In County of El Dorado v. Superior Court (Austin), ordered published November 26, 2019, the Third District Court of Appeal denied denied the county's petition for a writ reversing the trial court's decision overruling the county's demurrer. The plaintiffs sued the county to recover development impact fees under the Mitigation Fee Act (Gov. Code, § 66000 et seq.), which requires a public entity to make findings justifying the continued collection and retention of the fees within the prescribed period of five years, or else refund the unexpended portion fees to the current owner of the property. The county contended the suit was barred by the statute of limitations.
The appellate court agreed with the county that the one-year statute of limitations under Code of Civil Procedure section 340(a) applied, because the fee refund under the Act is in the nature of a penalty or forfeiture: It may be recovered regardless of whether the current property owner paid the fee, and thus applies regardless of whether the plaintiff suffered an injury. But the trial court correctly ruled that because the obligation to make the findings is ongoing, there is an ongoing severable wrong, and the statute of limitations runs at the time of the actionable breach. The statute of limitations therefore does not bar suit for refund of any payments made after the deadline without nexus findings within the period of limitation. Because the statute of limitations did not bar the action completely, the trial court properly overruled the statute of limitations.
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