reserve five minutes for both of us watch the clock and i'll try to remind you right thank you you're on your honor's no reasonable decision maker whether factfinder or an adjudicator could conclude that any of the three and central factors support the verdict that the city's rent decisions here affected a regulatory taking of plaintiff's property and i want to focus particularly on the first two economic impact and reasonable investment back to expectations but just to summarize the first pla the value of the park there is there's plenty of evidence in this record of lost rental for better or worse and as i read the jury verdict in the instructions the jury seems to have concluded that because of the two small red increases that then were sought colony lost approximately three point four million dollars i'm trying to figure out the relevance of that to the taking question because i've always said i was your your colleagues the same question it seems to me that when you look at it taking you look at the value of a property before devalue the property afterwards i'm assuming that the value of the property before was twenty three point five million dollars that's what mr goldstein paid for it is there any evidence in this record from which they find your a fact could find what the value of the property was after the regulatory act the only evidence again your honor is mr goldstein's admission to put is that that's not evidence that's not evidence of what it was were so it's sort of i'm trying to look at his record in the light most favorable to to sustaining the verdict and i'm trying to figure out whether there's any evidence in this record from which a rational finder of fact could find what the value of the property was after the regulatory action you know there are there is no such evidence is the first pro case was it was an ok case in which the court found that there was no insufficient evidence of economic impact in the forest properties case from federal circuit to similar a similar situation and i really think coming back to the supreme court's decision in which reminds us about the fundamental purpose of regulatory takings analysis makes clear that the economic impact of the regulation is just at the heart of the regulatory taking inquiry what period of time do we look at the economic impact this is this is a these regulatory takings cases or are sometimes going to strange because the action taken is tempora opposed to rezone ing that says you can never use it this way how do we look at the regulatory impact temporally well your honor that's the that's the beauty of using the market value of the property looking at the market value of the property before and after the actions because the market value within without the regulatory restriction the numerator and denominator of that famous fraction of that value capitalize the full impact of the regulation over time so that could i'm not an economist as president bush once said but i can't could not could one perceive the value of property by looking at projected income streams from the property nor normally that's a method of valuation is it not absolutely but you have to as the scene a good ten court held if you're going to do that approach you have to look at the value of the the present value of the revenue stream over the entirely tire useful life the property not over a tiny window of that useful life this is a fee simple interest in real estate it's perpetual and in fact mr goldstein testified that this was intended to be a long term investment so there's absolutely no basis for zeroing in on an artificially short window and looking at the at the impact during that short period that you wanted to divest dress the investment back expectations and i have a question about that in reading the record i see that mr goldstein said well the first time i apply for an increase i asked them to consider debt service and they didn't  because we have a jury verdict we don't have we don't know what the jury particularly found on this issue and that's a separate problem your addressing your briefs about who should be the decider what it would is that testimony enough to defeat his the investment backed expectations or is just a fact that the finder of fact should take into account are we speaking about the letter from his attorney right right there's there's evidence that when they applied there's evidence only of this one there's that evidence in the record what does it do to investment back to expectations as a matter of law not as a matter of fact because i don't know whether finder of fact found it credible or didn't or not right well your honor i think to the extent it is relevant to reasonableness to the question of reasonableness as a matter of law i think it's because the attorney's advice was correct as a matter of law in other words the attorney was correctly know that as a matter of california law or that from our first ruling in this case that either of the two methods of valuation can be used and it doesn't violate state law right but their argument seems to be wh you really only used one motion for almost all the time right and that's why i'm trying to hone in on this initial application and see whether or not that that undermines an argument well i think you that there is no precedent that i am aware of in which a plaintiff was found to have reasonable investment backed expectations based on sort of that experience will kind of evidence and in fact there's a couple there's a one how others were treated yes i mean particularly in a legal regime like we had here where as the court discussed in the first county code case there was broad policy making discretion invested in the rental right here that's what value of that let's focus on the question i really wanted to ask you can one have reasonable investment backed expectations based on other people's dealings with a board as opposed to one's  own i don't believe so and frankly i don't even believe that one's own dealings with the border the basis for reasonable investment back to expectations i believe the law is the basis for reasonable investment backed expectations and this is not a situation where the rental review board is a court that develops a record of precedence over time and applies a sort of common law method of decision the court looks at the facts for excuse me the board looks at the facts of these each each individual case which are rat can maybe radically different in different cases and has to balance these many in some cases competing competing factors in coming to a conclusion and again there is no precedent that it's even possible to develop reasonable investment back to expectations in that circumstance i want to direct the court's attention to this apollo case from federal circuit this is a mining case in which apollo case was was one which part of the plan of purchase a bunch of property for mining and there was a provision in the surface mining recovery act that allows third parties to petition the government to designate certain properties  not suitable for mining in other words totally preventing mining of those areas and the plaintiff in that case contended that based on its experience in this field it believed that the agency wouldn't receive such a petition and if it did it would not accept such petition it would not act on it it's very similar to what we have here they were saying well we thought that the agency wouldn't exercise its right and thank you for correcting me on which case it was but the difference in that case is not a little bit closer some sort of national railroad passenger corporation line of cases that say when you buy property when you deal with the government you're you recognize that you're subject to their statutes and you can't have any expectation other than that and they can change the statutes from time to time and you may be stuck with that that is true your honor but this is actually an easier case because we don't have that kind of a disruptive change right there's no there was no change in the rules in this case when we know that as a matter of law this case absolutely can you can you address the carson the garden's case put aside for a second it's evidentiary value if as i read it it merely said yes you must do it more you should do an analysis under both approaches we're not going to tell you which one to adopt and the board for some reason didn't do the analysis under one of the approaches  court slapped them and said do it that's right in the court of appeal evidence to some skepticism about the the superior courts original conclusion that the board was required to apply what was required  to pass through the debt service but the court said we're constrained by the fact that that was a previous on appealed superior court judgment and the the matter before us currently is simply did the city comply with that prior judgment  so i'm putting aside the the question of what the jury could have made of that as evidence it did not it doesn't tell us what the law it and i'm trying to figure out whether could have given rise to investment back to expectations on the part of mr goldstein no if i submit that it couldn't your honor because it was not a case it was not a holding on the meaning of the ordinance where there was a superior court ruling say  it's unreasonable to rely on an appeal to superior court decision at all and to given the admittedly dictum in the court of appeals decision that that indicated that it  at the spirit court's prior decision i don't see how you could possibly reasonably rely on i know there was some testimony in this record about the case largely from mr goldstein saying i relied on it here's my interpretation of it was there any other isn't that what i think so your honor i think it's a fairly remarkable situation looking at that particular procedural posture of that case i can imagine that many  third year law students might have trouble parsing what exactly was going on and what the presidential significance of that case was let alone a jury that has no experience in judicial process is not obviously not in a position to understand those conceivable that if you had an agency even for conceivable to that you could rely on a sort of prior practice of an agency that's that's invested with discretion i would submit that you would need to have a long period of uninterrupted consistent practice by that agency to say in every case over the past twenty years you have allowed debt service to be passed and i know the judge didn't allow some other decisions into evidence but it since testimony that he believed that over the period since he started dealing with the city dead service had always been incorporated no he acknowledged your honor i believe that at least one case knowledge of it in this one seventy eighty cases i mean this is not a situation in which the agency had always done it this way forever full stop in which maybe you could make an argument that that kind of consistent practice could could give rise to resettle expectations i see  in order to constitute a taking a pen central sort of regulatory action must in effect be he equivalent to eminent domain i took your property away but we also know that the traditional way of measuring that is value before to value after i can't find any evidence of value after in this record so i have two questions for you am i wrong and not be find it and if i'm not wrong isn't it essential i  think you're respectfully wrong about both of those things ok so tell me where in this record and well yeah i can i can find what the value of this property was so after the regulatory hasso so a qualified answer to that  both damages experts testified that calculated damages based on the present value of the amount that wasn't the debt service that now i understand to the dead that your damages experts said that the present value of the income stream that we're going to lose is five million dollars so around six million dollars i have other questions about that but put that aside for a sec well i'm sort of looking so so if that analysis may have undervalued it may not have because we all know that loss of income on a property doesn't necessarily mean that there's an equivalent decrease in value of the property or it's not loss of income it's  may or may not may or may not decrease the value of a prop their expert admitted that it did so that was i mean that was so much assumed that it reduced it by five million ok so so that's not that's not enough is no your honor and again i mean to your first point i think it is incorrect that the only way to demonstrate economic impact under the first prong of penn central is to calculate damage before and calculate damage after and i'll give you an easy example why that has to be true so imagine if somebody buys a property and the city says congratulation on your purchase now you have to give me your rental income all of your rent that revenue all of it you still have to operate the park but you have to give me the revenue for four years and they're going to have the park back after you're not going to have you know ninety percent seventy percent or any large percentage given diminution in market but let's just start the nobody assume that for a second and let's assume that it's legal under a statute of some kind for the city to tax the well because you're starting off with a with an action that would be illegal when all you know facially illegal as opposed to i supplied illegal but let's assume that's true and the action is legal and at the end of the four years the property has doubled in value do you have to take it you may have an illegal action in those first four years by some other virtue but but you have a taking so first of all the premise of all taking claims is that the action is not illegal if it's illegal it's another problem right that's why it's public use taken for public use so in this circumstance the change in market value that doesn't in your hyper the changing market value that doesn't have anything to do with the government action i don't think would be relevant because the question is the economic impact caused by the government actions alleged to be ok so let's take let's let's see because the market value can go up and down let's take your theory then the economic impact caused by the action in this case was three point four million dollars the of rentals so you're stuck with that number no no because that's that is the amount of just compensation required economic impact is obviously you know connected so it isn't just didn't say shouldn't that be the difference between the value of the property before the action and after the action more or less but what i'm what i'm trying to get at is that economic impact on the first prong of penn central does not need to be calculated as a difference in market value in this case the economic impact was that because of the city's decision and in light of the reasonable investment act expectations that we can talk about later colony cove was forced to operate this property at huge over a million dollars in actual increases that your client got ok would he would there be a taking under those circumstances no but that wouldn't of everybody agrees that there's a stipulation to the fact that this was a market transaction of the your client we have somebody who bought this park for twenty three point five million dollars in cash and therefore had no debt service and i applied for rent increases and got pursue i actually the right increases that your client got would that be know because the i mean all government action obviously subject to penn central but that would not be a taking because there is no reason the investment back the expectation the reasonable investment act expectation here was that debt service mortgage interest acquisition debt service would be expense but it was no acquisition that service if you buy it for all cash so that's that's based on the notion that you had an expectation that debt service would be treated differently right but but so if you look at for example footnote seven of the lucas case  the reasonable investment back to expectations in economic impact are linked because the economic impact always has to be judged against the reasonable investment act expectations right it doesn't really make too much sense to judge one without the other and in this case what the jury the jury heard evidence that there was a reasonable investment act expectation that you get service would be an allowable expense mortgage acquisition letter this all of that that's or a slow in this case is the evidence was all of it nobody ever offered less that was evidence that in other cases when there was a large rent increase the city had offered those people to you know phase in the increase that kind of thing was never offered to mr goldstein so it's not like the city said you know we'll give you one hundred but not two hundred or anything like that and so the question before the jury he had an expectation that a few feet or free got an eighteen million dollar mortgage and he had to make proximately five million dollars in payments he would get that from the board before him for because because the guidelines themselves account for the problem i think that you're hinting at which is that debt service is not in a while the expense if the board finds that the purchase price is too high or if the financing t they can't change the law they had to use the previous guidelines and and you were not successful on that or whatever well no your honor in that argument the question was whether the claim was timely the claim there was a facial challenge the nine hundred seventy nine ordinance then you went to state court to get it to the state court action was a just compensation action under cover not to write in the claim because this court right said we had to but but i just want to be clear about this argument about the change in the law that was not at issue at all in this saying you were saying and their guidelines said you should take it into account and what i'm saying is that's a little bit of an overstatement because what that what what we know from the previous history of this case is that they were entitled they weren't required under the previous guidelines t know i don't think we know that from anything that happened and we know that they were title to use this other method in any event by the time your client made his application no i don't by the time you made the application that's absolutely right because they had they had amended silence but the big question a california court had told this board that they had to treat that service as an allowable expense not but not on the fact that the court of appeal said you probably don't you just need to what you need to do is do two  just to be clear the evidence of reasonable ness of investment backed expectations here there was a lot of evidence including the testimony of mr fresh off who was the person in the city witness who was in charge of rental applications at the time who said that a reasonable property owner who testified to this at deposition was introduced at trial that a reasonable property owner at the time of the purchase would have expected the debt service obviously the whole the reason we were led to feature with it is because the jury could have believed he was lying the second time why was it in five which are very i mean isn't the ultimate issue of whether taking has occurred and a legal issue i can see why a jury might determine what value was before what value was after i could even see how a jury can determine your theory of the case the last rental income stream how can a jury balance the threepence central factors and decide whether there's a take oh because it balancing of factors is a classic jury exercise it happens for example in supports cases happens all the time they buy and yet they're not asked in excessive force cases to determine whether the nature of the regulation is such that it's a taking or you know this is it's a strange it's a strange thing in the end to ask them to find make conclusions of law rather than findings of fact your honor that's kind of the premise of it going to the jury in the first place of course but but at this point the standard of review is you have to take all the evidence in the light most favorable to us we make it so so yes i mean if the jury had believed at believe everything the city said that maybe they could have come out the other way but that's obviously not the question now but of course but absolutely the the the balancing of of an ad hoc factual inquiry which entails the balancing of the various factors is exactly what the jury expectation which in regulatory takings jurisprudence essentially means a property interest that's required to be compensated right and there was a balance that along with the economic impact which as i said was forcing the property owner to basically run this property in a manner that would have led to foreclosure based on a sudden change in the way that is good because that's where i was going to thank you for let's assume there was a foreclosure ok because your client couldn't keep up with the debt service and after foreclosure the creditor bid in the debt ok which under california law seems to establish what the value of the property is at the time of the foreclosure sale then we foreclosure sale forced by the city's action it was worth seventeen million because the bank did in their credit bid would that be a taking i mean it would be subject to pension but i think they don't be in our case law says you need you need a reduction in the value of the property somewhere in the area much greater than that in order to qualify under the first prong no for what your case law says is that diminution of value by itself is not enough you have to balance it against the other  fatal to the case i mean there are all sorts of summary judgment cases where maybe maybe that can be true but in san rafael there was also no reasonable investment act expectation i know i understand there was none but didn't i read the opinion in that case and it says you can't show me a bigger impact on your property then my god it was seventy ninety two point five seventy five percent at the bottom and c c a which is the federal circuit case no case definition of value is not the only way to show a negative economic impact for example because the city can just essentially do the equivalent of taking the property for several years and you would never have regulatory taking and c is going to case i'm struggling with because c c a says look you can have a taking based on something less you know taking us and taking away the whole property exactly what you've got to show a diminution of value of more than fifty percent and all that's not with what c c a says is that in this particular hud regulatory scheme that's at issue in the federal circuit they're bound by a previous decision but the property interest there was a contractual interest about the type of mortgage  show a diminution in value that is not the only way that you can show a negative in economic impact to satisfy the first prong because as i said if that were true then again the city could do the equivalent of just taking away the property for two years they could say we're now changing our regulations such that you have to pay us everything you make and it would never be as a matter of law under their theory or regulatory taking when in fact the right analysis is as an every ten central case to somebody they can't use their property at all for five years the court did not say that the court said that that wouldn't be a per se take i'm going to be or so per se taking but the precise holding of that case is it would be subject to penn central that's what we're saying this is we're not saying th taking we're saying it's subject to prison pen central as in every regulatory taking this case right so i think thomas sierra supports us completely so who's here does not hold that the equivalent of a temporary physical taking isn't a regulatory taking interest as it's not if it doesn't fall into the per se rule of lucas but you have to do the pen central analysis and again i think the jury is clearly the right body when you have a seventh amendment right to balance these factors and strew that a lot of cases you have a seventh amendment right to balancing the factors or to the jury finding facts when while balancing the factors is a fact finding it's just like in the excessive force case i would love to read you this quote from this court's cases about what is required of the jury a careful balancing of the nature and quality of the intrusion on the individual's fourth amendment interests against the countervailing government governmental interests at stake that's no different in kind than what's required of a jury in a pen central case there  all sorts of reasons that a lot of these cases don't end up before juries for example as you come from the briefing here they're almost all in the federal circuit because cases against the united states and up in the federal circuit there's no jury right there might be case against the state when there's no jury right there might be cases that is this a purely legal question that is left for the court or is this a question of the kind of question that is answered by the jury in the waiting of factors the weighing the values the balancing of factors as as in the excessive force central and as high taking you know can be demonstrated by showing a loss of income well it's not that it can be demonstrated what i want to be by now i mean closely i'm saying that the economic impact factor like i can but now i'm the one question in your honor at times i want to make sure i understand your position because as i read this record on which shows is a potential is it shows is a loss of income and so my question is is that where the other side's position it only shows a loss of income you lose so my question is your position has to be it's enough to get me past the first prong of pants antrel actually  loss of income by itself may not be enough but here the loss of income through the property into huge losses right the question is was it commercially impracticable to run it as the supreme court said in keystone by two minutes the answer there at least two occasions where they did not take into account the interest that expenses prior to the purchase your client's purchase and they say that goldstein's own attorney and real estate consultant richard close warned goldstein while while we were considering purchasing the park that the seller's revenue projections for the park were unrealistic because they assumed the massive increase that the board was on my cleat to ground right and he wrote that that this that the sellers and i quote income projections and treatment of the city rent control law is false and misleading and fail to disclose several key issues and income projections of pitfalls that a new owner would likely face he concluded in no uncertain terms and our opinion a purchaser should not rely on collecting any increased rents from those currently collecting right and so just to start with the second part first well i was a five printer we discussed a lot but a lot of your argument seems to be turns on this reasonable right reliance right and so the testimony at trial which we're going to jury was entitled the credit was that that letter was written for negotiation purposes that one is corroborated by the fact that the letter was given to the seller right and and the fact that the purchase price was a reasonable in light of or that the expectation that that service was reasonable is corroborated by the fact that there were two other bids at around the same price if it's true that the expectation to that that service would be allowable was priced into the purchase price in the reasonable missive that expectation is corroborated by the fact that two other people in the market an arm's length transactions must have believed it to operating at a profit what your honor there was it was a stipulated fact in the record and it's also undisputed in the testimony that this is a commercially reasonable financing arrangement and if it weren't commercially reasonable if the board had thought that the debt service was too high purchaser but the board also has to take other factors into account he could have in terms of how much of the hopper of the his his that is that the payments are more in three to compensate for well no i mean i guess i guess i'm just disagreeing with you a little bit in the sense that under the guidelines if the board thought the debt was too high right then it could have said we're not passing it on because you took on too much debt you shouldn't have bought this pro was an unreasonable thing to do with taking on too much debt they didn't say that they didn't say that the financing terms were unreasonable what they said was we're just not that we're just not taking that service into account i wanted to answer your other question there were there were two small parks i think and this area but what he knew it was also new i mean there was testimony to record that he didn't know about this i mean the jury was read aloud to credit that what he what he didn't know was that contemporaneously a court had said you can't do that but that's it the staggering increase that was required and there was a lot more than there was ever that the city had ever had ever granted that there was testimony in the record that in other cases the city had mitigated large rent i'm not sure that last part is true most of the renting creates most of the rent increase that was granted in the first year was to pay for increasing property taxes the and so i mean sorry you had a question before that it i don't i don't think i didn't have one after ok i'm out of congress either but in two thousand and nine the place was operating at a profit i think was twenty eleven after there was after refinancing after that market post financial crisis  after he was able to refinance sure but the economic that effects the economic impact prong and the way you judge economic impact of a government action is the economic impact caused by the government action right and so the fact that he was able market forces had changed five years later and he was able to get out from under the loss that the government had itself caused is not a reason to say that there is no basis for this otherwise it would create an incentive for property owners never to take advantage of changes in market forces otherwise they would lose their taking i mean he said he bored for the long term he wasn't he was not not necessarily for the short term and in the long term this i assume turned out to be a good investment  and what happened i don't know whether in the long term returns a good investment or not that's that's not a new record what is in the record is that compared to is reasonable investment back to expectations which was that he would be able to pass you know treat debt service as before let's assume no investment back to expectations another would you just come to the city when you buy a mobile home park and my with it a commercially reasonable transaction exactly like this one  of wouldn't otherwise be reasonable if it has a substantial effect on the market price if in and subjective expect not to i but i'm i'm trying to withdraw all expectations somebody just kind of no expectation of the city says i have no idea what this board is going to do or hasn't done i've i've i financed this property this way and the board says here ok here's your rent increases and those increases lead you to operate at a loss you would agree that's not i doubt if that would get to a jury yes you can't get that one to a jury i think that would probably be a summary judgment so your case depends at least in part on whether there was sufficient evidence to go to the jury of reasonable investment back expectations at least in part sure i mean  strikes me and how well i think it's an important factor for sure there's no question about that tonight and but this isn't it just to be clear this is not a case where there was no expectation nobody even argues that everybody agrees that there was at least nobody disputes that it was a into account when you were well stricken well two points about that the guidelines said they told you when they could and when they when they should and when they shouldn't when they should is when the purchase price was reasonable and when the financing terms are were under  reasonable to believe that given the guidelines given the way that the city had operated and given their own witnesses testimony about what a reasonable owner would have expected that the jury could have found that there was a reasonable investment act expectation the jury was reported to weigh that against the other factors and the jury was entitle to find a taking here and tell me again why it wasn't reversible whatever through have the jury of the hour you wait the lower court decision in the first  case because it was direct evidence of the both the existence of an actual expectation and of its reasonable ness i mean that and the judge gets to weigh you know whether there was any unfair prejudice but there was an unfair anything other than the fact that the city had taken an appeal and that and it's arguable that this is it was correctly decided of people supposed to argue to the to the jury this this question and would he have relied on our kid is he a lawyer he's not lawyer so he presumably would have consulted with counsel when he relied on that case or he didn't i'm not sure but also again why not without consulting counsel three relies on a case that doesn't you why don't we just put five minutes on the clock and misters and if we're still bothering you at the end of the five minutes we'll keep extending ok thank you your honor there's only one point i can make in my five minutes it's this it's to take my colleagues  hypothetical about the situation in which there's an owner of a mobile home park and the city decides that the city is going to appropriate the rents that are that are coming in from from the what's the property being taken in that case in that case i isn't the property the rents there it's the rents yes but and as opposed to the the fee simple interest in the property yes that's correct but i want to make clear here why would that be a taking the reason is because there would be a reasonable investment back to expectation of receiving those rents it's like expecting rent to be paid which is what this court said in guggenheim is the test so if their argument is we expected read to be paid in a much higher amount than it was because mr goldstein the expectation was based on history and everything else that bigger increases would be given so why is that hypothetical different in this case because because that increase is exactly hypothetical in the situation where you have the taking of actual rent it's rent that they had a legal entitlement to already so it's in this case there was no legal and  difficult i was having with the that was to say that is it's probably not a pen central taking if you're taking somebody else the property that you're taking you're actually exercising eminent domain over some intangible property that already exists where here we're talking about property that it's somewhat expects to come into existence exactly although there is still an expectation in that case because the expectation is that rent will be paid right it's a can expect titian it's based on a contractual agreement  says well we had a reasonable release had enough evidence to go to the jury a reasonable investment back to expectation and for better or worse the jury must a found in our favor because they were told they had to find one in order to find in our favor and that means that three million dollars stream if you have the income that we lost over that time period net income that we lost over the time period was taken from us  that's there i don't think that's an unfair characterization or you respond to what's wrong with it well because your honor in that scene a good ten case that the c c a case followed says you can't just look at that in isolation you have to look at the entire income stream from the property over the useful life of the property you can't just look at an isolated window a snippet of time and say that income was taken without the context we have no way of knowing how severe that is i mean that's the fets the core as we've talked about the core of the regulatory takings analysis is how severe is this impact really and in order to they have to come back each year and make the claim until we were far enough down the road to know that the property has been completely devalued no your honor because you can i think the fact that the city has already denied it was sufficient to say i mean we we wouldn't say that they had to assume that the city was going to go ahead and grant that increase in the future i think it's i think it's a safe assumption that that that that was not going to happen but the the question is it so is that through three million sounds like a lot of money and certainly a lot of money to me at the with the value of the fee simple has been reduce i think i mean that's the simplest way to do it is because rightly said that value brings all the colleges it's not the only way to do it but the other way to do it is not just to look at one item of potential income in isolation it's to look at the income stream from the property projected out over you know i think what their expert did their expert said here's our expenses here's our projected expenses here's a here's our now we're a project one of the project expenses of course was debt service that's exactly right and that was what they took in isolation that's where the five point seven million number comes from that is the hypothetical income that they say they expected to receive over it's to emphasise your honor that with this wasn't unlike the expectation of went being paid this was an expectation of getting rent increase that they had no entitle me to and in the c c a case and those seen a few cases which are humbling to try to try to get through i have to admit those cases involve contractual entitlements there was no contractual entitlement or statutory entitlement to receive this revetment but that's what makes  if they're there the what's being taken is not an interest and if the simple but the contractual right yes one can evaluate a contractual right we don't have here is what i'm struggling with is what's being taken is what's precisely being taken that i agree and i think that there are two possibilities and one is the fee simple that's recognizable property and under under that one does no there's not nearly no evidence of reduction of value and simple and the other candidate is this hypothetical isolated debt service but there's no basis for considering that to be property in isolation there's no just because there's no contractual entitlement to it there's no entitlement of any kind that would say that money is discrete property as opposed to a speculative strand in the bundle of their real property rights which is really what it is both mark there's this or come down with centrally to believing m without any corroborating evidence about what his expectation was i think our position is not based on that your honor i think worse but i mean in the end the jury there were other instances where the board use the n o i method yet i didn't give him a name take that into account in his first application running when he when he borked property his lawyer writes a letter which if you believe them was fraudulent says that don't expect but you're going to be able to get this increase so what this and there is this opinion of a state court lower state court judge which mr goldstein is not even a lawyer and we don't even know whether he could sell but a lawyer about and this adds up to a reasonable expectation that that is their contention your honor and i i just can't see how that's possible but we take you over not as long over as we took your colleague but i think we had we now a full grasp of both sides arguments i want to thank both sides for the excellent briefing in this case and the excellent arguments in this case isn't it thank you very much