before the supreme court either in the dealer wynton vs play time theaters or los angeles versus alameda books that is when the plaintiffs announced the intention to open a showgirl in the city of angola showgirl it was already prepared for just such just such a circumstance beginning in two thousand and three it again in two thousand and eight the city had specifically and acted zoning regulations specify to as adult businesses were required to open operate in d c to zoning classification appended to this ordinance was section five point six six the sexually oriented business you standards which specifically stated that were set up help safety and welfare of the community that these businesses would have segregated a thousand feet from specified uses including residential districts public gathering places schools and the like now when the plaintiffs actually announced their intent to operate in town rather than having the calm that comes with being prepared by the city of eng went into a panic and with the word within four days it instructed its city attorney to begin researching the legalities of regulating adult businesses and within a month they had passed  foot limit right even in that c two yes i believe what you're referring to was the i was going to mistreat them as likes letter to plaintiff's counsel of the time mr sauer tag that informed him initially testimony of the plenary injunction hearing under examination she indicated that it wasn't the trail itself which she regarded as a disqualifying use or rather the trailheads where they would be park benches and other similar amenities that she regarded as a public gathering residential zoning districts but not from a residence correct ns there at in terms of how the local laws apply here i mean i assume that all residences in that city are in a this area of town it is a sea to be too large general commercial area and there are at least residential structures there and it's a matter of contention of whether anyone actually lives in those structures or if where they've lived in them in some time but there are houses within seven hundred fifty feet probably non conforming use is grandfathered in that's correct your honor but at at the time that your clients purchased the property and  prohibit anyway and in the city of englewood boundaries from being used for a adult business and this is a condition that persisted for approximately sixty days until november of tw regulatory ordinance no it's actually up to businesses were permitted anywhere in the city of and go for that right not true now though that correct the city asserts that that's no longer true i'm willing to make that concession yes after the development ordinance was amended two months later it moved the zoning classification from sea chewed i to in the city asserts that there are i'd sue spaces available i mean with all of the dispersal there but the fact of the fact is when you have as you have a business that came into town where the town had already prepared for this circumstance and upon learning that this circumstance was actually happening that an adult business was actually coming into town they propose a merge and see ordinance to prohibit businesses within seven hundred fifty feet of residence this was the city council used special procedures to make sure this was an active and one city council meeting rather than three city council meetings even the district court acknowledged that the timing of this was suspicious you know what we have here is a business that purchased a property that was properly zoned at the time and the zoning classification of this business purchased was one that was issued through the legislative judgment of the city even goal now this publicly gathering place am i correct that there was a proposed running bike trail that with the end that was supposed to begin construction in the spring of twenty thirteen at the time of the and twelve it was proposed but not yet constructed and that's the public gathering place that has since been confirmed that the zoning administrator just not regard the trail itself as a public gathering place but only the trail heads and there are no has within a thousand feet of the opera posed and is that is that running bike trail as it exists now i believe there's been more construction on the trail i don't believe it's complete now  get along the way are going forward with the reconstruction under the guesting under the prior yes angle development code of the premises was with wired first under section five not six six to get a this in an auction correct at that from that time forward did he or she have to get any kind of permits to go forward with reconstruction showgirl was required because one because of the change of use under section nine point  five of the uniform development ordinance and because it was a section into business under section five point six six and you know from development ordinance to obtain the improvement location permits and as a precondition to changing the use classification so we got all of those that if that was applied for what that was never obtained and you have to understand the circumstances that we're talking about here that is the second that they close on the property within four days the city has passed a licensing and regulatory ordinance which prohibits the use from being at the subject location and that's a part of the non conforming use rights argument is that even went ahead with you know what four hundred five hundred thousand dollars for the improvements with no apparent approvals from any regulatory authority your honor three hundred fifty thousand of that was the purchase price of the premises all right so that that that's that explains that so the rest of i don't know what hundred thousand yeah over one hundred thousand dollars for a metal roofing in four interior work for parking lot work and it was the plaintiffs intention to essentially do as much as they can under the current conditions and as set forth in the breach talking about the weather conditions under the well under the legal conditions where they didn't get any more permits th came in with a building plan ready to go there's well i don't know in no choice and when you buy it exactly right show up at the auction or you don't get it exactly right so you have it under the gun for that but then they went forward full speed ahead sounds even though you applied for things there they played for things well i wouldn't say short of a risk there that without getting the line of approval you said the building inspector very soon he would know he only says he showed up once but he inspected a wall for a dressing room for a women's dressing room so the zoning administrators or excuse me to the building of selectors testimony there's more likely than not indefinitely reasonable chance that a jury would you then would your client start building again or continue building the most likely yes your honor i need to clarify what exactly is before this court properly you refer to this alternative avenues claiming that's just know so to the extent that the district court entered judgment on the pleadings i'm not quite clear on what that was and the order of the court is not clear about what in the answer here is absolutely yes not absolutely no no it's permitted in the i to the district and so we we've cleared that first step of the renton an element of books analysis and we're now in the secondary effects part of the analysis and then potentially in the narrow take a look at tailoring and alternative channels of expression final step of decision striking the amid a complaint before us all we have is the denial of injunctive relief and i'm trying to clarify what exactly was litigated on that motion the district court's decision that part of the package of motions that litigate that because the current state of affairs is that these uses are permitted in a different district and so the question becomes whether the change of zoning is actionable on your part and whether these other conditions the buffer it's their burden to show that the ordinance was unrelated to the suppression of speech and when you have a city that has an existing zoning ordinance where they consider this type of use and they put it exactly where they want to me put dispersed requirements to protect the public and then as soon as a business six located there then act the moratorium that's a situation that neither of the of the supreme court cases address it but to call it a moratorium is misleading  temporary until the new ordinance was adopted and came into effect so there's there's nothing to litigate that there's no injury from that two month stoppage what we have is an injury associated  with the new set of regulations that your client is operating under both zoning and otherwise licensed or at cetera and that prevents your client from using the property in the way  protected sexually explicit expression here this is sort of on the perimeters the assurance of respect for respectfully what we need to look to the committee for is determining what the what this portion look at what is determining whether an ordinance is unrelated to the suppression speech or not we would look to me just doesn't apply that's a different doctrine were in the renton in alameda books doctrine and we've got lots of case law on the circuit and how to apply that and it's all about the secondary effects test and how the kennedy proportionality balancing test applies and then fled if there are adequate alternatives left open so that narrow tailoring is satisfied and purposes of this and that secondary effects under the second prong of a bra and whether or not this ordinance meets a proper further is a substantial government interest it's a different question of whether or not the ordinance is unrelated to the suppression of expression and we look at the sequence of events here and you know up to it it's pretty clear that this ordinance was an act and to prevent this business from operating they wanted to stop it from awkward in this place and they  ected a moratorium which prevented this this which wanted to operate a business from operating anywhere in the city for two months in the city turns around and blames the plaintive for not taking more actions to vest or not informing use rates but to get back to the question the these issues will recombine by the district court judge when he says even though after these depletion was made below the defendants withdrew their proffer of the second secondary effects material in the in the judge may be very clear if it's going to be on a permanent injunction record i want to right here so that you're not pointing to something else and from the court of appeals that you haven't put in front of me and the proffer was made as depletion was made and the proper was withdrawn and then making his decision in the district court said i would the secondary effects evidence and because i think this reasonably supports the type of regulations that were enacted i find that these are content based that there was no list of motive that there evidence that supported that liza stablish needed to be moved from city to outside the class the parts of town it too i just write and i don't know how this claim can be decided without that evidence so i'm baffled as to why the parties took it off the table and then the district court judge put it back in then it mystifies me because that's the core question under renton and alameda books about how to revaluate these challenges whether the secondary effects is the driving force or whether there's a speech suppression and motivating factor primary motivating factor and plaintiff expected to have the opportunity to litigate that below  for purposes of primary injunction you have the voluminous studies as your honour's have seen from the record the ability to get a plenary injunction where the plaintiffs challenge every one of those things is a herculean task of that that at the preliminary injunction stage to prove that you have some likelihood of success on the merits otherwise you're not going to get that permit any relief it's going to go to the merits at a trial or summary judgment maybe injunction hearing the motion for judgment on the pleadings and all the secondary effects evidence that was attached to the city the answer was fully briefed and art and basically was not part of the argument but had been fully briefed by both sides to present that evidence the plaintiffs objected to the entry of that evidence and then they entered into the stipulation the spelled out in their brief and they said we're not going to do that for the preliminary injunction stage and we said ok they made a tactical decision and that tactical decision was that they would win on the judgment on the pleadings because that's a higher standard and they thought but we can't lose on that that's going to be part of another motion and so what happened is the district court when it entered its omnibus order on january second dealt with  judgment on the pleadings and dealt with the secondary effects material in the context of that motion which is not here as part of appellate review plan as presented no adds so there's nothing to be done in far as far as reversal on the preliminary claim and again i'm baffled as to why it was just related a way to the way that the plaintiffs presented it they presented as like a separate discrete claim that none of these are separate and disconsolately we have one first amendment claim and then we have a bunch of state law cl and there's a whole bunch of different first amendment theories kicking around in this case but the primary one is the renton alameda books claim that's correct has a very you know longstanding church group framework for evaluation and that's  correct and and so the point is said well we're not going to press that however they parse it out and the judge said to me does that affect your proffer all this evidence i said sure we'll take the stipulation that that's not part of the preliminary injunction and the judge said well you know i have these other motions and it's part of the other motion i said yes so they can seek a reversal here because they're bound by the stipulation i think that's just the simplest resolution that but basic inserted that issue back into the primary injunction decision which was very much an afterthought in this omnibus opinion that the judge resolved all these claims on both the state law claims and the first amendment claim or purported to on a motion for judgment on the pleadings which is incorrect in this context maybe some of the state law claims can be resolved that way if they present your legal issues but the first amendment claim cannot be resolved in a motion for judgment on the pleadings and the judge seemed to parse it out into separate claims based on the different steps in the first amendment analysis and that's improper your honor i would agree to the extent that the judge framed his opinion or more into a the point of what he gave their claims in that structure was probably not the best one oh there was one first amendment claim that's correct with a bunch of different theories that's right and when they moved for i believe that he entered judgment on the pleadings as it pertains to this issue on the idea that the city relied on evidence reasonably believed to be relevant as that's just one step in the first amendment analysis you can't get a judgment on the reason for that was all the exhibits necessary for that were part of the pleadings except the affidavits about alternative sites and that was something we moved for summary judgment on the issue of alternative sites again but that's really not true though s because it's a legal standard of whether evidence is reason we believe to be relevant the supreme court has told us what meets that standard right but that's not the whole case that that creates a sort of a presumption a shifting of the burdens under the alameda books case and kennedy's opinion for the concerns which for the concurrence which was the deciding vote in the case we've said that that's holding holding and the standard that needs to be applied and it's this proportiona idea that you know secondary effects once they're once the city's reliance on them is established in an evidentiary way then there's an opportunity to challenge that and there has to be some proportionality between the reliance on secondary effects and the amount of expression suppression that's going on in the case your honor i i understand your position and the district order it's not before us now but to the extent that the judge based his denial of preliminary injunctive relief on that decision we've got a problem here because the doctrinal analysis was incorrect  standard on the rent and right and if a city does exactly that exact same thing and meets the legal standard rented by relying on the same evidence yes but the other side gets to challenge that pretext grounds and on this proportionality idea as to the extent that it's understandable your honor if you could i move on to just two quick addition and i think i understand the court's position we believe that there stipulation at the preliminary injunction although this court may make statements in its opinion about the the judgment on the pleadings it doesn't seem to be a ground for reversal because they they said they were going to press that and that was the position they took and we had no reason to oppose the point of saying we're not going to argue this but all their arguments about secondary facts and claims are pretext they really go under the mental bryanston and that is your honor noted is very well established in the circuit and that is that the court will not strike down a law that's otherwise constitutional based on alleged illicit motive and that's what all the arguments here are tiny they run up against that black letter law but more importantly they ignore the history in the city and goal of regulating adult business is to protect not just residential districts but also residential land uses or single family dwellings and better commercial areas and in this court's decision in blue canary the court said countless cases allow cities to zone strip clubs and adult bookstores out of residential areas and classier commercial areas do we know anything about the justification for changing this in classification well all of the secondary effects evidence talks about the outflow of negative impacts on the communities decrease property  tends to be less closer to residential land uses and so we have a record on that but we do and this is quite a page five of our grief where the city's rationale for adopting the two thousand and three ordinance is laid out and in great detail about the need to protect the areas that within close walking distance of single family dwellings and the need to protect commercial areas to talk about findings from the merchants in the city about wanting to protect the commercial areas and so the all intents and purposes the only evidence in the record and it's undisputed is that when they hired this outside consultant for an overhaul in two thousand and eight all of their policy statements that they made in great detail in their two thousand ordinance got over looked and when they when they did this shift they failed to include the residential buffer that they had always had in fact they had had a residential buffer of a thousand feet so they want to make this in to be an impermissible purpose but in addition to running into the the motivation to the rents and forecloses they also running to the historical fact of the city was just even if it prompted even if their robbery prompted their their notification of the loophole that oh why have the residential buffer not just the residential district but the ones for homes for single family dwellings in this use is directly adjacent to or within count the whole code yes and what happened was that's my understand i don't know that that is in the record but the plane's zoning ministry said i looked for all the any rationale for this change from what we had always had going back a decade to two thousand three and and it appears to have been an oversight but it wasn't an illicit motive in point of this real argument here is as you know that is not that there is not alternative avenues of communication they do not dispute that presently there are forty one parcels on more than one hundred ten acres instead they have as you mentioned and in co a challenge to this twelve days after they submitted an incomplete application under the old zoning but they never suffered an injury under that old zon because they never had a completed application their whole and the reason that the parties evidence on the alternative sites is pat ships passing in the night is because what they pled was only a claim that there are insufficient cites in the status quo in the present and this is it paragraph two forty six l of the complaint they basically said it fails to leave alter the avenues of communication and they say the ordinances do that and when you go back to paragraph sixty two of the complaint it tells you what they mean by the ordinance that means the licensing regulation and the new zone and that's all they plan so when the city move for summary judgment they put on evidence on the claim that was pled and they concede by not responding to the motion for summary judgment that they were that they don't have any evidence on that issue that there's plenty of sites in the present they want the court to go into an incoherent span of time where they never seen a completed application and strike down a wall that's been repealed but the more important issue is they did as judge mannion pointed out gauged and a host of illegal activities during that time and that record from the district court as well supported that they never engaged in building permit process they even though they were told multiple times they had to get a building permit they never did that indiana law it's clear that you can't have a vested right to be treated under an old law when you were operating illegally when you were violating the building permit that's the plaza group case that's the dainty kovar society of south bend so there's a number of cases on point with that  way to get back to challenge this repealed law unless you have a vested right to be treated under that that's and that's why there are a whole argument alternative sites is just that for this period of time this temporary what they call a moratorium which is not this temporary period time they claim there is a old ordinance that now has been replaced that they don't have signage and mark that they don't have standing on and that is relevant to resolving their appeal i mean obviously they argue about it at length in their appeal because they're arguing of there was a period of time even though we never  the applications and we were illegal because we're violating the building permit process throughout our construction that was unlawful under indian law but they're saying that unless we want to reach back in time and attack the ordinance but they have no s grounds not on federal constitutional grounds well they're trying to say that if we can show that during this in coate period of time from the day that we submitted our incomplete application on november seventh under the old zoning so when we got amended to open up the eye to on november nineteenth if we could reach back in time and attack that if we have some kind of vested right to do that then we can strike down the old ordinance and somehow sale there was nothing there it's very it's  levels four or five different levels of speculation if this had happened if this had happened and we had submitted a complete application but they never did in the final analysis the district court did not abuse its discretion on the record that was in front of it that first of all the city did have a legitimate grounds for regulating adult businesses they it wasn't the first ordinance they had it for years that there was no entitlement to a preliminary injunction on the first amendment claim and that they lack stand challenge various permian requirements on one because it was never applied to them and the second because if a facial challenge didn't lie to a generally a political improvement location permit requirement that applies to every land use in the city and so on for all the reasons that were stated in their brief and one of the things i i thought i would point out is there is a timeline in the record that sort of helps with some of this it's at on in the appellate record it's our thirty six dash fo and it's at page sixteen of the fifty three page p d f that is arse thirty six dashboard and it lays out some of the timeline issues relative to this that's helpful and it bears noting that they did already have an appeal before hearing officer and state court that city that annexed a de facto moratorium upon learning of that this business is coming and then turns around and blames this business for not applying for permits and not undertaking more activities to achieve vested right status when it's the city itself then that made it very clear that they were never going to let this business open up anywhere and what the guest of an e o decision did is a look back to a period in time where there was a prior restraint in place and said even though this isn't the state of affairs now we have to look at one of this was constitutional during this period in the past for the purposes of the best rights analysis mess we have here plain cannot be held to have not met that's right status because simply because they didn't do anything when it was the city that completely prohibited them or at least discouraged them from doing anything by and looked to after the p b s vs dallas the city of late would which says if you win the city is there when the government is in forcing shifting or illegitimate for the court to determine whether or not the term nation was content they for not here whether or not the city's decision change or do you want to organise or not whether that's content based it's very difficult to discern determine post hoc but that line of cases says we don't need to look there because changing the rules mid process gives us their us thank you all right thank you will take the case under