case number nineteen dash six thousand three hundred and twenty seven ronald at all versus severe county regional planning commission at all argument not to exceed fifteen minutes per side mr brown you may proceed for the running morning thank you i may please the court i'm greg brown attorney for the appellant i've heard development partnership here the issue before the court today is probably the most important issue project was a developer name miller who had developed four phases of the development along scottish highland way this proposed development was also to be on scottish highland way miller's involvement in the project and his prior experience in gaining approval for those four phases of the miller's code development was it was one of the things that the evidence trial showed d growth the developers investment in this project  there were no no variances for the for the four phases of the pillars cove development and the access was deemed to be adequate a not realistic given the the terrain it's i think it's legally unrealistic the issue is that there is a sec this is a short section that maybe forty feet is so there's so that the the words right away is fifty feet i think it's disputed in the record whether that section is actually forty feet or not but the position of the planning commission is that it was forty feet for that for the very short section i think we're talking about eight hundred feet or so where it goes through the the foothills parkway the that was never an issue for the development of the mill the planning commission had had approved for phases of that there were no variances noted anywhere and in fact the chairman of the commission emitted in testimony had at the trial this matter that there were no variances for those four phases of miller's co develop the the pellets here after st having their plan disapproved went before the planning commission again in april of two thousand and seven and there was a roll call vote and then the basis was additional evidence including that the plant that you're referring to that the the that the access was to the right of way was in fact fifty feet that's correct it had been the concept might have been disapproved at the march i thought i saw at the march two thousand and seven meeting they came forward with some additional evidence and it was it was approved and i don't think there's any dispute that at the april two thousand and seven meeting the planning commission did pass and approve this concept when the question for the court there is whether that created in the appellants a protected property interest such that they were entitled to both procedural substantive due process and equal protection of any actions taken before the approval of that sign apply at that it is at the risk of the developer the issue the issue here is that at each stage there are three phases of approval to g approved by the planning commission once they get past that stage they're moving on to design documents the testimony at trial was once you get concept approval that's when the developer really start spending money that's when they start designing and engineering the roads that have been approved in concept already so there's that that's that's the expectation is that is that they can move forward with their concept with or with the details of their design in the next stage does not the next stage of the approval process does not revisit the concept layout of the road the access in the right way it really does it's perhaps for the st term the interior structure of the runs and i guess mount part of the record here indicates play a role in the discretionary approval of the planning commission based on the translate and and modes that have to be generated for that size development if the regulations give them discretion regarding what size roads need to be approved however for both miller's cove and for this development requirement was according to the county fifty it's the same requirement of political to both and we win our position is that that discretion to the extent they have it it ends once they've given their approval they had to the extent they had discretion prior to their vote on the april two thousand and seven meeting once they voted they no longer have  granted by the by the subdivision regulations and this is what it says it says within sixty days after submission of a concept plan the planning commission will review it indicate its approval disapproval or approval subject modifications there is no there is nowhere in the subdivision regulations that the planning commission is ever given authority to revisit in a revoke approval of a development plan or concept plan and so i think that there may be other reasons that other stages of the approval process where they could have where there were other issues may have come up but they don't have discretion once they approve it that their obligation is to do their homework to court just strikes me as a case that it's probably just the right kind of thing the state court so you've got equal protection candidly the equal protection argument is weak you cut substantive due process for you have either violation of some such the provision of the bill of rights such as equal protection or some sort of fundamental right like the right to choose whether to give birth or something like that but the right to have a development considered probably doesn't rise to th what you're really left with from my perspective and i don't want to decide those other arguments i'm just having trouble seeing them a little bit but the argument where you might have some purchases that there's been a pile ation of procedural due process normally for procedural due process you've got two steps st you've got to find a property interest and for liberty interest but here you're talking about a property interest in the property interest is the problem but not by the property interest is is not necessarily just when the when the state says this is vested in the property interest as when you have some right to something depending on certain facts and you're arguing that you don't have the chance to demonstrate those factory with me and with ok so i'm trying to see how you would fit your case into traditional procedural due process stages of analysis because that's what we're mean you say that you received notice of a you didn't receive notice of a meeting on may th but you did receive notice of later meetings before the decision was made so what exactly is the procedure that you're saying you were denied when certain kinds of facts which if shown would give you the right that you're seeking were determined or you personally i am with you the the procedural due process argument has to do with the maid meeting which is where the planning commission purported to rescind the approval that had prior previously given on april th it approved the concept plan in april two thousand and seven at a subsequent meeting in may it was added to the agenda again during the meeting and there was a vote to rescind the prior approval and i know what i would under the nd stage of finances field you're you're receiving notice of that particular meeting helped preserve your ability to demonstrate facts that would show that  well the issue of whether or not there was a forty or fifty foot right of way was actually in dispute by parties at the previous meeting people have presented evidence that it wasn't fact fifty but they think i can add to its to show the truth it prior to their vote to rescind the the previous but afterwards afterwards we denied an opportunity to go so it was fifty feet all along no they attended they attended later meetings and they had the opportunity to reapply for approval of the concept plan but it doesn't change the fact similar to the trial court management case in the buckeye case that we cited in our briefs were this core previously held that once you have an approval that is a protected property interest in it can't be taken from you well if it can't be taken from you without procedural protections procedural protection is for you to say you made a mistake it's fifty feet wide all along and you haven't done that and i don't think they  you that opportunity but they did it once they did it every was there was it was denied the st time in march and they went back and proved it again in april and at that point there is no there is no procedure there's no law there's no method by any other development that was treated differently how do you respond to his main argument that the reason he has a claim here whether it's substantive or procedural due process is that approval was given and the commission did not have rescission question if if the if the key violation of procedural due process alleged as this may th meeting i guess the idea is they didn't have a chance to challenge the factual findings argument before it was definitively decided against them is a correct point it does just the record reflect that they in fact resubmitted the concept plan because that was made of two thousand seven and between may th of two thousand and seven in december of two thousand and seven my understanding was that the partnership met with owen be discussed a variance and then resubmitted the concept plan without applying for a variance but that the partnership then removed it from the committee from the commission's agenda at the meeting on which they had requested i reflection of the record  until december of two thousand and eight  key denial of those alleged denial of procedural due process was not getting notice of this may two thousand and seven meeting you're now saying that anything that he might have wanted to raise that that meeting  address seriously those arguments the st one regarding waiver as we cited in our brief we argued the issue of a property interest in our trial brief we presented evidence on it and i think perhaps most importantly the trial court in its order denying the appellant's motion to alter or amend said this plaintiff state that they are not asking the court to alter its ultimate conclusion that they have no protected property interest or that defendants did get it is my understanding that that did happen i met with mr own the prior to during the development of their concept plan prior to prevent presenting it to the planning commission they met with him right up through the point where they obtained approval of the concept plan from the planning commission and it i'd like to i'd like to just read it that the cases that this court has issued on that issue there's one they said in the  case this court recently knowledge that a developer has a legitimate property interest in a zoning permit when the zoning permit complied with the existing regulations as opposed to requiring a special use permit or conditional use permit and the site plan had already been approved that's the tri city case of deciding the buckeye community foundation case where the court said it in the case of bar plaintiffs property interest was securely vested upon the city as the city's affirmative representation of the site plan conformed to the existing zoning regulations as reflected as reflected by the city's approval in chief had not reached the site play and stay in this one isn't that correct that's  of the concept plan stage but but to the extent that the concept plan had been approved the elements of the development that were inherent in that in their concept plan that the developer had had in the property interest in being able to carry forward the regularly but you did in fact meet with him on some occasions and that's where the denial right after the may a meeting that rescinded the approval your honor i can't i cannot point to anything in the record at this moment but my understanding is that that is the case that he and and i and corrected my understanding that in two thousand and seven the concept plane wa resubmitted without applying for a variance but then it was removed before the commission agenda was taken up to the actual meeting again my understanding is that that happened in december of two thousand and seven after the approval and the two thousand and eight process that we're discussing was way or they actually took up the concept plan again and denied it at a hearing right yes thank you one other thing i'd like to point out is that the court's decisions on this issue and in prior decisions have focused on substantive process and i understand the the commission's argument regarding the mistake that the approvals were a mistake and therefore they didn't want to make the same mistake again the problem is is that they they approved this concept plan in the position of our client before that approval and after that approval is not distinctive not distinctive from the have miller's co in each situation there was an approval of a concept mistake or not and it created a property interest of the developers in title to protection for so your position would be t proceed yours cannot correct a mistake once it's been made for one entity the planning commission is not able to correct it for a subsequent into t no i think the planning commission had the discretion to