MARY INC v. COMMUNITY DEVELOPMENT COMMISSION OF CITY OF OCEANSIDE

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Court of Appeal, Fourth District, Division 1, California.

MARY J., INC., Petitioner and Appellant, v. COMMUNITY DEVELOPMENT COMMISSION OF the CITY OF OCEANSIDE, Respondent.

No. D009876.

Decided: June 15, 1990

Steven J. Coté, Timothy A. Kuncz and Gattis & Coté, San Diego, for petitioner and appellant. Oceanside City Atty. Charles R. Revlett, Kane, Ballmer & Berkman, Bruce D. Ballmer, John W. Belsher and R. Bruce Tepper, Jr., Los Angeles, for respondent.

INTRODUCTION

In this case the operator of a dry cleaning service was compelled to move its business because of redevelopment activity.   The dry cleaner applied to the local redevelopment commission for relocation assistance under the provisions of the California Relocation Assistance Law (CRAL), Government Code 1 section 7260 et seq.   In particular the dry cleaner asked to be reimbursed for the entire cost of new machinery it purchased because building codes and environmental regulations made it impractical to move its existing equipment.

The redevelopment commission denied the dry cleaner's claim for full reimbursement.   Instead, the commission deducted 39 percent from the total cost of the dry cleaner's new equipment.   The agency based this deduction on its determination the new equipment, taken as a whole, was substantially more valuable than the dry cleaner's old equipment.

In denying the dry cleaner's petition for a writ of mandate, the trial court found the commission's deduction was supported by substantial evidence.

As we explain in greater detail below, in reviewing the commission's determination the trial court erred in failing to exercise its independent judgment.   Nonetheless we find the commission had the power to limit reimbursement to an amount equivalent to the value of the dry cleaner's old equipment.   Accordingly we remand to the trial court so that, under the appropriate standard of review, it may determine whether the commission's award was appropriate.

FACTUAL AND PROCEDURAL BACKGROUND

Prior to January, 1987, Mary J., Inc., doing business as Carol's Cleaners (Carol's Cleaners), operated its dry cleaning business at 306 North Hill Street in Oceanside.   As a result of redevelopment activity being conducted by the Community Development Commission of the City of Oceanside (Commission), Carol's Cleaners was required to move its business.   Accordingly it became eligible for CRAL assistance. (§ 7262, subd. (a).)

On January 27, 1987, the Commission approved Carol's Cleaners's application to move its dry cleaning business one block to 208–212 North Hill Street.

On February 9, 1987, Lionel Bogut, a dry cleaning equipment expert retained by the Commission, reported to the Commission that a number of pieces of equipment used at Carol's Cleaners could be replaced at less cost than they could be moved.   Bogut based his determination on the fact the existing equipment did not meet current safety and environmental regulations and his estimate of the cost of bringing the equipment “up to code.”   Bogut estimated the cost of the new equipment would be $60,608.

However when Carol's Cleaners solicited bids for equipment which would replace the items Bogut had suggested could not be moved, the lowest acceptable bid was $126,017.   Shortly thereafter Carol's Cleaners accepted the low bid and applied to the Commission for full reimbursement of the bid price.

On May 7, 1987, Port & Flor, Inc., the Commission's relocation expert, recommemded that, with minor modifications, the $126,017 bid be accepted as part of the total relocation budget for Carol's Cleaners.

However on May 27, 1987, the Oceanside City Attorney acting on behalf of the Commission, conveyed the Commission's offer to pay Carol's Cleaners the amount of the equipment bid less 39 percent for depreciation.

Following Carol's Cleaners's request for an informal review, on June 22, 1987, the Oceanside City Manager again determined that the amount of the equipment bid would be reduced by 39 percent.   According to the city manager, “The depreciation amount of 39% was calculated based on the difference between the value of all new equipment and the value of all the prior equipment with a value in place.”

Pursuant to Commission regulations, Carol's Cleaners filed an appeal with the Oceanside Relocation Appeals Board.   Among other issues, Carol's Cleaners asked the board to determine whether the Commission had the power to depreciate the new equipment.

Following three days of hearings, the Oceanside Relocation Appeals Board upheld the Commission's decision to depreciate Carol's Cleaners's new equipment.   On July 12, 1988, the Commission adopted the board's findings and recommendations.

On September 26, 1988, Carol's Cleaners filed a petition for a writ of mandate under the provisions of Code of Civil Procedure section 1094.5.   In its petition and in its supporting memorandum, Carol's Cleaners challenged both the Commission's power to depreciate the amount of its expenses and the factual basis for doing so.

On December 16, 1988, the trial court found the Commission's decision was supported by substantial evidence and denied Carol's Cleaners's petition.   Carol's Cleaners filed a timely notice of appeal.

ISSUES ON APPEAL

On appeal Carol's Cleaners argues the trial court erred in applying the substantial evidence test to the Commission's findings.   Carol's Cleaners believes the trial court should have exercised its independent judgment.

As it did below Carol's Cleaners also argues the applicable state relocation regulations do not permit the Commission to depreciate the value of new equipment.

DISCUSSION

IStandard of ReviewA. The Trial Court Applied the Substantial Evidence Test

 When the finding of a public agency is challenged by way of a petition for a writ of mandate under Code of Civil Procedure section 1094.5, the agency's finding is subject to review under either one of two standards.   If the finding is reviewed under the “substantial evidence” test, the court may not substitute its judgment for the agency's and must deny the writ if there is substantial evidence in the record to support the agency's findings.  (Code Civ.Proc., § 1094.5, subd. (c).)  Under the “independent judgment” test the trial court may deny the writ only if it believes the agency's determination is supported by the weight of the evidence.  (Ibid.)

In this case Carol's Cleaners believes the trial court applied the substantial evidence test;  the Commission on the other hand argues the trial court applied both standards.   This dispute stems largely from the following exchange which occurred at the close of the hearing on Carol's Cleaners's motion:  “MR. COTÉ [counsel for Carol's Cleaners]:  ․  Did the court base its decision on the substantial evidence or did it make an independent judgment?   [¶] THE COURT:  No, substantial evidence.”   Counsel for the Commission then attempted to clarify the trial court's statement;  counsel's attempt resulted in this exchange:  “MR. BELSHER [counsel for the Commission]:  In the tentative did it say on the weight of the evidence that the court makes the finding that would, would be independent.  [¶] THE COURT:  No, I said the petition is denied.   The court finds no [abuse of discretion].   That the weight of the evidence supports the respondent.  [¶] MR. BELSHER:  Is that the finding of the court?  [¶] THE COURT:  That's the finding.  [¶] ․  [¶] MR. COTÉ:  And that was based upon the substantial evidence.  [¶] MR. BELSHER:  That actually was, finding was based on the independent judgment test, your Honor, the weight of the evidence.  [¶] MR. COTÉ:  I think the court stated it was—[¶] THE COURT:  I'm not substituting my judgment for that of the Commission.  [¶] MR. BELSHER:  Okay.   All right.   Thank you, your Honor.”  (Italics added.)

Following the hearing, the Commission's counsel prepared a judgment denying Carol's Cleaners's petition.   The judgment was approved as to form by Carol's Cleaners's counsel and signed by the trial court.   The written judgment states:  “The Court finding no abuse of discretion in that the weight of the evidence supports Respondent's decision;  and [¶] Basing its ruling on substantial evidence.”  (Italics added.)

In our view the written judgment's reference to both standards of review creates an ambiguity as to which standard the trial court applied in reviewing the Commission's decision.   In resolving ambiguous judgments we apply the rules of construction used to interpret other written instruments.  “It appears from the cases that have come to our attention, that questions of interpretation pertinent to our inquiry have arisen more frequently concerning provisions of the Constitution, the statutes, and contracts in relation to judicial orders or decrees.   But they are all ‘writings,’ to be construed in accordance with substantially the same canons of interpretation.   Thus, in Ex parte Ambrose, 72 Cal. 398, 14 P. 33, our Supreme Court said, ‘the same rules of interpretation apply in ascertaining the meaning of a court order or judgment as in ascertaining the meaning of any other writing, ․’ (P. 401, 14 P. 33.)   When considering the proper construction to be placed upon certain provisions of a judicial decision, our Supreme Court made this significant comment:  ‘Neither of those constructions would do more violence to the text than is often done in making a clause of a statute or of a contract conform to the evident intention of the legislature or of the parties, as gathered from the context and a comprehensive view of the circumstances.’  [Citation.]”  (Verdier v. Verdier (1953) 121 Cal.App.2d 190, 193, 263 P.2d 57;  accord Lesh v. Lesh (1970) 8 Cal.App.3d 883, 87 Cal.Rptr. 632.)

Here we believe the trial court's statements at the hearing—in particular its statement that it was not substituting its judgment for the Commission's—prevent us from accepting the Commission's contention the trial court exercised its independent judgment.  (See Verdier v. Verdier, supra, 121 Cal.App.2d at p. 192, 263 P.2d 57.)

B. In Reviewing Relocation Awards the Trial Court Should Have Exercised its Independent Judgment

“If the decision of an administrative agency will substantially affect a ‘fundamental vested right,’ then the trial court must not only examine the administrative record for errors of law, but also must exercise its independent judgment upon the evidence.”  (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 395, 188 Cal.Rptr. 891, 657 P.2d 383;  accord Bixby v. Pierno (1971) 4 Cal.3d 130, 143, 93 Cal.Rptr. 234, 481 P.2d 242.)

“[I]n Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34 [112 Cal.Rptr. 805, 520 P.2d 29], referring to Bixby, ‘we explained the considerations which counsel in favor of fuller judicial review in cases involving vested, fundamental rights.   The essence to be distilled is this:  When an administrative decision affects a right which has been legitimately acquired or is otherwise “vested,” and when that right is of a fundamental nature from the standpoint of its economic aspect or its “effect ․ in human terms and the importance ․ to the individual in the life situation,” then a full independent judicial review of that decision is indicated because “[t]he abrogation of the right is too important to the individual to relegate it to exclusive administrative extinction.”   ( [Bixby, 4 Cal.3d] at p. 144 [93 Cal.Rptr. 234, 481 P.2d 242].)'  (First italics added.)”  (Berlinghieri v. Department of Motor Vehicles, supra, 33 Cal.3d at p. 395, 188 Cal.Rptr. 891, 657 P.2d 383.)

“[T]he courts must decide on a case-by-case basis whether an administrative decision substantially affects fundamental vested rights, and there is no fixed formula which guarantees a predictably exact ruling in each case.”  (San Marcos Mobilehome Park Owners' Assn. v. City of San Marcos (1987) 192 Cal.App.3d 1492, 1499, 238 Cal.Rptr. 290.)

 The term “vested” in the sense of “fundamental vested rights” to determine the scope of judicial review denotes generally a right “already possessed” or “legitimately acquired.”  (Whaler's Village Club v. California Coastal Com. (1985) 173 Cal.App.3d 240, 252, 220 Cal.Rptr. 2.)   Moreover the fact a particular right or privilege is not fundamental for purposes of discussing due process or equal protection of the law is not conclusive in determining the standard of review for a particular administrative proceeding.  (Berlinghieri v. Department of Motor Vehicles, supra, 33 Cal.3d at p. 397, 188 Cal.Rptr. 891, 657 P.2d 383.)  “There is little similarity between the analysis applied in determining (1) whether a right is a ‘fundamental right’ for equal protection/due process purposes on the one hand, and (2) which scrutiny is applicable for administrative review purposes, on the other.   The principle of ‘fundamentality’ differs depending on the context or analysis within which the concept arises.   Thus, for example, when determining which rights are ‘fundamental’ for due process purposes, a court's attention focuses primarily on whether the right (1) is specifically guaranteed by the Constitution, (2) affects the integrity of the political process, or (3) has a disproportionate impact upon a discrete and insular minority.  [Citation.]  [¶]Obviously, the foregoing ․ test bears little relation to the standard used when determining which rights are ‘fundamental’ under the Bixby rule for administrative review purposes.   In this latter situation, we examine a right or interest to see if it is important enough ‘to individuals in their life situations' to require an independent judicial review of the evidence.   We are here more concerned with the personal nature of the interest than with its constitutional basis or its specific impact on a particular segment of society.   These interests and rights do not need to be ‘fundamental’ in the [constitutional] sense in order to invoke judicial protection.”  (Ibid.)

“Fundamental rights requiring independent judicial review have been found in such areas as the right to keep a driver's license [citation], to continued unemployment or welfare benefits, and to continue one's trade or profession [citation].   In contrast, rights found not to be so fundamental as to necessitate the use of the independent judgment test include an application for a zoning variance, obtaining approval of a corporate recapitalization plan, bridge bondholders seeking to prevent construction of a neighboring bridge, and a water company seeking to divert water from a particular river.”  (San Marcos Mobilehome Park Owners' Assn. v. City of San Marcos, supra, 192 Cal.App.3d at p. 1500, 238 Cal.Rptr. 290.)

 In this case we believe the relocation assistance provided by CRAL requires the judicial protection afforded by the “independent judgment” standard of review.   Our conclusion is based largely on our understanding of CRAL's history.  “The Legislature adopted [CRAL] in response to federal legislation (Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and Federally Assisted Programs [42 U.S.C. §§ 4601–4655] ) prohibiting federal financial assistance for state programs or projects unless the state had provided for relocation assistance and payments to persons displaced by those programs and projects.  (42 U.S.C. § 4630;  Relocation Assistance In California:  Legislative Response To The Federal Program (1972) 3 Pacific L.J. 114 (hereafter Relocation Assistance).)   Congress's declared purpose in enacting the Uniform Relocation Assistance Act was ‘․ to establish a uniform policy for the fair and equitable treatment of persons displaced as a result of Federal and federally assisted programs in order that such persons shall not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole.’  (42 U.S.C. § 4621.)․

“․

“In responding to the federal act, the California Legislature chose to extend relocation benefits beyond those required by Congress.   Assemblywoman Yvonne Brathwaite's intent in introducing the Assembly Bill containing relocation assistance provisions was to assure compliance with the federal act, to provide a uniform policy of relocation assistance to all condemnees within the state (not just condemnees who were displaced by a federal or federally assisted project) and to guarantee fair and equitable relief to condemnees for the costs and hardships incident to having their property taken.  (Relocation Assistance, supra, at p. 118.)”  (Beaty v. Imperial Irrigation Dist. (1986) 186 Cal.App.3d 897, 910–911, 231 Cal.Rptr. 128, italics added.)

“It is a matter of common knowledge, and hence of judicial notice, that highway construction (such as the Hollywood Freeway), and redevelopment (such as that on Bunker Hill, Los Angeles) resulted in the displacement of thousands of persons from dwellings and business establishments, both tenants and landowners.   Eminent domain awards, depleted by costs of moving and relocation, were insufficient to supply those displaced with equivalents of the properties from which they had been displaced.   Often, this was entirely unavailable.   A natural disaster, perhaps, could not have created more personal havoc.”  (Parking Authority v. Nicovich (1973) 32 Cal.App.3d 420, 427, 108 Cal.Rptr. 137.)

Thus, “the motivating force behind providing relocation assistance was the conclusion condemnees were not being made whole through the payment of ‘just compensation’ (i.e., the fair market value of the property taken), but rather bore a disproportionate burden for a benefit to the public as a whole.  (See 42 U.S.C. § 4621.)   Congress, when adopting the Federal Act, observed:  ‘In a less complex time, Federal and federally assisted public works projects seldom involved major displacements of people․  As the thrust of Federal and federally assisted programs have [sic] shifted from rural to urban situations, it became increasingly apparent that the application of traditional concepts of valuation and eminent domain resulted in inequitable treatment for large numbers of people displaced by public action.   When applied to densely populated urban areas, with already limited housing, the result can be catastrophic for those whose homes or businesses must give way to public needs.   The result far too often has been that a few citizens have been called upon to bear the burden of meeting public needs.

“ ‘․

“ ‘[This legislation] recognizes that relocation is a serious and growing problem in the United States and that the pace of displacement will accelerate in the years immediately ahead.’  (H.Rep. No. 91–1656, reprinted in 1970 U.S.Code Cong. & Admin.News 5850, 5850–5852.)”  (Beaty v. Imperial Irrigation Dist., supra, 186 Cal.App.3d at pp. 918–919, 231 Cal.Rptr. 128.)

The basic benefits available under CRAL are set forth in section 7262, subdivision (a):  “(1) Actual and reasonable expenses in moving himself or herself, his or her family, business, or farm operation, or his or her, or his or her family's, personal property.

“(2) Actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, but not to exceed an amount equal to the reasonable expenses that would have been required to relocate the property, as determined by the public entity.

“(3) Actual and reasonable expenses in searching for a replacement business or farm, not to exceed one thousand dollars ($1,000).

“(4) Actual and reasonable expenses necessary to reestablish a displaced farm, nonprofit organization, or small business at its new site, but not to exceed ten thousand dollars ($10,000).” 2

Given its legislative history, we believe agency orders denying reimbursement claims made under section 7262, subdivision (a), are subject to review by trial courts exercising their independent judgment.   Because relocation assistance is designed to provide compensation for damage to existing dwellings and businesses, it affects vested rights in the sense it affects interests “already possessed” or “legitimately acquired.”   Moreover given the express legislative recognition that expenses incurred in connection with an involuntary relocation oftentimes have a catastrophic impact on the economic security of individuals and businesses, relocation assistance is fundamental when viewed in light of its importance “to the individual in the life situation.”  (Bixby v. Pierno, supra, 4 Cal.3d at p. 144, 93 Cal.Rptr. 234, 481 P.2d 242.)

 In this regard we find unpersuasive the Commission's reliance on the commercial context in which Carol's Cleaners is seeking compensation.   Admittedly, in analyzing the fundamental nature of the right asserted, the Supreme Court has manifested “slighter sensitivity to the preservation of purely economic privileges.”  (Bixby, supra, 4 Cal.3d at p. 145, 93 Cal.Rptr. 234, 481 P.2d 242.)   Nonetheless as the Supreme Court has also pointed out:  “We have continued since Bixby, and will doubtless continue in the future, to remain especially responsive to the human as opposed to the purely economic dimension of rights affected by administrative action.   This does not mean, however, that rights whose most visible dimension is the economic one will for that reason remain in all cases something less than ‘fundamental’ within the meaning of Bixby.”  (Interstate Brands v. Unemployment Ins. Appeals Bd. (1980) 26 Cal.3d 770, 780, fn. 6, 163 Cal.Rptr. 619, 608 P.2d 707, italics added.)

We also note that in those cases where courts found the economic nature of the right asserted prevented it from being considered “fundamental” (cf. Champion Motorcycles, Inc. v. New Motor Vehicle Bd. (1988) 200 Cal.App.3d 819, 825, 246 Cal.Rptr. 325 [no fundamental right to prevent modification of motor vehicle franchise];  San Marcos Mobilehome Park Owners' Assn. v. City of San Marcos, supra, 192 Cal.App.3d at p. 1499, 238 Cal.Rptr. 290 [no fundamental right to impose rent increase at mobile home park];  Mobil Oil Corp. v. Superior Court (1976) 59 Cal.App.3d 293, 305, 130 Cal.Rptr. 814 [no fundamental right to release gasoline vapors while dispensing fuel to customers];  Standard Oil Co. v. Feldstein (1980) 105 Cal.App.3d 590, 604–605, 164 Cal.Rptr. 403 [no fundamental right to operate four rather than three refinery units even though return on investment might be lower] ), each of the plaintiffs unsuccessfully argued that regulatory determinations interfered with their ability to earn future profits.   In rejecting this argument courts have consistently found that no one has a fundamental right to operate a business or own land free of government regulation.  (San Marcos Mobilehome Park Owners' Assn. v. City of San Marcos, supra, 192 Cal.App.3d at p. 1499, 238 Cal.Rptr. 290;  Whaler's Village Club v. California Coastal Com., supra, 173 Cal.App.3d at pp. 252–253, 220 Cal.Rptr. 2.)   Such holdings have little bearing on a compensatory scheme designed to make individuals “whole.”   Rather the involuntary nature of the contribution displaced persons make to public projects sets this case apart from the cases which involve the incidental economic burdens imposed by governmental rules and regulations.   (See Interstate Brands v. Unemployment Ins. Appeals Bd., supra, 26 Cal.3d at p. 781, fn. 7, 163 Cal.Rptr. 619, 608 P.2d 707;  Champion Motorcycles, Inc. v. New Motor Vehicle Bd., supra, 200 Cal.App.3d at p. 823, 246 Cal.Rptr. 325.)   In sum, given its basis in a displaced person's or business's right to be made whole, CRAL protects interests which, on a practical level, are more vital than the potential economic impact of governmental regulation.

Because the trial court erred in failing to apply its independent judgment to the Commission's determination, we must remand the case to the trial court for application of the appropriate standard.

II

The Commission May Limit Compensation To The Value of Carol's Cleaners's Old Equipment

 Although this matter must be remanded to the trial court, for the guidance of the parties on remand we reach Carol's Cleaners's argument that the Commission had no power to make an award of relocation assistance by depreciating the value of its new equipment.

As we have seen CRAL was a response to the federal Uniform Relocation Assistance Act.  (42 U.S.C. 4621 et seq.)   Thus it is hardly surprising that section 7262, subdivision (a)(2), and 42 United States Code section 4622(a)(2) both provide in nearly identical terms for payment of:  “Actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, but not to exceed an amount equal to the reasonable expenses that would have been required to relocate the [/such (§ 4622(a)(2)) ] property, as determined by the public entity [/head of the agency (§ 4622(a)(2)) ].”  (§ 7262, subd. (a)(2).)   Nor is it surprising nearly identical regulations have been promulgated with respect to rights under these parallel provisions by the state and federal agencies responsible for administering the respective acts.  “Where an item of personal property which is used in connection with any business or farm operation is not moved but is replaced with a comparable item, reimbursement in an amount not to exceed (1) the replacement cost, minus any net proceeds received from its sale, or (2) the estimated cost of moving, whichever is less.”  (State of Cal., Code of Regs., tit. 25, § 6090, subd. (b)(5);  Oceanside Relocation Guidelines § 1060, subd. (b)(5);  49 C.F.R. § 24.303(12).)

On this appeal Carol's Cleaners argues the only limitations on reimbursable replacement costs permitted by these regulations are the estimated cost of moving the replaced equipment and the actual cost of the replacement equipment.   Thus Carol's Cleaners argues it is entitled to be reimbursed for the full cost of its new equipment so long as the cost does not exceed the cost of moving the old equipment.   The Commission argues that aside from the cost of relocating the old equipment, reimbursement for replacement equipment is also limited by the value of the old equipment.   In this case the Commission argues the old equipment was 61 percent of the value of the new equipment.

The only case which has considered either the state or federal regulations supports the Commission's interpretation:  “A federal district court may not construe an executive agency's regulations to have a scope in excess of that permitted by the department's enabling legislation.  [Citation.]  Congress intended that compensation for ‘substitute equipment’ under the [Uniform Relocation Assistance Act] not surpass the value of apparatus condemned with the former plant.   As the House Public Works Report on the statute stated:  ‘A person displaced from a business or farm operation may be compensated for actual direct property losses, whether he discontinues or reestablishes his operation.   However, the maximum amount of any such payment may not exceed the reasonable expenses that would have been required to relocate the property, and in the case of heavy machinery, equipment, or other property involving substantial sums, also should not exceed the in-place value of the property.’   [1970] U.S.Code Cong. & Admin.News at p. 5856 (emphasis added).”   (Robzen's Inc. v. U.S. Dept. of Housing (M.D.Pa.1981) 515 F.Supp. 228, 238, (Robzen's );  but see Pou Pacheco v. Soler Aquino (1st Cir.1987) 833 F.2d 392, 400–401 [jury allowed to award cost of new equipment where plaintiff shows old equipment lost due to agency's acts, need for new equipment and its cost].)

The interpretation offered in Robzen's is supported not only by the legislative history but by the language of the respective statutes, which, unlike the regulations, are written in terms of “actual direct losses.”   Although Carol's Cleaners suggests that a value limitation on reimbursement is inconsistent with the overall purpose of the relocation statutes, which was to supplement amounts available under traditional eminent domain law, this argument loses sight of the fact that the statutes on which Carol's Cleaners relies are aimed principally at the cost of moving personal property.   In providing any part of moving costs, the statutes exceed what is generally available under eminent domain law—the value of the property actually taken by the sovereign.   Thus we find nothing inconsistent in a legislative desire to both provide reimbursement for moving expenses and limit the amount of such assistance to the value of what is being moved.

Accordingly, contrary to Carol's Cleaners's argument, the Commission had the power to provide reimbursement which was less than both the actual cost of the new equipment and the estimated cost of moving the old equipment.   Nonetheless in the trial court Carol's Cleaners challenged both the theoretical and factual basis for the Commission's depreciation deduction.   In particular Carol's Cleaners argued that its old equipment was capable of producing more laundry than the new equipment and hence was more valuable than the new equipment.   Thus on remand the trial court, using its independent judgment, must determine on the weight of the evidence whether the amount awarded is equivalent to the in-place value of the replaced equipment.

 Finally we reject Carol's Cleaners's argument that limiting its recovery to the value of its old equipment violated its right to equal protection of the law.   Although the city manager could not recall another instance where the Commission had depreciated the cost of each piece of new equipment, this fact alone will not support an equal protection claim.   Rather Carol's Cleaners bore the burden of demonstrating the Commission was faced with claims similar in all material respects to Carol's Cleaners's claim and failed to use the same method of depreciation.  (See People v. Jacobs (1984) 157 Cal.App.3d 797, 801–802, 204 Cal.Rptr. 234.)   Our review of the record discloses no such evidence.

Reversed and remanded.

I concur in the result reached in the majority opinion and I concur in the language and the reasoning in part I of the opinion.

I do not concur in either the language or the reasoning in part II of the opinion.   I dissent from the majority's reliance on the analysis of the law contained in Robzen's Inc. v. U.S. Dept. of Housing (1981) 515 F.Supp. 228, 238.   I believe reliance on the reasoning of a U.S. District Court in Pennsylvania, applying a different method of valuing businesses than used here, is unwise.   I would apply the language of the regulations without reference to Robzen's.

FOOTNOTES

FN1. All statutory references are to the Government Code unless otherwise specified..  FN1. All statutory references are to the Government Code unless otherwise specified.

2.   Additional benefits are available to displaced dwelling owners (§ 7263), displaced dwelling occupants (§ 7264), where replacement housing is unavailable (§ 7264.5) and for property which is contiguous to airports (7265).

BENKE, Associate Justice.

WIENER, Acting P.J., concurs.