to get these property rights protections afforded some sort of protection by the district court it's interesting because we now have three decisions we have the richardson decision the khaitan of the surgeon tonawanda we're waiting for the second phase of control but this one has this observation that says the city council is charged with reviewing the effectiveness of the ordinance periodic late and taking whatever steps are necessary or appropriate and i'm paraphrasing now in order there are no set of circumstances under which this ordinance could be constitutional rus it was by definition a facial challenge and hoskin under that in fact the hasi in the case commensurate a number of the of the issues that were briefed by the the way the ball supported the argument by attacking only the laws that made it a facial challenge in fact we noted that and as applied challenge to a premium was caught it was possible but rejected in the case because lowball had not argued proposition appropriately in our case the complaint doesn't say this ordinance is unconstitutional period r k says this ordinance is unconstitutional under these circumstances under these set of facts for the following reasons what action did you take in the city council to tell them how many dollars you had lost and how many dollars you wanted them to you because  that's what we're talking about a rightness right met with the representatives you talked to them but did you ever file a written claim saying we've lost dollars x because of the preview that is being given to these other people and we want from you  city i want to be paid for that which you've taken from me i thought your honor i thought just one question ok judge i thought what you were asking is whether or not we made an application under the under the first prong of williamson  but moving to your specific question that i think is the key issue before us today the question is do we need to exhaust the second prong of williams and we admit we have not exhausted the second prong of williams what we're what we're here arguing is that in any substantial advancement case there is by definition no second prong williamson requirement there cannot be a second prong williamson requirement the requirement that  invalidated say that if you're talking about a facial challenge no we respectfully judge we are not we are saying that as applied and again i was reading from the first amended complaint we're preparing the first man a complaint we took would which the city would argue you brought into the problem here inventor and so you now can't challenge it setting that aside setting that issue aside for a minute you make an extraordinarily good point i use and i know it's a very harsh one but i use the analogy let's importantly you can't show a premium because not exist because your mobile home parks are all empty at the time the ordinance was passed it wasn't until the mobile home parks filled out and homes by the way were sell seventy thousand dollars trailers were selling in the city for two hundred seventy nine thousand dollars it was not until that point in time that there was a recognition that there was a premium there was a transfer of wealth and there was an unconstitutional taking such that this ordinance does not  is basically that the ordinance will necessarily produce a premium in every case which not only it's not the premium it makes no no it's unconstitutional it's the premiums vitiate or the premium prevent  some regulatory ordinance who can get a permit on its face and they make a facial challenge and they don't really have standing to do that until so they have some reason they want to go march in selma or something you know then they care about someone's ordinance or that they don't so why would why would a homeowner or a mobile home park owner that didn't exist when they were it's an accurate economic analysis of the situation shows that simply upon the nachman of the gordons one cannot know whether there will be a premium there for damages and damage is an essential element of a cause of case that was a facial challenge also on the courts that is what exactly is that first of all the theory of a facial challenge visual challenge and it was a flat or declining market understand what it would be in the absurd situation of saying held that when you're making a facial challenge or the united states supreme court the challenge basically says that this ordinance cannot work on its face no matter how it's applied it's going to fail necessarily because of the way it's construct but i'm trying to answer your question to say that's what he's doing but that's not what he's doing he's saying when we have damage then risk orton's works to the problems of our property your honor the theory the theory of if you haven't as applied challenge which attacks the particular application the order of say you get around increase that doesn't provide you a fair and reasonable return on economic takings you're attacking that particular application you take a writ of administrative mandate from that later exactly what's being alleged here i'll quote further argues that the cause of action in this case did not accrue until property values in palm desert increased dramatically years following the an ac result in legislation which did not substantially advance the legitimate government interest of reducing the cost of shelter the problem here is they don't have the distinction between if you want to if you want to homes as the park owners taking equity out of the homeowners home so the reverse of their capitalization argument the premium am protecting the existing homeowners from existing homes from excessive running creases in fact look at h of protecting everybody's from a from excessive running creases instead meeting ordinance by denying that that right increase makes everyone's homes existing tenants homes more affordable and the issue of a cranium only rise in the future when a home salt where what would the rebels be then what would be the whatever the complex economic factors that helped give rise to a premium whether they would exact or not exists that so the problem here is we don't have any particular application of the ordinance a invalidate the ordinance because appears the ordinances worked for a number of years and you're only attacking a particular application that you seek to invalidate or do something about then what's your remedy where is the application that you're complaining circuit in the carson harbor cases that's an admission that it's working that's the real advice of their complaint they are seeking to place this this word and it's and they're trying to fit it into this procrustean bed of richardson ordinance which had a different purpose which in that case the court found the premium did interfere with the purpose but the premiums are irrelevant to the transfer of wealth a person under on land use decisions that's not the taking the taking  claim there is no allegation that this premium will prevent the ordinance from substantially further in its stated purposes no disagreement the stated purpose is a legitimate government purposes and it's even in the opening me the question is what's the narrow ground narrow grounds for dismissal the judge threw it out on the grounds that if it's a facial challenge it's filed too late and if it's an as apply claim it's not right because they haven't even above and beyond the the interesting legal questions raised by the haas the end of decision i think the on those technical questions a more fundamental problem with their complaint is that the issue of crime is a red herring it doesn't have anything to do with this ordinances purposes it doesn't frustrate them there's no allegation that just frustrate them there was an attempt to this ordinance is being criticized for not fulfilling or substantially furthering a purpose it  even if this is not a facial challenge the district judge should be a for because it's not right because there was never an application made for for compensation yes sure in other words if you are going to make an as applied point first of all th complaint to the extent they allege the ordinance does not substantially further legitimate government purpose number one it is a facial challenge that is barred by the statue of limitations as a facial challenge because it does not allege that any particular application of the ordinance gave rise to the premium premium does not raise the economic circumstances not known to him at the time of the ordinance and adoption gave rise to the premium you're  became a premium i guess the answer to that question your honor is that hunger facial challenge courts are allowed to strike down an ordinance is facially unconstitutional if there is no possible way it can work but as to conditions during that period make it unconstitutional as opposed to it's constitutional as applied to the sale by john smith of more mo to the park owner because a vacancy control cannot increase the right to quote unquote market levels at that time and therefore an incoming homeowner is going to pay more for the home because the existing homeowner will capitalize the future rent savings and pass it on that's the economic theory i don't think it's haven't proven it happens in practice but that's the economic theory so again you could argue finisher's point that i'm sorry so if you want to for a rent increase upon the sale of that home to prevent the home from being sold at a premium so if that particular application of the ordinance would not fail to substantially further some legitimate government purpose that would be i guess one of notion of the protection of high rounds of protection from high rents around which is a stated purpose of the ordinance i think is must be interpreted by this court as saying what we're trying to do is of a premium of a mechanism in the ordinance designed to prevent the creation of this premium on transfer that rendered the ordinance unconstitutional they were saying the same thing in richardson and in other words the stated purpose of the richardson ordinance w to keep these rebels down but the court there said no that's you're not meeting not substantially denouncing that sort of a purpose unless you also provide in your ordinance a mechanism that's designed to prevent the the complaint now whether that be a stated purpose in the ordinance or whether that be a necessary absolutely i mean if you're going to say we want to provide affordable housing by keeping runs well in the city of ventura but in the partners come in and say wait a minute you're you're doing exactly the opposite here you're creating a situation where no one can afford to move into these air anymore because people have to pay two hundred seventy nine thousand dollars for a mobile home that dismissed on the eve of trial the court can still move ahead with the state claims here i think it was inappropriate for the district courts to take on these purely state claims they had to do with preemption of the mobile home residency law so not only what was inappropriate for the district court to do that what should have happened is they should have been remanded back to us to take to state court if we wanted to litigate those claims but also the court was just flat wrong on its decision that those that are preemption claims were not appropriate so then not right because we haven't exhausted the second part of williamson which again we don't have to exhaust here because we're claiming substantial investment claim and out of takings claim or out of court on the statute of limitations that can be that