to sell or rent a portion of their newly
    constructed units at specified below-market rates or, if not, to pay an ‘in-lieu’ fee
    designed to fund construction of the equivalent number of units the developer would have
    otherwise been required to set aside.” (Id. at p. 625.) The court in 616 Croft relied on the
    California Supreme Court’s determination in California Building to hold that the
    developer’s payment of the in-lieu fee was not an exaction governed by the Mitigation
    Fee Act. (Id. at p. 628.) The court reasoned that insofar as the in-lieu fee was merely “an
    alternative to the on-site affordable housing requirement” (id. at p. 629), its validity was
    logically governed by the same standard the high court applied to the on-site affordable
    housing requirement in California Building. (Ibid.) The court further noted that like in
    California Building, “the purpose of the in-lieu housing fee here is not to defray the cost
    of increased demand on public services resulting from [the developer]’s specific
    development project, but rather to combat the overall lack of affordable housing” and
    thus falls under the broader class of land use regulation to enhance the public welfare.
    (Ibid., citing California Building, supra, 61 Cal.4th at p. 444.)
    Here, the requirement that new nonresidential development provide off-street
    parking facilities is “proportional to the need created by each use, in order to alleviate
    traffic congestion.” (Palo Alto Mun. Code, § 18.52.010.) The in-lieu parking fee serves
    this purpose for new development that would not otherwise be able to satisfy the parking
    requirements. (Id., § 18.52.070(d).) The in-lieu fee is directed at “mitigat[ing] a
    25
    particular adverse effect of the development proposal under consideration” (California
    Building, supra, 61 Cal.4th at p. 444)—namely, the traffic congestion and parking
    impacts created by the new downtown development. It is placed into the separate
    parking fund for that purpose. (See Palo Alto Mun. Code, § 16.57.050.) Therefore, the
    in-lieu parking fee does not conform to the description in California Building of a “use
    restriction” imposed for a non-mitigation purpose or directed at improving public
    welfare. (California Building, at p. 472.)
    The reasons advanced by the City in support of its contrary argument are not
    persuasive. The City argues that unlike the conditions for approval of the project set
    forth in condition No. 9, which separately required plaintiffs to pay development impact
    fees of more than half of a million dollars prior to issuance of the project’s building
    permits, the in-lieu election provided in condition No. 8 allowed plaintiffs to choose to
    pay instead of directly providing a certain number of parking spaces. But as we have
    already concluded based on the Mitigation Fee Act’s broad coverage when “a monetary
    exaction” is imposed in connection with and as a condition of approval of a development
    project for the purpose of defraying the cost of facilities related to the project (§§ 66000,
    subd. (b), 66001, subd. (a)), the in-lieu or elective aspect of the fee does not remove it
    from the Act’s purview.
    The City also points to California Building Industry Assn. v. San Joaquin Valley
    Air Pollution Control Dist. (2009) 
    178 Cal.App.4th 120
     (San Joaquin), as well as to the
    Supreme Court’s decision in Ehrlich regarding the in-lieu public art fee, as further
    support for its contention that an in-lieu fee is not an exaction governed by the Mitigation
    Fee Act. We disagree that either case dictates that the type of in-lieu fee at issue here is
    not a monetary exaction subject to the Act.
    San Joaquin involved a challenge to a pollution control rule in which developers
    were required to reduce indirect pollution caused by new development projects “by
    incorporating pollution-reducing features in the project, or by paying a fee to fund off-site
    26
    projects that will reduce emissions, or by a combination of the two.” (San Joaquin,
    supra, 178 Cal.App.4th at pp. 124–125.) Although the appellate court concluded that the
    emissions reduction requirement (including the in-lieu fee) was neither subject to nor in
    violation of the Mitigation Fee Act, the in-lieu aspect of the regulation was not relevant to
    the court’s determination. Instead, the court relied on the distinction between a
    development fee subject to the Act, which requires “approval of the development project
    [to] be conditioned on payment of the fee” (id. at p. 131), and a regulatory fee imposed
    under the agency’s police power. Because the pollution reduction regulations did not
    condition approval of the development on the proposed air quality plan, the court
    concluded the fee was not a development fee subject to the Act. (Id. at pp. 128, 131.)
    Here, unlike in San Joaquin, the City’s approval of the project at 135 Hamilton
    Avenue was conditioned on payment of the in-lieu parking fee. Moreover, the “condition
    of approval” term is expressly written into the municipal code, which provides that
    payment of the in-lieu parking fee “shall be a condition of the approval of . . . any new
    [eligible] development.” (Palo Alto Mun. Code, § 16.57.010.) That there are alternative
    means of complying with the parking condition—whether by directly providing the
    required number of new parking spaces or by electing to contribute the equivalent cost by
    paying the in-leu parking fee—is not determinative. When the election applies, it is a
    condition of approval for the development project. (Cf. San Joaquin, supra, 178
    Cal.App.4th at p. 131; § 66001, subd. (a).) Thus, while the City is correct that “a fee
    does not become a ‘development fee’ simply because it is made in connection with a
    development project” (Barratt American, supra, 37 Cal.4th at p. 699), an in-lieu fee, like
    Palo Alto’s in-lieu parking fee, is a development fee for purposes of the Mitigation Fee
    Act if it meets the definition set forth in section 66001.
    Further, our conclusion is consistent with the legislative purpose behind the Act to
    require local agencies to follow uniform procedures in imposing, accounting for, and
    using development fees (Walker, supra, 239 Cal.App.4th at p. 1357; see §§ 66001,
    27
    66006) and to create a statutory “mechanism . . . to guard against unjustified fee
    retention” (Home Builders, supra, 185 Cal.App.4th at p. 565) in the event an agency’s
    procedures fall short.
    Having decided that the Act governs Palo Alto’s in-lieu parking fee, 6 we consider
    whether the trial court erred in denying plaintiffs’ refund claim under section 66001(d).
    We begin with the City’s assertion that plaintiffs’ claim was not timely filed.
    D. Statute of Limitations
    Plaintiffs challenge the trial court’s ruling that plaintiffs’ action for a refund under
    the Act is barred by Code of Civil Procedure section 340’s one-year statute of limitations
    applicable to claims based on penalty or forfeiture. Plaintiffs maintain that, in concluding
    the action is time-barred, the trial court erroneously relied on dicta in El Dorado, supra,
    
    42 Cal.App.5th 620
    , and misconstrued the date of accrual of the action. Plaintiffs
    contend that the applicable statute of limitations is Code of Civil Procedure section 343’s
    four-year “catch all” or, alternatively, Code of Civil Procedure section 338, subdivision
    (a)’s three-year statute of limitations for actions “upon a liability created by statute.”
    Plaintiffs maintain that, regardless of which limitations period might be applicable, the
    action is timely when accrual is properly measured from the City’s denial of plaintiffs’
    request for a refund.
    In response, the City does not address plaintiffs’ accrual argument. Regarding the
    proper statute of limitations, the City disagrees with the reasoning in El Dorado (that an
    action for refund under section 66001(d) is in the nature of a penalty or forfeiture) and
    agrees with plaintiffs that the applicable statute of limitations is three years under section
    338, subdivision (a). The City nevertheless maintains that the trial court’s judgment
    6
    In light of this conclusion, we need not address plaintiffs’ alternative argument
    that the City is judicially estopped from disputing application of the Mitigation Fee Act to
    the in-lieu parking fee due to its earlier treatment of the in-lieu parking fees it collected as
    subject to the Act’s five-year findings requirement.
    28
    should be affirmed on other grounds. To the extent that the timeliness of plaintiffs’
    action turns on when the action accrued, regardless of which statute of limitations
    applies, we begin with that question.
    Plaintiffs characterize this action as an action for refund relief. They contend that
    because they filed the action less than three months after the City denied their refund
    request, the action was timely filed within one year of its accrual.
    The relevant facts are not in dispute; therefore, we decide the application of the
    statute of limitations as a question of law. (International Engine Parts, Inc. v. Feddersen
    & Co. (1995) 
    9 Cal.4th 606
    , 611; see also Aryeh v. Canon Business Solutions, Inc. (2013)
    
    55 Cal.4th 1185
    , 1191; Blaser v. State Teachers’ Retirement System (2019) 
    37 Cal.App.5th 349
    , 364.)
    As a rule, a civil action may be brought only within the prescribed statute of
    limitations period once a cause of action has accrued. (Code Civ. Proc., § 312; Fox v.
    Ethicon Endo-Surgery, Inc. (2005) 
    35 Cal.4th 797
    , 806.) A cause of action typically
    accrues at the time “ ‘when a suit may be maintained.’ ” (Howard Jarvis Taxpayers
    Assn. v. City of La Habra (2001) 
    25 Cal.4th 809
    , 815 (Howard Jarvis).) “ ‘ “Ordinarily
    this is when the wrongful act is done and the obligation or the liability arises, but it does
    not ‘accrue until the party owning it is entitled to begin and prosecute an action thereon.’
    ” [Citation.] In other words, “[a] cause of action accrues ‘upon the occurrence of the last
    element essential to the cause of action.’ ” ’ ” (Ibid.) Stated differently, “a cause of
    action accrues at ‘the time when the cause of action is complete with all of its
    elements.’ ” (Fox, at p. 806.)
    We agree with plaintiffs that the thrust of their action under section 66001 is for
    refund relief. It is the nature of the right sued upon, that is, “the ‘gravamen’ of the cause
    of action” which determines the applicable statute of limitations. (Hensler v. City of
    Glendale (1994) 
    8 Cal.4th 1
    , 22; see E-Fab, Inc. v. Accountants, Inc. Services (2007) 
    153 Cal.App.4th 1308
    , 1316.) Plaintiffs filed the petition and complaint in May 2020, three
    29
    months after the City’s February 2020 letter denying Chop Keenan’s refund request. The
    action sought a writ directing the City “to make restitution of all such Fees unlawfully
    retained by the City without adequate or timely accounting . . . , including refunds of all
    such Fees paid by Plaintiffs.” The action also sought declaratory and injunctive relief
    regarding the City’s “continued retention of such Fees” and for “an equitable and
    injunctive decree directing the [City] to promptly make restitution and refunds of the
    subject Fees which have not been properly or timely used for their ostensible purpose and
    for which the [City] ha[s] failed to make timely findings or accountings.”
    Insofar as the action seeks, in plaintiffs’ words, “to compel compliance with the
    refund ‘mechanism’ – not to compel the City to make ex post facto findings after the
    deadline has already run” (underscoring omitted), we agree that accrual of the action
    could not occur prior to the City’s action denying the refund request. While any
    obligation of the City to issue findings arose on the statutorily prescribed due date (within
    180 days after the end of the relevant fiscal year, pursuant to sections 66001(d)(2) and
    66006, subdivision (b)(1)), it is not “ ‘ “when the wrongful act is done and the obligation
    or the liability arises” ’ ” but when “ ‘ “ ‘the party owning it is entitled to begin and
    prosecute an action thereon’ ” ’ ” that determines the action is complete with all of its
    elements. (Howard Jarvis, supra, 25 Cal.4th at p. 815.) Section 66001(d)(2) directs that
    the local agency shall refund the unexpended money in the fund “as provided in
    subdivision (e).” However, section 66001(d)(2) does not specify a time period or process
    for the refund based on a failure to make the required five-year findings.
    Under these circumstances, only upon the City’s refusal to issue a refund could
    plaintiffs maintain a suit based upon a refund demand for alleged noncompliance with the
    Mitigation Fee Act’s accounting and findings requirements. (Howard Jarvis, supra, 25
    Cal.4th at p. 815 [cause of action accrues “ ‘when a suit may be maintained’ ”].) As
    stated in analogous actions involving tax and other types of refunds, “[t]he cause of
    action for a refund does not accrue until the claim for refund has been denied or rejected
    30
    in some manner.” (State of California ex rel. Dept. of Motor Vehicles v. Superior Court
    (1998) 
    66 Cal.App.4th 421
    , 435 (State of California) [concerning timeliness of class
    claims in action for refund of motor vehicle license fees]; see also Geneva Towers Ltd.
    Partnership v. City of San Francisco (2003) 
    29 Cal.4th 769
    , 772; Miller & Lux v. Batz
    (1904) 
    142 Cal. 447
    , 450–453.)
    To summarize the relevant timeline, the City made five-year findings on certain
    development fee funds in a resolution adopted in January 2019 for the fiscal year that
    ended on June 30, 2018, but omitted any findings on the parking fund. In January 2020,
    Chop Keenan requested that the City refund the in-lieu parking fees, with interest, that
    plaintiffs had paid in December 2013 in connection with the development of the property
    at 135 Hamilton Avenue. In February 2020, the City issued the letter rejecting Keenan’s
    request for a refund under the Mitigation Fee Act. And on May 11, 2020, after rejecting
    the refund request and about two weeks before plaintiffs filed this action on May 22,
    2020, the city council adopted the May 2020 five-year findings under section 66001(d),
    in which it addressed the parking fund for the fiscal year that ended on June 30, 2019.
    We decide that, at the earliest, plaintiffs’ action for a refund accrued on February
    24, 2020, when the City denied the request for a refund of the unexpended in-lieu parking
    fees. (See State of California, supra, 66 Cal.App.4th at p. 435.) Plaintiffs’ filing of the
    petition and complaint less than three months after the denial of their request, and only
    weeks after the City attempted to remedy any perceived deficiencies by issuing the May
    2020 five-year findings, was timely regardless of whether the applicable statute of
    limitations is one year under El Dorado and Code of Civil Procedure section 340, or three
    or four years under Code of Civil Procedure sections 338 and 343, respectively.
    Because plaintiffs’ action is timely under any of the three, possible statute-of-
    limitations periods discussed by the parties, we need not definitively resolve for purposes
    of this appeal whether the trial court erred in applying the one-year statute of limitations
    for an action upon a statute for a penalty or forfeiture. (See Code Civ. Proc., § 340, subd.
    31
    (a); El Dorado, supra, 42 Cal.App.5th at p. 627.) We similarly need not address
    plaintiffs’ alternative arguments concerning continuous accrual, based on the City’s
    issuance of supplemental findings in May 2020, or equitable tolling.
    Having decided that plaintiffs’ claim was timely, we turn to the merits of
    plaintiffs’ refund claim.
    E. Merits of Plaintiffs’ Statutory Refund Claim
    On May 11, 2020, following plaintiffs’ demand for a refund, the Palo Alto city
    council adopted a resolution making additional five-year findings under section 66001(d),
    for the fiscal year that ended on June 30, 2019. (May 2020 five-year findings). Plaintiffs
    contend the City’s belated, five-year findings are legally insufficient. 7 Plaintiffs submit
    that this court should therefore reverse the judgment and direct the trial court to order the
    requested refund of the unexpended in-lieu parking fees in accordance with section 66001
    (or, alternatively, under principles of equitable restitution).
    The City disputes this proposed disposition. The City asserts that even if the five-
    year findings are deemed deficient, the proper remedy would be a remand with directions
    to the City to cure any legal defect.
    We review de novo the City’s adoption of the January 2019 five-year findings
    (omitting any mention of the parking fund) and May 2020 five-year findings (addressing
    the parking fund) and decide whether the actions are “ ‘ “entirely lacking in evidentiary
    support, or . . . failed to conform to procedures required by law.” ’ ” (Walker, supra, 239
    Cal.App.4th at p. 1362; American Coatings, 
    supra,
     54 Cal.4th at p. 461.)
    The relevant dates are not in dispute. The City began collecting in-lieu parking
    fees and depositing them in the parking fund in the fiscal year that ended on June 30,
    7
    The trial court addressed this issue in its finding in the event of appellate reversal
    on the legal issues discussed ante. The parties dispute the legal effect of this finding by
    the trial court. As the question whether the City’s findings were timely under section
    66001(d) is a matter of law subject to de novo review, we need not reach this issue.
    32
    1996. The City issued five-year reports under section 66001(d) for the parking fund for
    fiscal years 2003 and 2009 that showed unexpended fees in the fund.
    On December 31, 2013, prior to issuance of the project’s building permits (in
    conformity with condition Nos. 8 and 9), plaintiffs paid the City $1,560,475.16 in
    development impact fees for the property, including $972,000 in in-lieu parking fees
    (later reduced to $906,900). Under the City’s municipal code, this payment occurred in
    the fiscal year that ended on June 30, 2014. (Palo Alto Mun. Code, § 2.28.010.)
    On January 13, 2014, the city council adopted five-year findings under section
    66001(d) for the fiscal year that ended on June 30, 2013 (Resolution No. 9389). These
    findings addressed $90,696 in unexpended “University Avenue Parking In-Lieu Parking
    Development Fees” collected between 2001 and 2008, together with accrued interest. On
    January 22, 2019, the city council adopted its next set of five-year findings for the fiscal
    year that ended on June 30, 2018 (Resolution No. 9816), omitting any mention of the in-
    lieu parking fees but addressing other categories of development fee funds maintained by
    the City. As noted ante, the record shows there was a positive balance of unexpended
    fees in the parking fund for the fiscal years ending on June 30, 2014, through June 30,
    2020.
    On May 11, 2020, after plaintiffs requested a refund based on the omission of in-
    lieu parking fees from the January 2019 five-year findings, the city council adopted the
    May 2020 five-year findings for the fiscal year that ended on June 30, 2019. (Resolution
    No. 9887.) The May 2020 five-year findings, issued 10 months after the fiscal year that
    ended on June 30, 2019 (and 22 months after the fiscal year that ended on June 30, 2018),
    addressed $6,117,748 in unexpended, University Avenue in-lieu parking fees, together
    with accrued interest.
    33
    1. The City was Obligated to Issue Five-Year Findings
    The City contends that, under these circumstances, it was not required to adopt
    five-year findings for the fiscal year that ended on June 30, 2018, because on that date no
    in-lieu parking fees in the parking fund had been held for more than five years.
    The City bases this assertion in part on the timing of its prior findings with respect
    to the parking fund. The City made substantive five-year findings related to the parking
    fund in January 2009 and in January 2014 (for the fiscal years that ended on June 30,
    2008 and June 30, 2013, respectively). According to the City, “five years thereafter”
    under section 66001, subdivision (d)(1) (hereafter § 66001(d)(1)), meant the City’s next
    set of five-year findings on the parking fund came due for the fiscal year that ended on
    June 30, 2018. 8
    In 2016 the City transferred $1.3 million from the parking fund to the capital fund.
    The City contends this transfer exhausted the balance of fees that had been in the parking
    fund for five years prior to June 30, 2018. In other words, the City maintains that insofar
    as the parking fund balance for the fiscal year that ended on June 30, 2013 (five years
    prior to the June 30, 2018 date) was $657,961, the City’s transfer of $1.3 million from the
    fund in fiscal year 2016 for design planning and environmental review related to the new
    downtown parking garage “expended that entire balance, and significantly more
    (including much of [plaintiff]s’ $906,900 payment),” even as other in-lieu parking fees
    (like plaintiffs’) continued to be deposited into the parking fund.
    The City’s position appears to be that, when making five-year findings under the
    statute, it must account only for that portion of unexpended fees in the fund that were
    deposited more than five years earlier. The City argues that, based on the plain language
    8
    Neither party has asked this court to opine upon the application of section
    66001(d)(1) to the City’s five-year timetable with respect to the date of the first deposit
    of fees into the parking fund (i.e., in the fiscal year that ended on June 30, 1996). We
    assume arguendo, for purposes of deciding this appeal, the accuracy of the June 30, 2018
    date.
    34
    of the statute, the five-year findings apply only to “that portion of the account or fund
    remaining unexpended” for the fifth fiscal year following the initial deposit into the fund
    (§ 66001(d)(1)) of individual fee payments. The city asserts that section 66001(d) refers
    only to that portion of the fees deposited at least five years prior, not the entire balance of
    the fund or account. It asserts that if the Legislature had intended findings for amounts
    held less than five years, the statutory language would have required five-year findings
    for the entire remaining balance of the account, rather than “that portion” of the account.
    The City claims that its reading of the statute is consistent with what it maintains
    is the “obvious purpose . . . to require local agencies to account for long-held funds it has
    not yet spent rather than more recently collected funds.” The City further argues that to
    interpret the five-year findings provision as applicable to all unexpended fees in the fund,
    including recently collected fees, would be inconsistent with other provisions of the Act.
    (See, e.g., § 66020 subds. (d)–(e).) Applying this interpretation of the law, the City
    maintains that it was not required to adopt five-year findings for the parking fund in
    January 2019 because it had not held any unexpended in-lieu parking fees for more than
    five years as of June 30, 2018.
    Plaintiffs dispute this interpretation as an “erroneous re-writing” of section
    66001(d). They argue that the plain language of the statute does not limit a local
    agency’s duty to make five-year findings based on when it received the balance of the
    unused fees in the fund. Plaintiffs assert the City’s reading of the statute would make the
    five-year findings requirement unworkable, since the time for the agency to make
    findings would be “constantly in flux, depending on when fee payments were received.”
    Plaintiffs contend that section 66001(d) requires five-year findings as to “ ‘that
    portion of the fund remaining unexpended, whether committed or uncommitted’ ”
    (§ 66001(d)(2)), regardless of when the fees were deposited. Plaintiffs assert that the
    City recognized this standard when it belatedly issued its May 2020 five-year findings,
    35
    which addressed all of the in-lieu parking fees in the fund to that date without regard to
    when the City received the fees.
    We agree with plaintiffs that the City’s proposed interpretation of section
    66001(d) is contrary to the plain language of the statute. The provision states, “For the
    fifth fiscal year following the first deposit into the account or fund, and every five years
    thereafter, the local agency shall make all of the following findings with respect to that
    portion of the account or fund remaining unexpended, whether committed or
    uncommitted . . . .” (§ 66001(d)(1).)
    Assigning the language its ordinary meaning (Dyna-Med, supra, 43 Cal.3d at
    pp. 1386–1387), we decide the phrase “following the first deposit into the account or
    fund” (§ 66001(d)(1)) refers to the date that the first payment is made on a development
    fee into the fund or account following that fee’s initial establishment—not the date of
    each subsequent payment of fees into the fund.
    As stated in Walker, “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 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.” (Walker, supra, 239 Cal.App.4th at
    p. 1363, italics added, citing § 66001(d)(1).)
    We do not agree with the City that the requirement to make findings “with respect
    to that portion of the account or fund remaining unexpended” (§ 66001(d)(1)) is limited
    to those fees that remain unexpended following the fifth fiscal year after their initial
    deposit into the account or fund by a particular depositor, because such a construction
    would be inconsistent with the statutory intent to require reporting at regular, five-year
    36
    interludes following the “first deposit” into the account or fund. (Ibid.) The
    Legislature’s use of “account or fund” in subdivision (d)(1) of section 66001 is notably
    distinct from the language of subdivision (c), which directs the management of every fee
    received (“[u]pon receipt of a fee subject to this section, the local agency shall deposit,
    invest, account for, and expend the fees pursuant to [s]ection 66006” (§ 66001, subd. (c),
    italics added)).
    Amendments to the Act in 1996 crystallized this distinction by changing the
    wording of section 66001(d) to its current form. Whereas the original language required
    findings “once each fiscal year with respect to any portion of the fee remaining
    unexpended or uncommitted in its account five or more years after deposit of the fee”
    (former § 66001(d), added by Stats. 1987, ch. 927, § 1), the revised language refers to
    findings “[f]or the fifth fiscal year following the first deposit into the account or fund,
    and every five years thereafter, . . . .” (§ 66001(d), added by Stats. 1996, ch. 569, § 1,
    italics added). The Legislature thus altered the relevant reference point for the five-year
    findings from individual fees paid to the account or fund as a whole.
    The Legislative Counsel’s Digest for the 1996 amendments confirmed that the
    changes “would revise the local agency’s duties with respect to these unexpended fees,
    including requiring the local agency, for the 5th fiscal year following the first deposit into
    an account or fund, and every 5 years thereafter, to include specified information in
    findings relating to the funding of a project.” (Legis. Counsel’s Dig., Sen. Bill No. 1693
    (1995-1996 Reg. Sess.) 6 Stats. 1996, ch. 569, italics added.) 9
    Our reading of the statute—that is, that the five-year finding requirement under
    section 66001(d)(1) applies to the fund itself rather than to the timing of the deposit of
    9
    The bill summaries provided by the Legislative Counsel’s Digest, printed as a
    preface to every bill considered by the Legislature, are not binding but “are entitled to
    great weight.” (Jones v. Lodge at Torrey Pines Partnership (2008) 
    42 Cal.4th 1158
    ,
    1170; see also Walker, supra, 239 Cal.App.4th at p. 1364, fn. 3.)
    37
    individual fees—is rendered all the more reasonable when considered in connection with
    the Legislature’s direction that a local agency maintain all fees received for a specified
    improvement in a single, designated fund or account. (§ 66006, subd. (a).) 10 Since fees
    received in connection with different development projects must be kept in a single fund
    or account “with the other fees for the improvement” (ibid.), the phrase “following the
    first deposit into the account or fund” (§ 66001(d)(1) can only refer to one date—the date
    the agency first began to collect that mitigation fee.
    To the extent there is any uncertainty about whether subdivision (d)(1) of section
    66001 was intended to apply, as the City contends, to more recently collected fees that
    have been in the fund for less than five years, we may consider “the consequences that
    will flow from a particular interpretation.” (Dyna-Med, supra, 43 Cal.3d at p. 1387.) If
    the requirement to make five-year findings applied only to those fees in the fund that
    were deposited more than five years prior, the five-year findings would not accurately
    reflect “that portion of the account or fund remaining unexpended” (§ 66001(d)(1), italics
    added) five years after the first fee was collected, and every five years thereafter. Nor
    would it appear to satisfy the statutory purpose of requiring the 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.’ ” (Walker, supra, 239 Cal.App.4th at
    10
    Pursuant to section 66006, subdivision (a), “If a local agency requires the
    payment of a fee specified in subdivision (c) in connection with the approval of a
    development project, the local agency receiving the 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, except
    for temporary investments, and expend those fees solely for the purpose for which the fee
    was collected. Any interest income earned by moneys in the capital facilities account or
    fund shall also be deposited in that account or fund and shall be expended only for the
    purpose for which the fee was originally collected.”
    38
    p. 1364, quoting Legis. Counsel’s Dig., Assem. Bill No. 1600 (1987-1988 Reg. Sess.) 4
    Stats. 1987, ch. 927, Summary Dig., p. 301.) 11 We note that our reading of the statute is
    also consistent with the five-year reports issued by the City with respect to the parking
    fund in January 2009 and in January 2014, which did not break out fees by date of
    deposit.
    In summary, we hold that section 66001(d)(1) requires that a local agency make
    five-year findings for the fifth fiscal year after the first deposit of a fee into an account or
    fund and at five-year intervals thereafter. Five-year findings must report all unexpended
    fees in the account or fund, irrespective of the date at which the fees were deposited, as
    long as the account or fund during the five-year period contained a positive balance of
    unexpended fees.
    We therefore reject the City’s contention that it was not required to make five-year
    findings on the unexpended portion of the parking fund for the fiscal year that ended on
    June 30, 2018.
    2. The City’s Belated Findings Do Not Satisfy the Act
    The City contends that even if it were required to make the five-year findings, it in
    fact satisfied that obligation when the city council adopted the May 2020 five-year
    findings. The City argues that a strict interpretation of the statutory deadline is not
    supported by the plain language or intent of the Mitigation Fee Act and is contrary to
    established case authority interpreting similar statutory deadlines as “directory” rather
    than “mandatory.” The City further argues that even if the May 2020 five-year findings
    11
    On our own motion, we further take judicial notice of the cognizable legislative
    history of the 1996 amendments to section 66001(d), reflecting the Legislature’s
    consideration of changes to the reporting requirements (see, e.g., Sen. Housing & Land
    Use Com., com. on Sen. Bill No. 1693 (1995–1996 Reg. Sess.) as amended Apr. 9, 1996;
    Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 1693 (1995-1996
    Reg. Sess.) as amended Aug. 28, 1996). (Evid. Code, §§ 452, subd. (c), 459, subd. (a);
    see Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 
    133 Cal.App.4th 26
    , 29.)
    39
    were legally inadequate, the proper remedy would be to remand the findings to the city
    council for the opportunity to cure any legal deficiency before imposing the refund
    remedy.
    Plaintiffs counter that the purpose of the statutory deadlines specified in sections
    66001 and 66006 is to ensure timely public accountings and findings. As such, plaintiffs
    point to the appellate court’s determination in Walker that “a refund is the statutorily
    mandated remedy” for noncompliance with section 66001(d). (Walker, supra, 239
    Cal.App.4th at p. 1367, capitalization omitted.) Plaintiffs urge this court to follow the
    reasoning of the Walker court, which after considering the statutory language and
    legislative history of the Act, concluded there was no support for a remand in light of the
    Mitigation Fee Act’s “clear mandate” to refund the unexpended fees. (Id. at p. 1369.)
    Having considered the statutory language and relevant legal authorities, we agree
    with Walker that a refund is the statutorily mandated remedy for failing to make required
    five-year findings under section 66001(d). (See Walker, supra, 239 Cal.App.4th at
    pp. 1367–1370.) While the City is correct that courts routinely interpret similar statutory
    deadlines as “directory” rather than “mandatory,” here the statute expressly specifies the
    remedy for an agency’s failure to make the required findings.
    As a general rule, “a ‘ “directory” or “mandatory” designation does not refer to
    whether a particular statutory requirement is “permissive” or “obligatory,” but instead
    simply denotes whether the failure to comply with a particular procedural step will or will
    not have the effect of invalidating the governmental action to which the procedural
    requirement relates.’ ” (California Correctional Peace Officers Assn. v. State Personnel
    Bd. (1995) 
    10 Cal.4th 1133
    , 1145 (California Correctional).) If noncompliance with a
    particular procedural step invalidates the governmental action, the requirement will be
    termed “ ‘mandatory’ ”; otherwise, “it is ‘directory’ only.” (Ibid.; see Edwards v. Steele
    (1979) 
    25 Cal.3d 406
    , 410 (Edwards).) As applied to time limits on government action,
    40
    “[t]ime limits are usually deemed to be directory unless the Legislature clearly expresses
    a contrary intent.” (California Correctional, at p. 1145.) One test applied by California
    courts in ascertaining what effect to give a statute’s timing requirement is whether “ ‘a
    consequence or penalty is provided for failure to do the act within the time
    commanded.’ ” (Edwards, at p. 410.) “Under this framework, ‘statutes setting forth time
    frames for government action that do not include a self-executing consequence are almost
    universally construed as directory, rather than mandatory or jurisdictional.’ ” (Tran v.
    County of Los Angeles (2022) 
    74 Cal.App.5th 154
    , 166 (Tran).)
    Applying those principles here, the Mitigation Fee Act provides that when five-
    year findings are required by section 66001(d)(1), they must be “made in connection with
    the public information required by” section 66006, subdivision (b). (§ 66001(d)(2).)
    That provision in turn directs that the local agency “shall” make certain information
    available to the public “within 180 days after the last day of each fiscal year.” (§ 66006,
    subd. (b)(1).) Together, these provisions establish a statutory timeline for a local agency
    to make the required five-year findings “within 180 days after the last day of each fiscal
    year.” (§§ 66006, subd. (b)(1), 66001(d)(2).) In establishing the 180-day deadline—a
    change enacted as part of the 1996 amendments to section 66001—the Legislature
    evinced an intent to require local agencies to comply with the statutory timeline, or be
    required to refund the unexpended fees in the fund or account. 12
    12
    Prior to establishment of the 180-day deadline, a local agency had 60 days after
    the close of the fiscal year to make public the specified information. (See Legis.
    Counsel’s Dig., Sen. Bill No. 1693 (1995-1996 Reg. Sess.) 6 Stats. 1996, ch. 569.)
    Legislative committee documents discussing the change acknowledge that the then-
    proposed amendments would increase the reporting duties of local agencies with respect
    to development fees but also extend the deadline to comply. (See, e.g., Sen. Rules Com.,
    Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1693 (1995-1996 Reg.
    Sess.) as amended May 7, 1996 [noting the bill expands the reporting requirements
    related to development fee funds, and that “[t]he additional information may take more
    time for local agencies to comply but this bill allows six months to complete the reporting
    41
    In the absence of a clear contrary intent, such a statutory time limit would
    typically be deemed directory. (California Correctional, supra, 10 Cal.4th at p. 1145;
    Edwards, supra, 25 Cal.3d at p. 410.) However, section 66001(d)(2) states that “[i]f the
    findings are not made as required by this subdivision, the local agency shall refund the
    moneys in the account or fund as provided in subdivision (e).”
    This provision unequivocally imposes a direct consequence for an agency’s failure
    to make five-year findings “as required by this subdivision.” (§ 66001(d)(2).) That
    consequence is to require the agency to refund the unexpended portion of the fees in the
    account or fund to the record owner(s) of the development project(s). (Id., subds. (d)(2),
    (e).) Thus, contrary to the City’s claim that there is no government “action” that is
    invalidated if it fails to make the required findings, the action being invalidated is the
    agency’s continued retention of the unexpended balance of the fees in the fund after
    having failed to make the required findings for that five-year period. Moreover, to the
    extent the consequence imposed by the statute for failure to make required five-year
    findings applies directly, without further statutory requirements, it is tantamount to a
    “ ‘self-executing consequence’ ” (Tran, supra, 74 Cal.App.5th at p. 166), and the City’s
    reference to “similar directory deadlines across all areas of state law” is unavailing.
    Nor do the distinguishable facts in Walker render it inapposite to our analysis here.
    As the City points out, Walker involved a longstanding “beach parking impact fee”
    (capitalization omitted) which the City of San Clemente continued to collect even after
    several beach parking studies confirmed that San Clemente had adequate beach parking.
    (Walker, supra, 239 Cal.App.4th at p. 1361.) The trial court entered judgment against
    San Clemente after a bench trial on the plaintiffs’ action for declaratory and mandamus
    relief and ordered the city to refund the unexpended beach parking impact fees based in
    part on its failure to make the required five-year findings. (Id. at p. 1362.)
    requirements”]; Sen. Housing & Land Use Com., com. on Sen. Bill No. 1693 (1995-1996
    Reg. Sess.) as amended Apr. 9, 1996 [same].)
    42
    On appeal, the Walker court agreed that the five-year findings were inadequate.
    (Walker, supra, 239 Cal.App.4th at p. 1367.) It furthermore rejected San Clemente’s
    argument that the trial court should have remanded the matter for the city “to make new
    findings correcting the ‘technical deficienc[ies]’ in the [] five-year findings rather than
    requiring the [c]ity to forfeit the unexpended impact fees that [it] properly had collected.”
    (Ibid.)
    The court explained that the language of section 66001(d) and related legislative
    history confirm that “the Legislature intended that a local agency must refund
    unexpended development fees if the agency fails to make the required five-year
    findings.” (Walker, supra, 239 Cal.App.4th at p. 1368.) The court reasoned that
    although case authority in other contexts might support remand for a government agency
    to correct deficient findings, that authority does not permit the court to “disregard” the
    Act’s “clear mandate” requiring the city “to make findings to support its quasi-legislative
    decision to retain the unexpended” fees and further “specif[ying] the remedy for the
    [c]ity’s failure to do so.” (Id. at p. 1369.)
    We recognize that Walker is factually distinguishable and that the instant situation
    does not mirror the extreme facts of that case, in which the local agency apparently had
    no intention of using the fees collected for their intended purpose. (Cf. Walker, supra,
    239 Cal.App.4th at pp. 1360–1361.) Even so, we reject the City’s contention that the
    decision in Walker was driven by those facts; instead, the statutory language and purpose
    dictated the court’s analysis of the statutory remedy.
    Here, like in Walker, the City has pointed to nothing in the statute’s language or
    purpose that would negate or mitigate the unambiguous refund provision. The City
    argues that the Act does not state that the five-year findings required by section 66001(d)
    have to be adopted “timely.” This ignores the language specifying “If the findings are
    not made as required by this subdivision, the local agency shall refund the moneys in the
    account or fund as provided in subdivision (e).” (§ 66001(d)(2), italics added.) Since the
    43
    findings required by subdivision (d) of section 66001 must be made “in connection with”
    (§ 66001(d)(2)) the annual public information on the 180-day timeline after the end of the
    fiscal year (§ 66006, subd. (b)(1)) and are intended to require any agency to regularly
    reexamine its basis for retaining the unexpended fees in the fund, we decide there is no
    statutory support to exempt untimely five-year findings from the refund remedy or
    authorize a remand to supplement untimely findings on that basis.
    It is undisputed that more than 180 days had elapsed between the fiscal year that
    ended on June 30, 2018, and the City’s May 2020 five-year findings. Therefore, those
    findings were untimely and noncompliant with the requirements of the subdivision.
    (§§ 66001(d)(2), 66006, subd. (b)(1).) We decide that the May 2020 five-year findings
    “ ‘ “failed to conform to procedures required by law” ’ ” (Walker, supra, 239 Cal.App.4th
    at p. 1362; American Coatings, 
    supra,
     54 Cal.4th at p. 461), rendering the unexpended
    portion of the parking fund subject to the refund provision of section 66001(d)(2).
    F. Harmless Error
    There remains the City’s argument that, notwithstanding any legal deficiency
    (including untimeliness) in the May 2020 five-year findings, a refund of the in-lieu
    parking fees is not appropriate under the so-called “harmless error” provision of the
    Government Code. (§ 65010(b).) The City contends that under section 65010(b), the
    court cannot invalidate the City’s action (or omission) based on its failure to make
    required findings under the Act unless plaintiffs demonstrate that (1) the error was
    prejudicial, (2) they suffered substantial injury from the error, and (3) a different result
    would have been probable had the error not occurred—a showing plaintiffs have not tried
    to make here. We disagree with the City and decide that, given the mandatory nature of
    the refund provision, the prejudice standard of section 65010(b) does not apply to section
    66001(d).
    Whether section 65010(b) applies to section 66001(d) is a question of law subject
    to our independent review. (Sierra Pacific, supra, 140 Cal.App.4th at p. 1505.) Section
    44
    65010 is “a general statutory directive to courts to apply the doctrine of harmless error to
    agency proceedings under title 7 of the Government Code.” (El Dorado, supra, 42
    Cal.App.5th at p. 629.) Title 7 of the Government Code has three divisions: “Planning
    and Zoning” (§ 65000 et seq.), “Subdivisions” (§ 66410 et seq.), and “Official Maps”
    (§ 66499.50 et seq.). (El Dorado, at p. 628.) The Planning and Zoning division of title 7
    contains 12 chapters, including chapter one (“General Provisions”) encompassing the
    harmless error provision (§ 65010(b)), and chapters six through nine encompassing the
    Mitigation Fee Act (§ 66000 et seq.). Structurally, the Mitigation Fee Act thus comes
    under the same title (title 7) and division (Division 1, Planning and Zoning), as section
    65010.
    Turning to the language of the statute, section 65010(b) provides that a court may
    not set aside or hold invalid the “action or inaction” of a public agency or its legislative
    body based on an error or omission in “any matter pertaining to . . . findings, . . . reports,
    recommendations, appeals, or any matters of procedure subject to this title, unless the
    court finds that the error was prejudicial and that the party complaining or appealing
    suffered substantial injury from that error and that a different result would have been
    probable if the error had not occurred.” In short, section 65010(b) requires a finding of
    “prejudice, substantial injury to the complaining party, and probability of a different
    result before a court can overturn the decision of an administrative agency based on
    procedural errors in zoning and planning matters.” (Environmental Defense Project of
    Sierra County v. County of Sierra (2008) 
    158 Cal.App.4th 877
    , 887 (Environmental
    Defense Project).)
    The City contends that by its express terms, section 65010 applies to findings and
    procedures under the Mitigation Fee Act, since the city council’s adoption of findings
    under the Act is a “ ‘matter[] of procedure subject to this title’ ” (title 7 of the
    Government Code). Plaintiffs maintain, however, that an action (as in this case) to
    enforce a statutorily imposed mandate to refund fees under section 66001(d), is not
    45
    subject to section 65010(b), which applies when a party seeks to “h[o]ld invalid or set
    aside” agency action on the ground of error as to a matter of procedure subject to title 7.
    (§ 65010(b), italics added.) Plaintiffs argue that “the relatively few cases which have
    applied [section] 65010(b), and its predecessor” (former § 65801) illustrate the limited
    scope of its application, which was intended to curtail judicial invalidation of zoning
    decisions for non-prejudicial, technical, or procedural errors. Plaintiffs further maintain
    that applying the harmless error standard in this context would defeat the statutory
    purpose behind the Legislature’s express specification in section 66001(d) of a refund
    remedy for failure to make five-year findings.
    In evaluating these arguments, we are guided by the standard principles of
    statutory interpretation. (See ante, pt. II.C.) “ ‘It is axiomatic that in the interpretation of
    a statute where the language is clear, its plain meaning should be followed.’ ” (Security
    Pacific National Bank v. Wozab (1990) 
    51 Cal.3d 991
    , 998.) Where two statutes are to
    be construed, “ ‘they “must be read together and so construed as to give effect, when
    possible, to all the provisions thereof.” ’ ” (Mejia, 
    supra,
     31 Cal.4th at p. 663.)
    “ ‘[E]very statute should be construed with reference to the whole system of law of which
    it is a part, so that all may be harmonized and have effect.’ ” (Ibid.)
    Applying these principles to our review of sections 65010(b) and 66001(d), we
    decide that section 65010(b) does not inject a prejudice standard into the refund
    determination under section 66001(d).
    Courts have generally described section 65010(b) (formerly section 65801) as “a
    ‘curative statute’ enacted by the Legislature for the purpose of ‘terminating [the]
    recurrence of judicial decisions which had invalidated local zoning proceedings for
    technical procedural omissions.’ ” (Rialto Citizens for Responsible Growth v. City of
    Rialto (2012) 
    208 Cal.App.4th 899
    , 921 (Rialto Citizens); El Dorado, supra, 42
    Cal.App.5th at p. 629; see Taschner v. City Council (1973) 
    31 Cal.App.3d 48
    , 62
    [describing the legislative objective of former § 65801 “to correct the notion . . . that any
    46
    minor deviation from the mode prescribed by the State Zoning Law is a jurisdictional
    error which is fatal to the zoning action”], disapproved on another ground by Associated
    Home Builders etc., Inc. v. City of Livermore (1976) 
    18 Cal.3d 582
    , 596, fn. 14.)
    Those reported cases that have applied section 65010(b) (and its predecessor,
    § 65801) have reflected this purpose in relation to planning and zoning law violations.
    (See, e.g., Rialto Citizens, supra, 208 Cal.App.4th at pp. 916–923 [assessing prejudice in
    relation to city’s defective compliance with requirements pertaining to general plan
    amendments and development agreement approvals]; Tran, supra, 74 Cal.App.5th at
    pp. 172–173 [applying § 65010(b) to board of supervisors’ untimely decision to impose
    limits on applicant’s conditional use permit]; Sounhein v. City of San Dimas (1992) 
    11 Cal.App.4th 1255
    , 1260 [deciding that city’s failure to provide notice and hearing
    procedures in connection with the adoption of a zoning ban on second unit accessory
    apartments was not harmless, given the flawed public process, rendering the ordinance
    void].)
    Other cases have declined to apply section 65010(b) where the remedy sought was
    inconsistent with the statutory scope of relief. Thus, the court in Environmental Defense
    reasoned that a plaintiff seeking declaratory relief on the proper interpretation of state
    zoning law did not need to prove prejudice, since section 65010(b) “applies only when a
    party is seeking to have a court set aside or declare invalid an ‘action, inaction, or
    recommendation.’ ” (Environmental Defense, supra, 158 Cal.App.4th at p. 887.)
    Similar reasoning applied in El Dorado—notably, the only reported decision
    addressing an attempt to invoke section 65010(b) in litigation seeking to enforce the
    Mitigation Fee Act’s refund remedy for failure to make five-year findings under section
    66001(d). In El Dorado, the appellate court recognized section 65010 as “a general
    statutory directive to courts to apply the doctrine of harmless error to agency proceedings
    under title 7 of the Government Code” but rejected its application to the action to recover
    unexpended development impact fees under section 66001. (El Dorado, supra, 42
    47
    Cal.App.5th at p. 629.) The El Dorado court reasoned that section 65010(b) “does not
    purport to require a litigant to plead harmless error in seeking relief when an agency fails
    to comply with an express statutory directive to make findings, such as in section 66001.”
    (Ibid.) The court also observed it is unclear how the requirement to establish prejudice
    under section 65010 comports with the refund mechanism of section 66001 “when it is
    the failure itself [to make the prescribed five year findings] that entitles the current owner
    to the refund without any further showing of injury.” (Ibid.)
    We agree with the court’s reasoning on this issue in El Dorado. It is apparent
    from section 65010(b)’s reference to “any matters of procedure subject to this title” that
    the harmless error standard applies broadly with respect to procedural matters subject to
    title 7 of the Government Code. The Mitigation Fee Act, which is situated within title 7,
    meets that general criterion.
    The language of section 65010(b), however, is more specific in that it refers to
    determinations of whether an “action, inaction, or recommendation by any public agency
    or its legislative body . . . on any matter subject to this title shall be held invalid or set
    aside by any court on the ground of . . . any error, irregularity, informality, neglect, or
    omission (hereafter, error) as to any matter pertaining to petitions, applications, notices,
    findings, records, hearings, reports, recommendations, appeals, or any matters of
    procedure subject to this title.” (§ 65010(b).) As we explained in our statute of
    limitations analysis (see ante, pt. II.D.), plaintiffs’ action here does not seek to hold
    invalid or set aside the City’s findings, or any other action by the City under the Act
    (apart from its continued retention of that portion of unexpended fees in the fund as of the
    required five-year findings). Rather, plaintiffs seek to enforce the refund requirement for
    the City’s failure to make the statutorily required five-year findings. We decline to
    interpret section 65010(b) more broadly than it is written and agree with plaintiffs that
    section 65010(b) is not applicable to the circumstances underlying this appeal.
    48
    Furthermore, applying the prejudice standard of section 65010(b) would be
    incongruous with the standard for a refund of unexpended impact fees under section
    66001(d). By the terms of the statute, a refund is the mandated remedy for an agency’s
    failure to make five-year findings when required. (Walker, supra, 239 Cal.App.4th at p.
    1367.) The refund mechanism is premised on agency noncompliance with statutory
    perquisites for the continued retention of the fees, not on any independent finding of
    prejudice or injury to the owner of the property whose fees have been retained. “When
    [five year] findings are required by this subdivision, they shall be made in connection
    with the public information required by subdivision (b) of [s]ection 66006. . . . If the
    findings are not made as required by this subdivision, the local agency shall refund the
    moneys in the account or fund as provided in subdivision (e).” (§ 66001(d)(2), italics
    added.) This language leaves no doubt of the Legislature’s intent to exact compliance
    with the five-year findings requirement by mandating a refund of the unexpended fees if
    the agency does not make the required findings. The if-then nature of the statutory
    mandate (if the agency fails to make the required findings, then it must refund the unused
    fees) is consistent with the manifest purpose of the statute “ ‘to guard against unjustified
    fee retention’ by a local agency.’ ” (Walker, at p. 1363.)
    We recognize that the prescribed remedy for an agency that has not made the
    required five-year findings to “refund the moneys in the account or fund” (§ 66001(d)(2))
    might be viewed as severe where the error or omission in making the required findings
    could be perceived as slight or emendable. However, such speculation about the
    preferred policy outcomes or possible mitigators goes beyond our role in interpreting the
    statutes. “ ‘This court has no power to rewrite the statute so as to make it conform to a
    presumed intention which is not expressed.’ ” (California Teachers Assn. v. Governing
    Bd. of Rialto Unified School Dist. (1997) 
    14 Cal.4th 627
    , 633.)
    Moreover, “[w]e will not interpret a statute in a way that frustrates its fundamental
    purpose.” (In re M.G. (2022) 
    86 Cal.App.5th 1004
    , 1010.) We agree with plaintiffs that
    49
    to interpret the findings required by section 65010(b) (namely, prejudicial error,
    substantial injury, and a different, probable result had the error not occurred) as
    applicable to a refund action under section 66001(d)(2) would frustrate the design and
    manifest purpose of the refund mechanism. By construing section 65010(b) more
    narrowly, we harmonize and give effect to each statute (Mejia, 
    supra,
     31 Cal.4th at
    p. 663) and give precedence to the more specific over general provision (id. at p. 666; see
    Code Civ. Proc., § 1859). Accordingly, we conclude that section 65010(b)’s general
    standard for invalidating or setting aside agency action (or inaction) for procedural error
    under the Planning and Zoning Law does not prevail over the refund remedy explicitly
    prescribed in section 66001(d)(2).
    G. Complaint Causes of Action
    Having decided that plaintiffs have established a statutory right to relief under the
    Mitigation Fee Act, we need not address their alternate ground for equitable relief based
    on principles of equitable restitution as set out in the third cause of action. 13 Regarding
    plaintiffs’ second cause of action for declaratory and injunctive relief, we conclude that
    plaintiffs have demonstrated an entitlement to declaratory and injunctive relief, with
    respect to the applicability of the Mitigation Fee Act to plaintiffs’ payment of in-lieu
    parking fees and to plaintiffs’ entitlement to a refund of those unexpended fees, pursuant
    to section 66001(d)(2).
    III. DISPOSITION
    The judgment is reversed. On remand, the trial court is directed to enter a new
    judgment (1) granting the mandate petition directing the City of Palo Alto to comply with
    the refund requirement as set forth in Government Code section 66001, subdivision
    13
    To the extent the request for equitable relief is duplicative of the relief sought in
    the mandate petition, and being that “restitution is a remedy and not a freestanding cause
    of action” (Reid v. City of San Diego (2018) 
    24 Cal.App.5th 343
    , 362), we direct the trial
    court to dismiss the third cause of action for equitable relief and restitution.
    50
    (d)(2), (2) granting the declaratory and injunctive relief cause of action regarding the
    application of Government Code section 66001, to the in-lieu parking fees paid by
    plaintiffs, 14 and (3) dismissing the equitable relief and restitution cause of action.
    Plaintiffs are entitled to recover their reasonable costs on appeal. (Cal. Rules of
    Court, rule 8.278(a)(5).)
    14
    The amount of unexpended fees in the parking fund attributable to plaintiffs
    (based on their December 2013 payment of in-lieu parking fees) and subject to the refund
    provision is not before us. We therefore leave determination of this amount to the trial
    court.
    51
    ______________________________________
    Danner, J.
    WE CONCUR:
    ____________________________________
    Bamattre-Manoukian, Acting P.J.
    ____________________________________
    Wilson, J.
    H049425
    Hamilton and High, LLC et al. v. City of Palo Alto et al.
    Trial Court:                               Santa Clara County Superior Court
    No. 20CV366967
    Trial Judge:                               Hon. Cynthia C. Lie
    Counsel for Plaintiffs and Appellants      David P. Lanferman
    Hamilton and High, LLC, The                Rutan & Tucker, LLP
    Keenan Family Trust and Charles J.
    Keenan:
    Counsel for Defendants and                 Rick W. Jarvis
    Respondents City of Palo Alto and          Jarvis Fay LLP
    City Council of the City of Palo Alto:     Molly Stump
    Terence Howzell
    Office of the City Attorney, City of Palo
    Alto
    H049425
    Hamilton and High, LLC et al. v. City of Palo Alto et al.