this case the district court erred by failing to a court any importance to the statutory provisions in the village of chester code which make it clear that with absolving regulations in place no meaningful application can be submitted is all this land vacant land yes sir or are although you didn't include it in the record on appeal we went to the village has no zoning at all are you saying to me that this vacant land has no zoning on this vacant land between had no zoning at the time of the spill  years ago i was a village attorney and this is what are you are you asserting that there was i read your brief i looked at your complaint and you used the words i'm presuming being careful no zoning code which says that the village zoning for the village of chester is the comprehensive plan for the entire village it was annexed but apparently not resolved in  regulations in place did you formally petition the village board to apply zoning district to bts property the village board yes or no that's it we formally petition yes the village board we requested the village board apply the r and zoning to the property that's a different question as you know i'm asking did that did did bt formally petition the village board to apply the district to b t s property it did not formally petition your honor because and that's what it's supposed to do under that it is not correct that i'm sorry your honor i during the four years process the village established as owning for the property called r and it was a village initiated zoning that bt worked with the village on in  for the property in determining what the appropriate land you should be for that property on an exception at the time the property was annexed the village changed its mind it just reversed course and instead of applying that or amend zoning it simply decided that it would not apply any zoning at that time so there was we kept requesting that the zoning be applied we worked with the village for an alternative but in the end they just simply decided on november third two thousand and fourteen not to assign any zoning to they for that so there was no petition that the village board formally denied remedies against the village there but just you end up in federal court saying it's a complete taking well your honor we allege a complete taking because the village code says that you cannot use or occupy the property without their beings zoning but you'd never formally apply for zoning of the property and and by the way if they'd if they denied it and then said no you can only use single family residence here you don't have a taking  because you may want to do something with it but the fact that you don't get what you want doesn't mean you have to take is i don't just i don't disagree with that assertion so all you have to do is you know this thing's been going on for twelve years why didn't you simply make a formal petition then you've got a gun article seventy knots winner in state court and you've got to take his language you didn't make a formal application i understand what i understand the context that you got it in but if you'd made the formal application then you would have satisfied the you may have felt the dice were loaded against you but if you'd made the formal application then you'd have something to butt up against your fifth amendment claim and i don't the again your honor under the facts of the situation this was a zoning initiated by the village the are men zoning the village made an affirmative decision not to apply it it left us with no zoning at all and nothing to apply for let me let me ask you if you succeed if you are you know you are successful in state court on your specific performance claim and you know you your state or breach of contract claim then then maybe there's not much for us to do if anything that may be true if they do grant specific performance if it is if they don't grant specific performance then it would not be true but if they do then then what would the regular tory takings be in that circumstance there wouldn't be no to except for the fact that we've been sitting there without the ability to use the property for three years almost three years so that the regulatory taking would be the temporary taking between the time that the village affirmative said no until the time that relief was granted i'm not trying to be harsh on you but it seems to me and i and i don't think the village qualifies  for friends of the developer of the year who are here and there and i see that there was tension between the town in the village when the village was initially embracing your felt your people's development plans and as they can parcel and ultimately it's over in the sense that you can't get anything else from them and that's why i was being all tough on you about asking you about the formal application because that would have crystallized it and would have said ok that's it they're not going to allow this at we're not going to allow any development and and so that was the point of my question wasn't any difficulty you know what it is clear you could have made the the petition but you did your answers you chose not to do so because you felt the die was cast right not because the die was cast but but we had we we had and we had actually asked why we didn't submit a form that said we're submitting a petition for for rezoning we said you have to zone this property we've met with them for over a year and a quarter trying to for you know have them on the property they took an affirmative action to knobs on the property milledge when they didn't when when they were actually declared that the or end zone ing which was the existing zoning district they made a motion to deny application of that to the property as well so we were left totally with zero zoning thank you you have a here please the court good morning my name is mary marie's election the law from the fair clinch macartney in newton and we represent the village in this action we respectfully submit that judge by bill's decision should be affirmed in all respects for  many reasons in particular the reason cited by this court today that there was no formal application different from what the court's term right that they were focused on  a has the petition or could have made an application to the z b a under their posture seeking an interpretation of the code and seeking advice as to how they should apply how they could apply and i think i think a process that could have been followed is they could have an issue aided the informal process with the planning board under the code and they could have received direction and elicited opinions about how they could respectfully disagree i think that zoning regulations are one of many land use tools that are available to miss palin that they have the option of using or not using and that other tools were in place here such as the site occurred i believe the stipulations were issued in june of two thousand and thirteen and i think the annexation is went through in october but there is now the entity and didn't have within it a specific determination as to how the property would be designated within the knowledge code did it it did not and there's no requirement under the law to issue zoning or applies only to the annex property within a certain period of time the villages here but this would be this would be the definition of spot zoning if th were no prohibited if there were no views on this property in this completely i mean i have the map it's completely of that completely surround with everyone else within the village is a permitted use this is the this is the definition of spot zoning so i don't i don't understand what took the village so long to figure out what you say expose and to now that that is now that it's now been resolved and no your honor i think the village wanted to get it right and they wanted not to run it through taking them a while well they wanted to get it right and so they took the time to do that in the meantime they recognized they're still taking the time right i mean is there any zoning in place right now as of today from giving us a hint of that or any any existence whatsoever why don't you do that i apologize for three in the dark about his leave the judges in the dark they only have to decide the fate of us give them no help whatsoever i pol plaintiffs really went forward full steam ahead in state court and were actually scheduled for trial in january and we will keep the court apprised we didn't speak about the futility except at all so i just wanted to mention one thing because i think the the facts of this case dr that exception is as as well again the our position is that we were unable to make a meaningful application because there were no regulations in place and we believe it's unfair to place a property owner in a position of having to submit an application where the rules of the road are sensually not there it's imposes a tremendous amount of risk and it's something that in many years practicing land use life certainly never seen  but the the other part b the other part would be the the futility argument on there under williamson isn't the problem that there needs to be a final decision by the governmental entity that has responsibility in this case the village board my understanding your honor there needs to be at least one meaningful application and but but there doesn't have to necessarily be a final decision is the futilities exception is essentially an exception because the courts have held that the rightness requirement should not be applied mechanically and it's prevention rule so but but there is a temporary take the period of time that we had no use of the property or was unable to use the property is a valid claim under the federal law perspective damages claim it's not a it's a it's  no use you could put to it and you'd have to show that you'd made other applications for lesser uses we had other types of opportunities to use the property the simple fact that you could use it for what you want to use it for doesn't make it a taking as well but clearly if the zoning says you cannot use or occupy the property and are standing up but my point was is that for a few still a t you had a ruling with regard to the housing or the multi use you that you want to put it to multiple use housing but but you never asked them say ok if you want if you always own it for that you want to honor your earlier agreement zone if you're single family residences and will agree to that and you'd have to have them say no to that then you'd have to have them say no to a number of things for which the property was appropriately suited to be used wouldn't you to an stablished futility in these taking even of a tempering age i don't i don't know why we would have to do that if there's a provision in this specific provision in the code that expressly states you cannot use or occupy now if you want to frack gas wells there and they said no we're not on it we're not going to own it for that you have a taking even though the land was perfectly usable for single family residence no not at all i'm just referring to the statute itself your honor and what it said in during that period of time that we were subjected to nose owning if there is i says to you to both sides if there is anything that should have been a twenty a j letter i don't like it by tomorrow morning at nine am thank you thank you thank you