Filed 3/12/14
                            CERTIFIED FOR PUBLICATION




         IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                             THIRD APPELLATE DISTRICT
                                            (Yolo)
                                             ----




AMERCO REAL ESTATE COMPANY,                                      C072403

                Plaintiff and Appellant,             (Super. Ct. No. CV-PT-11-2672)

       v.

CITY OF WEST SACRAMENTO,

                Defendant and Respondent.



      APPEAL from a judgment of the Superior Court of Yolo County, Daniel P.
Maguire, Judge. Affirmed.

       Law Offices of Jeffrey L. Aran and Jeffrey L. Aran for Plaintiff and Appellant.

      Kronick, Moskovitz, Tiedemann & Girard, Jeffrey A. Mitchell and William T.
Chisum for Defendant and Respondent.


       Business and Professions Code section 5499 (hereafter, section 5499)
“grandfathers” (i.e., legalizes) on-premises business signs that do not conform to a
subsequently enacted local sign law as to height or size, if a conforming sign’s (1)



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visibility or (2) communicative effectiveness, would be materially impaired by special
topographic circumstances.

       In this administrative mandate action (Code Civ. Proc., §§ 1094.5, 1094.6), we
conclude the trial court properly used the substantial evidence test, rather than the
independent judgment test, to review an administrative decision concerning these two
material impairments.

       The trial court concluded that substantial evidence supported the locality’s
findings that reducing the height of the pole sign at issue from 35 feet to the conforming
height of 12 feet (in what is now the locality’s “Central Business District”) would not
materially impair the sign’s visibility or communicative effectiveness. Based on this
conclusion, the trial court denied the affected business’s petition for a writ of
administrative mandate. We shall affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

       The affected business is Amerco Real Estate Company, which owns a U-Haul
truck rental facility (hereafter, U-Haul) along the eastern portion of West Capitol Avenue
in the City of West Sacramento (the City).

       The sign at issue (the sign) is a 35-foot-high, freestanding two-pole sign holding
three display panels: a panel at the top, reading in large block letters, “U-HAUL”; a
middle panel reading, “Custom Hitches”; and a lower panel with a manually changeable
reader board concerning hours, sales, goods and services.

       U-Haul lawfully installed the sign in 1976.

       In 1993, the City enacted an ordinance limiting such pole signs to 12 feet in height
in the City’s Central Business District, in which U-Haul is located; but the City provided
a 15-year amortization period to comply (to May 2008).



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       After providing extensive notice, offering height compromises above 12 feet, and
engaging in several attempts to resolve the issue of the noncompliant sign, the City
brought an administrative nuisance action against U-Haul (under the sign ordinance) to
reduce the sign’s height to 12 feet with a maximum of 112 square feet of freestanding
sign space.

       In August 2011, an administrative hearing officer found in the City’s favor along
these lines. And the City’s Board of Appeals, after a hearing in October 2011, rejected
U-Haul’s appeal that the sign was entitled to remain pursuant to section 5499, and
affirmed the hearing officer’s decision.

       U-Haul then unsuccessfully petitioned the trial court for a writ of administrative
mandate to overturn the City’s decision. (Code Civ. Proc., §§ 1094.5, 1094.6.)

       This appeal by U-Haul ensued.

       We will set forth additional facts in discussing the issues on appeal.

                                  ISSUES ON APPEAL

       The statute at the center of this appeal is section 5499, which provides,
“Regardless of any other provision of this chapter or other law, no city or county shall
require the removal of any on-premises advertising display on the basis of its height or
size by requiring conformance with any ordinance or regulation introduced or adopted on
or after March 12, 1983, if special topographic circumstances would result in a material
impairment of visibility of the display or the owner’s or user’s ability to adequately and
effectively continue to communicate with the public through the use of the display.
Under these circumstances, the owner or user may maintain the advertising display at the
business premises and at a location necessary for continued public visibility at the height
or size at which the display was previously erected and, in doing so, the owner or user is
in conformance.”


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       The several issues U-Haul raises on appeal reduce to two basic issues: (1) Did the
trial court properly use the substantial evidence test rather than the independent judgment
test to review the City’s decision under section 5499? and (2) On appellate court review,
is there substantial evidence to support the relevant decision? We conclude the trial court
properly applied the substantial evidence test as the standard of review, and that
substantial evidence supports the relevant decision—i.e., the City’s decision.

                                      DISCUSSION

         I. The Trial Court Properly Used the Substantial Evidence Test to
                  Review the City’s Decision Under Section 5499

       As noted, the City rejected U-Haul’s administrative appeal that it (U-Haul) was
entitled to keep its 35-foot-high sign pursuant to section 5499, and U-Haul petitioned the
trial court for administrative mandate to overturn the City’s decision. As also noted,
section 5499 grandfathers (i.e., legalizes) on-premises business signs that do not conform
to a subsequently enacted local sign law as to height or size, if a conforming sign’s (1)
visibility or (2) communicative effectiveness, would be materially impaired by special
topographic circumstances.

       In reviewing the evidentiary sufficiency of an administrative agency’s decision—
if the decision affects a fundamental vested right—the trial court must exercise its
independent judgment on the evidence; the trial court must weigh the evidence and
determine whether the administrative findings are supported by the weight of the
evidence. This is the independent judgment test. This test is required because the
importance of the right affected requires independent judicial review. On appeal, the
appellate court considers only whether the trial court’s finding is supported by substantial
evidence. (E.W.A.P., Inc. v. City of Los Angeles (1997) 56 Cal.App.4th 310, 325
(E.W.A.P.); Code Civ. Proc., §§ 1094.5, subd. (c), 1094.6.)




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        If, however, the administrative decision does not substantially affect a
fundamental vested right, the trial court considers only whether the administrative
findings are supported by substantial evidence in light of the whole record—this is the
substantial evidence test; and the appellate court on appeal performs the same review as
the trial court. (Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519,
1525-1526 (Goat Hill); Miller v. Board of Supervisors (1981) 122 Cal.App.3d 539, 543
fn. 3 (Miller); Code Civ. Proc., §§ 1094.5, subd. (c), 1094.6.)

        The threshold issue on appeal is whether the City’s decision—that section 5499
does not allow U-Haul to keep its 35-foot-high sign, and U-Haul’s sign must not exceed
12 feet in height—implicated a fundamental vested right that necessitated the trial court’s
independent judgment review.

        A right may be deemed fundamental “on either or both of two bases: (1) the
character and quality of its economic aspect; (2) the character and quality of its human
aspect.” (Interstate Brands v. Unemployment Ins. Appeals Bd. (1980) 26 Cal.3d 770,
780.)

        “ ‘ “Whether an administrative decision substantially affects a fundamental vested
right must be decided on a case-by-case basis. [Citation.] Although no exact formula
exists by which to make this determination [citation] courts are less sensitive to the
preservation of purely economic interests. [Citation.] In deciding whether a right is
‘fundamental’ and ‘vested,’ the issue in each case is whether the ‘ “affected right is
deemed to be of sufficient significance to preclude its extinction or abridgment by a body
lacking judicial power.” ’ ” ’ ” (Metropolitan Outdoor Advertising Corp. v. City of Santa
Ana (1994) 23 Cal.App.4th 1401, 1403-1404 (Metropolitan Outdoor), quoting Goat Hill,
supra, 6 Cal.App.4th at p. 1526.)

        The term “vested” in the sense of “fundamental vested rights” in an administrative
mandate proceeding is not synonymous with the “vested rights” doctrine relating to land

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use development. (Goat Hill, supra, 6 Cal.App.4th at p. 1526.) Courts rarely uphold the
application of the independent judgment test to land use decisions. (Id. at p. 1527.)
Cases upholding such application typically involve “classic vested rights”—i.e., a vested
right to develop property in a particular way. (See ibid. [and cases cited therein].)

       The substantial evidence test has been applied to review administrative decisions
that restrict a property owner’s return on his property, or which increase the cost of doing
business, or reduce profits, because such decisions impact mere economic interests rather
than fundamental vested rights. (E.W.A.P., supra, 56 Cal.App.4th at pp. 325-326 [and
cases cited therein].)

       In contrast, the independent judgment test is applied to review administrative
decisions that will drive an owner out of business or significantly injure the business’s
ability to function. (E.W.A.P., supra, 56 Cal.App.4th at p. 326; Metropolitan Outdoor,
supra, 23 Cal.App.4th at p. 1404.)

       For example, the independent judgment test was applied, in Goat Hill, to review a
city’s denial of a permit renewal, because the city’s decision would have resulted in the
loss of the owner’s 35-year-old tavern, a business the owner had recently spent $1.75
million to refurbish, including refurbishments made at the city’s request. (Goat Hill,
supra, 6 Cal.App.4th at pp. 1529, 1530.) In contrast, the substantial evidence test was
applied, in E.W.A.P., to review a city’s zoning-based decision to reduce the business
hours of an adult bookstore from 24 hours a day, to 9:00 a.m. to 10:00 p.m., in line with
the small business neighborhood of the bookstore. The E.W.A.P. court found “that the
impact of the hours restrictions, if any, on [the bookstore’s] business [was] purely
economic . . . .” (E.W.A.P., supra, 56 Cal.App.4th at p. 327; see id. at pp. 314, 316.)

       Applying these legal principles here, we conclude the trial court properly used the
substantial evidence test in reviewing the City’s decision that U-Haul was not entitled to



                                              6
keep its 35-foot sign pursuant to section 5499, and that an on-premises business sign
could be no taller than 12 feet.

       There is no assertion that the sign’s reduction “would destroy or even significantly
injure” U-Haul’s business. (Metropolitan Outdoor, supra, 23 Cal.App.4th at p. 1404.)
The impact of the sign reduction, if any, on U-Haul’s business “is purely economic.”
(E.W.A.P., supra, 56 Cal.App.4th at p. 327.) The City’s decision is an aesthetic-based
land use decision that does not involve a “classic vested right[]” to develop or use
property in a particular way. (Goat Hill, supra, 6 Cal.App.4th at p. 1527.) In short,
while the City’s decision leveled U-Haul’s 35-foot business sign, it did not level U-
Haul’s business.

       U-Haul counters that the independent judgment test applies for two reasons. We
are not persuaded.

       First, U-Haul claims the appellate court in Denny’s, Inc. v. City of Agoura Hills
(1997) 56 Cal.App.4th 1312 (Denny’s) “implicitly approved independent review.”

       Denny’s involved a city’s attempt to reduce the height of freestanding pole signs
of 11 businesses (mostly, fast-food restaurants and gas stations) along a freeway corridor
that encompassed an on/off-ramp in the city. (Denny’s, supra, 56 Cal.App.4th at
pp. 1316-1318, 1323.) The appellate court in Denny’s did not determine the proper
standard of review for a trial court to use in reviewing an administrative decision under
section 5499, because the appellate court reviewed a trial court judgment granting
declaratory and injunctive relief in a bench trial, rather than a trial court judgment
reviewing an administrative decision. (Id. at pp. 1316-1318, 1327-1328.) The Denny’s
court merely concluded that substantial evidence supported the trial court’s bench trial
finding under section 5499 that the reduced-height conforming signs there would be
materially less visible or less effective in communicating to the public, a public which
largely comprised freeway motorists. (Id. at pp. 1327-1328.)

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       U-Haul claims Denny’s “implicitly approved independent review” because the
appellate court there noted that the trial court had personally toured the freeway corridor,
and further noted that “[i]t is settled ‘that a view of the scene by the trial judge is
independent evidence on which a finding may be made and sustained.’ ” (Denny’s,
supra, 56 Cal.App.4th at pp. 1327-1328.) In this claim, U-Haul has confused “evidence”
with the “standard of review for considering the evidence.” While the trial court in the
Denny’s bench trial did admit into evidence its own view of the scene, this does not
establish which standard of review a trial court is to use in considering the evidentiary
basis of an administrative decision under section 5499—independent judgment or
substantial evidence. For example, the trial court in the case before us properly viewed
the scene as well (see fn. 1, post, p. 9) but nevertheless properly applied the substantial
evidence test as the standard of review under section 5499 in reviewing the City’s
administrative decision.

       And second, U-Haul notes, in generalities, that signage rights constitute
fundamental speech and property rights. While the right to advertise has been recognized
as a property right, and may represent the exercise of free speech, the government has the
right to reasonably regulate on-premises business signs under the police power. (Carlin
v. City of Palm Springs (1971) 14 Cal.App.3d 706, 712-713). Here, the City has
regulated the height of U-Haul’s sign to enhance the aesthetic atmosphere of the City’s
Central Business District, without depriving U-Haul of its right to conduct a business, to
use its business sign to conduct that business, or to make a reasonable use of its land.
(See ibid.) This is reasonable regulation that does not impinge upon property rights or
free speech rights.

       We conclude the trial court properly used the substantial evidence test to review
the City’s decision here.




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                 II. Substantial Evidence Supports the City’s Decision

       Having concluded that the substantial evidence test is the proper standard of
review here, we now examine whether substantial evidence supports the City’s decision
that U-Haul was not entitled to keep its 35-foot pole sign pursuant to section 5499 and
had to abide by the 12-foot height limit. (See Miller, supra, 122 Cal.App.3d at p. 543,
fn. 3 [when a trial court reviews an administrative decision using the substantial evidence
test, the trial court and the appellate court occupy essentially identical positions regarding
whether the administrative decision is supported by substantial evidence].)1

       Section 5499 states, as pertinent, “Regardless of any . . . other law, no city or
county shall require the removal of any on-premises advertising display on the basis of its
height or size by requiring conformance with any ordinance or regulation introduced or
adopted on or after March 12, 1983, if special topographic circumstances would result in
a material impairment of [(1)] [the] visibility of the display or [(2)] the owner’s or user’s
ability to adequately and effectively continue to communicate with the public through the
use of the display.”

       Substantial evidence is defined as evidence “ ‘ “ ‘reasonable in nature, credible
and of solid value’ ” ’ ” and evidence that “ ‘ “a reasonable mind might accept as
adequate to support a conclusion.” ’ ” (County of San Diego v. Assessment Appeals Bd.
No. 2 (1983) 148 Cal.App.3d 548, 555.) Under the substantial evidence standard of
review, an appellate court, like the trial court, may not reweigh the evidence, and is
bound to consider the facts in the light most favorable to the administrative decision,



1 We note that the trial court here, at U-Haul’s request, also properly supplemented the
administrative record with its own site inspection. (See Voices of the Wetlands v. State
Water Resources Control Bd. (2011) 52 Cal.4th 499, 532; see also No Oil, Inc. v. City of
Los Angeles (1974) 13 Cal.3d 68, 79, fn. 6 [in an administrative mandate action, the trial
court reviews the administrative record but can receive additional evidence if that
evidence was genuinely unavailable at the time of the administrative hearing].)


                                              9
giving that decision every reasonable inference and resolving all conflicts in the
decision’s favor. (See Flowers v. State Personnel Bd. (1985) 174 Cal.App.3d 753, 758.)
                          A. Material Impairment of Visibility
       At the administrative appeal hearing, U-Haul presented significant evidence, from
an expert and from photographs, that a conforming sign would be materially less visible
to westbound traffic on West Capitol Avenue (coming from or crossing the major arterial,
Jefferson Boulevard). The expert concluded that, from this westbound direction, the
visibility and readability of the “U-HAUL” panel of a conforming sign would be
materially impaired, and the “Custom Hitches” panel and the reader board panel would
effectively be obliterated from view.

       It must be noted, though, that some of this visibility loss from the westbound
direction stems from U-Haul’s singular existing sign of 35 feet towering above the
almost all now-conforming signs in the vicinity that are only 12 feet in maximum height.
(The administrative record reveals that most of the other properties on West Capitol
Avenue brought their signs into conformance voluntarily prior to the compliance
deadline.) Against this backdrop, a backdrop that has taken many years to develop, there
arguably would be a certain incongruity in concluding that the City’s finding of no
material impairment of visibility lacks sufficiency; such a conclusion effectively would
reward the lone nonconformer at the expense of almost all who did conform.

       More importantly, photographic evidence showed that the three sign panels
comprising U-Haul’s existing sign are not much visible to eastbound traffic on West
Capitol Avenue (coming from or crossing the major arterial, Harbor Boulevard), because
of the tree canopy in West Capitol Avenue’s landscaped median; and that a lower
conforming sign would be more visible.

       Furthermore, evidence showed that the topography is flat; that all or nearly all
nearby businesses, as noted, have conforming signs (not taller than 12 feet); that the West


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Capitol Avenue speed limit at and near the U-Haul site is relatively slow (35 miles per
hour); that U-Haul’s customer base is generally local (rather than, as in Denny’s,
traveling motorists looking for food or gas from a freeway); and that U-Haul’s rental
trucks parked on the site provide significant advertising themselves. Each of these
factors supports a determination that a conforming sign would not be materially less
visible.

       Finally, there is the evidence of the trial court’s site inspection.

       We conclude there is substantial evidence supporting the City’s decision that a
conforming sign would not be materially less visible.
           B. Material Impairment of Adequate and Effective Communication
       This prong of section 5499 focuses on the “ ‘communicative quality of the sign,’ ”
rather than its mere visibility. (Denny’s, supra, 56 Cal.App.4th at p. 1319.)

       As noted, almost all other businesses in the vicinity of U-Haul have conforming
signs. The trial court concluded, “The record indicates that many other businesses in the
vicinity have conforming signs, and there is substantial evidence that [U-Haul], like these
other businesses, could adequately and effectively communicate with a conforming sign.
Certainly, a 35-foot sign is more eye-catching than a [significantly smaller] sign, but
Section 5499 only protects the ability to ‘adequately and effectively’ communicate, not
the ability to communicate using a sign of optimal commercial height.” This statement
by the trial court was made after its own site inspection on July 5, 2012. In addition, the
Board of Appeals’ decision notes that “The U-Haul property is not subject to any
different physical conditions than other properties on West Capitol Avenue, most of
whom brought their signs into conformance voluntar[il]y prior to the compliance
deadline. [¶] . . . [¶] Numerous other businesses on West Capitol Avenue, including
those on the same block and side of the street, have compliant signs. U-Haul has not
presented any evidence to suggest that its situation differs from these other properties that


                                              11
have compliant signs.” Finally, the photographs submitted by U-Haul in support of their
expert’s opinion also show clearly the conforming signs of what appear to be ongoing
businesses up and down West Capitol Avenue.

       As also noted, a conforming sign can provide U-Haul up to 112 square feet of sign
space spread over two freestanding signs. And U-Haul’s rental trucks themselves, legally
parked on the site, effectively communicate the U-Haul brand and services available.

       Long ago, before Interstate 80’s Sacramento business segment was built, West
Capitol Avenue constituted the highway through West Sacramento. Those days are gone.
Today, as the record shows, West Capitol Avenue constitutes West Sacramento’s
downtown in the vicinity of the U-Haul site, and this arterial is transitioning from an
auto-oriented boulevard to a pedestrian-oriented street. In the end, then, it is a sign of the
times that U-Haul’s 35-foot-high freestanding pole sign is no longer a sign for the times.

       We conclude there is substantial evidence supporting the City’s decision that a
conforming sign would not be a materially less adequate or effective communication.2




2 To the extent that U-Haul faults the specificity of the trial court’s findings, the trial
court applied the substantial evidence standard of review (rather than its independent
judgment); in any event, U-Haul has waived this claim by failing to request a statement
of decision. (Code Civ. Proc., § 632 [absent timely request by a party, written findings of
fact and conclusions of law are not required].) To the extent that U-Haul faults the
specificity of the City’s administrative findings, U-Haul has forfeited that claim by
failing to provide a separate heading for it in its appellate briefing. (Cal. Rules of Court,
rule 8.204(a)(1)(B).)

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                                  DISPOSITION

     The judgment is affirmed. The City is awarded its costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(1), (2).) (CERTIFIED FOR PUBLICATION)




                                                       BUTZ              , J.



We concur:



        BLEASE           , Acting P. J.



        MURRAY           , J.




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