place in this case i'm sorry but when did the taking take place in this case your expert talked about the two thousand and nine non binding vote reversion took place in two thousand and eleven and your evidence talks about two thousand and nine so for purposes of either lucas or ken central when did the taking take place according to you taking the taking took place your order in april th of two thousand and nine when the land use commission  unprecedented action to the voice vote that reverted the property to what it didn't he didn't revert the property i practiced real estate law for thirty seven years it didn't revert then yes there was a vote yes there was some concern it probably had some economic impact eventually but it didn't reverted and a matter of fact the commission later on state its action did not get it did you and ok so how was the two thousand and nine vote in any way at least under lucas infant central or the supreme court's most recent law eight taking it was a taking because it deprived bridge and the person the entity that was trying to sell the property or d w of any economically viable use of the property now it's true that there was an order subject to a condition subsequent on the completion of the sixteen townhomes a condition that was satisfied as the hawaii do any of the infrastructure when you bought the property in the st place your own people specified that would take tens of millions of dollars worth of infrastructure work that you could be done for you could do almost anything and yet you had the right by special use permit to do a school to do agriculture did bunch of other things as you know under lucas you got to be deprived of all use of the property you weren't here where you were your owner yes what why am i well what about the special use process this gets to the burdens of we went through every single use our expert did under chapter two of five farms hydroponic farms w farms all branches everything as to the special uses under the hypothetical speculative special uses under the procedure of takings law you have to have more than just a list a possibility of uses there was no evidence and this is the district court's points that any of those possible hypothetically uses were even physically possible on the land where there was a school was possible long before two thousand could have done in one thousand nine hundred and ninety nine that would have been any different we were denied and v w who were attempting to sell the property to was denied the right to build and develop the approved project the two thousand units the affordable president which you never satisfied right but the land was purchased in one thousand nine hundred and nine at a time when the land use commission had approved reductions from the sixty percent affordable housing requirement for six virtually identical at least in size and scope projects so the issue is not whether or not what we had it's whether under the pen central test whether it was reasonable that's the words of the united states supreme court whether it was reasonable for a landowner to expect that that amendment could be approved and in fact it was approved so it's hard for me to say how it was unreasonable for bridge to expect something that did in fact occur with the support then at least to the state planning office in the county for let me ask you this st do you concede that there's no lucas claim her you weren't deprived of every potential value of this property every potential use right that's st off no i disagree with you there is a look this claim here because the what you formulated your honor is not the test the test from lucas on forward is whether you were denied any economically viable use any economically productive use of the property and based on the reclassification as the evidence at trial showed  found in the order in the jamiel bridge was denied any economically viable use of the property during your prospective sell on by way of the two thousand and nine oral book that was never reduced to writing never reduced to an order honor is the length of the taking and what you articulating is indeed the state's argument as to the length of the taking they were as your honour's is supposing here that's when the point when the taking occurred but that does not eliminate a united states supreme court law this goes st english on forward nick said it again just four months ago that the right of compensation attaches and mediately upon the taking whether that was two thousand and nine as we contended and whether or not it was two thousand and eleven as they contended and the point of this exercise hear this appeal is the jury never got that opportunity never got its day in court on the issue of just compensation both as to the rate of return the loss are retained expert very briefly judge i think that as to the testimony by the retained expert mr berger i believe it was a clear abuse of discretion because the key point is by the time the sub were issued the procedural posture had changed because the case had settled the legislature refused to fund the settlement due in part to the land use commission's own lobbying and they had nine months from that time seven months from the time of their house i'm not concerned about rule twenty six last saturday seven bases that's what you're talking about i'm talking about the judge's alternative determination that actually your experts testimony and later your i guess o was basically irrelevant because the measure of damages here has nothing to do with the specific rate of return your client could achieve or any particular investor could achieve that rather it's  more of a market based rate of return and your initial expert his testimony said nothing about that so you know just on the sort of daubert seven of rule seven o two theory just was not proper expert testimony for the subject the jury was going to have to decide respectfully no because under seaboard one thousand nine hundred and twenty three case recently peter began by the u s supreme court the objective of taking these laws to put the financial the owner back in the same financial position had the taking occurred in this case bridge  know was part of the family of companies which bridge capital was the manager john baldwin was there to testify sophisticated lender investor manager that this was the way in which excess money that was derived in this case the value from that property lost would have been invested it's the same your honor in the situation where reid has l l sees if he l l c that's a single entity that owns the property generates generates income that that money is invested by the rate the parent company the same thing happened here and mr baldwin's knowledge was particular lies knowledge as an owner yeah ok but that assumes of course that in fact the analysis does is supposed to focus on the individual plaintiff and i guess what i'm positing is that as i read the case law but tell me if you've got other authority as i read the case law that basically whatever the individual plaintiff would have done with the money is totally irrelevant to the analysis the analysis solian objective reasonable prudent investor standard that is focused on you know some kind of objective market rate of return sort of like what your opponents expert was prepared to test the prudent investor rule d and you can look at the circuits decision and schneider is essentially a legal construct to ensure that just compensation is received because interest is part of just compensation dating back as i mentioned to seaboard as to your honest question what is your best authority for the proposition that let's say that i'm the c e o of the plane if i come in and i say you know what i i would have hit the jackpot with this particular investment that you know if i had gotten this pot of money rather than put it in you know thirty year treasury bonds like you know some fools would have done i would have done this other sort of more aggressive strategy and i would have made a killing i think the law is clear that well no we don't measure your damages based on what your own subjective testimony about what you would have done with the put it in this much riskier i think i was getting what ten percent or something interest on bank it was extent but what is even assuming that the reasonably prudent invested standard is an absolute requirement which it can't be given th up to this th circuit in those cases that the evidence was admitted as to what the owner the return that the owner actually achieved or sought to achieve during the time period and it's critical your honor because what is a quote unquote reasonably prudent investor differ is based on the property owner who's taken obviously bridge is different than a person who owns a house who a small strip of land has been taken for a highway bridge has the options has the ability to invest in a diversified manner and mr baldwin d was so prepared to testify it's always what are we to do with the fact that you know her for you to your client you have realized the return that you say you would it would have had to spend millions and millions of dollars to build infrastructure and without that you would not have achieved any of the level of return you talk about should that be taken into account what should be the answer is what future expenditures are necessary to create income you know what should be i'm sorry what should be take into account as a return correct your honor but you are what you were right when you said that mr baldwin said that initially they needed to invest millions of dollars in bridge in fact did invest millions of dollars not just in the planning but three million dollars in terms of wells roads digging infrastructure this is some of the hardest land on the earth a law that requires it to be dynamite bridge spent millions of dollars doing that that is backing reasonable investment back may please the court my name is your and rayna appearing on behalf of the state of hawaii state of hawaii land use commission and this commission individually named commission as your own is based on the evidence presented at trial no reasonable decision maker of those conclusions this course should nevertheless affirm the district court's award of normal damages because it was well within a district court's discretion to exclude bridges proposed expert rate of return testimony the need that complied with the federal rules of civil procedures expert disclosure rules nor satisfy the basic requirements of relevance and reliability council for our purposes on appeal do we even get to the issue of the damages testimony if we conclude that there was no lucas or penn central taking no note that if there's if there's no liability there's no need to get to the damages question maybe start with pen taking certainly does not require and maybe this is where you're going to go i think you're just flat wrong in saying that basically i mean what you say ninety two five percent or more of the value has to be taken in order for you to have certainly made made that argument and th right and minimum what i think that does it state that the type of percentage to me diminishing that we've argued is not sufficient is not sufficient unless you can also satisfy the at the other end i think bridge is acknowledge that you know at a minimum that's what and still found the taking scouting council just following up on my colleague's question on pinsent if i understand the facts correctly there were many conditions precedent that had to be satisfied at any point right for them to be able to move forward with their expectation in pensacola you had this historic railroad location the law provided that they could move the air rights to some other properties that they used to to get additional benefits that they didn't they were not deprived of the right to use the facility for commercial retail obviously for our road use and the like so in other words the supreme court analyzed this on the basis that yeah there were some restriction on the give you just like zoning laws but they weren't deprived of their reasonable economic expectations right because of the location of the air rights and so on in this case you've got a situation where you have three thousand acres of law basically and we can argue about under mirror what the done how many are out of the book let's say the district court got that right they had to and had to build a certain number of lawn moderate income housing units i know they say that they got that reduced or they thought they would in order for any of this had to be to be done there were a roach there were schumer's there are all kinds of things that had to be done for the purposes of our analysis and comparing it with the pen several situation how do we make those fit how does this become up in central claim if at all well i don't think it does and i think what a lot of that goes towards is the nd factor the investment but i think there's a couple of points that the opponents say today and i think it's supported by the record that they had every reason to believe that they could get that requirement reduced because the commission had in fact in other very similar situations done the same thing well they had done in the same thing but in fact the  before the rent control board before and i get in that case so when i come before the board before in the in my for my previous properties the board had taken into account  when determining whether to increase the rent and this court said well just because they did it before even for your own properties doesn't mean they were bound to do it again and this case is even more far removed because bridges trying to rely on other properties not even their own properties and the land use commission as i said has to take every every case on its own merits and there's nothing in the law or any of the commission's regulations that require them to gr reduction in the affordable homes commission or in affordable homes condition right but i grant you there is nothing that require them but they are on the same by the same token can't be assumed to act arbitrarily and so if as an investor you look out and you say boy these other six projects look like they're on all fours with ours and lo and behold in each each and every one of them the commission granted this reduction why would i not be entitled is part of my reason investment back up occasions to suit they're not just going to treat me in an arbitrary fashion i'm presumably going to get the same tree but i think to address that we have to look at this quote guggenheim decision and in that case what the court did look at the purchase price that the plaintiff paid for the property to look at whether there was it there's a significant premium paid based on speculation and they might be able to have the regulatory environment changed and what the court held is that even if there is a slight premium paid in the purchase price that's not a not enough to that without that for the most stringent affordable homes commission it would be valued have a market value of forty million dollars and so there's nothing in the the purchase price which paid to show any a premium to show there was a reasonable expectation that this property might be able to become viable from your perspective what bridge paid in one thousand nine hundred and ninety nine already factored in no change basically in the law and moderate income housing i guess and that's something th this court sort of already addressed is that the district court did rely on several different bases to exclude the bogus testimony and the there were two bases the port to establish a reasonable market rate of return which is required when taking just compensation theory requires on that depends on a taking over a certain period of time and nd even if capital's historic rate of return which is not a party in this case it doesn't own bridge it's not a parent company of bridge the only testimony a trasher that bridge capital managed bridge and was owned by one of the members of bridge capital go back to the st ground you for your opponent say that no actually the cases are very clear that it's the point of soon i think i'm self or herself would have done with the money that control i'm sorry that i left but that's why it's helpful to ok the person finish answering asking the question and then you'll know why so let me start over and maybe you won't interrupt this time your opponent says that the cases are very clear historic rate of return in that case it seems like what you're saying is that the court each time a lark what the individual people do is important but it's got to be realistic for example in pen here well i don't think it would and i think it would be more relevant it would be closer to being relevant if mr berger in his in his proposed testimony had said ok these are bridges rate to start rates of return or let's say we can or any other of the evidence preach established a trial that a jury could use to determine whether or not that was reasonable or prudent investment or would maintain a high level of safety i have two minutes thank you your honor very briefly it's important very important to look at the jury instructions which are agreed to in this case the state agreed to jury instructions that penn central is a multi factor test with issues whether the taking goes too far and that was a question for the jury to find similarly the state agreed that a denial of all economically viable use the jury must find a taking the case was submitted to the jury and as this court has frequently said it is for the it is predominantly a factual question for the jury as to whether or not there was substantial evidence the jury in its wisdom found that in large part because the state put on almost no evidence of this case i want to address judge watt for questions as to  the evidence that mr berger and or mr baldwin could've submitted and judge if i indicated to you that i thought it was controlling what the plaintiffs earned there i apologize that was not my intent my intent was to say that it is relevant because again because the property is taken from the owner under longstanding u s supreme court law it is relevant at the very least what the owner would have done with that money what it could have achieved during the taking spirit that was the evidence that mister berger present its results to reports that is what mr baldwin was prepared to testify to and in fact did testify to for purposes of liability just not for damages in the end it's not so much that this was controlling it's whether or not bridge got its day in court and it's true that the jury might have found based on all the evidence that the state's view of rate of return it's more market based based on cd rates or treasury bills they might have found that tells you right there that sort of baked into the very low price you paid was the you know it was not cut you were going to be able to count on getting that requirement reduced absolutely not true and part of the dilemma there is this is and wasn't there at trial what happened is bridge bought the property at the absolute bottom of the why real estate market bought this property out of a foreclosure by a major japanese bank that was going out of business and suing the price reflected reflected the economic times and the fact that it was in foreclosure not the affordable housing condition or lack there of and this gets to the point that the this circuit in fact has made in a different context in lucas