under the title to technical assistance manual and the a d a s is there is no intent to discriminate under the a b a in order to obtain damages and there is no intent comport as compared to just bureaucratic entanglement and legal differences of opinion and this says you've got to show some kind of intent or deliberate indifference would you agree with that on that that this case or so requires i manual when they went to evaluate dana just the intent required which was the main issue upon appeal they abandoned the title to technical assistance manual and they went off into another three judge panel doesn't have the authority the power the jurisdiction or anything else just look at another case decided by the ninth circuit and say we don't agree with it when i follow yesterday revisit it en banc understand that reasonable accommodation to have the setback of ten feet what it was would not have given your mother enough room in the front of the of the yard if i understand the geography file a government claim when i did they deny that completely one of the issues in this case explain why now one of the issues in this case is whether or not my mother was harmed the court and its order her mother was not the owner of the property rights you were mediation there was no in the city attorney cancelled it because it's against their oh did i wanted an e t a grievance procedure but under concord regulations you are not entitled to have one if you file a government claim when i went to the those cases and the record in my opposition to summary judgment of federal cases and disabled license placards when states charge fees for their actual cost could be two dollars with their misery some other cases with five dollars when they charge a fee for their cost it's an illegal surcharge even if it's an actual cost in this case the initial variance was five hundred ninety five dollars and then after that i had to spend sixty on an appeal to the planning commission sixteen on an appeal to the city council each there against the variance in the planning commission the various appeals had noticed requirement that amounted to thirty to fifty dollars you had to have stein's and post them so i don't i disagree with the just request finding that there was no harm to my mother and that she had no claim on damages because there seventy five dollars but when i got the abatement order when it was being installed it was mailed nine days after it was dated it told me i had one day to remove the fence and the only thing i knew how to do because i did not practice real estate law is i hired a real estate attorney in concord to help me to think and fortunately he did not understand civil rights and so that was another twenty five hundred dollars and without even talking about the money i her i believe it was an amount of approximately five thousand dollars which was the amount to put in the posts on the front of the property and it would be required to remove those posts so that they were in a little location complying with the  pending no it's not you know i think that the heart of this case your honour's is that in the six years since misc recent first contact at the city she's never shown things that she wants was necessary to accommodate her disabled mother's needs specifically her ability to enjoy her front yard to sit on the porch with her dogs to be able to interact with the neighborhood as the the rehabilitation act the justice department's implementing regulations respecting the idea twenty eight c f r thirty five one three o b seven specifically states a public entity shall make reasonable modifications in its policies procedure where if a request appears to not implicate substance substantial concerns on the part of the city if it's a fairly small request  i believe it's a page one of the appellant's record your own and it's just a letter it is just a letter it talks about the reasons why jane creasing wanted a an accommodation on an obvious behalf it describes her that i do not have the case citation or the citation to the civil code and i would certainly be happy to provide your honour's with that citation again it didn't come up in the record but that is one thing that i think should be taken into account additionally  there was discussion by counsel of representation by a certain city council member that this crease and should the city should settle a case with miss grace and really the representation was she should discuss the matter with the city attorney's office and at least broach the subject of trying to make the parties whole that was done it is not a case of the city playing hardball you know we made a mistake you're wrong but what you lose no problem it was a case of the city recognizing that it had made a mistake trying to rectify its wrong doing but running up against a party who simply was was set on a particular amount did you make a dollar amount of settlement offer to the other side i believe we did i don't know the exact amount i recall that was in the five thousand dollars range so even though the city was not obligated to rectify its mistake we did attempt to do so regulations of the a d a s specifically twenty eight c f r thirty five one of seven and one out of six which respectively require the city to provide a grievance procedure and also require the city to notify the public of its rights under it with respect to thirty five point one zero six there's no question that this crease and an attorney was at all times well versed in her rights under the eighty eight months prior to the time she even follow the various requests with the city wasn't at all times aware of the idea so even if one assumes argue windows that the city did not meet its notification rights under thirty five want to see x there is no harm there's no causation and she doesn't have standing under article three to damage should be judged in terms of whether jen crease and understood her rights under the da and i think clearly she did i mean this no question that's given her education as an attorney and her involvement with the disability rights advocates group the method in which a grievance procedure should be published the district court found as a matter of law that the city met the requirements because the grievance procedure is published in the municipal code which is available to the public at the library it's available  hall and it's also available online this christen has attempted the appellant has attempted to assert that she was wrongfully required to choose between pursuing her rights under the grievance procedure and litigation that's not really the case she could have deferred litigation pursued it through the grievance procedure and if she was unhappy with the remedies that it offered then she could initiate litigation so this is a false dilemma that has been created which when one looks at the facts  insurance would have suspended the running of any statute of limitations or three times i'm not no i don't believe that it would have but certainly the grievance procedure is speedy enough that i don't think that there would have been a statute issue and certainly th think the statement in gavin is this goes to the heart of this case and that's the gavin versus spring which conservative conservancy case and that cited in the city's brief which is that the duty to make a reasonable accommodation does not spring from the fact that it just that a handicapped or disabled person wants an accommodation eight there must be shy of showing of necessity and in this case as the superior court with this case first started out as court judge said look it's like the difference in the placement of a window what you want to do is to be able to is to be able to observe and to interact with the neighborhood moving the window a couple of feet either way is not going to make a difference to the person trying to view the neighborhood but it's going to make a lot of the difference to the city which is concerned about safety implications pedestrians lines of sight and it's also concerned about the deleterious appearance of a lot lines that's a great so fortunate like a fact which frankly harms the neighbors and i think the city was legitimately concerned about that so first of all there's no showing of necessity and then if you get into that balancing as to what the city schools and objectives are i think that clearly the city's decision was correct thank you counsel thank you your hon well the first thing please please don't talk until you're on the mike is we're recording this the first thing i want to address some of the questions about the evidence that accommodation letter is in the record the approval of the request in writing is in the record well the other side says the release never been a showing of necessity it seems to me that what you were asking for what your mother was asking for was the ability to sit on the porch that right in the garage actually the is by five feet was the request in order to use the lawn space or was that for the dogs the request was to enable my mother to wander she had a problem wandering she couldn't watch television she wanted to be outside all the time i was trying to work part time and she wanted to wander the california health and safety code orders nursing homes to allow all timers patients to wander they you asking for and how many square feet would say willing to give you in order to permit this wondering how long is thirty by forty they want to buy your yard meters thirty or thirty or forty and they want me wanted me to move the fence back twelve and a half feet which happened to be where some trees were the only trees in our front on the mississippi because of the all timers thirty three by twenty six now would have ended up being about fifteen by thirty that a four foot fence was recently necessary my mother was also an avid horsewoman she was born and raised in kentucky and she was five to ten there was a history in the lower court record of her vaulting out of hospital bed but she wanted to be out in the front yard to watch people been through the zoning in the street or it had been through the planning commission and it was up on appeal to the city council when they called the doctor trying to find out if my mother really did or did not have the whole time or where she actually lived all they had to do w me a letter telling me they needed an affidavit from me from the nursing home she lived with me four days a week in the nursing home three for a while then she came home full time in two thousand and the spring of two thousand and one but in two thousand i applied for it this has nothing to do with the situation in the case but it does have to do with your practice i think your admitted to practice in the ninth circuit and if the milieu with the rules of court yes and that i can expect your place to comply with the rules of court is that correct