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Lawsuit Demands City Return $9.7M in Residents' Fees

Brian Malamud, a local tax attorney, files suit Thursday on behalf of property owners east of the 5 Freeway in San Clemente, saying the city never built beach parking, so residents deserve their money back.

About 5,200 property owners east of the 5 Freeway in San Clemente should get back the $1,500 they each paid in city fees, according to a lawsuit filed against the city Thursday.

The city never built the beach parking officials touted 15 years ago as necessary to support new development, and the money -- $9.7 million in resident fees retained by the city -- has been collecting interest in the city's beach parking fund.

Without the additional beach parking, keeping the money is tantamout to an "unwarranted, illegal and continuing violation of the Mitigation Fee Act," charges Brad Malamud, a local attorney suing the city on behalf of the affected residents.

The suit states the act was set up to allow cities to collect cash from new residents to offset the strain on public facilities caused by new development.

But, as the civil complaint against the city states, "the act imposes an obligation to refund to current property owners the collected impact fees if it turns out that, contrary to earlier expectations, the funds are determined to be surplus funds, not needed because the anticipated detrimental impact failed to materialize."

The suit cites several studies involving the Pier Bowl and North Beach -- where the city would have used the $9.7 million to build parking -- showing that no new parking was necessary.

Furthermore, because San Clemente is now built out and because the homes on which the fees were collected have been occupied for years, any need for new parking in the future wouldn't have anything to do with the homeowners who paid the fees in the first place.

"The nexus between the fund and new parking projects no longer exists," the complaint states.

, but City Attorney Jeff Goldfarb said in May that he read the law differently.

The city was actively working to develop a number of different beach parking projects to which the money was allocated, though none had come to fruition. This satisfies the requirements of the Mitigation Fee Act, Goldfarb said.

Related:

Correction: Because of a reporting error, the first name of the attorney was mistaken in an earlier version of this article. Patch regrets the error.

Tom Barnes August 16, 2012 at 03:37 PM
City Attorney Goldfarb's claim that the city is "actively" working to develop a number of different beach parking projects must be in reference to Resolution 94-55 passed by the City Council in 1994 when they acquired what is now known as the ECR lots by eminent domain. As I wrote in a Barnes-Eye View column, the Resolution clearly states as follows: "Resolution of the City Council of the city of San Clemente, California, determining the public necessity of the acquisition by eminent domain of certain real property located at 1832 North El Camino Real, to accommodate storm drain improvements and Public Parking.” Once again the City Council’s intention is clear that eminent domain is to be used for storm drains AND public parking. Storm drains were installed but somehow the public parking got lost in the shuffle. It is clear that the city needs to complete the parking on the ECR lots and then return the rest of the money to the taxpayers who paid it into the fund. For a more in depth analysis of this issue go to my Patch column of August 18, 2011, OPINION: "Is Ignoring Resolutions Good Public Policy?"
Adam Townsend August 16, 2012 at 04:11 PM
Here's the link to that article: http://sanclemente.patch.com/articles/opinion-is-ignoring-resolutions-good-public-policy
Adam Townsend August 16, 2012 at 09:43 PM
Here's Malamud's Beach Parking website he launched today: http://www.scbpif.com/
Marshamd August 17, 2012 at 06:36 AM
Is this fee charged to telega residents?
george gregory August 17, 2012 at 04:30 PM
unless council can miss direct or miss appropriate council won't spend it
Brad Malamud August 17, 2012 at 09:40 PM
Marshamd: The fee was charged for every home built in Talega.

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