will the next case which is payment pack dell and seem to jeannie versus city and county of san francisco would you be more comfortable sitting down arguing  dismissed the pact else constitutional challenge to the lifetime lease requirement all of the act else claims require the district court to engage in some sort of factual analysis in order to reach its judgment therefore we ask this court to bake a and remand to the district court i will st address the takings claims and then the unreasonable seizure and then finally the due process and equal protection claims st for the takings claims the district court dismissed the takings claims for one reason and that was because peck tells failed to follow the state remedies requirement of williamson county it is summer and nick the supreme court overturned that requirement and therefore there is no need to seek say remedies for compensation nick said that it wasn't disturbing the other williamson county requirement though which is that you seek a variance or exception from what is being challenge as the taking did you do that in this case you're correct your honor the nick did not disturb the finality rightness requirement but as the court said in williamson county itself that rightness requirement is not an exhaustion requirement and as the court reaffirmed nick exhaustion of administrative remedies is not a prerequisite to bringing in one thousand nine hundred there is this requirement to seek a variance or the equivalent and did you do that in this case what you're honor they did request to be to be excepted from the lifetime lease requirement they were told no when did they do that your honor that was initially with the decision initially and if you look and it's in the introductory the introductory paragraph of the complaint and during the process of it your honor so i think i didn't i wasn't aware of any time that they requested an exception before they said that they were following the program can you point me in the record to where they did that well your honor that it is it seems like it might be an important point because i think it's a requirement that remains after neck your honor all that requires is a final decision if you in williamson county williamson county is no different from the normal brightness requirement and that made clear in the in the st part is there a final decision and in the and in this case we do have a final decision from the city furthermore your honor well i mean williamson county had a whole discussion about the need to see variance before you got a final decision as a separate requirement from the state litigation requirement well and furthermore you are not like i said they did but furthermore as the statute says and as the pectorals because we're told this was a mandatory requirement so there was no possibility of the city being able to be unable to grant a variance to this requirement was required by the ordinance as well so you're arguing that that the it seems to me that your clients could have argued that this may be a general program but we are just single owners we're not landlords of many properties we want to live in this house could you please give us an exception for when we are ready to move into that house that we can move in did they ever say something like that to the city they requested to be exempted from it and did they give reasons why they did they did in terms of explain their situation so how do we tell that from the record can you again it would be helpful if you could point us to that the conversion application right there was a different and the the ordinance did change the methodology there was still an appeal to the administrator that was available after the final to after the administrator with was there were three judges or three person well your honor whether or not it's ultimately that pack tells we're not required to exhaust in terms of its all that williamson county is right next requirement requires a final decision that has  paragraph twenty four dollars and this was after they had submitted after they had submitted the initial part of the conversion application which they were legally obligated to do under their agreement with the other tenants in common they said that they did request them so in may they had executed the lifetime leasing you're saying somehow after they had done all the things that this program was about they then asked for an exception but that did they have not recorded it yet because there was a there was a time limit after the submittal basically it was here's the here's the application here's the form that we're going to but it's not recorded and but my understanding is that there's hearing that happens a public hearing that happens on these ownership conversions they didn't go to the public hearing and objected they know your honor and then there's some kind of ten days when you can file a written appeal they didn't do that either right right but the written appeal is an appeal of a final decision and your honor again going back to as as with the rightness requirement rightness requirement is no different than any other rightness requirement rightness requirement williamson county all it is is there is a final decision and your honor rightness is looking forward exaction is looking backwards and so the city arguing here well the fact all should have done something they should have done something if there is an opportunity in the future if the city admits that the pectorals can go and request a variance then yes it would not be right for the city is not suggested that and that's what right this is about  that you could seek now no you're under under the my reading of the statues the decision becomes final after after a certain number of days and so they can they cannot see and that's all about what right this is about because if there's something that they did not do again but i mean there is allowed to be a statute of limitations for the state litigation prog of williamson county when it used to be that you don't do yours challenges if you miss the special imitations under state law and were too late that just barred your federal claim right so why when the same thing be true about seeking a variance if there's a time requirement because you are right miss is different like i said rightness is forward thinking is is there a final decision here for the court to review is there an injury a concrete injury suffered by the plaintiffs and that is true here there is a final decision the city has decided and they made it clear that they are going to enforce this lifetime lease requirement and therefore there is nothing that the packers can do to write their claim in that case and your honor because neither factual in nature and there's not enough in the record for this court decide it's appropriate for the district court to it's appropriate for the district court to do the fact funny necessary to result take its crimes i do just want to briefly address the twenty eight j letter that the city submitted yesterday and there was a property right to convert this property to a condominium and kick out the tenant i mean did you have a right to definitely do the thing that you want to do well there is there's clearly a property right your honor to exit the record rental market there there's a statutory right there's also the right to exclude and to use and enjoy your property which are ok but was that was there any right that you had or that your clients had to convert this property a condominium your honor to be the city made that right but also i would while they may that right the contingent on this is agreeing something is voluntary is both a question of fact but this also goes to it there's not the government can't just put the government does have limits and the government does have to follow the th amendment takings clause when it provides conditions for this you morning your honour's ma'am please the court i'm vetted is city attorney kristen johnson on behalf of the city and county of san francisco and pursuant to the court's instruction i'm going to start with nick st township of scott issue as well as we know under nick the court has only eliminated the nd prong of the williamson rightness county and as the court has already pointed out it preserved explicitly the st prong of the rightness test that was set forth under williamson county so what we know under nick is that a property owner such as the packed ells must still ripen their claim now i've found it interesting to hear appellants counsel argue on the basis entirely of a factual misstatement the record does not suggest that they ever asked the city for relief from the lifetime least requirement until after they had obtained the condo conversion map in fact the complaint at paragraph twenty four and the district court order both state that they st requested relief from the city in june of two thousand and seventeen after they had received the kind of conversion match so this was long after the appeal period under the subdivision code had passed they never submitted an application for condo conversion which requested a waiver as permitted under the conduct of the expedited program itself so all of those there are some waiver exception that they could have gotten there is  both a provision under the e c p a expedited conversion program that is specific to that program which allows open ended waivers that doesn't suggest exactly what it's limited to there's language about waivers or adjustments to the fees but we also have a section on the subdivision code section one thousand three hundred and twelve of the subdivision code which provides very broadly for the department to grant waivers for subdivision applications now these petitioners were represented by counsel when they applied for their subdivision ma these were not you know unsophisticated individuals applying by themselves so they should have at one of multiple points during this process notified the city that they had a problem with this requirement they could have done it at the time of application they could have done it during the planning commission hearing the counsel of that your honor pointed out earlier they could have done it at the time the tentative map was issued and when that map was issued they were sieved a notice saying if you object to the map or any terms of condition you have x number of days and here is the procedure by which you appeal to the board of supervisors they did not do so so that anyone had ever gotten a waiver from the lifetime lease requirement nobody has ever asked for one your hon and let me be very clear we are not conflating exhaustion and rightness here there are a number of cases both in this circuit and elsewhere that explain that in the takings context particularly there is a great deal of overlap between these two  two doctrines of brightness and exhaustion we're not suggesting that they are the same thing what we're saying is an tell a property owner has exhausted any variance and one of the cases i think it's  variance is not tell us manic so that means any exception you could get to the rules in place if and tell you have exhausted the ability to seek any of vailable variances or exceptions you have not  now again i'd like to address what i think is another misunderstanding of councils and that is a misunderstanding of the rightness doctrine itself it is not exclusively forward looking if a property owner attempts to end run these kind of variance or exception procedures that are made available reasonable procedures made available at the administrative level they do not get to manufacture a futility argument at the other end of the process so you don't get to take all of the benefits of a land use approval process as they have done here wait until the very end of that process and then argue it would be futile for the court to send them back and seek those variances because the time period has passed again and that's logical and seems persuasive but is there a case that tells us that yes there is there is one case that i have that literally one of my colleagues found i believe last night so i have not provided a citation but can it's provide that to the court with a letter following today's argument if you'd like and basically one of the last lines of the case says because they refused to seek one that is a variance they cannot now end run the process in federal court one of the cases potential variances or other exceptions that were available during the administrative process again it's both logical and reflect that in the cases there are probably other cases that hold busy similarly but those of the two that i can cite off the top of my head is it your position that they had an opportunity to seek an exception but now that opportunity is passed yes so you don't think there is any ability now to ask for an exception if we re mandate or something like that  if the court is interested i'm happy to talk about cedar point but what i would like to say generally is in a twelve or six motion this court has in the past and can again rule on whether or not a takings claim has been stated doesn't matter whether they're stating a physical taking claim as was in the case and cedar point it doesn't matter whether they're attempting to fit their case under the pan central rubric as was the case in rancho to case that was decided by the th circuit in either circumstance this care court is fully capable on this record of determining that the petitioners have failed to state a record in this case under the pen central standard is that a claim is what you mean didn't respond to the unconstitutional condition point that opposing counsel is making at the end of his argument why is this not an unconstitutional condition well there's no right to convert to a condo we know that from california law which we've cited in the briefs but to make it easier for the court the gryphon development company case makes it very clear under state law there is no right to condo conversion similarly the they i think they're trying to argue now that they have the right to basically evict the tenant at whatever time they like in fact the trial judge asked them to explain exactly what the right was that they were seeking to protect and that's the way counsel at the trial court articulated it the right to eject their tenant whenever they wanted to again they haven't pointed to a single case that says that is a constitutionally protected right they entered into a contract with a tenant and they already by doing so entered into a regulated field san francisco has both rent control and eviction control protections that apply the moment you enter into a rant agreement with a tenant as they did here so there is no right to evict because you want to know what they're saying is they could have done an owner move in effect sion maybe but even under the old lottery program there were taishan is on when and if you could do an owner move in eviction also they argue that they somehow had rights under the state's ellis act to go out of the rental market they're wrong on two counts st of all the ellis act does not apply to condominiums so regardless of whether we're operating under the old lottery system or under the c p the ellis act never would have applied to this so if they wanted to go out of the rental business they would have had to done so if and used the el act to do so they would have had to done do so before they converted to condominiums and they would have had to get all of their co owners to join in that effort you can't ls a single unit in the building you have to alice the entire building so all of the owners would have had to agree that they were never again going to rent any of the units in that building so that is a spurious argument they have not pointed to any right that they've been asked to forgo that they haven't voluntarily given up by entering into private contracts with st their co owners and then the tenets they then voluntarily entered into this contract with the city in recognition as stated in that agreement of the fact that a condo is worth significantly more than an apartment held in a tendency in common they also got another group of goodies including a fee waiver or a fee reduction i should say and the c p program itself allows you to ask for additional waivers like further reduction in those fees so among other things whether or not the city would have agreed to allow them off the hook for the lifetime lease requirement they could have asked for a further reduction in the fees that they had to pay at the requires that the pact else evenly share the costs of application with their co owners so there are a number of opportunities they would have had either to ask for relief from the lifetime lease requirement or to lessen the expense of application from the city more important in a real world sense they had a number of opportunities to ask their co owners for a change in the terms of their contract if they believed in two thousand and thirteen when the city adopted this change in the condo conversion program that it fundamentally altered the assumptions that everyone had when they entered into that tenancy in common agreement they could have gone back to their co owners and asked to renegotiate the timing so that they could perhaps waited until after this temporary program because the e c p a is a temporary program had expired and then reapplied of the lottery or they could have renegotiated the distribution of costs about flirtation they could have asked for any number of forms of relief from the private parties who they say have compelled them to apply for conversion through the early conversion program when and how they did so the p c was a temporary program and it actually hasn't been a factor because of this litigation exactly and in fact that is one point that i would like to make because although they haven't quite argued it expressly because i think they know what our response would be the appellant seemed to argue that there would be no harm to send us back to the trial court for further proceedings on this in fact there is a great deal of harm some of it is to the city because the city always has an interest in finality when it comes to challenges to the legality of our legislative an accident but more importantly the of like situated tenancy in common holders who cannot convert their condominiums because the program has been suspended as a result of this litigation spend it was suspended as part of the legislative a the city made a policy determination that it would only expedite these conversions if we could do so without creating a rush to elimination of rent controlled apartments on the market so we would have to make a different calculus if we lose this part of the program which can be done it could be done it could be done the policy decision cynical of the property owners to not only wait until after they had the benefits of their bargain to ask for relief but wait until after they had the benefits of the bargain to file the lawsuit that they knew would suspend the program that they wanted the benefits suspension in five minutes the city could but there's no need for the city to because we don't believe that it's an unconstitutional condition that's with his little soul but yes it is your honor if i didn't have any other comments unless the court had questions we are not up on a motion to dismiss for failure say to climb on the taking squares but ultimately your honor the city mentioned that this was some benefit and that the the pact else could have gone to their co tenants that conversion to condos was not a financial benefit your honor it's subject to the lifetime lease and even though the report that the san francisco said that said condos would be a financial benefit did not take into account whether or not there was a that's a private agreement so i mean i mean if your whole case turns on a private agreement they had with their co tenants that's not an constitutional right because that's not the government well it goes to whether or not it was voluntary agreement and they had a voluntary agreement with  was one factor in their decision was whether or not they could exit the rental market this was emphasized by the supreme court reverses in escondido that they could that the reason why it was constitutional there is because they could exit the rental market here there is no ability