Filed 5/15/19

                              CERTIFIED FOR PUBLICATION

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                         DIVISION FOUR


 BOATWORKS, LLC,
            Plaintiff and Appellant,
                                                    A151063, A151919
 v.
 CITY OF ALAMEDA et al.,                            (Alameda County
                                                    Super. Ct. No. RG14746654)
            Defendants and Appellants.


        The Mitigation Fee Act (Gov. Code, § 66000 et seq.)1 authorizes local agencies to
impose fees on a development project in order to defray the cost of public facilities
needed to serve the growth caused by the project, as long as the fees are reasonably
related to the burden caused by the development. (§§ 66000, subd. (b), 66001; see
Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 864-865 (Ehrlich); Shapell
Industries, Inc. v. Governing Board (1991) 1 Cal.App.4th 218, 234-235 (Shapell).)
        In 2014, the City of Alameda adopted an ordinance establishing fees it would
impose as a condition for approving future development. Boatworks brought this facial
challenge to the ordinance, alleging that the proposed fees for park facilities lack a
reasonable relationship to the burden of future development and hence violate the
Mitigation Fee Act.2 The trial court concluded the fees are excessive and constitute
invalid exactions in three respects: by imposing on new residents the purported cost of


        1
            All undesignated statutory references are to the Government Code.
        2
        The named defendants in this action are the City of Alameda and the City
Council for the City of Alameda. We shall refer to them collectively as the City.

                                               1
acquiring land for parks, although the City does not need to buy new parkland; by
including in its inventory of current parks two parks that were not yet open; and by
categorizing certain areas as parks rather than (less expensive) open space. The court
rejected the remainder of Boatworks’s specific challenges. It ordered the City to excise
and vacate the portions of the ordinance authorizing development impact fees for parks
and recreation.
       Both the City and Boatworks have appealed from the judgment. The City has also
appealed a post-judgment order awarding attorney fees. We have consolidated the two
appeals for purposes of decision. We conclude the trial court erred only in two respects:
in ruling the City could not treat certain areas as parks, and in the form of the remedy it
imposed.
                                     I.   BACKGROUND
       The City of Alameda includes land at Alameda Point formerly owned by the
United States Navy. After the Alameda Naval Air Station closed in 1997, the Navy
transferred the majority of the property to the City at no cost for civilian use. The City
plans to develop Alameda Point with residential units, commercial space, parks, and open
space. Other areas of the City also have the potential for new development.
       In 2014, the City updated its development fee ordinance, which had not changed
since 2001. In preparation, it commissioned from Willdan Financial Service the
“Development Impact Fee Update and Nexus Study” (the nexus study, or the study). The
purpose of the study was to analyze the development impact fees needed to support
development in the City through 2040, and the study became the basis for the fees the
City later authorized.
       To calculate new developments’ fair share of park facilities, the nexus study used
the “existing inventory approach,” which it explained “allocates costs based on the ratio
of existing facilities to demand from existing development,” with the goal that facilities
will expand at the same rate as the population expands, preserving the current standard
for park facilities. This was a multi-step process.



                                              2
       The study first made an inventory of the City’s park and recreational facilities,
which encompassed approximately 157 acres of parkland and 24 acres of open space. It
estimated the cost per acre for developing parkland and open space, setting the cost of
acquiring land for park facilities at $1,437,000 per acre and the cost of parkland
improvements and facilities at $529,800 per acre, for a total cost of almost $2 million per
acre for active-recreation parkland. Because open space is less intensively developed
than active-recreation parkland, the study assigned to open space acres only the cost of
acquiring the land, and treated each acre of open space as the equivalent of approximately
three-quarters of an acre of parkland.3 Based on these calculations, an inventory of
existing parkland and open space, and the City’s population in 2013, the study concluded
the existing standard was 2.4 acres of parkland per 1,000 residents.
       The nexus study then calculated the cost of additional facilities that would be
needed to maintain this standard. With the addition of 8,260 residents by 2040,4 an
additional 19.82 acres of improved parkland would be needed to maintain the existing
ratio of parkland to residents. At $2 million per acre, the study calculated a total cost of
$39 million for park facilities to accommodate new development, a number that
represents $28.5 million to acquire land for parks, plus $10.5 million to improve it.
Based on its assumption of the number of residents who would live in each new unit, the
study proposed a total park and recreation facilities fee per dwelling unit of $12,809 for
single family homes and $9,149 for multifamily homes.



       3
         To be precise, the cost of acquiring land was 73 percent of the total calculated
cost of $1,966,800 per acre for park facilities. Thus, the City’s 24.15 acres of open space
were treated as 17.63 acres (i.e., 73 percent of 24.15) for purposes of calculating the
City’s total park facilities. The City’s total acres of improved parkland were then
calculated as 175.14 (the sum of 157.51 acres of actual improved parkland and 17.63
equivalent improved acres).
       4
         This figure excluded development at Alameda Point, which was considered in a
separate section of the nexus study. Boatworks does not raise any challenges to impact
fees related to development at Alameda Point.


                                              3
       The nexus study stated that the City planned to use the park facilities fee revenue
to “purchase parkland or construct improvements to add to the system of park and
recreation facilities that serves new development.” It included a preliminary list of
planned park facilities, including the Alameda Point sports complex, Jean Sweeney Open
Space Park construction, and Estuary Park athletic fields and park construction. The total
project costs of those planned facilities was estimated to be $26.5 million, which would
be fully funded by the park facilities fee. Additional facilities would also need to be
identified to maintain the City’s existing parkland standard.
       The City adopted Ordinance No. 3098, the Development Impact Fee Ordinance,
on July 16, 2014 (the ordinance). The only component of the ordinance at issue here is
parks and recreation. Citing the nexus study, the ordinance included a finding that there
was a reasonable relationship between the need for new and improved park and
recreation facilities and the type of development on which the fee would be imposed,
since new residents would use parks and recreational facilities throughout the City, and
that current service levels would fall if additional facilities were not provided. The
ordinance set impact fees, of which $11,528 for single family homes or $9,149 for multi-
family units was attributable to parks and recreation fees. The amount for single family
homes is somewhat below the amount proposed in the nexus study, while the amount for
multi-family units is exactly what the study proposed.
       Boatworks brought a petition for writ of mandate and complaint for declaratory
and injunctive relief, alleging the nexus study inflated the amount of parkland fees
necessary to maintain the current level of service. The trial court agreed, finding the City
violated the Mitigation Fee Act in three respects: it authorized fees to pay for the value
of land the City already owned; its inventory of current parks—which established the
current standard for parkland—included parks that were not yet open; and the inventory
miscategorized three open space areas as parks. The court issued a writ of mandate
directing the City to excise and vacate the portions of the ordinance that authorized
development impact fees for parks and recreation.



                                             4
                                         II. DISCUSSION
   A. Legal Landscape
       The Mitigation Fee Act “was passed by the Legislature ‘in response to concerns
among developers that local agencies were imposing development fees for purposes
unrelated to development projects.’ ” (Ehrlich, supra, 12 Cal.4th at p. 864.) It
“embodies a statutory standard against which monetary exactions by local governments
subject to its provisions are measured.” (Id. at p. 865.) Section 66001 requires the
agency to “[i]dentify the purpose of the fee,” “[i]dentify the use to which the fee is to be
put,” “[d]etermine how there is a reasonable relationship between the fee’s use and the
type of development project on which the fee is imposed,” and “[d]etermine how there is
a reasonable relationship between the need for the public facility and the type of
development project on which the fee is imposed.” (§ 66001, subd. (a), italics added.)
       “While it is ‘only fair’ that the public at large should not be obliged to pay for the
increased burden on public facilities caused by new development, the converse is equally
reasonable: the developer must not be required to shoulder the entire burden of financing
public facilities for all future users. ‘[T]o impose the burden on one property owner to an
extent beyond his [or her] own use shifts the government’s burden unfairly to a private
party . . . .’ [Citation.] It follows that facilities fees are justified only to the extent that
they are limited to the cost of increased services made necessary by virtue of the
development. [Citations.] The [public agency] imposing the fee must therefore show
that a valid method was used for arriving at the fee in question, ‘one which established a
reasonable relationship between the fee charged and the burden posed by the
development.’ ” (Shapell, supra, 1 Cal.App.4th at pp. 234–235.) However, the figures
upon which the public agency relies will necessarily involve predictions regarding
population trends and future building costs, and they need not be exact. (Id. at p. 235.)
“As a practical matter it will not always be possible to fashion a precise accounting
allocating the costs, and consequent benefits, of particular building projects to particular
portions of the population. All that is required of the [agency] is that it demonstrate that



                                                 5
development contributes to the need for the facilities, and that its choices as to what will
adequately accommodate the [new population] are reasonably based.” (Id. at p. 239.)
       The adoption of development impact fees under the Mitigation Fee Act is a quasi-
legislative act, which we review under the standards of traditional mandate. (Garrick
Development Co. v. Hayward Unified School Dist. (1992) 3 Cal.App.4th 320, 328; Code
Civ. Proc., § 1085.) “We determine only whether the action taken was arbitrary,
capricious or entirely lacking in evidentiary support, or whether it failed to conform to
procedures required by law.” (Garrick Development Co., at p. 328; Warmington Old
Town Associates v. Tustin Unified School Dist. (2002) 101 Cal.App.4th 840, 861–862.)
“The action will be upheld if the City adequately considered all relevant factors and
demonstrated a rational connection between those factors, the choice made, and the
purposes of the enabling statute.” (Home Builders Assn. of Tulare/Kings Counties, Inc. v.
City of Lemoore (2010) 185 Cal.App.4th 554, 561 (City of Lemoore).)
       In a challenge to development fees, the public agency bears the initial burden of
producing evidence to show it used a valid method for imposing the fee in question. If it
meets this burden, the plaintiff must establish that the fee is invalid, that is, that its use or
the need for the public facility are not reasonably related to the development, or “the
amount of the fee bears no reasonable relationship to the cost of the public facility
attributable to the development.” (City of Lemoore, supra, 185 Cal.App.4th at p. 562.)
       On appeal, we review the agency’s decision independently and apply the same
standard of review as does the trial court. (Walker v. City of San Clemente (2015)
239 Cal.App.4th 1350, 1362.)
   B. The City’s Appeal
       1. Cost of Purchasing Land
       The City makes three substantive challenges to the trial court’s ruling. First, it
contends the trial court erred in concluding the park and recreation fee was based on the
need to purchase 19.82 acres of new parkland.
       As the City points out, the use of a methodology similar to the nexus study’s
“existing inventory” approach was approved in City of Lemoore. The city there relied on


                                                6
a report that proposed a community/recreation facility impact fee to fund the cost of
adding facilities that would maintain the current level of service as the city grew. It
calculated those fees “based on the existing ratio of community and recreation facility
asset value to population, the rationale being that the need for such facilities is based on
the size of the population to be served.” (City of Lemoore, supra, 185 Cal.App.4th at
p. 563.) The report took the amount the city had invested in existing recreational
facilities and divided that number by the current population to calculate a per capita cost,
then multiplied that cost by the population per unit of development type to calculate the
fee per unit. (Ibid.) The appellate court concluded that this “standard-based method” of
calculating fees was reasonable: “There is no question that increased population due to
new development will place additional burdens on the citywide community and
recreation facilities. Thus, to maintain a similar level of service to the population, new
facilities will be required. It is logical to not duplicate the existing facilities, but rather, to
expand the recreational opportunities. . . . Since the [new] facilities are intended for
citywide use, it is reasonable to base the fee on the existing ratio of community and
recreation facility asset value to population.” (Id. at p. 565, italics added.)
       The City argues the nexus study’s analysis is proper because it took essentially the
same approach as the study in City of Lemoore. The italicized language in the preceding
paragraph, taken in isolation, might support the City’s position. But the difference
between this case and City of Lemoore is that here, it is undisputed that the City already
possesses most of the land needed for new park and recreation facilities, and that some of
these facilities will be on land the City acquired from the Navy at no cost. Indeed, at the
trial below, counsel for the City conceded that, with the exception of a small amount of
land for Jean Sweeney Park, the City did not need to, and did not plan to, use the fees to
purchase new parkland; rather, it planned to use the fees to improve existing assets. Yet
almost three quarters of the impact fee for parks and recreation was justified by the
supposed costs of acquiring new land for parks ($28.5 million of the $39 million, per the
nexus study). The City is simply not in the same position as the City of Lemoore, where



                                                7
the community recreation fee calculation began with the amount the city had invested in
existing recreational facilities.
       The City argues that the trial court’s decision was erroneously based on a “literal
reading of [a] single inartful statement,” that is, the statement in the nexus study that to
accommodate new development at the current standard, “new development must fund the
purchase and improvement of 19.82 parkland acres, at a total cost of approximately
$40 million.” (Italics added.) The City acknowledges that it already owns most of the
land it intends to develop into new park and recreation facilities, but points to language in
the same chapter in the nexus study stating that it will use the park facilities fee revenue
“to purchase parkland or construct improvements to add to the system of park and
recreation facilities that serves new development.”
       The issue before us, however, is not whether the wording in the nexus study is
ambiguous, but whether the City has shown a reasonable relationship between the fee’s
use and the burden posed by new development. (§ 16001, subd. (a); Shapell, supra,
1 Cal.App.4th at p. 235.) We conclude that it has not.
       We are guided by a different portion of City of Lemoore. One of the fees
challenged there was a fire protection impact fee for the east side of the city. (City of
Lemoore, supra, 185 Cal.App.4th at p. 571.) The facilities and equipment needed to
serve future development were already in place, so the fees for that area were intended to
recover new development’s proportionate share of their cost. (Id. at pp. 571–572.) The
appellate court concluded these fees were invalid. It reasoned, “While a fee may be
imposed to cover costs attributable to increased demand for public facilities reasonably
related to the development project in order to (1) refurbish existing facilities to maintain
the existing level of service or (2) achieve an adopted level of service that is consistent
with the general plan [citation], the existing east side fire protection facilities are already
adequate to continue to provide the same level of service. In other words, the new
development will not burden the current facilities.” (Id. a p. 572, italics added.) In a
similar manner, the City here already owns the land it needs to develop most or all of the
proposed parks and recreational facilities. A calculation that is based on the cost of


                                               8
buying new land—untethered from whether the City actually plans to do so—is not
reasonably related to the burden posed by anticipated new development.
       The City’s position is that regardless of whether it needs to purchase new land to
fund new park facilities, it is entitled to take into account the value of the land under its
current park facilities in setting development impact fees. It argues, “It does not matter
whether the City uses fee proceeds to purchase new parkland, to improve existing
parkland, or to construct new recreational facilities. All that matters is that the City is
collecting a park and recreation fee calculated to match the City’s existing level of
investment in such facilities.” (Italics added.) That characterization goes too far. The
Development Fee Act allows the City to impose fees that have a reasonable relationship
to the burden posed by the development. (Shapell, supra, 1 Cal.App.4th at p. 235.) But a
fee based in significant part on costs the City will not incur, because it has already
acquired ample land at no cost, does not have a “reasonable relationship to the cost of the
public facility attributable to the development.” (City of Lemoore, supra,
185 Cal.App.4th at p. 562.) The trial court correctly so ruled.
       2. Inclusion of Current Parks in Inventory
       The City also argues the trial court erred in finding it improperly included in its
inventory of current parks two that were not currently open to the public. The nexus
report included Estuary Park in its inventory of existing parkland and Jean Sweeney
Open Space Park in its inventory of existing open space. These facilities were part of the
total acreage of parkland and open space that formed the basis for the existing parkland
standard, which was used to justify the parkland development impact fees. Without these
parks, the City’s calculated investment in park facilities would have been lower, and in
turn the impact fees would have been lower as well.
       The problem is that neither of these parks was open to the public when the City
adopted the ordinance. The City acknowledges that fact, but argues it was reasonable to
include them in its inventory of existing assets because it anticipated using them as parks
in the near future. However, the nexus study proposed using the development impact
fees for construction of Jean Sweeney Open Space Park and of Estuary Park and its


                                               9
athletic fields. Nothing the City says persuades us it is proper to use a park as part of
existing inventory for purposes of setting fees, then use those very fees to develop that
park.5
         We need not, and do not, decide whether or to what extent it would be permissible
for an inventory of existing parks to include planned parks whose improvement will not
be funded by development impact fees. We merely hold that this record does not show it
was reasonable to include Jean Sweeney Open Space Park and Estuary Park in the City’s
inventory of existing parkland.
         3. Open Space or Parks
         In its inventory of existing parks, the nexus study included Shoreline Park, Bill
Osborne Model Airplane Field, and two boat ramps. However, in previous documents
prepared by the City, notably the Parks and Recreation element of its General Plan, these
areas are included within “Community Open Space,” rather than “Neighborhood Parks”
or “Community Parks.” The City’s 1999 application to the National Park Service for a
public benefit conveyance of surplus federal real property also classified these properties
as community open space. The trial court ruled that the City violated the Mitigation Fee
Act in treating these areas as parks rather than open space, because there was no evidence
the City had a factual basis to classify these areas differently than it had when adopting
the General Plan. We conclude this ruling was erroneous.
         The nexus study explained, “Open space is less intensively developed than active
recreation parkland. As such, this analysis weights the value of open space less than that
of active parkland when calculating park level of service facility standards.” Specifically,
the study treated an acre of open space as worth 73 percent of an acre of parkland. Thus,
the cost of providing facilities at the current standard was greater if the areas in question
were treated as parks than if they were treated as open space.


         5
         The City now concedes that Estuary Park was not an improved park at the time
of the nexus study, and takes the position that it should have been treated as open space
rather than parkland, but this concession does not go far enough because Estuary Park
was not open to the public, even as open space, in 2013.

                                              10
       The parties have drawn our attention to nothing in the nexus study or any other
part of the administrative record that sets forth explicitly why the nexus study categorized
these areas differently than did the general plan, but a basis is discernible from the record.
The nexus study shows that the value assigned to open space—73 percent of the value of
improved parkland—represented solely the cost of land acquisition, not the cost of
adding any improvements. The study explains that “ ‘standard park improvements’ ”
include “site improvements (curbs, gutters, water, sewer, and electrical access), plus basic
park and field amenities such as outdoor ball courts, restrooms, parking, basic play
equipment, irrigation, turf, open green space, pedestrian paths, and picnic tables.” One of
Boatworks’s trial exhibits, the City’s Parks Improvement Assessment, shows that
Shoreline Park has some of these improvements, such as benches, picnic areas, rest
rooms, play areas, lighting, and an exercise path, and the model airplane field has two
dedicated flying circles, picnic areas, work benches, and fencing. The 1999 application
for surplus land indicates these boat launches, model airplane park, and Shoreline Park
are developed, rather than undeveloped, open space. Thus, the record indicates the value
of these facilities exceeds the cost of the land.
       Boatworks relies on cases decided in other contexts indicating that if a public
entity changes its view, it must explain its rationale. (See, e.g., Motor Vehicle Mfrs.
Assn., Inc. v. State Farm Mut. (1983) 463 U.S. 29, 33–34, 57 (State Farm) [rescission of
automobile passive restraint standards arbitrary and capricious where agency failed to
present adequate basis and explanation for action]; National Assn. of State Util.
Consumer Advocates v. FCC (11th Cir. 2006) 457 F.3d 1238, 1253 (National Assn.)
[wireless carrier billing practices; unexplained inconsistency in agency’s interpretation of
statute is “ ‘arbitrary and capricious change from agency practice’ ”].) But the purpose of
this portion of the nexus study was different from that of the general plan—that is, its
purpose was to determine the cost of developing park and recreation facilities. It would
have been preferable for the City to explain why it treated certain “Community Open
Space” areas as parkland in its cost analysis. But on this record, we cannot conclude its



                                              11
methodology on this point was “arbitrary, capricious or entirely lacking in evidentiary
support.” (See Garrick, supra, 3 Cal.App.4th at p. 328.)
   C. Boatworks’s Cross-Appeal
       1. Existing Deficiencies in Park Facilities
       In its cross-appeal, Boatworks raises two additional challenges. First, it contends
the trial court erred in rejecting its argument that the development impact fees are
improperly designed to remedy existing deficiencies in park facilities.
       Section 66001, subdivision (g) provides: “A fee shall not include the costs
attributable to existing deficiencies in public facilities, but may include the costs
attributable to the increased demand for public facilities reasonably related to the
development project in order to (1) refurbish existing facilities to maintain the existing
level of service or (2) achieve an adopted level of service that is consistent with the
general plan.” Boatworks points out that the City had previously identified,
longstanding, deficiencies in park service to some areas of the city and an inadequate
supply of athletic fields; because the City intends to use the fees to correct those
deficiencies, Boatworks argues, they violate the Mitigation Fee Act.6
       We are unpersuaded. In adding subdivision (g) of section 66001, the Legislature
declared its intent to codify the holdings of Bixel Association v. City of Los Angeles
(1989) 216 Cal.App.3d 1208 (Bixel); Rohn v. City of Visalia (1989) 214 Cal.App.3d 1463
(Rohn); and Shapell, supra, 1 Cal.App.4th 218. (Stats. 2006, ch. 194, § 2, p. 1940.) In
Bixel, the appellate court considered a challenge to fire hydrant fees imposed as a
condition of issuing a building permit, and concluded the fees were invalid because there
were no safeguards limiting their use to the burden of new development; in particular, the
city planned to attribute the cost of replacing a 97-year-old water main to the applicant’s
project, although the water main should have been replaced 47 years previously. (Bixel,


       6
         The parties disagree about whether it is proper for us to consider evidence of
these pre-existing deficiencies, which is not contained in the administrative record, and
whether the City forfeited its challenge to the evidence. But the admissibility of this
evidence is not crucial to our decision and we need not decide that issue.

                                              12
at p. 1220.) The court in Rohn concluded that a city could not properly condition
approval of a development on dedication of 14 percent of its land for realignment of an
intersection because the record showed the change in the use of the property would not
impose a significant traffic burden, and the dedication was merely a means of
implementing long-planned traffic improvements. (Rohn, at p. 1476.) And in Shapell,
the court concluded a school district could not properly impose on new development the
full cost of new schools, rather than allocating the amount of increased enrollment that
was attributable to the new development. (Shapell, at pp. 234–239.) The court noted,
however, that the fees could properly be used to refurbish old facilities to maintain a
similar level of service. (Id. at p. 239.)
       Thus, in each of the cases cited by the Legislature in enacting subdivision (g) of
section 66001, there was no nexus between the fees imposed and the burden of the new
development. We have already concluded that, in two respects, the City failed to
establish a reasonable relationship between the fee charged and the burden of new
development. To the extent Boatworks’s argument is that fees must have such a
relationship to the burdens of new development, we agree.
       However, Boatworks appears to go further and argue the fees may not be applied
to address any existing problems with park facilities. Taken to its logical conclusion, this
argument would mean that a city could not impose development impact fees if there is
any shortfall in its current facilities, because the effect of using the fees would necessarily
be to ameliorate the shortfall. We do not read the statute so broadly as to prohibit the city
from imposing fees to maintain its current level of service. The new residents will use
not only the new parks and fields, but all of the existing park facilities, which they did not
pay to build. At the same time, they will increase the demand on the City’s parklands; to
the extent the new athletic fields and other facilities are necessary to maintain the existing
level of service, the cost of building them is attributable not “to existing deficiencies in
public facilities” (§ 66001, subd. (g)), but rather to the increased demand from new
residents.



                                              13
       Nor is the City limited to its current offering and proportions of types of facilities;
as explained in City of Lemoore, “There is no question that increased population due to
new development will place additional burdens on the citywide community and
recreation facilities. Thus, to maintain a similar level of service to the population, new
facilities will be required. It is logical to not duplicate the existing facilities, but rather, to
expand the recreational opportunities.” (City of Lemoore, supra, 185 Cal.App.4th at
p. 565.) As long as the fees are otherwise proper, the City may use them to meet needs it
had already identified.
       2. Allocation of Cost of Alameda Point Sports Complex
       In 2001, the City prepared a development fee nexus study that planned for a list of
21 proposed parks and recreation improvements, including a sports complex at Alameda
Point. The 2001 study determined that new development should be responsible for 8.1
percent of the cost of these improvements. It explained, “The allocation of costs is based
on new development’s share of total population at buildout, which equals 8 percent.”
       The 2014 nexus study upon which the City relied in setting the fees at issue here
took a different approach. It contained a list of eight “Preliminary Planned Park
Facilities” that the development impact fees would fully fund. That list included the
Alameda Point Sports Complex. The study explained that $10 million of its cost was
allocated to the citywide impact fee and $10 million to the Alameda Point impact fees.
Citing State Farm, supra, 463 U.S. 29 and National Assn., supra, 457 F.3d at p. 1253,
Boatworks contends the City was required to explain why it allocated the cost of the
sports complex differently in the two nexus studies.
       We are unpersuaded. City of Lemoore establishes that a city may use development
impact fees to expand its recreational opportunities, and need identify the public
improvements only generally. (City of Lemoore, supra, 185 Cal.App.4th at p. 565.) As
long as fees are properly calculated and imposed, we can think of no reason that the City
should be confined to contemplating the same plan for new facilities in 2014 as it did in
2001 or that it should be required to allocate the fees to the same projects in the same
amounts.


                                                14
   D. Remedy
       Having concluded that, in two respects, the trial court was correct in finding the
City did not show an adequate basis for its fees, we now come to the remedy. The trial
court issued a peremptory writ of mandamus directing the City to “comply with the
December 1, 2016 Order of this Court . . . by excising and vacating those portions of
CITY Ordinance No. 3098 (Citywide Development Impact Fees) that concern or purport
to authorize development impact fees for parks and recreation[].”
       The City contends the trial court lacked jurisdiction to compel it to perform the
legislative act of vacating and excising portions of the ordinance. We agree that the
correct resolution is to declare the ordinance void or invalid to the extent it sets the parks
and recreation fees, rather than directing the City to perform a legislative act.
       “ ‘Generally, a court is without power to interfere with a purely legislative action,
in the sense that it may not command or prohibit legislative acts, whether the act
contemplated or done be at the state level [citation] or at the local level [citation]. The
reason for this is a fundamental one—it would violate the basic constitutional concept of
separation of powers among the three coequal branches of the government.’ ” (City of
Palo Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271, 1310 (City of
Palo Alto); see Board of Supervisors v. California Highway Commission (1976)
57 Cal.App.3d 952, 961 [“Mandamus will not lie to compel a legislative body to perform
legislative acts in a particular manner”]; see also Butt v. State of California (1992)
4 Cal.4th 668, 695-696 [“principles of comity and separation of powers place significant
restraints on courts’ authority to order or ratify acts normally committed to the discretion
of other branches or officials,” and “[a] court should always strive for the least disruptive
remedy adequate to its legitimate task”].) In City of Palo Alto, the California Public
Employment Relations Board directed a city council to rescind a resolution proposing a
ballot measure to repeal binding arbitration, because it had failed to comply with a
statutory requirement that it first consult with the board. (City of Palo Alto, at pp. 1278–
1279.) The appellate court concluded the doctrine of separation of powers barred the
board from ordering the city council to rescind a resolution, stating, “If a passed


                                              15
resolution is legislative in nature, it necessarily follows that rescinding the resolution is
similarly legislative in nature.” (Id. at p. 1313.) However, “ ‘undoing’ the erroneously
passed legislation can be accomplished by means that are not offensive to the separation
of powers doctrine,” for instance by declaring legislation void or invalidating it. (Id. at
p. 1315.)
       Based on these principles, we conclude the court may not direct the City to carry
out the legislative act of rescinding an ordinance, when the less invasive remedy of
invaliding or voiding the ordinance, to the extent it violates the law, is available. On
remand, the trial court shall issue a judgment declaring the parks and recreation fee as
imposed invalid and unenforceable. The City, of course, retains discretion to impose fees
that are consistent with the Mitigation Fee Act and the views expressed in this opinion.
   E. Attorney Fees
       After trial, Boatworks moved for attorney fees pursuant to Code of Civil
Procedure section 1021.5, which authorizes an award of attorney fees to a successful
party “in any action which has resulted in the enforcement of an important right affecting
the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has
been conferred on the general public or a large class of persons, (b) the necessity and
financial burden of private enforcement, or of enforcement by one public entity against
another public entity, are such as to make the award appropriate, and (c) such fees should
not in the interest of justice be paid out of the recovery, if any.” The trial court granted
the motion and awarded attorney fees of $558,052.50 against the City. The City contends
Boatworks is not entitled to these fees.
       “ ‘Under the private burden prong of section 1021.5, fees are recoverable “ ‘when
the cost of the claimant’s legal victory transcends his personal interest, that is, when the
necessity for pursuing the lawsuit placed a burden on the plaintiff “out of proportion to
his individual stake in the matter.” ’ ” [Citation.] “If the enforcement of the public
interest is merely ‘coincidental to the attainment of . . . personal goals’ [citation] or is
‘self-serving,’ [citation], then this requirement is not met.’ [Citation.]” Stated otherwise,
‘The private attorney general doctrine . . . was not intended to reward litigants motivated


                                               16
by their own pecuniary interests who only coincidentally protect the public interest.’ ”
(Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1348.) We review an
attorney fee award under Code of Civil Procedure section 1021.5 for abuse of discretion.
“ ‘ “Whether the statutory requirements have been satisfied so as to justify a fee award is
a question committed to the [sound] discretion of the trial court, unless the question turns
on statutory construction, which we review de novo.” ’ ” (Heron Bay Homeowners Assn.
v. City of San Leandro (2018) 19 Cal.App.5th 376, 386 (Heron Bay).)
       We have concluded that the trial court erred in two respects only, that is, in
concluding the City could not permissibly treat Shoreline Park, the model airplane field,
and the two boat ramps as parkland rather than open space, and in fashioning its remedy.
The City argues that if we reverse the judgment below, we must also reverse the attorney
fee award, because it “ ‘falls with a reversal of the judgment on which it is based.’ ”
(California Grocers Assn. v. Bank of America (1994) 22 Cal.App.4th 205, 220.) But
where, as here, there is a limited reversal, we remand for the trial court to consider anew
the propriety of attorney fees unless we can say with certainty the court would have
exercised its discretion the same way had the successful party not prevailed on the issue
on which we reverse. (Ventas Finance I, LLC v. Franchise Tax Bd. (2008)
165 Cal.App.4th 1207, 1233–1235; see Zagami, Inc. v. James A. Crone, Inc. (2008)
160 Cal.App.4th 1083, 1097.) Here, the substantive issue on which we reverse affects
only a minor part of the proposed development impact fees. The trial court referred to
the potential fees relating to the City’s miscategorization of open space as “not a large
dollar item.” We see no likelihood the trial court would have exercised its discretion
differently in the absence of this error. We shall therefore consider the merits of the
City’s challenge to the fee award.
       The City does not dispute that Boatworks was a successful party, and there is no
monetary recovery from which attorney fees could be paid. (See Code Civ. Proc.,
§ 1021.5.) The City disputes that a significant benefit has been conferred on the general
public or a large class of persons and that the necessity and financial burden of private
enforcement make the award appropriate. (Ibid.)


                                             17
       In our view, the trial court could reasonably conclude the litigation conferred a
significant benefit on the general public or a large class of persons. The Mitigation Fee
Act was enacted to respond to concerns that local agencies were imposing fees “ ‘for
purposes unrelated to development projects.’ ” (Ehrlich, supra, 12 Cal.4th at p. 864.)
The public has an interest in public agencies complying with this legislative objective.
(See Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 939
[significant benefit may be found in effectuation of fundamental statutory policy]; Keep
Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714, 737; see
also Environmental Protection Information Center v. Department of Forestry & Fire
Protection (2010) 190 Cal.App.4th 217, 235 [litigation conferred significant benefit
where it required resubmitted sustained yield plan that would more accurately analyze
impacts of proposed project]; Folsom v. Butte County Assn. of Governments (1982)
32 Cal.3d 668, 684 [attorney fees proper where plaintiff vindicated legislative intent in
action that redirected funds to purpose for which they were designated].)
       There is also evidence from which the court could conclude a large class of
persons will benefit from the decision. The development impact fees are intended to
apply to all development anticipated from 2014 through 2040. The portion of the fees
attributable to parks and recreation amounts to $11,528 for single family homes and
$9,149 for multi-family units, and Boatworks provided expert evidence that in a high-
priced market such as the Bay Area, home builders are able to pass on to the buyer most
or all of the cost of increased development impact fees. The evidence supports a
conclusion that the litigation will provide a benefit to developers and buyers of an
estimated 4,600 homes over the course of more than 25 years.
       The record is also sufficient to support a conclusion that the necessity and burden
of private enforcement make the award appropriate. This requirement “ ‘ “really
examines two issues: whether private enforcement was necessary and whether the
financial burden of private enforcement warrants subsidizing the successful party’s
attorneys.” ’ ” (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214–1215.) In this



                                            18
action against the public entity that is responsible for setting development impact fees,
the need for private enforcement is clear. (See id. at p. 1215.)
       In considering the second prong of this inquiry, financial burden on litigants,
courts focus “not only on the costs of the litigation but also any offsetting financial
benefits that the litigation yields or reasonably could have been expected to yield.”
(Conservatorship of Whitley, supra, 50 Cal.4th at p. 1215.) Financial incentives may
exist even where—as here—the plaintiff seeks no monetary award in the litigation.
(Summit Media, LLC v. City of Los Angeles (2015) 240 Cal.App.4th 171, 181, 192–194
[affirming denial of attorney fees where plaintiff company had significant financial stake
in challenging validity of settlement agreement between its competitors and a city].) To
weigh the costs and benefits, “[t]he trial court must first fix—or at least estimate—the
monetary value of the benefits obtained by the successful litigants themselves. . . . Once
the court is able to put some kind of number on the gains actually attained it must
discount these total benefits by some estimate of the probability of success at the time the
vital litigation decisions were made which eventually produced the successful outcome.”
(Los Angeles Police Protective League v. City of Los Angeles (1986) 188 Cal.App.3d 1,
9.) After approximating an estimated value of the case, the court then determines the cost
of the litigation. (Id. at pp. 9-10.) Finally, the court “place[s] the estimated value of the
case beside the actual cost and make[s] the value judgment whether it is desirable to offer
the bounty of a court-awarded fee in order to encourage litigation of the sort involved in
this case . . . . [A] bounty will be appropriate except where the expected value of the
litigant’s own monetary award exceeds by a substantial margin the actual litigation
costs.” (Id. at p. 10; accord Conservatorship of Whitley, supra, 50 Cal.4th at p. 1216.)
       Boatworks owns property in the City that it, or the previous owner of the property,
has been seeking to develop since at least 2005. The most recent application is for a 182-
unit residential housing project.7 If the City approves the project, Boatworks would be

       7
        The City rejected that application in 2016, and it is currently the subject of a
separate lawsuit. We have previously considered an appeal related to that lawsuit.
(Boatworks v. City of Alameda, et al. (Mar. 5, 2019, A150276) [nonpub. opn.].)

                                              19
liable for park impact fees of approximately $1.6 million. Boatworks submitted evidence
that it made multiple applications to develop the property, to no avail, and that at the time
it began this litigation, it estimated there was no more than a 50 percent chance the City
would ever approve any economically viable project on the property. Its attorney
submitted a declaration stating that at the time this litigation was filed—before he
received evidence from the City during discovery—he estimated the likelihood of success
in this litigation was also 50 percent.
       Based on this evidence, the trial court could reasonably approximate the estimated
value of the case as being lower than the $558,052.50 in attorney fees. Any financial
benefit Boatworks might receive is “at least once removed from the results of the
litigation,” because the ruling did not ensure Boatworks would receive the financial
benefit of any reduction in the fees. (Heron Bay, supra, 19 Cal.App.5th at p. 395; see
Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997)
60 Cal.App.4th 1109, 1127–1128 [no abuse of discretion in awarding fees where
petitioners received no direct pecuniary benefit from judgment and “any future money
advantage for petitioners is speculative”].) “Where personal benefits are a step removed
from the results of the litigation, the potential financial benefit is indirect and speculative,
and thus, a trial court does not abuse its discretion in concluding that the financial burden
criterion is satisfied for purposes of [Code of Civil Procedure] section 1021.5.” (People
v. Investco Management & Development LLC (2018) 22 Cal.App.5th 443, 470.) It would
not be unreasonable for the court to discount Boatworks’s financial interest in the case
based on both the fact that any financial benefit was speculative (since no project had yet
been approved and there was no certainty Boatworks would ever be liable for
development impact fees) and the fact that success in this litigation was uncertain at the
time it was filed. Weighing these risks, the expected value of the litigation at filing
would be $400,000 ($1.6 million x 0.5 x 0.5). Moreover, this likely overstated the
financial benefit to Boatworks of the judgment in its favor because the City will
presumably react to our decision by adopting a new impact fee for park facilities that



                                              20
complies with the Mitigation Fee Act and that Boatworks will have to pay if its project is
ever developed.
       The City argues that Boatworks failed to show that the litigation imposed a burden
on it out of proportion to its financial interest. (See Save Oxnard Shores v. California
Coastal Com. (1986) 179 Cal.App.3d 140, 154.) The City discusses at length the history
of the disputes between the parties, and contends Boatworks brought this action at least in
part to gain an advantage in its negotiations with the City. It points out that Boatworks
offered to dismiss this litigation and waive all future challenges to the City’s
development fees in exchange for the City’s agreement to expedite processing of a
revised tentative map for Boatworks’s property, pay $480,00 in fee credits, and cooperate
with Boatworks’s efforts to get an additional $4 million in redevelopment funding from
the State. The City contends this action is merely one part of Boatworks’s overall
litigation strategy and that its financial value to Boatworks cannot be considered in
isolation. And, the City argues, because Boatworks provided no evidence of the financial
value of its disputes with the City as a whole, it did not meet its burden to show it is
entitled to attorney fees under Code of Civil Procedure section 1021.5.
       On this record, the facts the City cites do not compel reversal. The global
settlement discussions led nowhere, and any settlement leverage this litigation provided
was limited by the economic value of this particular dispute. The trial court did not abuse
its discretion in deciding to ignore the potential value of all of Boatworks’s disputes with
the City before awarding attorney fees.
                                    III.    DISPOSITION
       The judgment is reversed to the extent it (1) finds the City could not properly
include Shoreline Park, Bill Osborne Model Airplane Field and the two boat ramps in its
inventory of parks and (2) directs the City to excise and vacate portions of Ordinance
No. 3098 that concern or purport to authorize development fees for parks and recreation.
On remand, the trial court shall issue a judgment declaring the Ordinance’s parks and
recreation fee invalid and unenforceable. The judgment is otherwise affirmed. The
matter is remanded to the trial court for further proceedings consistent with this opinion.


                                             21
The April 20, 2017 order awarding attorney fees is affirmed.
The parties shall bear their own costs on appeal.




                                     22
                                                                  _________________________
                                                                  TUCHER, J.


WE CONCUR:


_________________________
POLLAK, P. J.


_________________________
STREETER, J.




Boatworks, LLC v. City of Alameda et al (A151063, A151919)




                                                             23
Trial Court:               Alameda County Superior Court

Trial Judge:               Hon. Frank Roesch

Counsel for Appellants:    Jarvis, Fay, Doporto & Gibson, Rick Jarvis; and
                           Janet C. Kern, City Attorney; Alan M. Cohen,
                           Assistant City Attorney

Counsel for Respondents:   Thomas D. Roth




                             24
