would have used a good faith in trying to negotiate the terms of the sugar properties an eighty seven acre vacant piece of property vacant land located across the street from the propose agreement with the shooter one of the problems was with their with the parcels that they considered were all in the most of whom were in the same zone that the planning board said were unacceptable as required too many variances in essence of one to the other parcels were similar to the proposed parcel at that time mr carpenter indicated to the board that they were satisfied with the proposed site they say that they felt that their time to consider it had been extended by the seventy one days in which they'd asper germans up state indicated no they were satisfied with the proposal he wanted the board to make the consideration that they were satisfied with they had a very attractive place and substance and essence they were going to go when they had the lease and and upstate took their position before the board one minute david's relating to a correspondence with the school in which they said they weren't interested but if you look at that they were related to placement of a power not putting an antenna on the light poles at the sports complex which  t and then the court and to racial things and said that they were properly considered to court the district court set up oh well there wasn't substantial evidence anyway so it doesn't make any difference and i think that it does i think it is clear that that they relied upon those evidence and if you consider what evidence was before the board it's clear that the state was not negotiating in good faith that's the only thing that was before the board that the board had at that time was appeared before the town board thank you judge parker just one follow up question to just parker's question i guess the standard of you on the reconsideration motion is abuse of discretion so in light of your response cumple i guess you're asking us to find the district court abused its discretion in finding that it would have reached the same conclusion even without  to reach is that addresses that the townsend aisle and current arguments are ultimately based on the wrong standard and that that also is grounds as the district court correctly found for finding that the town violated federal law on my st point as judge parker just pointed out the what is before the court is defined by the town's issues presented for the court to decide and the town has  narrowly define that as being whether the district court erred in relying on the carpenter and long affidavit in doing that the town has made an affirmative choice not to ask the court whether the district court was supported by substantial of the court therefore can only address the issue of did the district court will lie on corporate long and in a well written i think twenty five dollars page long decision its brief did not address the reconsideration order at all the towns did not ask this court as it just did has to consider that the district court  raised today in a broader fashion whether the denial was based on supported by substantial it is not let me focus the town's case turning almost entirely on this to her property found first and foremost the truth a property is not worth evil and this turns on three points number one the town repeatedly says that the shooter property is eighty seven acres of an occupied land that is true but not correct mr schumer owns property is eighty seven acres however the record evidence before the town shows that mr super was only willing to consider having having a tower on those larger commercially zone portions of his property the only portion of this property that he was willing to have to talk about it even was upper northeast corner and that is shown in the construction drawing it code and as a result also suffered from the same setback problems as the proposed site it was the area was too small to meet the five hundred dollars foot setback requirement in too small to meet the two hundred and eighty  this your shoer has never contradicted the fact that he would only consider that the tower being in that upper northeast corner of his property so as a result the two that property is not a more feasible location answer to the complaint in this case it was not an affidavit submitted my by mr schuler to the town it was not testimony made by mr sure to the town during an open hearing and so there's even though it existed that is all his speculation and as of this record point correctly pointed out it's reconsideration order that does not constitute substantial evidence to support a denial moreover as a district court correctly pointed out the reconsideration or this this is now the opinion of someone who has a financial interest is someone who is basically has the town trying to push upstate to use his property and so wants to take advantage of that and with this record correctly found possibly if they were the right height and if they could support the equipment he was not even talking about the sports complex teams talking about total calls i only have about two minutes left so let me move on critically battalion's arguments are pressing relying on the wrong legal standard under new york variance law all the state is required to show is that its proposed facility is true a site all based on economic and other factors than other alternatives in this case we've done that even even if the shoe were property were vailable the proposed site is more feasible because the shooter pipe property is in a residential area and that the case is consolidated edison versus hoffman the rosenberg case emphasize that that issue of more feasibility has to be in light of the local zoning the town cannot simply importing an inaccurate standard from federal effective prohibition claims that require and in fact importing it from the st circuit which has adopted a standard that is more stringent than the  addressed he talked about the the shot clock i want to read remind the court that the district court found that in fact the town did violate the federal shot clock and so i think that's important to keep in mind  resolution was also provided upstate in upstate never responded to the st time that we heard about the aspects of the negotiation which they were trying to justify work which they were two years later