more familiar with the underlying record when i looked at the telegraph and the excerpts of record one thing that was not brought up in the opening brief and i believe because mr teeters illness intervening illness that's why i didn't follow reply brief but once it was not brought up as i have some qualms with the record in the sense that the district court's order denying leaved intervening is absolutely silent  the district court order even the summary judgment order of the underlying appeal appears to me to be just a rubber stamp of the findings of fact in conclusion the law i didn't see any order in the record by which the and these were parties who won at the planning commission level and had to protect the interest under the municipal code as a result of that and would have had any cause of action under the local case that we started over soon brush a cause of action is to protect the will property interests for purposes of being considered property for as as a species of property under the fourteenth amendment so for both due process reasons and under state law  also a protectable interest in the sense that the cause of action has been taken from them and that in itself can be considered injury a species of property under the fourteenth amendment the other point time but the motion to intervene is the first step for it to be able to ask for a motion to extend the time to file an appeal so it my argument be number one that all the elements of now the question would be what's the practical fact if in fact the underlying judgment supposedly is final but there are exceptions under frappe rule for a once again that would allow once again going back to the district court notice of appeal until the motion to intervene is granted so if the motion intervene were granted and the court were to determine that in fact there was no jurisdiction on to determine the underlying judgment at this point then the next step would be to go applications he had reviewed for wireless facilities but to be clear about what this application was for because the residents who were opposed weren't clear they continuously called it a tower this was not a tower this was an application for four four foot high panel antennas about as high as this podium eight inches wide by an inch and a half deep on the top of a commercial building located next to a seven eleven parking lot and stream from view from anybody by the extension of an existing parapet wall that came up above the roof line of that building there was absolutely no traditional local zoning basis to deny that facility it produced no no ice it produced no visual impact it produced no pollution no congestion no increased density it didn't change the nature of the use of the building it went on which was a commercial property that housed a dry cleaner and other businesses it was a simple case it was undisputed that the facility would comply with the f c c regulations on r f and missions but nevertheless residents objected calling this a tower and saying they didn't want to live in the path of what they believed to be harmful radio frequency emissions of course it's presumed under the federal statute we sued under section three thirty two the telecommunications act that as long as you comply with the f c c regulations you cannot locality cannot deny a site on the basis of radio frequency emissions that's all that was in the record and so we won on summary judgment and we won on both our claim that the denial was not based on substantial evidence and that the now was impermissibly based on radio frequency emissions now it's very important what happened since that because after we won summary judgment although there wasn't a formal settlement agreement in the case we cooperated with the city to resolve the case we stipulated with the city to dismiss our last remaining count the unreasonable discrimination claim in section three thirty two which was count three of our compliance we submitted proposed findings of fact in conclusions of  that the city didn't object to and the city decided not to appeal the city immediately after a final judgment was at or issued the conditional use permit that we sought and we agreed that we would not pursue our notice of appeal of our of the earlier dismissal of section one hundred eighty three claim which was then alive claim because this court's ruling in abrams was still the law it's not now after the supreme court's decision  on june twenty fifth stipulated to the dismissal of that effect of the session one nine hundred eighty three appeal and so all this time we then by the way installed the facility in this is all in the record we installed the facility on november sixteenth two thousand four and the facility is now in operation in part of the part of the network and being used by callers for important communications including of course nine one one calls so that's what happened since the judgement and then we have a sideline appeal from intervenors who were involved below at the area planning commission but then sat on the sidelines while while we litigated for a year and then try to get back into the case now we did raise four  neighbors it doesn't say anything about an unincorporated group of concerned citizens nothing at all about that answer hagan was on the motion to intervene papers but she's not in this appeal only the concern citizens are so even if you went with the proposition that they have some property interest in a claim to defend their victory which i don't think is the issue i think the issue is the city's need to defend its compliance with federal law that the case that an individual citizen can i think the way to look i think the way to look at it is if the area planning commission had granted us the so you've seen the first place because the citizens have filed an action for mandamus in state court i think i don't know that they could do that if we for instance install the facility which we haven't in comply with the terms of the terms of the conditional use permit and violated them the city could revoke that permit but critters in it can't an individual citizen under california law bring an action to enforce compliance with the zone they might they might bring a nuisance action but i was focusing you know have no i don't know i know in some states there is an action that a citizen can bring i don't know i would assume that if they really suffering harms right now from our pacelli which is there that they might be able to bring some sort of our property line and let's assume that they do have they do have standing to enforce an individual citizen has standing to enforce  would they not have standing here wouldn't that give them standing no i don't believe so because i believe the issue in this case is whether or not the city complied with the federal law or i believe well that goes to the merits that me and you argued the merits here of the decision that that you should have been granted the but i'm going by pure standards if we're to say that these that these these parties have no standing can we imagine anybody who would other than the parties to this litigation in the district court from the beginning no in is one of here before the commission it might as well say it would make be a different case if she were here but i don't think the issue in this case is preserving their victory on appeal the claim an interest in this case is whether or not the city met its duty to comply with the procedural and substantive requirements of section three thirty two and i draw the court's attention to the court's decision in the portland audubon case i just want to i just to read briefly from that case that was where portland audubon claims that the interior department proposed timber sales that violated nepa and some logging interests wanted to intervene as as defendants to i suppose department defend their decision and this course as follows the only focus that the ongoing litigation can have is whether the government bodies charged with compliance have satisfied the federal statutory procedural requirements in making the administrative decision regarding the construction which would directly impact what impact planes property in a suit should such as this brought to require compliance with federal statutes regulating government projects the governmental bodies charged with compliance can be the only defendants it would be odd i think if this if a couple of residents could intervene and overrule the city on the city of the negatively issue is one of standing now totally aside from who gets to when you think we should say this they have no standing that's of that that says you don't care about america that's true and you it's your position that that would yes and that would be the only issue that we could decide and if we decide they can intervene then well then we say i mean if we decide that they have standing and if we decide that they hear that anything  timely it's only the timely appeal from the denial of the motion to intervene correct and then we should say they get it if the if they win if they win the most that we could say on their behalf is that they get litigated america in in a in some future proceeding or this one i don't i don't even think you could do that they did not file a notice of appeal within thirty days of the judgment i submit that they didn't do that advance of their own making they didn't they didn't protect their rights so they didn't do that within thirty days now they then after the denial their intervention did no appeal of that within thirty days and what counsel said earlier was that the motion to intervene for purposes of leave to pursue the appeal should be considered a timely notice of appeal made and the court has discretion to consider an imperfect notice of appeal as a notice of appeal but two very big problems with that number one they did not make in their motion to intervene their intention simply to appeal clear instead they also moved under rule sixteen be at the end of their motion for intervene for further relief from the district court they wanted the district court to declare the judgment void because they weren't notified by the city that the case was going on they also set up a due process claim against the city in their motion to intervene and their complaint intervention so i submit they were trying to have it both ways they didn't really want the district court litigation to be over and they but they didn't file a notice of appeal that's indisputably a final judgment so it were kind of in talking about their intervention in my view talking about nothing because if you said you were wrong you should have been able to intervene they already lost the right to know in appeal from the judgment and the case is moot because the city of all the action we requested granted the cut granted the building permit the interveners did nothing absolutely nothing to get a stay of the injunction pending appeal and perfect their appeal so i think it's a nominee if you would say well the district court was wrong and they should have been allowed to intervene under the facts of this case which are distinguishable from the facts of the case that bounced around enough to the supreme court and back and forth there arizona's for official english took some steps before the time for a feeling the judgment had run to preserve their rights they moved to extend the time to appeal the judgment out beyond the time that their intervention motion was ruled upon so that when they appealed from the intervention denial the time for noting an appeal was still outstanding and they just noted an appeal on the intervention in that case the court said well now that we say that you intervened you should have been allowed to intervene we will send you back and give you leave to file permission to file a notice of appeal in the district court but these interveners didn't take those procedural steps to defend their rights court went to the merits well two things about those cases the the first thing is that there there was a timely motion for leave to intervene solely for purposes of appeal but without the complication of the sixteen the ok request was pure motions pure b s for the purpose of a yes the other thing i'd note about that  it was always in the government's interest that the case was brought and so when the government sought to intervene later there was no pred no issue with prejudice because when you look at timeliness of course you've got to look at prejudice to the parties and the reasons for delay and so forth and there was again they were within the certain days of the judgment because they were within thirty days of them ruling on intervention i can't say for sure that those cases in fact i know actually i can say for sure one of the what i believe was the united airlines case and in fact there the judgment was entered they moved to intervene right afterwards they must have done something to get the court to act very quickly on the motion intervention denied within two days and then they noted it feels everything it was all within thirty days didn't take any money or time and ok well we also submit that since they were in a party they couldn't appeal the merits of this case as i said i think the case on the if you ever got there and i don't think there is a reason to get there it's very very clear from the record that the opposition to the site was based only on radio frequency emissions  it is some some people said well the emissions will or the fear of emissions will impact my property values and well it's been held other courts are citing our brief that that's just another way of saying our radio frequency emissions and that's just as prohibited by section three thirty two as anything else there were also a couple of passing references to a static impacts but again they called it a tower and then the second circuit case said when you're wrong about the when residents are wrong about the nature of the insulation we don't have to give their testimony any weight ok and oyster bay they said that the site would be a mass spaghetti wires and of course it wasn't and so when they talk about it towers i point out we're talking about something no bigger than this podium right here so and lastly even if you found some evidence in the record of something other than our  that's not substantial evidence it's got to be more than a scintilla bit less than a preponderance and again in the election of a case the court said yes some residents talk about a couple of things but the evidence was so overwhelming that it was all about radio frequency emissions that we simply can't say that the denial was based on substantial evidence of any allowable traditional local zoning concern as opposed to a non allowable concern over the health effects of our that the interest asserted just protect the ball under some law and to that there's a relationship between the legally protected interest in the claims at issue so getting back to my original argument i believe they have met the requirement u nder under the municipal code and under their personal property interests that they have in the area for purposes of having a legally protect the interest and it doesn't have to be legally protected which was directly under the federal telecommunications that  steve los angeles not with with the previous plans but i mean the city of los angeles under your theory didn't didn't do what it was supposed to do then that gives your clients a right to right to seek relief against them and will which the circuit originally said it was an action caused by action independently under nine hundred eighty three and of course the u s supreme court reversed saying that the limited remedies under the telecommunications act cannot allow a nine hundred eighty three action so the city was wrong on that even though that i'm not saying that they can be pressured about what the supreme court's going to be doing but they certainly were wrong on that and number two and i think more importantly where the city dropped the ball here is how it's all makes a big issue that there are substantial evidence in the underlying and in fact to uphold the planning commission decision i would say and this is one was my point where i think the city dropped the ball the colocation sites are are unique there's a case that i found unfortunately it was not in the brief and can correct me on this it's my understanding that the colocation sites would have been the sites that maybe cellular already had a property interest in either by way of lease or owning those sites and what they were proposing was  incorporated association of residents who were in the area and in fact the record shops and i think the underlying record in the planning commission shows that these were residents who had come to the what do you think is right and i think more than it is i believe in the motion to intervene it was directly in the notice the motion and that was that page three zero nine through three twenty four and then in the replying them random at three thirty seven to three forty six and that's where we'll find it yes and they're also and they're also