all right so will know your argument i mean number two thousand and seven fifty ninety four you see a associates versus united states mr is this and this is this is true both sides the decision the two thousand and seven decision and synagogue and neither one of you likes a aspects of that but let's assume for the moment that the panel is bound to fall that about exactly what plan they were intending to end would have adopted and are you asking us to find that fact and clearly erroneous about the intentions of c c a even the plan they would have adopted no and the reason for that is that this court does not need to disturb those factual findings so does your ears helen instead you're telling us that the trial court that we should consider a hypothetical plan that they could have adopted that would have complied with the three requirement this statute laying out that you can apply to acquire approval if these three requirements are met if in every single case we're supposed to assume because i can't imagine any case where we couldn't construct a plan hypothetically that  was the plan that the actual company of issue was intending to adopt and compare that to see if that would satisfy this requirement but no your honor because the the the facts that are relevant already in the third to be the supply of a comparable housing for low income and very low income tenants at that so the first would be the limits on the amount th said the only plan and we want is one that will completely free us of any restrictions on him we don't want to limit the rants to existing tenants we want to be able to raise the us the day after prepayment to market rates if they had proposed the plan such as that would that plan have been approved or had any chance of being approved no your honor but that does not  plan that settled for less than you want it the you'd have to try to get a a less as you put it a grandiose plan approved in order to have the thing right no your honor in the critical distinction again is the fact that it appears the plan would affect the supply of affordable and supply of affordable housing for levon very low income tenants adversely or materially affected duration it's important to understand that the restriction it would apply only to current tenants and once those tenants sued out that the owner would be free to rent those units to market rate customers and to raise rents as much as they could afford to do so their market would allow to do so and so the restriction would be in place only for current tenets and the interesting thing there isn't what they want right that that's true your honor but the in order to demonstrate the futility they have to demonstrate that no plan could have been approved well that's the problem and that position is what we rejected in yemen well in sienna the facts were different because prepayment would have affected and the government conceded this the supply of affordable housing for low and very low incomes tenets here the tenants and shadow cleary by point of submission are moderate income tends and therefore prepayment would have no fact on supply of affordable housing for low very low income tenets and so that chronic or that criteria the statute is not implicated in this particular case and so the only question is whether they could assume that a plan of action that would have raised can amount to a take in and it's also important for the court to understand that the market rent levels and the levels of the restrictive rents that c c a was charging at central factors to the existing factual record of the trial there would be no need for additional factual finding or evidence the court should direct the trial court to remain the case and apply the  pin central factors consistent with this court's decision and seeing the good ten to two thousand and seven see in a decision the record here demonstrates that c c a did not suffer economic impact a significant a diminishing in value of approximately eighteen percent and that diminishing value is not significant enough under the case law to constitute i don't understand you want us to decide that there was no taking here whereas in  remain ended for a decision on the take musician with the correct criteria you want us to go further than we didn't see him again not necessarily an honor that the record exists for this or to make a decision based on the to satisfy either the but for test or the primary expectation test the two alternatives that were laid out about the problem what the problem is in the syndicate and say that the investment back the expectations that you need to consider the expectations from that point of view that you have to look at the expectations from the point of view on the actual temporary limited restrictions that were imposed this case is no different that r about restrictions anticipation about restrictions on the right to prepay the word of limited duration i think he did your honor he where did he do that well he found specifically that the  payment right was the cynic on all of this transaction those are his words and there was a further finding that the prepayment right was the central feature of the transaction but that that would satisfy either  you're talking about a different issue in in vienna get ten we said the issue is not whether there's an unrestricted right to prepayment the issue is whether they should have anticipated that for or primary tests with respect to a limited restriction on the prepayment might be the judge made findings based on the record that was before him temporary question did he make findings about the expectations with respect to limited duration restrictions on the pre payment conformity with the the mortgage documents and other transaction documents that were signed in this case and that was without regard to whether there was a restriction for five years or indefinitely  i think the findings in the trial court the truck what made our i think more than adequate to satisfy the four or primary expectations based expectations of alternatives that and those are not the only availability in the legislation of the possibility of ending up with a pre payment right through the mechanism of the plan of action for incentives or a request for permission to sell the property in the event that those had but he said that's not relevant to the taking some healthy right he said that that that does not go into the economic impact aspect of the analysis that's true your honor and that is understand but if i may or no i want you to answer my question as to whether that's consistent with you know a good well i think it our case is different from c n n to ten in that respect as a result of the decision in  in the whitney benefits case because businesses are not answering my question i mean i mean ask you about is that consistent with feeling good to know that the judge that the judge assumed that this decision here is pretty much the same is the decision from the there's no there's no doubt that judge let house set that you don't factor in the question of the possibility of these options to pre pay through the mechanism of a sale or through a plan of situation is different as a result of the whitney benefits case the when the whitney benefits case the government argued that a colon change program had to be taken into account as an economic offset of some sort to the economic impact analysis and the court specifically put the burden on the government to come forward with evidence to show the value of that economic offset in this case there is evidence in the record  and it is i think indisputable that the government failed to put in any evidence to show what the value of these offsetting options might be and indeed it's even worse than that for the government because their own expert testified that he could not put a value on the potential opportunity to prepay through the mechanism of a sale to a nonprofit or the potential meccan opportunity to prepay if a plan of action for incentives failed he specifically testified that that he could not value those options he could not put any non speculative value on those options and as a result the record i think  any type of economic impact and no one is to ignore the offsetting benefits in this case in this and for the specific reasons of the specific testimony in this case yes the testimony is clear from the government's own expert that they cannot be valued in economist attempting to value those offsetting benefits in may of one nine hundred ninety one and looking at what the statutory scheme is and the necessity to go through a a two to three year process with cut and then be dependent on testified in this case and it's perfectly understandable that if the court did not have before it the benefit of the type of testimony that dr that it was at it here where he specifically said that it was pure if anything your honor it was approved at trial as a result of the testimony of the government's expert that those benefits those theoretical benefits could not be valued that they could not have a number of starry decisis in your argument as i understand it is that sienna go eight yes already said the return on equity approach was acceptable let's put that argument aside for a minute let's assume  and how then do you get around the city and a good ten comments than dick language which is not dick does that says the change in value is the only mechanism which evaluates the parcels takings case in which the government in which the court applied the pen central analysis and determined that in that instance there was a fundamental right that had been taken the right to devise and that notwithstanding the absence of any investment fact act expectations and in the light of really the most miniscule economic impact nonetheless it was a regulatory taking applying the pen central test right to exclude that has been recognized by the supreme court and legal versus chevron and the kaiser aetna case to be a fundamental right and indeed the court is described as perhaps the most fundamental  this court in sienna the ten in the court did not have the benefit of briefing on the point and to consider the applicability of your saying we shouldn't follow suit him because in your view it's inconsistent with it as i say we have an a for sure right case we have not only a fundamental right to split which has been taken but we have clear investment back expectations and we have definite economic impact even the categorical takings of the type that we saw in the lucas case for example and simply imported that temporal dimension of the parcel as a whole concept into this type of regulatory  context and in the categorical takings case with the inquiry is to determine whether or not the end of the economic value has been taken in the parcel as a whole concept makes perfect sense because there you want to make sure particularly dealing with an income producing property of the type that we have here similarly protects the government's interest that the parcel as a whole concept is designed to protect in the categorical takings context we have specific very logical distinction that you draw between temporary takings then on the physical preparation or categorical takings of brutus with regard to economic impact on the parcels the whole language in particular and it seems to me also  d i'd like you just to explain this for a second that it might be supported by the notion that in compensation or the assessment of compensation the supreme porters always look to last rents as the form of impact on parties and t cases that seem to me that further supports what you're saying because what is the economic impact but you know how much should we compensate you and given that this is the method they use for analyzing compensation it seems to me it would further support your argument  on the basis of the parcel as a whole but nonetheless the court said in that case in the case of a thirty two month moratorium that if the plaintiffs had pressed their case using a penn central analysis they very well may have prevailed well if you focusing on rebutting what we discussed with him certainly honor with respect to investment back to expectations it is true that the trial court in this case may new findings regarding the recently expectations of investors of reasonable developers not the subjective expectation of this particular investor it looked first at the general expectations reason why expectations of objective developers and then having concluded that the prepayment  this situation correct not just any object investor in a different set of facts and in this particular situation had the tax benefits and other financial incentives been completely exhausted so anyone since that's the case would have been focusing on the prepayment is the only significant benefit to arrive from this contract no your honor because the test is applied at the time of initial investment and the government's tax expert and a nine hundred seventy two treatise that  we've discussed at trial all demonstrated that at the time of the initial investment the primary reason for getting into these investments were the tax savings they were highly leveraged investments with very little risk and they presented incredible tax savings tax savings which this particular investor did used to its advantage your honored with respect to the sale option the government did show the value of the sale option it presented testimony of an appraiser that looked at the value of the property as a market rate property that value would have been that's the price the property would have commanded on the open market had it been so pursuant to the statute so it is true that the government presented evidence of the value of the sale  finally with respect to the hotel case the preservation statutes in this case did not affect the right of the owner to exclude tenants the owner had the option to choose what tenants would  reside in this building and it was free to reject tenants and further that case dealt with a categorical taking that the statute in that case categorically eliminated a certain type of right of