from one of the countries in fact the world's leading authority on affordable housing dr quickly from the university of california at berkeley dr quickly established that this wardens actually make legislative body but with regard to the procedural deficiencies that the trial judge found here we need to we need to deal with those don't we as opposed to the whether or not this makes good process and under eight and central taking analysis and look for the first time a substantive due process claims are made available because of the decision and lingle and the pen central claim is first available because of the decision and lingle eight procedural grounds on which the district court refused to consider the claims elated to the one case were statute of limitations and exhaustion there was no vacancy control provision and the earlier law and vacancy control provision and fork while i know i know that there were differences in terms of the formulaic approach but with regard to that apartment question here and the vacancy control were there any real changes only in the effect of the vacancy control the federal provisions may have been the same but the predecessor the finding that the predecessor lost one was never properly enacted it was simply never the law so for us to have failed to sue against an ordinance that was never an ordinance that was never a law certainly should not borr hundred ninety eight as a starting point what about three twenty four and three twenty nine and they have essentially the same vacancy control provision as well but that's one small piece of the effect of the ordinance for it as a pipeline c dollars would be added to the record each year under the modified ordinance and i spend half that amount four point nine percent would be available because only the first three percent is subject to a seventy percent increase everything else when you then enter that the notion that there can be no adjustment when somebody moves out the effect of the vacancy control is so much more profound and devastating when you have this exponential gap between the permitted rent and the market rent and the effects of vacancy control become much more severe with respect to the new law we also a deuced evidence that during the period that the predecessor ordinance was in effect permitted grants and the rent control rights so from an as supply standpoint the first time that there really was an injury from the application of any of these laws occurred during the period of time  claim is not subject to exhaustion because the remedy is not just compensation the exhaustion is to go seek just compensation the reason for the exhaustion does not apply to takings claim is because the means for exhausting under california law is to first go see a discretionary rent increase and if you don't do that the rest of the remedies are not available here we have a state court decision finding by way of collateral estoppel again which was not final standard by the those unconstitutional provisions should be severed so at the time that we filed this action and pursued this action which is the relevant time for exhaustion purposes there was no of vailable state court process to seek a state park discretionary not a nuisance emanating from our particular property where there would be a reason to single out our property to bear the burden of solving that problem so there is a disproportionate burden which is to be for the component and central in addition the burden is severe because we will never come close to achieving a market value of our accuracy and critically the value of our property is being transferred from one tenant to the next so your argument your argument is that ling twelve and three eight one i really want is going on that i thought it was based principally on the on the they can see control provision now i believe when you read that decision carefully he says an argument could be many if those two are similar enough but we don't reach that issue because i find there's sufficient similarity between for twelve and three they want and in fact the standard for whether a new cause of action arises is whether the new ordinance is provisionally distinct and has a different you jim gilpin on the half of the city of san t i'd like to start first with the procedure which is which i think this case is about the court did not address the substantive issues raised by  case the challenges to this ninth circuit are based on rightness and statute of limitations in that opinion this court has nonetheless in light of language there is no substantive due process taking claim that can be presented the underlying approached in the underlying case the trial court took the approach outlined by the jurisprudence initially it addressed the issue of rightness and me to see in its pleadings had presented to everyone has conceded that it's a one year statue imitation from the enactment of the ordinance you have what i call three two four three two nine which were enacted in one nine hundred ninety four him in place up until ordinance and as part of that ordinance specifically said that it applied retroactively the court of appeal affirmed that on the state court level that it was permissible for the for the city to have done so you did have or with respect in one thousand nine hundred eight that means they needed to file a challenge to three eight one within one year of an act that now they claim and it's on disputed that they were a member of spatola did file an action challenging three one becomes important to look at the spoil a case and what happened procedurally there ultimately in two thousand and one the district court in or granted twelve the six motion and dismissed their case and gave spode the opportunity to either appeal or file a new complaint by september of zero one i mean if she has conceded that it with class designee files the lawsuits there is then a period of time where class members can opt in or out of the case with for there are substantive rulings here you have a series of subset of rulings in that initial first action in this case challenging for twelfth in november of two thousand and one there are no the footnote in the district court's ruling on this notes that m h c didn't challenge three one until it filed its second amended pleading in december of two thousand and three and i think this is critical the court didn't deal with it because it felt it could deal with the statute anyway but m h c made representations to the district court between november of two thousand and one and when it finally amended its pleading to include a cause against three on that it wasn't challenging three one so it can see the theory of time that it was not challenging three eight one then in december of two thousand and three it amends its pleadings to for the first time include a claim against three one based on that you have a of acts of the statue of limitations even if you accept their trolling argument i don't think that tone should apply because it was an association action versus a class action and if it does apply you kind of have a have your cake and eat it too situation where image is trying to avoid the first you're caught of facts of the spoiler decision but at the same time take advantage of the tone of period which it's to a situation where you can simply sit around and wait to see what happens twelve and three one both had gotten so used to earlier seventy percent red caps on distinguishing them from three to four in three to nine which had one hundred percent right gaps those are generally the only difference here i think the same arguments have been raised by m h c in this case as were raised in the senate say the same arguments were rejected by this court in san jose with respect to due process point in any underlying complaint the court addressed that claim as well it was barred by the same one year statute of limitations so claim was raised the court also well the question is i'm sorry i can express it this way the question is whether lingle over turned army terrorists and i don't think it did what justice kennedy says is concurring opinion is that he you don't have to go to the generality of stuff to due process so this claim that they're making still falls within the bailey work of the fifth amendment claim you know whether they want to couch it as an  doesn't excuse the party from proceeding in the ministry of process with claims that crack correct and then under that there there is a ninth circuit case which is which is not cited in brief sixty eight eighteen f second fourteen forty nine which is cited in your sand as a opinion dealing with this idea that you at least have to make one application before you claim i believe that deals with my points i have to answer your questions and thank you as you go thank you mr record you get the last word thank you very much footnote fourteen of c n n jose he indicated that legal to only foreclosed a substantially advanced claim it did not deal with the substantive due process or penn central taking claim the issue did not even to rise until after oral argument and a letter to the court made it to the not to a substantive due process plain and while there may be a requirement for exhaustion that one make a single application here we have a specific finding that any suit was chilled for making that application and the city continue to enforce those chilling provisions through december of two thousand and five through most of the pendency of this action and certainly during the time of the dismissal so county makes clear that if there is not an adequate or reasonably certain state court remedy then there is no need to pursue that remedy at all because the doctrine of futility applies that determination by the state court of a chilling preclusion of the ability even to apply is intitled to collateral estoppel of fact in this court for twelve is the only valid law for the state court opinion and it's acknowledged to be sued within one year of four twelve we could not have brought a substantive due process claim forward we asserted in the alternative that was prophetic because it happened but that was the first time we ever had the possibility of going forward and lingle makes very clear that these are two wholly distinct playing so there is no remedy of compensation case to find physical taking and and cashman versus fatah to find irregular tory taking remain present in these particular ordinances we have never had a day in court principally because the city has association or suing in its own name simply asking to be heard on the federal constitutional merits of this claim it cannot possibly have come to court too late nor could it have come to court too early when it has been suing continuously for nine years to try to have that day in court and all that's happened in the interim is we've had state court findings that certain of these laws were nolan void they were imposed in appropriately and that's another federal constitutional issue court finding that we're not going to have a retroactive application of the law and the state court finding that we've been shelled and precluded during all this time through two thousand and five from seeking a discretionary increase there is literally nothing more my client could have done to be heard on the merits and the claims do in fact have merit as has been recognized repeatedly by this court in the context of paul and in the context of cashman so i urge miners to remain and i'm so