use so basically a condemnation case where taking a course pardon pre taping of course telling us yes yes you are so quick taking the rover indicated testified through its expert that the highest and best use there is no so the problem with that what the commission and the court did is they basically said there was no evidence to support this one hundred and fifty seven acre high density subdivision but then they did what seemed right which they clearly erroneous but had they done that i mean they couldn't prove they didn't prove that the highest and best use was four hundred and fifty seven lots residential subdivision multifamily is a higher density typically then residential subdivision because you have multi families with and it's the same amount of space so they actually with a reject this one hundred and fifty seven dollars lot development but then they do a higher density higher some best use with no evidence from any party terminology i have a hard time saying it's just a terminology because we did when we were surprised when we got the commission report and they talked about multifamily one had never been mentioned in the entire hearing and it clearly wasn't what it was known for then the dischord adopted that and we did object and point out this not allowed by the bible's own awareness so we don't think it was a mistake of the district court to embrace that what value of evidence was in the record you mentioned r p the two acre lot for one house are one the one acre lot what was the evidence in the record about how much per acre it would have gone for it was those either of those right and so there were eight comparable sales by mr irving who was the rover expert and that basically ranged from about two hundred and twenty four thousand five hundred four they all had high density like one had two hundred and sixty nine lots one had one thousand eight hundred and seventy one had fifty eight for thirty two at the track so all those were very high density but what he did was after take comps he actually shared o were high density i'm going to ask your friend on the other side with the agrees that that's the state of the record fair warning to you but so you're saying there are there are no r p t or are one comps in the record that that those comps which i had mentioned earlier all high density and even his lowest pre tape comp for a high density subdivision was number four and it had a sales price of sixty three  thousand three hundred and five dollars but he adjusted it twenty percent was took it down to five thousand dollars and so when the commission came in and tried to do it they said claiming between two different highs the best uses none of which was for multifamily that doesn't court decided that it was for pipeline right of way and on appeal of the th circuit they conclude there was no evidence to support that so they remanded it with instructions to value the highest and best use based on industrial and the government's comparables and what we would ask the court to do would be to do the same thing to remand this case with instructions to value to use the highest and best use of rural residential which is what both the district court value of property it will not be disturbed on appeal you concede that this hit at least the low end of your friends expert how do we deal with miller the scope of evidence rules you're so so miller is different in the sense that in this sales number for granted it's allegheny county closer to pittsburgh but one hundred and thirty five acres density las breaker point sixty nine so that's that satisfies our one and and it's selling for six thousand three hundred dollars acre i mean there's an adjustment that's made in here but that's in the range of what is given so would it be with under smith would it be within the discretion of the district and commission to say ok we think this is like comparable number for critic howard county but maybe washington county is turning into galleon county why isn't that permissible so i think i'll go back and i know i've said it a couple times i'm not trying to be argumentative but the fact of the matter is they're giving that value to a a highest and best use for multifamily and there was no evidence presented that there's no correlation to say that they were residential subdivision residential subdivision correlates to a high density multifa very low density multifamily use that's my problem and i think if we had both testified they have excluded their one hundred and fifty seven lot deal and they said that's you know that's our wind we're our want to r p they could have picked in between  they could have blended in i think you have to go ok and that happens a lot in the law i'm not i'm not saying it doesn't this is a very unique case where they the commission of the court completely rejected their all their value testimony for pretaped so there's nothing left to bland on that side and you can't compare take prices for a multi high density residential and blend that or somehow figure out how that values into any a high density  multi family structure residence i see i still have a minute left so we would say there was some question as to whether or not the highest and best use is a mix question of fact and law i'm not going to argue about whether it's to know or whether it's clearly erroneous because we believe the evidence shows is clearly erroneous on multiple grounds we don't think that you can blend two completely different highest and best uses especially a highest and best use for which nobody advocated a hearing and nobody presented any evidence on what the value would be of a multifamily structure or his own ng and so that is the problem that we have with what has been done so we would ask that you remand it in accordance with case a single case d for the proposition that the standard of review is the novo it's a th circuit case and in that particular case that court was addressing a legal question the questions before your honor's are factual findings that were made by the district court and the commissioners and based on the i c i racing and andersen versus city of bessemer cases that we've cited in our briefs we believe that the standard of review here is clear as under a clearly  threshold question so even that question of what is highest and best use is a factual determination subject to a clearly erroneous standard is there any evidence on the record you can reference us it commission in the district courts conclusion yes your honor i'd like to start with the valuation evidence and i would point out that there are a number of credibility determinations that are being made in that process the st one i want to point out is that rover began this case by alleging that just compensation was seven thousand nine hundred and one dollars twenty five cents by the end of the case when they went back to the district court they asked for relief in the form of an award of five thousand nine hundred and twenty one dollar twenty five cents they actually reduced what they claimed was just compensation but that claim was based upon a mere mathematical elation of taking the number of acres occupied by the easement and in applying the after take valuation per acre valuation of their expert could completely ignored the phrase multi family residential which you try to dismiss as a misnomer a typo which i'm skeptical of if it bears its technical meaning it's not allowed into the zoning code we need to find a reasonable this looks like a raw split the baby rather than something that under the governing law would have been permissible yes in your honor i can understand sort of why at the very st glance that may seem to be the case but i  offer the following st of all the use of the word malt i was a is a technical or an in artful expression i will grant that ok but when you look at the evidence what the commission and the district court were interested in was the zoning ordinance which specifically provided the ugly a lot of the testimony in this case had to do with what you could do under an r one designation and what you could do under an r p designation can density in that context was not referring to the type of whelming on the structure it was referring to the number of lots that could be placed on this parcel and when you look at the evidence from that standpoint the commission both the commission and the district court were looking at what could be done from from the zoning ordinance perspective with this property term of art we normally presume it means what it says your argument seems to be well then we should be sending it back to see if they really meant that nd even if the the comps here i disagree with your honor on that point is that mr barnett performed a comparable sales analysis of this of this property it's very important to keep this in mind when when grover wants you to focus on this specific one hundred and fifty four lots subdivision that is not what he ultimately relied upon for his opinion he testifies to this fact and he says that he conducted permissible under r p or are want to correct which is why the which is why i believe the commission chose not to credit that testimony in terms of the value that mr barnett placed on on the on the property but with the commission did have in front of it was a copper gold where the  commissioners actually went out and viewed the property they they drove around they saw all of the development that was occurring there the employers they were moving into the area the recreational and entertainment amenities that have come to the area all of those things are additional facts and evidence that the truck that the commissioners in the district court looked at and they were free to come up with the value that the ultimate we did come up with in the pre taped and i'm wrong i'm not from western pennsylvania but is that don't prices go up as you get closer to pittsburgh because this comp is in allegheny county well i think when you're on or is getting to is a weight of the evidence ok which is why the clearly erroneous standard is very important to keep in mind you're not as puting that as a rule of thumb the prices are higher closer to i can't i can't  personally say that because there are of certainly going to be areas in allegheny county where the price would be so low what in the record establishes that this area is at least as hot th testified to the all of the the new highways fifteen minutes from the airport the proximity to where new west virginia in steubenville all of the shopping in the area i would direct your honor to page ninety five where there is discussion about how this property is only one minute from the x and on route twenty two with access to the southern beltway mrs b cannon testified that the right there's evidence that the court could have used to support a high single family evaluation you've still got to get over the footnote that tries to tuck away it's a misnomer they didn't actually provides it on appeal the court must examine the record with out regard to errors or defects which do not affect the substantial rights of the parties same thing in federal rule of civil procedure sixty one in the general motors case of this court where the court stated that non constitutional legal errors will be deemed harmless if it is highly probable that the error did not affect the judgment now in preparation for argument i did try to com through and find some case in the condemnation context where a similar type of error or glitch occurred at the trial court level that the appellate court overlooked in the in the case that i was able to find told felix versus ball and white hole school district two hundred and eighty nine a nd seven hundred and eighty eight in that case the jury came back with a verdict and used the phrase they were warning a sum of money for a fair and just settlement instead of using the phrase fair market value which was part of the jury instructions the court in that case held that that phrase was mere surplusage and it was not something that affected the result below i would urge the same thing in this case if you look at the evidence in this case all of the testimony by the b canons by mr barna and by mr her  in that when the began is bought bought the property it was zoned or one without their knowledge it was converted to r p they went back even though this happened shortly after the taking they went back to the muni sought an r one designation will which was very quickly in unanimously granted so the the district court in the commission had abundant evidence that this property was suitable for residential development it wasn't critical to the outcome of this case whether the development was one hundred and fifty four lots or some lower number the point was that the zoning ordinance allowed residential settled on a number or found a number of value that was somewhere in between what one side had put forth or one expert equipped for and what the other side it put forth d and i would urge the court to look at go back to the miller case which says it is well settled that when a verdict is is within the range of the testimony as to the value of property it will not be disturbed on appeal also the three hundred and fifty four dollars acres of land case because the verdict was within the range of the expert testimony as to fair market value the verdict cannot be said to be against the weight of the evidence simply because it ranges closer to the landowners appraisal then to the government's appraisal i have other citations we didn't not we didn't want to strain cite that proposition but i didn't want to direct your honour's to to that case i didn't hear the council cite any evidence that supported anything other than one hundred and fifty seven acre high density subdivision there's clearly nothing in the record this supports the family use or the value of multifamily use and mr barn and buchanan farms put all their eggs in one basket that is one hundred and fifty seven lot high density subdivision they didn't waffle and say there may be other uses that's what they value death of the evidence that they presented and there was a question asked special exception in none of those include multifamily in fact you'd have to flip further back in the zoning ordinance to get to something called neighborhood service district which is a completely different zoning classification before you can get to multifamily so that the lies the problem that obviously there was no testimony to there be some reasonable probability in the foreseeable future that you would have the ability to get this property rezoned for multifamily under this neighborhood service district zoning classification that would allow them to utilize it so again it's not a simple blending of the evidence i understand in many condemnation cases i do this for a living and i get it i mean there's always a lot of course say there's a book and if you go somewhere