that will not pay the city of rochester michigan tens of thousands of dollars in cash nor will he waived his legal claims simply for the privilege of obtaining an up or down vote a final decision from the planning commission on the amended site plan that he submitted more than three years ago yet those are the conditions that the city has repeatedly insisted on before any final decision is made about the newly constructed dental clinic that you can see pictured at page three two two three of the district court record the city essentially holding its final decision here hostage to those conditions cash and a waiver and dr lenore simply won't pay the ransom that is the impasse between these parties which know i believe your honor that the first time the forty thousand time or cash and waiver was mentioned was that an october twenty third two thousand and thirteen meeting that's described in the affidavit of my client's architect peter starr right here and you filed january twenty fourth so it's four months later that's correct and it does seem like a short period of time when you compare it to the the period of time that's been at issue in several of the cases that are cited in the party's brief and we understand that and our position on that on that issue your honor is that the city here lost the benefit of the doubt lost the you know the the ability to claim delay as legitimate when they did not provide the second report of their own expert mr francis and that was just earlier in october where he took another look at this project and he opined in the report that was never shared with my client until this litigation that that the project in fact did reasonably comply with the standards that the parties here you know have been disputing and it's very important for this court to know that in order to resolve what's before you you don't have to delve into the the the detail secretary of the interior standards for rehabilitation and you don't have to decide whether the project that my my client undertook did comply or did not comply with those standards the only issue you need to decide is the issue that the magistrate judge resolved in our favor which is that there's a right to dispute here that needs to be adjudicated and we submit that it should be adjudicated in the forum that the city itself chose by removing our state law case to federal court but the district judge held that it wasn't right and and essentially thought that  case different from these two significant other circuit cases where a longer term impasse existed and i guess the concern that i have if i get right to the bottom of this why is that three or four  between the two sides enough of an impasse to say that we don't have to have a final decision by the by the city i think that there although the although the concealment of francis's second report did not occur until october of two thousand and thirteen there were some facts and procedural issues that occurred earlier in the timeline that also support our our  characterization of what of what we have here is an impasse a for example we haven't discussed yet the stop work order that the plant that the city imposed on the project in may of two thousand and thirteen  haven't discussed the painting commission's decision the following month to continue that stop work order even though my client at my client's architect had met with representatives of the city including some historical architects and and together that the parties had come up with these fifteen recommendations of how to bring this project into compliance with these disputed standards it's my client did all that satisfy those fifteen property to preservation that it's three that's correct those those minutes or the august two thousand and thirteen meeting minutes of the planning commission at page three three three eight of the district court record there is an indication that there were several members of the planning commission who were they may have been confused about the you know what the original bargain here was the bargain here you know originally my client's plan was to completely raise this owned house that had more one on every wall had been damaged by fire and was not on any federal state or local registry of any kind and to put parking underneath to satisfy his parking obligation claiming commission didn't like that plan because they viewed the home as having some historic value and so the bargain that was made in the fall of two thousand and eleven and early two thousand and twelve was if you rehabilitate if you reasonably comply with these rehabilitation standards we will waive the significant amount of parking fees that you would have to pay since you're no longer able to put cars underneath this new structure so that was the that was the bargain back in late two thousand and eleven early two thousand and twelve and then you know it was from that point on that the that the disputes started happening there was the initial  finding by mr francis that in his view the project didn't reasonably comply with the rehabilitation standards but of course he later changed his mind about that and so you reckon you're right just it's actually not game because the standards if you look at the standards there are there are very different requirements if you are rehabilitating an old piece of property versus preserving it preservation is much more stringent and requires much more careful attention to the preservation of original materials and what not here he did not try he what he tried to do was a reasonably comply with the standards for rehabilitation and that was the that word those standards are in the minutes from that the original deal that's at page seven hundred thirty three of the district court record would even have wouldn't even have been possible for him to meet the preservation standards absolutely not your honor in fact of those very early minute meeting minutes describe the deteriorated nature of this piece of property the fire chief was actually at one of the early meetings talking about how when his crew showed up at the home there was like water running all through the home the home was was seriously damaged it really practical as a practical matter could not be preserved so the deal here was reasonably comply with these rehabilitation standards and we will waive this pa lieu of parking very significant dollars about i believe it was twelve thousand dollars per space but i may get corrected on that so that's it's and from my client's point of view he was willing to take on this task  of reasonable compliance with the rehabilitation standards but he simply couldn't afford to take on that extra cost and pay this significant payment in lieu of parking fee and so that's why i went when the city first came to my client's architect with this forty thousand dollar deal pay us forty thousand dollars and waive your claims i mean from my client's perspective that was reneging on the whole the whole understanding here and so are you familiar with any case that say one way or another that it's ok for a city planning commission to say we'll give you a permit if you waive any rights that you have to bring suit or make other claims is there any case saying that's ok or it's not ok i have to say your honor i'm not aware i'm not aware of a case specifically about a waiver but we did cite a few cases in our brief under the unconstitutional conditions doctrine that involved not not a promise of a waiver but a promise to pay money an unconstitutional condition in order to get a benefit of a permit and i know you're not trying to get a permit exactly but just using that loosely which or to get a city permit to do anything you have to promise you're not going to sue us my client would agree with that your honor and in fact as i recall you joined an opinion for this court the r s w w keigo opinion that we cited in our brief and there are you know the goose island brewery of all places that you're requesting if you agree to close at eleven instead of two and so that was the case where you know that that kind of condition this court looked unfavorably on that type of condition from a permanent authority  so i'm not sure exactly where the district court went astray from the magistrate judge's recommendation here but i will note that if you read the pages of the district court's opinion where where she takes on the cases that we relied on from the other circuits she cites the gilbert decision which i believe is just it's an inapplicable case for the following reason in gilbert this was a challenge to a rent control ordinance and under this rent control ordinance if you had a rental property in the town you had to go to the permit authority and apply for a certain permit to pull that property off the market and the problem the big problem in gilbert was that the folks challenging the ordinance had never bothered to apply for the permit so that that's why there was a finality problem there that's why there was a rightness problem in gilbert here of course the facts are completely different my client applied for an obtained special per you know special permit from the city of rochester he applied he had his original site plan approved and then after problems developed about the construction you know he went back and tried to fix some of those fifteen recommendations that were satisfied and now he's had his amended site plan pending for decision and i'm looking at her decision page clearly erroneous but i also believe and this goes kind of goes back to your original question about the delay we believe that the city lost the ability to hang its hat on continued negotiations and more delay once they failed to share mr francis's second report opining that reasonable compliance had had been achieved with these standards council we will give you your rebuttal time of course but your memory time is expired thank you be half of the defendant ample of the city of rochester first of all i'd like to just point out to the court that country to what the plaintiffs have argued in their brief this is not a case of first impression  lower court passed on one issue and one issue alone and that was the decision with respect to finality and that the court said deprived of jurisdiction cracked and the court  not consider whether there was exhaustion of state remedies that's that's not been decided by the court below and while plaintiffs made a time to the courts focused here the issue before this court was really clear and straightforward and that just a court's decision is truly supported by decades o process as the court's aware the case started out with agreement that the plaintiff would try to rehabilitate the structure in exchange for a very sizable waiver of a parking fee and that parking fee is not something that's like extorted as they're trying to allege with business owners this is something that's regulated it's universally applied it's to what actually is the question here with her not having decided that it would be all right this dentist to rehabilitate this property that was in such poor condition the city can then hold back and say we were just kidding you know we can you can you can rehabilitate it but we're never going to give you a permit as i read it until you pay this kind of kickback to make it even you know that's my worst way of saying it so that you can give me your best response sure your honor first of all that just to cover briefly the difference between preservation and rehabilitation there are four standards in the us so i and that's sort of a sliding scale there's preservation is basically the most rigorous and then there's rehabilitation restoration and reconstruction to the minute say that this was approved for rehabilitation for rehabilitation that's which we talked about preservation and well rehabilitation as actually encompasses some degree of preservation when you look at the standards and it's an actually in there and the opponents prefer itself where it's defined  rehabilitation incorporates some degree of preservation where possible in the situation the plaintiff was approved for certain things like retaining the facade of the original home what they did as they went in and they they tore it down to the studs they removed all of the siding all of the shingles their original facade the front door their own historic expert looked at this and said he called it carnage and he said it was the worst attempt at rehabilitation that he's ever seen and then he just they dispose of the material so that the city can even verify whether any of those materials could be rehabilitated could be preserved could be used for the construction of the home for them for the restoration of the whole  the report that was told not disclosed well two things your honor his purpose in that second report was something entirely different he was he was looking at coming up with a formula to assist the city in trying to figure out now that they have violated the bargain for agreement now that they didn't hold up their end of the deal what do we do about the parking waiver do we completely obviate it or do we still give him some sort of parking waiver that all the other business owners have to pay if they use public parking and what they did is they asked the plaintiff for assistance and coming up with that sort of for me allowed to propose something they were resistant to doing so so the city went back to at francis and said can you prepare another port report to assist us in determining what that waiver should be so that's one at francis went back and he looked at and said it's fifty eight percent compliance and his opinion and he went through each factor and determined what was compliant and what was not so it be instead of being forty seven percent compliant now it's fifty eight percent compliant but that that was to be used for the parking formula and that doesn't mean that the planning commission is bound by his opinion the planning commission never never delegated its decision making authority to mr francis is that all of this discussion you're giving suggestion too because it impacts us that was actually part of settlement ago she ations after the plaintiffs had attorneys involved in the city recognise that there could be litigation involved in this litigation was threatened they said ok city attorney get together with plaintiff attorneys and try to figure something out so when someone says ok well why don't you how about if we're not going to four hundred eighty thousand obviously if we take the percentage maybe not even do that how about if you contribute forty thousand dollars to the parking fee so in the cities what does the plaintiff here have to do in order to to get possession or permit or whatever the final decision is here what the city wanted them to do and they have never done was submit amended site plans that show what was originally approved and what was actually done and why certain things were changed what they didn't status they submitted as built drawings which is really to clearly do that i'm sorry i just would like to just get this as you're standing here today what does the plaintiff have to do first part of this has been amended site plans that mean they when they get their permit if they provide an amended site we're going to evaluate him and say well they would absolutely have to evaluate the minute site plan because your honor in november of two thousand and thirteen still ok just before the plaintiff two months before the plaintiffs filed suit their architect was presenting a powerpoint presentation to the city to the planning commission showing what things had been done and attempting to address certain deficit's and then it just sort of that i'm hearing from you is there are lots of things that have to be done before in your view the city will give permission to the plaintiff not necessarily i think with the city as well but i know that the commission is looking for our amended site plans that show what was approved and what was actually done so they can make the determination between the two and a resolution to whatever the parking issue maybe they may go before the planning commission and find out that they don't have to pay anything for parking that they don't have to pay anything for the tree remov we did this we did that because it wasn't just an exhausting case there was also the rightness the finality component to there are two there are the two prongs and this wasn't just a matter of exhausting state remedies there was also whether there was a final decision ever obtain from the planning commission and there's there's still what we wanted to we wanted we wanted a federal court to determine the federal issue there's there's a lot more federal case law and finality and rightness than there is state case law on it and if we're never allowed to do that if we're never allowed to remove federal claims and to federal court and then have the court determine whether there has been finality or not i'm not sure when federal paint claims ever get to federal court and far between it's a very it's a very narrow exception cases are few and far between where the court's disregard that disregard the rightness concerns the overwhelming body of case law applies that there's no reason whatsoever in this case to this is there's not something any there's not something unique about this case that would suggest that this court that those those concerns should be disregarded i mean really from beginning to end it was about two years the process is not that long they were they got approved with them four months of their original site plan request they moved along they they violate as they read rockwork order right they they ripped out a gas line they had a water main they did all kinds of excavation that was done without the plaintiff on site because he was off big game hunting and so the city had to go in and his absence and actually rectify it case to federal court i assume you and your client you mean finality or are you do you mean exhaustion or finding out well we don't know what the court is going to decide with respect to finality i mean we're we're not clairvoyant i mean obviously we thought that that was a problem and an issue but we wanted the federal court to tell us not for your client pardon it was a prop this is awful you can hear sorry but now the problem which side not for your client well if there was a question of whether there was a final decision issue which was a problem for everyone because how could the federal claims be evaluated until the plan commission told them what they can and cannot doing great i'm a decision you know that they won't get relief i suppose i mean but they don't get the relief or finality purposes from the state court they get relief or finality purpose for purposes from the city in the said signed off on actually what they did is they created a subcommittee and directed the parties to go talk about it because at that point litigation had been threatened but it's not that the plaintiff had gone back after that and said here's our amended site plan the deficiencies have been corrected  we're not going to pay the parking fee and we're not going to waive our claims and do what do with that which you and they may find that the planning commission was amenable to all of that the reason why the there was a directive to go and talk about it and discuss waiving to discuss this to get it resolved and get them in there there was the city has no interest in having this property stand vacant they were trying to move t threat not a threat your honor i mean when when you consider what that directive was in context of the of the series of events that occurred and what was occurring at that meeting when the plaintiff's attorney was threatening litigation it was go talk about it we're going to create a subcommittee resolve the issues quickly see if you can resolve all of the outstanding issues if you can obtain a waiver of constitutional claims if you can agree on a parking amount if you can come to us and give us some kind of formula that you want to propose in terms of what you think the parking should be because they did obtain the benefit of their x actually they did hire another architect and i'm not really sure if it was exactly just before mayor during right after the stop work order but they want to head in unilaterally did some changes modify the property and that was no other problem because that person had no familiarity with the original site plan that was approved and in addition to that had no understanding of the historical context of what was supposed to have been done so this building i mean as it's built is not unlike many other buildings in the area  it's it you know doesn't retain the historical value of the horse oracle character which was the whole point in giving the plaintiffs the significant special projects approval and parking fee  they had continued to work prior to that there was some work done after the stop work order then there was it's it's almost completed by their admission there are some in inside things that need to be done interior things that need to be done months you promised that you absolutely they were body they stood ready to render a final decision that in any time that they brought in the final package they just kept changing conditional on the final package requirements as well what happened what happened as they did the  presentation in november and that and they had submitted the documents the date of the meeting they didn't submit it ahead of time for anyone to be able to review them or get a kind of reports from their planner that in december they had sort of met submitted to a different package ok one that was different from the one in november and then it was upside down and backwards and all kinds of things and they again submitted at the meeting so there they just didn't do the things that they were required to do and timely fashion but they want special treatment they're trying to paint the city as the ones where the bad guys here are really the city's trying to push it  governor thank you just very quickly i'll try to respond to some of the points raised here i think you know the presentations you've heard today just underscore the fact that these parties are there at an impasse they're at loggerheads we need a judge to sort this out we're fine if that judge is the one that the city chose when they remove the case but the chairs in this clinic they're supposed to be eighteen chairs in this clinic and they've been sitting empty since may of two thousand and thirteen when this stop work order was first put on very quickly a couple of the points that were raised by the city here the guy who called this the worst attempted rehab he's ever seen that was mr deserve and who was at the meeting described an  architect's affidavit where they came up with the fifteen recommendations that would solve the problem those recommendations were implemented and yet still we have no final decision you know the city final decision was no we would we would certainly challenge the decision your honor to the extent we weren't precluded from from doing so under arrest some restroom a cot a problem but we mean we would love to have a final decision but we don't need one here because we're at an impasse and that's the standard this court set forth in the ban in case the the second francis report is characterized as a report that had to do with calculating how a parking i don't see but i urge you to look at that report at page three three eight four of the record parking i don't i don't believe mr francis mentions parking anywhere in that the main text of that report it was a reevaluation that was the word he used a reevaluation of whether the property complied with these disputed standards if anything he opined that it reasonably  complied and he also said that you know there made some comment about and one concern that the city always had here is this is right on the border between the residential district the main business district and he believe that the project as completed you know maintained that residential character where it was where it was done the other thing i just mention briefly we cited the recent decision from this court in the a forever recovery case in that case  e at this point i just think you know under the ban on standard these parties are at an impasse and they're crying out for for an adjudication of this dispute thank you counsel your time has expired case will be submitted