this case as well as handle the rebuttal and i would like to ask is the court's permission if he could have five minutes since instead of the three minutes because he is addressing also the cross appeal prevailing status of the plaintiffs we're asking this court to find that the parties plaintiffs did not prevail in this case and that the only reasonable attorneys fees would be know what uni's fees it's clear that in all of the law on this case that the right to attorneys fees under nine hundred and eighty eight dollars has to be directly connected to the benefit that the plaintiff receives and that that benefit has to come from actions that the court made the defendant to take your arm but as they receive no benefit my argument is they did they received no benefits well the man after the decision the decision said they should file of a plan and that it must be approved that's correct right yes they did have that power before that they did not so in the discussions after don't you think they had sort of the whip hand because they had that judgment in their pocket the question is whether that order of the court was of any benefit to the plaintiffs that's what i'm asking you don't you think that when the plane is the complaint is came to the defendants after the judgment and there were discussions about what should be done right you don't think the plaintiffs had the whip hand in that discussion because they said and if you don't do what we want we can always go back and force you to approve o i don't think so because you would like to have that piece of paper in your pocket when you were bargaining your urine or that never happened a day and i understand they didn't have to use it apparently the discussions were amicable or at least there's no indication they weren't but don't you think that was a powerful thing to have in their pocket your honor which they got from the court i don't think it was any power if i can it's no power to if i can explain ok after the decision your honor they went back to the court and they went back to the court and said we don't want this plan we want to different set of plans will you please amend your decision to allow a whole different set of plans of the law clear and that whether you're prevailing has nothing to do with what happens afterwards the question is what were your rights at the moment the judgment was entered the question is as at the time the judgment was entered that's that's right the now the now it doesn't say at the moment or the instant judge was judgment was out but i would suggest that time means a reasonable period of time within the time period that the judgment was entered for instance i would certainly think that it would clue that eight days that they came back and they asked the court to please amend that when they say whether you're prevailing depends on the time of the judgment the court's mean and a reasonable time thereafter that is certainly for this court to decide i would suggest that it does not as i would i don't think the court cases are clear that it's not the actual instant but that's certainly within your realm to decide whether you believe that it has to be at the instant i suggest if if the test is maybe not the nd but by the time the judgment is duly recorded them sent to the plane on the plane of reads and says oh i've got a piece of paper that says when i go to this defendant i've got a piece of paper that's going to give me some power even if this court holds that as you say the instant or within a day or within when there is file i would say that it is absolutely no benefit to the point  instance whether with respect to negotiating or anything they didn't want the plaintiffs asked went back and me almost immediately in eight days and asked the court change we're not interested in that building we didn't get to turn it we didn't we didn't get our damages we wanted millions of dollars of damages that was thrown out ok we wanted to to have a residence and that was thrown out and we don't want this building judge you think it's a good building but we don't want this building and the judge said no to that and what did the plaintiffs to do after that the absence of themselves from the litigation there's nothing in this record there's not think of it they were if they were told that they had to build that building all they had to at this directory got a little benefit the plaintiffs saw no it had no benefit to this and that's the what the ruling that the defendants had violated the plane's rights right and honor didn't the judge mean careen legal obligation on the part of the defendants to approve an application if one was consistent with the parameters set forth in the judgment the answer is yes but it was an in a should at the instant the judgment was offered there was absolutely no obligation for the defendant to do in had to do anything it was in coing he wasn't legally obligated and that's why i say that  in this instance the benefit and the action of the plaintiff or the fent it which are both are deeply intertwined here and in the standard of review is is is why on whether the plaintiffs are prevailing i believe action by the defendant and they were neither in the she just simply there is a benefit and she presided over this case for years to preside over the trial do we give her any deference on whether the plaintiffs derived any benefit from this i think if you look at her decision she just simply used the wrong standard she used to stu's the standard to simply said if there is some kind of change in the legal in whether there was a benefit if she entitled to any deference she she didn't find any benefit now after about six months of hearings the historic district denied the act application we went to ten years of litigation nine written opinions one time up here the nd circuit and once to the supreme court none of the underlying issues trial have been appealed it's only the issue of attorney fees that were here about today and the court has put their finger right on the head of the issue of the prevailing party status where the supreme court said and for our hensley at the time of judgment there needs to be a benefit so what happened in the record at the time of judgment this the court found there the bad went from being substantially burden to be in substantially forty i'm sorry substantially burden as a result of the certificate of denial to be substantially free as a result no no no not at all so is the ability to worship in litchfield there was the ability to get their certificate of appropriateness the ability to move forward on their plans to have a house of worship in a community that rejected them twelve years ago and so what they received is a substantial benefit at that particular time with judge paul's opinion in i think what's important to note is that what didn't submit an application for they really take advantage of this ruling and therefore there is no tangible right so what happened is afterwards the rabbi decided that he would like  a plan which was the plan that was submitted by the town a trial of the say this is really what we would like to this is what we would approve and his idea was if i if i go with the kerry plan it will be a lot easier to get through everything moving forward so i'm day thirty what was submitted to the township was the plan with the signature from the rabbi saying this is what we want the bowl plan was never modified the plan was actually approved by the historic district in the process went after that that couldn't have occurred without the trial or did the ruling in the litigation trial even the gear glam which is right because the garrett plan so what happened was was we went through trial in the courts and come back in thirty days and argue we're closing arguments which we did  here but this is after all the proofs are in the whole nine yards the court didn't rely on that when it made its decision the court even to mention it in its seventy three page opinion about the substantial bur a result of the denial of their certificate of appropriateness the court just looked at the proofs in the case and said at the end of the day you denied you substantially burden through that denial so the benefit clearly was to the to the plaintiff of the act once the once the court found a substantial burden then they were able to move forward group where getting their house of worship why williamson county the decision that this report made a couple years ago in takings claim said that in the contest the land use you have to go in you have to exhaust your district remedies and you have to avail yourself to anything below here and get a final decision before you go to federal court in the context of landis it's the only civil right where we have to go back to the police effort i'm sorry go back to this  after your rights have been violated after the early told you earlier deny you to go through the process and get denied before you can go forward the other thing is that this record in this trial and this trial was based soley and were not solely but a majority of the record was based on the evidence that was introduced to the planning to the historic district when it was making this decision on the certificate of appropriateness is the record of the administrat district court and the application for the fees relative to the related to the conducting of the ministry yes that the record was because it was submitted to the court for trial so the right had been violated until me end of the administrative proceedings is that a sufficient reason for not giving these and the industry to proceed i don't believe civil in just from a practical standpoint of doing work when you go in to a planning commission the or historic district where the very st thing you do is have a meeting with the planner or the religion or whatever and say this is what we like to do and there's and the answer primarily is is well that's fine go ahead and present your plan or sometimes it's no if it's no you still have to proceed and go through the whole process my understanding in this case is you know i didn't handle it from the beginning but from what mr merriman in mr herbst advised me who did he handle this is they originally went in and it was no but they still had to go through that whole process that's not in the record though i don't believe now that the only remaining defendant is the o economic status of the of both defendants here in the borough who tell me is a governmental unit so they're no different than the town as far as a lot of belief or fees because they can tax that's corrected the historic district would feel word stands against the historic district how do they get out of what well they had insurance for a while but i'm not sure that existed the more but then there's also the borough has taxing power as well came up what happened after this when they went back to the h b c for a nd plant the st set of plans that they wanted were for a building that was twenty thousand two hundred square feet in size the nd the plans that they submitted were by an entirely different architect by garrick for plans under nine thousand dollars square foot footprint went from five thousand square feet down to three thousand square feet for the difference made is that it was granted and it had nothing to do with religion the rabbi was asked in that commission because this building of nine thousand square feet meets your religious needs and he said yes at that point he didn't even look at the floor plans of the building at this point in time he went in any put he came in with a plan that was historically appropriate and therefore he can build and he can put in their religious uses he can putting residential uses you can put in commercial uses anything he wants and it this is something that could have been done thirty days after two thousand and ten and as a matter of fact the original decision of the borough invited him to come back with smaller plans that would be appropriate and he ended up tiny municipal entity seven hundred thousand dollars is a multiple of their annual budget they do not have a full time employee they do not own real estate it's a small budget that base or a small entity that basically administers the national historic district it's that fiscally as a portion of the borough it and that is correct yes that's right it is with the administrative proceeding or the a geisha and it was never any question that the who had the ability to exercise to religion as far as the town is concerned it would just had to relate to the size of the building and the expansion of the exterior of the building another thing that i wanted to address was your honour's query with regards to the benefit and i would point out that while there if there was a benefit your honor it was a nominal benefit and i say that because throughout the administrative proceeding and throughout the litigation the whole bod had claimed and insisted that if we don't get the full twenty thousand square feet which includes a residence are our practice the exercise of our religion will be substantially burden judge baugh lower court said no they got less than that they got half of that and judged all of the lower court rul first i heard you say it hasn't been paid yet that's correct and neither have the legal i have the lawyers haven't paid you right that's correct typical case of one of these you should go over over these ok these  whether the amount is the existing amount or more with the administrative less who is going to pay i don't know that i can answer that right now who's going to pay the only option as m pointed out the borough owns no real estate it's just a taxing entity it's going to have to be passed through to the residents of the borough as i don't want to be held to this but as far as i know right now i think that is the only avenue for pain that you know what your notes are no you know insurance for the people who made the decision in the st instance i'm sorry your honor could you repeat that there's no e in no insurance for the people who made the decision in are any other questions well let me put it this way here is some good citizen of which you very interested in historic preservation and they spend one hundred dollars for the a stark district is that tax deductible as a charitable if they get it the bar owners municipality yes they have a budget and that's part i believe that's correct john