well with the city agreed that noncommercial speech i think there's a factual question at the outset is just what the statute means and i understand the city's position to be somewhat different not with regard to whether what you just asserted is legal time in changing circumstances and so if you're making pretty serious charges that they can use whatever they want you have anything to back up those charges well i look at the code the code the new water stuff and saying  arguing that the study and i don't understand your argument to say that the state had its tested discretion and improperly exercise that discretion or failed to exercise that discretion in advertising so i was pretty much what the ordinance was aimed at this isn't the exceptional case where we want to make an exception because this really doesn't fit the pattern and is there anything about your or your clients signed that we've seen a qualify record the subsequent the emergency ordinance which was the subject of the court's supplemental questions carry forth the provision all that did was to extend the time that the emergency ordinance  until ninety days after this court issues its opinion the terms of ordinance twelve five six six are carried forth precisely as they were and acted initially so the  currently in effect is the same as the ordinance that was considered by the district court and found to be constitutional if it's usual for the court that emergency procedures i don't know if that if that there's the general course of the city's business but they just refer to it as an emergency ordinance and that is under section two thirteen to two sixteen in the oakland city charter but it seems to be a procedure which doesn't have much to belittle for example ninety days after our opinion it's going to expire the purpose of that and i realize this is not strict compliance with a regulation would result in practical difficulty or unnecessary hardship inconsistent with with the purposes of the zoning regulations the second is that the strict compliance with regulations would deprive the applicant of privileges enjoyed by owners of similarly rezoned property and the third is that the variance would not constitute a grant of special privilege inconsistent with  so in essence what it what it appears to require is that the applicant would have to show that they somehow been singled out and subject to a burden that other apple other citizens in oakland aren't are not burdened by that number one which talks about practical considerations what are they talking about that is i'm looking for the exact thiessen in our in our brief the language of that is the language that has been universally adopted for for variances that  is the underlying justification as it were for variances as a general matter and so that by including it in  ordinance that the intent of the city was to make sure that we're applying a standard that is one that universally applied in variances has been historically applied and is universally applied  that correct that's correct are or and that was taken out of what point in the district court process that was taken out it was presented to the court during  and mr hurst is correct that with respect to that his as applied challenge i would i take issue with him on one point the only the at the variance procedures were applied only with respect to parcels two of the an unconstitutional policy that unless that policy it's applied to plaintiff in an unconstitutional manner there's been no violation of his or her civil rights and so i think that it's a manner that was sufficiently objective and her the application appears in your excerpts of record of her application of those standards to parcel to appears in the record at fifty three and fifty four and it's  this particular where the scientists are going to be put up are two stories high you're going to put up a five story building that's incompatible with the purposes of the zoning i mean it's it's a very very kind of objective time place and manner if you will analysis that she enters into in the court concluded that even though there was the possibility because that's what official challenge is based on the idea that there's a possibility that a public official could exercise unfettered discretion that that possibility did not come about in this specific instance and so as a result he denied the supply challenge with respect the parcel to so i think that that's  applied what the argument i understand it was rejected by the district court because he said well even if they are radically it was too broad that is there's potentially started with facial challenge as apply here there was not unfettered discretion i an on site sign that was not visible from the freeway neither of those representations were true and i think that that may have i don't i shouldn't say because i don't know but that would certainly provide a basis this is all this is in the record and she found that in fact that there was no business on the site so therefore it was not an on site sign and it was in fact primarily visible from the freeway and at that point that's when the letter started issuing saying aspect of the argument the reason the various provisions applied to parcel two was the representation was it was going to contain non commercial speech and because it contained noncommercial speech it was not subject to the absolute prohibition under section fifteen zero one because of the size and type of the sign it was a variance would be required at that point so that was the reason p partial three did they put up an advertising sign there seem to be a little discrepancy there to be honest your honor i'm not entirely certain of the how the events transpired from the record and i think that the district court was also confused about this more thoroughly than i but i think my understanding is that once it was clear that there was an absolute prohibition on advertising signs of commercial signs visible from the freeway that they determined there was no sense in applying for a signed permit or any sort of variance because they deem that it would be futile because it would be denied at that point i think that that's the history of parcel three and i think that the record maybe the complaint bears interstate eighty  are there further questions about this this portion of i don't know i take here and get to the to the content biggest or the yes just briefly because i don't have much time left as players counsel pointed out the challenge the paying special signs are also allowed nearly everywhere in the city of oakland and those can also contain noncommercial messages any so called on site time can contain the noncommercial messages so long as it relates to an activity on the property offsite noncommercial signs as we were discussing with parcells who are permissable with a variance the c council has also directed in foresman of the ordinance so that any limitations on types of sirens that are allowed within the city are interpreted and enforced in favor of noncommercial speech given those facts which are undisputed in this record the city codes whatsoever in the record in fact the record shows because there are certain types of signs were noncommercial speech is permitted and commercial speech is not special signs for instance offsite  no one as written was content based in that it contains the time in temperature exception to the ban on off site advertising signs the court applied the test for severance that was developed under california law which is and temperature thing in there at all considered peer that that would be the only thing no one commercial thing that would be allowed that's what one way you could read it is now right that on the record that was presented to the district court which is undisputed at this point the city provided declaration after declaration from the officials charged with enforcing the ordinance which said advertising as commercial speech to free my son is just not true i think you have to look at the actual facts of what happened i some self serving declaration by mr patten what actually happens i think there's a let me ask this once you passed that hurdle you were fifteen no one doesn't apply to you because it's noncommercial speech and if we agree on that then you but never apply a fight by not applying it it was a violation because it we do not have any other questions we thank you we thank both council thanks for the argument of the case just argued it is submitted and we're in germ