this is quite a place i don't know if any of you remember being here before this change but this is really remarkable it looks like a courtroom wonderful change we'll start with the first case c m r vers is th your good afternoon good afternoon your honour's i am tom leonard i represent waterfront renaissance associates the only developer in the history of the world trade organization that had a world trade center project that he advanced or my client advanced shut down by the city in which it was located and i guess before advance your honor i'd ask that i reserve three minutes columbus but of arda which was formally called delaware haven't you on the land side of the river to begin planning the world trade center we ask you we're very familiar with the facts of th thinking in reading the briefs and my own thinking about the case of this this is really an as applied challenge rather than if that's the way i was looking at the case and i want you to address why it's presented as an issue rather than as as i find your honor the march two thousand and six ordinance that we are dealing with your was an ordinance which was passed without public notice without to say without consideration at the request of the district councilman pursuant to council matic privilege since it only applied to his district and it was passed without examination and it wasn't new legislation what the ordinance did was to take an existing overlay which applied to the old city section a residential section of philadelphia and move it north to apply to the world trade center plan development site and some other sites but it exempted other sites further north that were owned by the city or there were owned by focuses on the application of the old city overlay to our site the old city over late we just as why the old city overlay had t restrictions that applied to our site both of which affected our ability to build a high rise the first was a sixty five foot height restriction that you make reference to the second was a seventy foot with direction which has the same impact when the footprint is that small you can't do a high rise construction it's interesting that you're talking about these restrictions affect you which was back to your complaint presents this as official challenge this record treats it as official channels i want to just read briefly and then i'll get off the subject this comment by the supreme court this isn't the case of washington state grange versus washington state republican party they're the majority says that a plaintiff's can only succeed in a facial challenge and that that would be you by establishing that no set of circumstances exist under which the act would be valid honor i think that if it's facial or if it's as applied we reach the same result there are a few twists in terms that are a little different as we progress towards that result the  argument your honor clearly the the application of the statute to us precluded us from getting the financing we needed to proceed because once the honor it's a compensatory damages i don't think the district court reached the question of nominal damages and i think that was one of the mistakes the court made we would be entitled under supreme court precedents and presidents of this court to nominal damages for the deprivation of our rights caused by the statute even if we couldn't prove compensatory damages but the unusual procedural aspect of this that's worth but  and we contend that had we been permitted a damage hearing as opposed to a brief on moat this where the court went beyond the motives question deprived us of an opportunity to present damages in a summary judgment motion or something else and ruled that because we had not sought a permit a building permit our damages had to be speculative we don't believe that you have to engage in a futile act we don't believe that we have to seek a building permit our damages were real based on the passage of the statute we lost our funding we lost our financing mr leonard seems to me that you also have a big problem here with a square that in two thousand and ten the height restriction as it applied to your property was removed by a subsequent city ordinance was it not it was your honor but we challenge the application of the old city overlay to our project and the old city overlay at the sixty five foot restriction and the seventy foot with restrict ok but in the seventy foot with your structure was not removed but in your  complaint and i read it a new over the weekend your third amended complaint which was the complaint that you were last receiving and there you never once used the word width and that was the one of the basis for the district court concluding that they were not going to allow the amendment to the thirteen men and then the complaint was not it's correct your honor that was one of the basis and you're correct that we did not focus on the with restriction or say because the with restriction is the same as the height restriction it precludes highrise development our challenge in our complaint if you read of the new was to the extension of the ordinance to include our property i understand wasn't to the sixty five foot height restriction it was to the extension of the ordinance which included both the effect of either is to prevent high rise development and we did use as a shorthand nomenclature the fact that this height restriction reduced our ability to build a highrise but our challenge in the complaint was to the extension the overlay which included both and there is no contention that the seventy foot restriction has been removed there is no contention that the city planned not to enforce it there is no contention that included there but i can tell you at the depositions three weeks of notice nowhere nowhere in any of the police was your problem with that with this restriction present our focus was on the application of the overlay to our site and the overlay contained both we did we focused on the fact that it precluded highrise development your honor we didn't focus on one to the exclusion of the other at depositions we specifically questioned the director of the planning commission the heads of the civic association about the seventy foot with restriction it's not that the city was not aware of it it's not that it wasn't part of the case the the nomenclature on highrises may have confused the judge but the fact of the matter is we challenge the extension of the overlay was a city where with this how was it i mean they passed the legislation i've laid it in they didn't really pass legislation extended district to include your property but they did it well they passed that legislation originally and i get i think we have to let me ask you this question is do i or you know i might do if i was sitting here is that this record judge i might agree with you if you were trying to make a well the federal rules of civil procedure and the case law all favor liberal amendments this was merely a clarification it didn't change the theory of the case and there was no undue difficulty imposed on the city at the same time the judge denied our motion to clarify that the seventy foot with restriction was part of the challenge he granted a motion that required six months additional discovery on a new challenge to the central riverfront overlay ordinance which had subsequently passed the city never contended the seventy fourth didn't apply it's still the law today and there was no change in theory there was no way not undue influence there was no prejudice there was no on due to lay there was no surprise all of the elements that we look at in determining whether or not we should grant this this was not a moot claim the city only took out the sixty five foot height restriction and not the with restrictions we still couldn't construct the highrises that we worked with the city for eighteen years to plan and develop correct your honor that's our our belief and the fact that the judge missed the idea that we might be entitled to nominal damages i think was clearly erroneous so this is  was that we wanted the extension of the ordinance stricken as it applied to our site because it was unconstitutional because it was arbitrary and capricious because it was based on mistake for a variety of reasons we said this overlay extension charm applied to our site the overlay extension contains both so the judge found that we were changing our theory when in fact we were not changing our theory but even if there were change theory the law requires undo difficulty the city has not demonstrated any the court has not found any there was no additional discovery required there was no delay there was no surprise there was no reason not grant it especially when the judge permitted an amendment that extended the entire process an additional six months on the new central riverfront overlay so there was no on due difficulty and because this whole question arose after the councilman passed the revision of the sixty five court hydrous direction we were to scheduling conference with the judge and the city raised the question that arc challenge was moot because the restriction on the high had been removed the judge seemed fascinated by that which surprised us and we asked for leave to brief that issue it was in the context of that briefing not in summary judgment motions where the judge not only ruled that our claims were mowed even though the seventy put restrictions still applied but he also then went into the damage rulings which we thought were not even before and we thought there would be a summary judgment motion on damages we thought we would be able to prove whether or not we had real damages whether we had nominal damages and the judge tumbled to that whole issue on the con and the context of the moat in this debate and declared that in this case which you were looking for years but this whole controversy spanned more than that twelve years fifteen years the complaint was about extending the ordinance to this property it wasn't bought and acting in new words this was a like a new ordinance was proposed for the old city district for the riverfront district it was an extension of the ordinance to this property now you know of last hour i think everybody agree with that they said well we're not going to complain about height we're complaining about with how is that in congress and different from what their initial main complaint was this ordinance impacts us both as to heights with this running reasons judge fisher from the very beginning of this case they they were it was crystal clear that they defined this case not that we're complaining about the ordinance we're complaining about the overlay but we're complaining about a height restriction well they were essentially complained that the height restriction and whatever the restrictions were they couldn't build a twenty eight story tower and the way that they characterized that complaint was we are complaining about a height restriction it was either go back later is there more nomenclature than anything it's the way that they define the theory of their case if you go back to twelve forty nine in the record which is their letter to coun which kicked off their complaint in this case they say we're complaining about the height restriction we can't build a building as tall as we need to build with to get the return every complaint they filed in this case they always complained about the height restriction they always referred to this ordinance as a heigh restriction every pleading that filed in this case until they finally interjected a complaint about the with the restriction and they complained about height restrictions the city did concede that it may be a mistake when  so there's very well there's very little development of the facts that we haven't come back to discuss that and totally confident if it ever does get a summary judgment and this was just imposed a high structure yes and it was later and i guess our point which you know we've made in the br we don't know what mistake means mistake could be this is the overlay and if i had known that it covered w r a i might have paul that because we were working with you we don't know what the state means for purposes of getting past now that the substantive issues on the on the march two thousand and six ordinance are not issue here because we never got to this we never got past the twelve be fixed my mission was to march see that or fix all this seems to me their issue as it relates to the amendment the motion to amend the third complaint oh yes yes absolutely but not in terms of that issue the mistake i mean i can explain what i don't want you to what came out in the deposition but there is one page of the explain it in terms of the prejudice the prejudiced sass comes in terms of damages yes i think i'm not an engineer i'm an appellate attorney i'm not even a zoning attorney and i suppose i could concede that five feet but it surely isn't seventy feet and with so i would think in the engineering sense it could be good however it might be that it's a financial  point is i think that we need either there's undue delay here and there's no right to do in this case it what point does it become one do i think when you've had four years when you've had three amended pleadings when you filed multiple when you filed multiple dismiss in various planes and you never mention the word with and you've always defined your your claim in terms of height restriction and further i guess the way that i that i guess the more important point is judge this response which is if you were starting out of the district court you might have had the discretion to go the other way but i guess what i'd point out is this is a district judge who was obviously very patient very patient with hearing new theories with hearing new claims appearing all kinds of things from the stories i believe there were two hundred forty eight docket entries in this case except of multiple rounds of pretty thing he exercised a lot of discussions to hear all different kinds of things from us and and things first of all i just wanted to clarify something that i'm not sure came through clearly in my brief that mr miner brought out and that was the explanation that they didn't realize until we brought the issue brought up the miss issue and and they claim  at it wasn't clear to them until that point that we thought this was only a height restriction case because i think it's important when you look at the fact that there was a five month gap and multiple reasonable opportunities in the briefing for began briefing the issue briefing greaser exchange that over the course of the summer w r e had the opportunity to file six priests on the issue including a motion to supplement to add another claim which was the claim over the  central delaware river front ordinance so they even had the opportunity to supplement another claim and still had not taken the opportunity to supplement with it with research and it wasn't until august twenty sixth that they come that they came forward with the motion to supplement to add with playing so this notion that that oh they suddenly realized that we didn't understand what their claim was and then immediately interjected it into the case just doesn't make sense to me and further i think it's important when you look at the fact that one of the standards on lead to command is have you impose an unwarranted burden on the court and when you look at all that breaking that we did on midnights i think if you think you be injured by a statue so please as you can do what you want and perhaps leaving aside as an abstract issue some party may come along some day and be able to articulate some injury in this case that hasn't happened for the reasons that we've explained and you know judge when i started out this argument the sky thing the grange case and i think this case is the poster child for that they haven't they haven't articulated an injury here when they claim based upon the station challenge even assuming that you could which i know i mean that's a that's a complicated issue and we dropped it but no based on that we don't see how you could basically if they're claiming that they need to offer some evidence were at the end of summary judgment and the issue did come up they were on notice they did offer evidence during the course of mr seedings and while mr leonard is claiming before this court that they didn't have the opportunity and they wanted they wanted the opportunity to do so and they needed another hearing if you look at the briefing before the district court and the oral argument before the district court they never asked the district court for an opportunity to present more evidence they never claimed they needed more time they did present evidence from the summary judgment proceeding they did present evidence to the district court it's only before this court that they've made that argument now they presented evidence before the district court this issue was raised before the district court it's only now that he's claiming that they that they didn't have the opportunity to do so and as explained in our brief they they they don't have that type of evidence they their evidence is completely speculative it's just space upon the self serving affidavit of their principal they have a situation where they lost financing before the height restriction was even imposed based upon their first project and their second project before the height was restriction was imposed they hadn't even raised any financing they've never had an investor step forward and testify i'm not i would have given you i would have given you money before the height restriction was imposed now because of the height restriction i'm not giving you money and furthermore even if they even if they had come forward with such evidence another thing i haven't explained is why now that the height restriction has been taken off the table in two thousand and ten they couldn't have raised money after that point and so for all of these reasons we just don't see how they have a viable damages claim and that demonstrates why graine just correct that if this doesn't isn't the crux of everything that you re cited the fact that you're saying they had to apply for a permit or they had to ask for a variance and be refused before they can even make a claim for any damages isn't that the crux of what you're saying yes i think it's kind of both points judged as i think it demonstrates why it's so difficult why it d why did they have to go through what may be construed as a futile act to seek a permit to build a twenty eight story condominium building when in fact twenty stories would exceed sixty five feet in height and seventy feet w them to go through that futile act to be able to step forward say here is what my damages would be for and i guess i'm not understanding why it is if you go act as fisher particularly in this case where first of all they haven't demonstrated that they have anything well my point is my point is that the law says you can't build a building to sixty five you can't build a building at seventy feet with why does somebody have to step forward and say i want you to tell us that again in a formal letter denying our that they were rejected by the city and in order to raise that argument to that but they have a problem at this point because that law has been rescinded so at this point they need to say that that's because of that rescinded law they've suffered some injury and that's what they can't show because of the speculative nature of their claim and i also just wanted to point out judge trying to raise the issue of a declaratory judgment action and i know we dress that in our brief and that that at this point because the laws been rescinded are for being precluded from building this building from two thousand and six to two thousand and because when they have standing to be able to at least claim those damages because they would need to to and therefore there is no injury in fact and therefore you're not going to be allowed provide to prove damages and my question is why at least for that limited time period two thousand and six to april two thousand and shouldn't be have their day in court as to those damages because they never articulated that damages that would have said that they never came forward and said somehow that if their damages were any different that well that was a now it's different in two thousand and twelve and if someone had come forward from two thousand and ten to two thousand and twelve there's some permanent damage to me that now if i can't sell the building now because of something that happened you saying they never asked they never asked for that they never they never said things are any entered is that accurate no it's not your honor we actually expected that whatever the decision on the question of motive this was there would be an opportunity to be a summary judgment motion or some other motion to address the question of damages and when the judge not only granted the motion as it related to motion is on the height restriction and threw us out on the ordinance in chief we didn't expect him to then tumble to the question of whether or not all our damages were speculative and that therefore we were out of court and couldn't seek damages we thought there would be an opportunity to brief that in the in the traditional context of a summary judgment motion where you you could offer proof of the prevail in order to how did you prevail in order to get how would we have prevailed well we could have won the first part of the argument your honor but even if we lost the first part of the argument the question of damages because nominal damages have to be considered should have remained and we should have been granted the right to deal with the damage as about under what basis would you get nomina even where you can't show real damages but with his invented determination that caused your constitutional rights have been violated well your honor our contention on the facial invalidity of the application of the statute really revolves around the question of mistake and i personally visited with the councilman and he told me extending the overlay to our site was a mistake how do you equate the state with and the mayor i met with the mayor and asked him and he said he would not have signed the ordinance that if he had known it extended the restrictions of the world trade centers like it should be challengable does not make it  words it could still be about with that and how would you be entitled to nominal fee if that's the case i don't agree with you that if a statute passes by mistake that it application of the act and i think president clinton was referring to a political mistake or social miscellany this was a mess he knew what was in the act they didn't know was in the act you mean you're saying they didn't realize what what it was is entitle to two deference by all the other council members and their case law on this when the action only applies to his council matic district so this extension because it only just i don't think that's what you're saying but it sounds like which is i think that's an argument that we can advance your honor i think that we have other basis for nominal damages but i think that's one of the argument the other thought in the state and maybe should i look closer what i was proposing i think what he says the restriction should not apply to your site given that the city was supporting the development of a world trade center and we inadvertently did that by mistake that's arbitrary and irrational because you are we have to finish up this case in your to to through other cases could you give us just an idea what the current status