legally operating business it deviated from the core fundamentals of due process when it ordered the relocation of the slaughter operations they really did so i thought in a fairly gentle way get this december ten twenty thirteen meeting and all they say is we're going to give you one hundred twenty days to come up with a plan to move the slaughterhouse aspect of the business and then the plan needs to be able to be accomplished within a reasonable time so it's not clear to me why if the village thinks that the slaughterhouse aspect of things since two thousand and eight has become a nuisance that they can't do that well there had been no judicial determination that legally operating business had constituted a nuisance but there were a lot of complaints you think that there has to be some judicial predicate before they can in a sense just rezone well this was different than resign and they weren't acting under the zoning policies that they hadn't been a substantively it's the same thing they are they're saying this use has become inappropriate i gather this is all conformity with the current zoning right because at least the village says because the volume and frequency increases and the neighbors are complaining about all of these negative side effects you know  you know awful in the streets etc well i believe that's why the wisconsin laws that come into effect which is a legal non conforming use can't be terminated so we based on that increase in production and there's procedures in place of the village should have were going to change inside an addition to that documentation is really a regulatory taking problem and if so wouldn't you need to go to the wisconsin courts first with an inverse condemnation case well there insufficient hearings that effectuated the violation of due process so can you talk about notice a little bit because the the sixth circuit in their decision in the hussein against city of paris case makes a point which had some appeal to me that i mean at some point you have to stop giving notice you don't give notice of notice of notice you know and they did in the december  statement the letter that came the day after the meeting gives you know it is nothing it happened yet they didn't say closed today so so i don't know where the notice comes in i'd like to hear a little bit about why you think it was inadequate certainly while there was no notice sufficient notice prior to that december tenth motion there was an agenda published that stated that the village board would be discussing nuisance and zoning issues but there was no discussion and that mr duran should be prepared to bring in witnesses and cross examine to protect his property interest in the right to slaughter at that location but what why isn't that notice that this is now on the table so he has one hundred twenty days he can do things so i guess i just don't understand why that's not enough to get the ball rolling well there is no notice prior to that order they have decided on december tenth that they have one hundred twenty days to remove slaughter who to get a no no that's not what it says it says to propose a plan for moving things and then the plan is to have a reasonable time that's what the hundred twenty days is about i think the order is implicit in that though that they had already decided that there needs to be a plan acceptable to remove days had filed a lawsuit maybe a nuisance lawsuit and state court why at that point wouldn't the owners of the blacker meat market have had the opportunity to make the arguments that you're talking about that this was a legal non conforming use that the footprint wasn't going to change that it wasn't a nuisance and you know whatever arguments you're now presenting why wouldn't that have been a perfectly good for while there still was the pre deprivation remedies that should have been made available to the appellants this was not a random an unauthorized action this was the village board taking it upon themselves to order that they wanted the business removed so the business had to come up with a plan to get out but there hadn't been a deprivation me i'm still trying to understand why what's going on isn't actually a pretty deprivation process the appellants had their their bundle of sticks they had the property right in the villages telling them how they would be able to use those property rights without going through the proper channels there were procedures in place if they believe there to be a nuisance there were both formal and informal policies that the village had been place in addition to wisconsin statutes which talk about mitigation of an abatement of nuisances in the least restrictive means closing down a business operation is not the least restrictive means to deal with the issues that you had previously mentioned the steers which only happened on minimal occasions and the animal by products which also were remedied with new sanitation right there mean it's phillis increased traffic delivery trucks blocking the road livestock noise odors improper storage of animal parts awful runoff blood animal waste in the streets and the three times i guess it was a studio you know went marching off through the streets of black earth and if they believe those to be a nuisance there are those procedures that they need to follow which could have corrected those individual actions suppose they just brought a lawsuit without telling you at all you know we we need to have this nuisance of a with that have been unconstitutional in your view well i think then we would have run into the issue of not following the village ordinances and potentially a different operation however in that case it would have been a lawsuit to abate the nuisance not a lawsuit to remove slaughter and i think the distinction is that one  potentially could have been brought under wisconsin law and the remedies would have been changing the delivery times or dealing with the steere or dealing with the blood and runoff and one would have been removing and closing down a business to close down the business is not the least restrictive means to abate what they believe to be a nuisance well what about the argument that there is simply this code is a request for some real plans with with of course there was a threat of litigation well i  think the distinction there is that it wasn't that the threat was at the end that if a plan acceptable wasn't provided they would take legal action and if the requirement was not to ultimately remove slaughter there would be no need to bring  it deviated from the process that they should have taken which was a stablished again taking the least restrictive means and going back to that the least restrictive means are not removing well in response to the requests for the plant could not for the company because the the the company in the village to that point and in some sort of process which would mirror what the ordinance recorders well they  did actually come together and attempt to work out a plan for a number of months after which time blackard meets actually did present two distinct plans that would have removed the slaughter operation they provided two additional plans to mitigate  the complaints but even after providing those two plans the village still authorized their attorney to commence legal action so it appears that the request for the plan is merely pretextual to kicking the business out of town because even after the plans were provided they still authorize the attorney to take action but why you said i don't i mean there are two things here one one of the plans did i gather involve relocation of the slaughter operations i guess nobody was worried about the butcher shop the shop itself the slaughter operations and a company with that was this motion that i'm forgetting his name but that did the owner wanted passed essentially resolving the legal issue saying i'm not you know my business isn't a nuisance and they didn't surprise me that they didn't want to pass that kind of  conclusory motion why couldn't he have just litigated in either one or lost him you can't assume he would have lost any lawsuit well that's actually the you know they did bring the lawsuit because they believe that the deprivation had already occurred the your clients did yeah correct no but the but if if the village had sued him why couldn't he have made his arguments why i think the distinction is that the village didn't decide just to do they had noticed that if they continued the actions they were taking it would disrupt the financing agreement with the bank of new claris and reached the same result of shutting down the business the notice was given at the end of december and then again and june and then again in july that if slaughter couldn't continue at the current location mr duran would lose the financing the bit the lack of means facility would need to shut down and so there was no need for them to litigate at that point mr drennen never looks into alternative locations for those water operations he does and he had been discussing that with the village president in the village board members trying to work with them to find of facility outside of town to relocate slaughter operations there was just not cooperation from the town who didn't want to pay for what they wanted to do well who had to who would ordinarily have the burden of look and the obviously outside the corporate limits of black earth means that there it's not their concern anymore it's the county or it's and it's another municipality or something why would the village need to pay for that because that would mirror a condemnation proceeding that they would be essentially buying out and moving them at sea that's that's what i keep worrying about with this that even though you're calling a lot of these things due process claims of various kind in substance a lot of them look to me like a regulatory takings you know it was the villages decision that they didn't want this use in the village that caused him to lose his business that's obviously you know a significant thing for a person but it sure sounds like a regulatory taking well i think there is a takings aspect which is why brought but the concern here i mean isn't that really the whole thing because there were issues along the entire process with b notice and the hearings and the infringement on a number of the rights that were not  until recently totally taken and they were simply deprived in the due process and that the government was a printing on the use of those rights without actually taking them the government never actually took the financing agreement they never took the legal no was but they did prevent you know they were just down the road consequences but that there's some outer limit to that in terms of compensable ity for state action correct but there is still that inverse condemnation claim that's pending which is the other side you know i have no problem with the inverse condemnation claim i'm trying to figure out if even if notice had been perfect and they've been very upfront we're trying to shut you down that would have been in first condemnation it seems to me but they were taking the action under a nuisance approach which i think even removes it from that land use concept this wasn't nice sara lee just all a land use taking they didn't actually take the property they were just telling him he couldn't use his property and that's where the due process deprivation come then and i think the distinction and the reed case that cited in the appellant's brief really demonstrates how this is more of a due process deprivation which is the use of property is being restricted by the government without going through the proper channels and that's what happened here the village didn't consider any of those plans to relocate which affirms that entire request for the plan was pretextual they just wanted the business out wonder to plan city presents in july that actually involves physical relocation there were two of the four two of the four i know two of the earth some of them didn't correct some of them looked at and an alternative medication  concerns but the village didn't consider any of them they didn't record demonstrates that they didn't ask any questions of the people who presented they didn't question mr duran and they looked at the document which is about forty pages in about forty minutes and shortly thereafter authorize the attorney to take legal action so does the record show whether mr duran was trying in some fashion between december and july to eliminate the sources of concern jump through the right hoops and if you get to the end of the day then maybe the slaughter house has to move zoning rezoning was an option but it was not the only option for the village candidly the record that we developed didn't go into detail in terms of why the village chose the actions it did i would agree that that is an available process but this was not a zoning process that they used no wasn't but that's actually one of the problems in the village and that's doesn't sound a lot like due process if this is a fed accompli well i think the words of the motion answer that question the words of the motion in december of two thousand and thirteen were in fact that the village of black earth we're saying two black earth meets you have one hundred twenty days to come up to it with a plan to relocate but it's a plan to relocate it's not a plan to address all of these complaints and problems so one way you might address the complaints is have a better way of of confining the animals or a better way of dealing with your waste products and better delivery system or whatever that doesn't seem to have been on the table i would agree with you but what comes next in the motion is the most important part of what this case is about this is a due process case so what the village set is it one hundred twenty days to come up with a plan and if you don't come up with a plan to relocate that's acceptable to the village what is the motion say we will go to court to seek a court order to enjoin the slaughter which of course we can all agree provides to process the village was not by the very words of the motion ordering them to stop slaughter not then not later what the village was saying was you know what we will in essence forbear going to court now we will give you let's work on this together we'll give you an opportunity to create to make your fate and your fate can lie in what you come up with if it's acceptable to us and assuming and there is a part in the record that talks about you know you need to make sure that you make a reasonable effort to stop these these ordinance violations but assuming that you've got time let's work together but the only answer that was going to satisfy the village it says in that very first motion is relocation correct that's and that's the problem because it's not logically necessary that that's the only way it happened there are slaughterhouse operations that don't dump you know waste parts into the streets and he's never given the chance to address the villages concern in any way but the one way the village has left him well he was actually given the chance he was given warning letters back in two thousand twelve and two thousand and thirteen he was given citation after citation after citation after citation and so the village was in a position where this isn't working we cited to him a number of times and it's not getting any better and so the village said you know what we're not going to take you to court right now we're going to do that if you don't come up with a plan to relocate we'll give you time to do that and if you don't come up with a plan to relocate we will go to court and then as counsel correctly indicated when the plan that they came up with was options as opposed to here's what i'm going to do and by the way village you should pay for it millions and millions of dollars pay for me to relocate the village said to its attorney you know what go ahead and pursue legal and what legal action may be appropriate like why couldn't the village for the july plan have simply said we really meant it when we said you need to use a plan to relocate this we see that there's at least once not one hundred percent cleared me where there were one or two but there certainly was up plan in that package that the consultant put together and the village said ok that's it we're going to take it you need to proceed along those lines the plans that were come up with all of them involved substantial village payouts number one number two what the village officials have testified was their idea of a plan was not what mr  plan was and there was a difference of agreement when you're there what was the difference in the village officials idea of a plan was here's what i'm going to do here's the steps we're timeline in which i'm going to do it and here's the process instead what mr duran came up with is several options there were more than once absolutely and i'm willing to do any of them as long as you pay me for it there was no timeline there was no actual concrete steps made and that's all in the record and so the village at that point said you didn't come up with a plan not only did we give you one hundred twenty days we gave you an extra ninety and that's undisputed there was a stipulation to extend that so what are we going to do we're going to authorize our attorney to proceed with whatever legal action may be appropriate the notion that the government telling a citizen we're going to authorize our lawyer to seek a court order to enjoin slaughter but that's a deprivation when it's self evident that in order to pursue that action one must file a lawsuit and a lawsuit involves process what's really going on just so we're all going to take the curtain away w really going on is they had no money to finance the operation they needed money from a bank that said i'm only going to loan you money if you get a guarantee from the u s d a and the a says i'm only going to guarantee that loan if you tell me those there's no threat of litigation so the the the position here that's being advanced just so we're all clear is that the government is going to be  is that what this case is about no it's not about that number one ordinance violations continued citations can i appreciate that ok i'm not trying to cross over what you said about the violations but it's some point  point yes i would agree with that the plan was to relocate outside the village and if you don't we will pursue legal action to enjoin or restrain that yes it's that's two very broad position because it suggests that people who live in the village of lacquers who are doing things that are perfectly lawful under the zoning ordinances and other land use regulations can simply at the stroke of a pen be told no you actually have to leave we don't really care whether that means you close your business or whether you find another location and that's that's not usually the remedy for a nuisance the remedy for nuisance is to pursue injunctions there's no reason to believe that the black or its owners mr duran and others would have gone into contempt of court for refusing to comply with injunctions so it says it's for an extreme position but that position was never never came to fruition because plaintiff closed its business before a lawsuit could be filed we don't know to to go to one of your points earlier we don't know what it would have happened in that court or proceeding all we know is the village was saying we will stop her hundred twenty days the ninety more days we want to take action come up with a plan if we can agree we will take you to court that's what they were saying at the end they're legit as you just said knew perfectly well that with litigation pending u s d a was not going to guarantee his loan and the bank wasn't going to make the loan so it's it's a very neat way to shut him down by shutting off his financing the village did not know that as of december ten it by the time july comes around the they've destroyed his financing by that time they have not destroyed his financing he destroyed his well you know when i was and i would say the village by making it very clear that litigation was pending made it impossible for him honestly to say on the forms u s d a provides there is no threat of litigation when he knew that there was yes it is undisputed in this case that the threat of litigation resulted in the bank's decision to not loan him the money which resulted in the disclosure of the business yes that is what happened but the any other result in this case would mean that the government cannot sue one of its corporate or individual citizens when there is a private contract saying you know what we're not going to give you money to resume i don't agree with that at all mean the government could have sued him in december's far as i know you could file a lawsuit maybe he could have filed a lawsuit for declaratory judgment for all i know but  i don't think that there's no possibility of suit the this is all about who pays for various things and i guess maybe you're agreeing that there might have been a regulatory taking because he's been deprived of the ability to use his land one o five plaintiffs summary judgment brief a page twenty one quote plaintiffs concede that there has not that there has been no formal land use regulation and acted by the village board rendering the procedures for inverse condemnation wisconsin takings and federal taking claims unavailable and inadequate well that's not saying that there isn't a regulatory taking listen to what you just read they're saying we can use these inverse condemnation procedures because that's what you've done now positions going to be we didn't do that that their position is going to be yes you did their position is quote no there was for no formal land use regulation they are conceding that the december meeting did not impact their use of their land  mean that whole sentence again sure i don't hear it at all the way you interpret it play out it's a quote plaintiff's concede that there has been no formal land use regulation and acted by the village board com rendering the procedures for inverse condemnation wisconsin takings and federal takings claims unavailable and inadequate so it depends how you read that rendering business because you're reading that  formal action and thus there is no way to use inverse condemnation they might be reading it is saying and they say it's pending that they're hasn't been anything at the villages done that would prevent this place to the slaughter operations the answer if i understood your question correctly the answer is that if a police officer went out there day after day cited them could it in theory constitute a land use regulation it would it would depend right they don't want the trucks for example it might be very simple thing you know they don't want the trucks completely blocking the streets were apparently the trucks did from time to time or maybe commonly correct so you didn't want to fine you want them to stop doing it so that people could drive down the street correct and i think that's in general why a lot of you know municipal police and forstmann occurs is to get compliance we were looking for compliance we didn't get it citation after citations issued after warning after warning and then we're at a point where this isn't working anymore so we yes did the village have an option in december of two thousand and thirteen to file a lawsuit absolutely why didn't you why why why to go through the charade of asking company to leave town because it's not a charade they knew that they would need a quarter how do we know that it's right in their motion there see themselves they said if we don't come up with if they don't come up with a plan acceptable to the village then the only plan except the one to the villages i understand i are you going to get out of town to say what's litigation costs and the village was trying to be a good village or working with its corporate citizen to give them an opportunity to be involved in the process and that this is a due process claim you know this is about you didn't give us notice of this alleged deprivation what we know you also have their equal protection class of one crime they also have a substantive due process going in that they have a series of fourteenth amendment claims i would have but as it relates to their due process claim which is what we've been talking about today as the court indicated they had notice i mean we can we've been talking about the property interest deprivation but of course there's still the issue of what the notice is and as we all know we'll look at what the nature of the deprivation is to decide what the notices they have notice mr duran who is an attorney the owner of black earth meets he had noticed through the agenda of the meeting he attended the meeting he spoke at the december meeting he was there he participated he was part of that  process he was also part of the process of working with the village for one hundred twenty plus ninety days they were together there was a grant that they worked on and at the end of the day he came and he presented the plan he had his planners come in and present and then he presented honor indicated there was this motion that he wanted the village to file but ultimately did he get notice so what was going on there's no doubt he did how do we know that after december tenth they they kept slaughtering i mean the business is going on it's not like anyone there's like a piece of paper saying you know you have to leave by tomorrow no what the process was is they're going to continue on with their business come up with the plan and if it doesn't work if we can't get an agreement we're going to go to court and when that and that there will be the problem is no that's why there's a substantive element whether it's equal protection or whether it's subject to process to their claim because you can give all the notices in the world of something that's illegal you know i could give notice that i've decided to take your car away from you and you know that but if i don't have a right to take your car then knowing that i'm planning on it doesn't really help so notice o is what happens after the july tenth meeting they only slaughtered for eight days and they stopped operation it wasn't as if the village when they said on december excuse me july seventh tenth excuse me july tenth we've you know we've given you the time i see my time is up maybe you're one minute to wrap up ok it's not as if they said you know what at this point we're just going to wait and see what they said on july tenth is what you're for the village please proceed to go to court and what happened what happened is they stopped business because of a private contract they had which effectively prohibited them from getting financing merely because my client wanted to so i would first just like to discuss that threat of litigation and the concern within the conditional commitment the conditional commitment has language in it that is a not threat of litigation period it's threat of litigation that affects the collateral of the financing and the business operations had the village brought a nuisance lawsuits there would have been no impact to the collateral because as your honor pointed out it would have been the business could have been ordered by a judge to change the delivery times or change the animal procedures for holding the judge under wisconsin law could not have ordered the shutdown of the business and so when the village took action to remove slaughter and not to just abate the nuisance that's when the collateral was impacted and they had notice of that in december they had notice that when mr duran sat before the board in july of twenty fourteen and said we're at the verge we're on the edge of crisis and if you don't allow me to continue slaughtering you've affected my business and the collateral is gone and therefore the financing is gone how long did he have in the final analysis to satisfy that condition of u s d a the conditional commitment and the loan were actually set to close in about december of twenty thirteen but the bank was trying to work with mr duran and extend it they were hoping that he could resolve issues with the village but when the village finally decided to take action in july that's when the bank could no longer get any more extensions and i think it's important you're telling me that had the july meeting gone in his favor somehow or another that it still would have been time there still would have been time for the bank to extend a loan yes absolutely it wasn't until after the bank had received word that the village was going to be taking action on its previous threats to remove the  operations that the bank could no longer get financing but i think it's important to focusing on the equal protection kind of the hostility element that we've kind of skirted over is that the village trustees were very vocal about their intent the intent was get the business out of town there's information in the record where trustees have made statements to some of the complaining neighbors that if they continue making complaints with their help the village will be able to get the business out of town that's this mickelson correct discuss that with mr michelson or ms nicholson excuse me so i think that kind of brings in not only that equal protection but i think it gives some clarity to the intent of the motion one of the trustees also testified that the intent of the motion was to remove those slaughter operations so again the pretext of whether or not the plan could have actually been presented but the only plan that could have worked was they get out of town and they pay for it but there was no financing because the village knew that the threat against the collateral would declare allies alone and effectively choke them out of their business financing and judge posner discuss this in the back page case that the appellant cited in their brief where what the village did was take a roundabout way they were choking out the business instead of just going on a full frontal assault and telling them they had to close down they were pulling the financing first big part of back page was the first amendment correct as you're not supposed to chill people's speech so i'm not sure how readily it translates well i think just the example that he had given with the impact of the financing and what what the village was doing here and what the village didn't knowingly because they had the information in december of twenty thirteen and they had the information the entire time they were attempting to work mr duran they knew that if they were not able to come up with some kind of agreement to continue slaughter operations at the current facility the financing would be pulled and they would get what they wanted without having to go to court so the village keeps saying we could have gone to court the parents could have gone to court the same goes for the village and the burden is on the village if they want  business out of town if they want to remove something there are procedures in place they have ordinances which show how they should've mitigated the the nuisance issue and they deviated from that norm both in the due process and and in the equal protection they had  and they didn't follow it they didn't follow the ordinance they didn't follow the warnings necessary that in follow the abatement time necessary when you think if they had followed all the right procedures there would have been a solution to this problem short of shutting the business to absolutely because there would have been