honor good morning and may please the court my name is dana mayne i am here on behalf of the city of alabaster alabama and we are here today about this topic that has taken up a lot of time in the supreme court and a lot of time in circuit courts and a lot of time in district court when it is a takings claim talked about the now to an exhaustion i'm gathering after the nick decision that exhaustion are going to be yours is no longer valid your honor we had we did discuss exhaust yes your honor it is not valid but but in fact we had not hung our hats on the exhaustion because the state of alabama has a particular state law that doesn't seem to recognize a takings claim and an inverse condemnation claim so we had not our appeal had not hung on that part of nick at all so when it came down this summer the one thing importantly that nick did not disturb at all is williamson's finality and and i say williamson's finality but there are a lot of cases that brought forward that banality your honor and your honor there is a just to go back we've got four different types of takings claims that this court has enunciated in the e p purses sarasota case and our case is one of those we've got a why was it not final why was it not final it's not final because we don't know what the government would do we don't know what the city would do what kind of development the city would allow there has not said the development that the developer wanted was garden apartments which would have been a garden houses which would have been ok under the previous ordinance this ordinance says no you can't do that it sounds pretty final right it is not final because there wasn't any particular plat that had been given to the local government to take a look at but and put the plaque the done a lot of work spent a lot of money grading for a for a guard units which would have been permissible under the  ordinance at the time their property was zoned our two are seven in our four and they then said well we graded for our four because that's what we wanted that's what we had hoped for that's what we thought we would be able to get but the fact is it was not zoned for that there had been some testimony in trial and again the and i will point the court back to the fact that this analysis the ripeness analysis can be taken from the very st time that you have a complaint and so in the complaint it is the plaintiff's burden to prove that element that there is that the cases right from from the get go and these allegations were not part of the complaint but your honor but what you're saying is if they come with a plat that's the call for garden would would have been consistent with the st ordinance but not the new york's if they call for that then you're saying that the city may have said oh you know darn we just passed this ordinance but ok we're going to going to be ok with this will now change our ordinance that's what you're saying would have happened if they had just been a little more persistent your honor there was no they didn't do anything that's the point is that we were in a recession they had no plans for the property at that moment the plans for the property were pretty recession and that was d the plat that they had but again your honor it was not it was an aspirational plant they did not have the zoning are for zoning on the entire piece of property it was only about half of the property and your honor the rest of it was for townhouses and then for the are two so we had in our two and our seven and we had in our four and there was testimony during the trial that says well you couldn't with the plaintiff i mean we're back to what you're saying they needed to do to make it final and you're saying they needed to come back with a play out for that which the ordinance would have forbidden and my practical question is we know you wouldn't change it because you've been in litigation for years at any point because th you know what if you just mentioned that to us we're fine with that but you're still litigating this which suggests that rightness is not the problem but disagreement with what they wanted to do your honor and i realize that that is a statement  haven't why haven't you changed it was was something that the trial judge said but your honor the city is not going to resign a piece of property in a backing we dip part of the reason why it was r d to begin with is because the city knew that the property was going to go it was in the middle of foreclosure so we didn't know who the developer was going to be at the time and it's very significant to the city who  happened it was in process it was in process the the the default there had been several different loans that this property had millions of dollars of loans on it and then this property secured was secured for other pieces of property up in sorry other lands the default had it had been longstanding that the property had been in default and that how do you address the a profiles not like the a profile's case a profile's case the owner of the property was using the property the owner of the property had gotten permission and gotten a permit for woodchipping had built the woodchipping operation was operating the woodchipping operation under permit and then the neighbors got upset about what was going on the city said issued an order said you've got to stop what you're doing that we permitted before and then withdrew that their permission their permit to do it and then rezoned it specifically for the purpose of having them use permit it so at that point that was a use that was in operation and the city came in and stopped it in the here you have all this money that was spent on grading i mean so there is there is activity on the property and the city rezoned too because they they knew what was coming and so they wanted to make sure that it was the there are two so how does the distinction you're drawing really matter because the property was i mean it was was graded years and years many years before this reasoning and had the nothing had happened in the project itself well because of the recession had just been dormant and so and also again the property was graded not as it was zoned and the in the zoning ordinance specifically itself says you are seven as townhouses they graded for garden house garden homes that sits so and that was done in twenty million fifty two thousand and six here we are nothing is happening with the property in fact it's eleven and a mostly by the city council was because the members of the city council's constituents were worried that more town homes would lower their property there as well well your honor st of all right this you never even get to trial ri before the trial your honor that was part of the pretrial order but but a question about rightness goes to the court's jurisdiction and that can never be waived and it was raised before the trial started understand the city can stipulate  before trial started yes your honor it was in fact though the ed in issue about the court standing could be in jurisdiction could have been brought up today well as your rightness less the same we decided it's not right what's the next step it's to make it right so you're saying they would need to then go back and then what put a plan through said this is what we want to do and then you say ok no no again and then we are to have a jury verdict where we know what the bally way should be you're saying we have to go through this step just to get back to and just get you a new trial essentially your honor we don't know what the jury would i mean i'm sorry what the city would do we don't know what the city would do with a developer  no no your honor we do not we do do not know that we know that what the city knew at the time of the rezoning was that property was in foreclosure and somebody was going to come in and take over this one hundred and forty two acres that was on the hill side we had no idea what was going to happen with that property and that if that if the developer and the owner had come in and said here is our our three plat this is what we want to do here it is that these are their two entrances that meets all the requirements can we have this is owning that's a very different situation the city has never had that since when two thousand and six when there was an r four plat that was given to the city that the city denied planning commission denied and i see that my time is up thank you and this may more hear from the strip you know definitive definitive position that inflicts concrete injury upon the land the city has cited in their brief that it may be the state's decision maker but that would require something further than what the williamson court required which is just that the that there must be some facts before the court that would put the rightness at issue the city stipulated or actually instead said before trial that they were not going to argue that the property could be developed at are two likewise they didn't put on any evidence that it could be developed at are two and it's this is in holding with the greenbrier court that said that that even if you applied for a variance there were no variances available to south grandview and that they could not the board of adjustments was did not have the power to effectively rezone the property so it's it actually is more even about it's more about than just requesting a variance or filing suit based on a stop or vested property rights which by the way the board of adjustment does not have authority to  entertain some of the issues that that the city has put forth such as vested property rights in a stop will the board of adjustments must maintain the spirit of the original ordinance and there's no not seek a variance from this because it like i said it's more than about just doing that the undisputed testimony by consider giving for the owner was that even if you do that you have slashed inventory and have you have your trying to put and are to home on what was previously designed for an r four a lot you have half the houses you have are within our two lot and you've got houses they don't even comply with the covenants that are already in place and it would just it is an atypical configuration in a typical lot configuration and in a typical home configuration from a properties were in the middle of foreclosure had not been finalized is that correct i would not say in the middle ma'am it did for closure occurred sixty days after the rezoning now there was some and there was some concern about foreclosure but remember that the bank itself appeared at the december th two thousand and eleven city council meeting and said please they appeared with mr charles giving poor who at the time was the owner mr giving pours attorney and the bank appeared and said please don't do this there's a lot of money invested in this property if you do this it will result in you know the financial hardship to refinance or ruin whatever the exact words they used at the city council meeting but it was it was very clear in the minutes of the ability to make a profit is predicated upon them being able to sell these lots and with the undisputed testimony that we've got the fact that the city did not put on any evidence that they could be developed are to even with some sort of  taking all that into consideration south grandview cannot go forward even testing this wild theory that they would be putting their entire investment at risk simply to test a speculative and wild theory that they said that the city says we don't know what they would have done or we they may have done this it's all speculative if you look at the williamson case and newport largo two cases that the city is a lot of on there was actually evidence in the williamson case there were several different variances that they put into evidence that the landowner could have pursued and the and you can read the in the opinion to that they did not take advantage of those variances they were actually put into evidence that the lender can pursued likewise in newport largo they said that the record problem your client doesn't own the property and even if it was been no there's there's a small portion that there are several different banks or several different portions of the property there was a small port part that they still do own but the vast majority of it is his own is bang but so if we were to render a decision that said there's wasn't a final decision there's a does there's not much your client can do after that there was there was yes there i believe there is there you could go back t v could go back and renegotiate with these banks they've been doing business with these banks for many years and i think that it's a testament to their relationship with the bank that the bank actually appeared with the city council and said please don't do this so they could go back to the bank and say you know there has been a taking were awarded a judgment they could negotiate new terms so well that's i mean  i suppose that's assuming that that the city would resume to or for but if the city can't if the city won't rezone to or for if it's remains that are to then there's really not a whole lot that can be done because i mean for some reasons or or non reasons for the rezoning and they called that an arbitrary and capricious standard but we never used arbitrary and capricious the jury the special jury verdict form only allowed for them to assess the fair market property before and after the taking and and what we've reference in our brief is that character of the government action does assess reasons and in the case that the city has sided parts three and four of that opinion go into some some detail about that reasons for the rezoning can be considered it actually it discussed it put the lucas case and the penn central case up against each other and that it says penn central necessarily entails complex facts factual assessments of the purposes and economic effects of government actions and the purposes that that's clear cut they also said the court also said comparing the lucas case with the central case that under the under the pen central case or under the lucas case there is no need to evaluate all of the pin central case there is there's a need to evaluate the importance of the public interest served by the regulation or the reasons for imposing the temporary restriction on the city in their response of brief stated that that may go to the whether this is a physical taking or versus a regulatory taking and i would submit to the court that it would be redundant to go back over that because when you're talking about a pen central analysis you're talking about three factors the economic impact of the regulation on the landowner the character of the government action and the interference with investment back the expectations now that's a pin central analysis and then they talk about the lucas which is a categorical a complete taking when it falls short of destroying all value to a piece of property the core proceeds that then central analysis but i submit that we're way beyond whether this is physical or or or regulatory the mere fact that we're talking about a pin central case necessarily implies that it has been a regulatory action it would be redundant to go back and say ok character of the government action are we talking about regulatory versus physical we're way past that  when you're looking into the motive behind the reasoning aren't you running square and the lingle where the court said that an inquiry into whether a regulation substantially advances a legitimate state interest and is an later on explained a little bit more in the mirror versus wisconsin is that that was a nene's in test in the mirror mirror court said that the reason that that chevron overruled that  was because it required the court to delve into far into the effectiveness of the regulation not necessarily the reasons and if it in the chevron opinion they've gotten way in the weeds about whether or not there was a it was a yum a gasoline regulation on and they talked about profit margins and how this was going to affect the customers and they got way into the weeds about the effectiveness of the regulation and that's why the court had to come back and correct course  and go back to the pin central analysis so so i mean some of this evidence will overlap the reasons i mean after all we're still dealing with the last little line of the th amendment which in the court has carved out a few different several different causes of action just related to this one line so the the the motives yes can be relevant when it refers to the character of the government action and you know in the reasons for doing so and by the way counsel for the city in his opening argument referred to the reasons for the referred to the reasons for the the regulation and i mean i'm i'm not aware of where somebody requests a standing objection and then also is the st one to inject the issue they said that it was it was not a smart idea to begin with because it had mis placed t prop denser properties and they also said that there was concerns about the foreclosure so i  and that they wanted but didn't have and are two there is are three for instance there has never been so to come in and say it's our four or it's our two no there are there you have one hundred and forty two dollars acres maybe you come in with a plan that has a combination the fact is that septa ordinance that only art your honor but we were talking about the requirement in the case law that says you have to come back and you have to make an application we have to figure out what it is what kind of concrete plan is going to be permitted and again the green wood or green bill or whatever case it was indicated you know variances are nice but you can't do something in a variance that outright sounds like you've made a decision your city artie's what we want and you want them to come back and they say yeah but but but would you change your mind i don't know that you're wanting them to do that means that your original decision was not a final decision and yes your out of the case law does say that we're required to come back you're required to come back in you have to look at the specific situation the specific facts and the facts of how this rezoning came about you had no no plan nothing the property was in for in foreclosure it had not been foreclosed upon but it was in foreclosure we know that and so if if the s g p had come did according to them at the city meeting where you did the ordinance you had the bank and everybody saying please please don't do this they're supposed to come back a nd time inside please please you know if they come back with a plan come back if they had been there with a plan we don't know what would have happened if they said ok we're ready to go forward bank says we're not going to we're going to renegotiate the loan we're going to redo the terms then something may have may have been different but if i may  i've we've addressed them here is because they go to the standing to begin with your honor and if i may just going to the evidentiary part the idea that you can bring in evidence and they are in was all about bad motive of the city to rezone it you they they talked to you haven't any trial if you allow context evidence in criminal context we call it rights justify so you're talking about a rezoning and it's typical that when that's going to be brought up somebody is going to explain a little bit what happened in a little bit what the reasons were instead of just presenting the jury w flow charts and numbers just some background you have opposition to the jury here and anything at all about why you chose to resign the property your honor i have up yes yes your honor under these circumstances we  do because it was so so badly done i mean not your honor because no not at not at all but because we are in a you have to look at what th amendment they are asking for damages for a one hundred percent complete taking in order to have that there is you there is a presumption then that you have a legitimate governmental basis i cite the court to eastern enterprises versus apfel which is justice kennedy's concurring opinion that says there is there you've got an underlying assumption that you've got a constitutional base they i'm asking again what is wrong in any trial i've never seen a trial or you just come in with numbers and there's not some witness or some context given to at least let the jury know what we're talking about i don't know how much one goes into that but at least you're saying that it was verboten to get into anything about the zoning or why you did it or the process your honor it in and i do believe that it is because they tried to paint the city as being unkind unfair in the closing but what about his argument the jeep started it with your own witnesses you were actually why would you have the witnesses up there they had nothing to say did they if you were allowed to talk about this on your honor they were in and my colleague had talked about the opening argument and in the opening argument the court in a motion in limine e the court had already rolled this evidence was coming in and so then i understand then you relied on that ruling and we had to hampton that you did you call these witnesses the city witnesses or did they know they called him and your honor no didn't it and it was and then the judge we had the standing objection so that we didn't have to whether it would would have been a standing objection because talk about the harm to this less assume that it would have been a better choice for the judge so let's not get into the motivation too much but the harm to you would your be your fear that it would be so and calamitous ory that the jury would be monetizing this in a warning damages based on the fact they don't like the city as opposed to based on actually trying to monetize what the dollar amounts would be and so but based on what i've seen it appears that the jury they asked for five million or something based on whatever their experts said the jury came in much lower than that would that not suggest that there was not there was no prejudicial impact of this that the damage was was not such verdict with but didn't their experts just just the raw numbers what it's worth that two hundred thousand dollars now versus what it would have been worthwhile before the zoning those figures justified that number did and your honor and i there was not an there wasn't an expert who testified about that it was that the or the whatever they had for that i meant right your honor but man address your issue very specifically about what's the harm well let me just read to you this is  page sixty eight dollars from the transcript and this is in the closing argument from the plaintiffs it wasn't until december the th two thousand and eleven that after almost substantially the whole subdivision had been completed that the city balle rug out from under us and cause us to lose whatever money we had invested i submit to you ladies and gentlemen that what the city about the bastard did offends your sense of fairness what does the city of alabast do they kicked them when they were down just as we were trying to emerge from the recession why did they do it why why was s g be singled out for this kind of treatment after all  done for the city of dallas baster one time other than the successor oh was it something that that they did something that they did that that they didn't like mr giving imports said in a meeting not one word was asked by the city about how this was going to you have people saying don't do this it's going to ruin us mr shim paul and mr riles who are city witnesses their demeanor on the witness stand i think you can say that they kind of hung their heads a little i think they were embarrassed that they had made these decisions without even going out to the property etc your honor the whole purpose of that in that testimony was to try to inflame the jury and then to go back and tell the jury this is it it's not appropriate for a th amendment taking this case to tell the jury there is no legitimate reason they shouldn't have done it they feel guilty you saw them hang their heads and and without they didn't say punish the jury but clearly punish the city but clearly and in a th amendment takings claim when you're asking for complete takings that evidence is completely inappropriate