permit use such as the lose his face gambling operation question before the court yes i think whether this agreement regarding future uses is void or not use the ponds that belong to the association for detention and retention of stormwater i'm not talking about natural means i'm just talking about storm water retention and detention i think  the case revolves around or at least as decided by trial court here revolves around a meeting of the homeowners association that was held in december of two thousand and seven the agreement said they had this agreement regarding future uses so that if i had to be okayed by the homeowners association there was a meeting the beating did not happen within thirty days interesting question the if it has to be approved by the membership which is what that paragraph thirty three of the one hundred thirty three excuse me the nine hundred ninety three agreement says the members we  which simply isn't practical and if there wasn't a vote of five hundred people to approve this thing then mr joyner cannot bring is plaque within the the because there is no approval in this paragraph thirty three requires that there be approval for any new plat after two thousand and three now what does it mean to you both agree  and they're under the bylaws you know you have to have a certain number of people there for a quorum and so the membership it was a it was an association meeting but it wasn't like there was a ballot handed off  vote of the membership and according to the minutes there was this thing was approved the list in thirty days that is correct it was not approved within thirty days of the approval by the city council of the various that is true or of the plaque that's true the approval was required he put the thirty days in there to move the process along according to this test well we blew the day i mean there's just no question that that's an uncontested fact but then the question is contract the fact that they didn't do it within thirty days is not boy the approval is not for the contract and here it's crystal clear that all of the provisions in this agreement regarding future uses were in fact perform the association gave its approval to the various that was requested the association took title to the ponds which was in the agreement regarding future use of the developer pay the association twenty six thousand took a couple of years but hey the association and the association support of this jockey media and his group it was signed by the association and it's in the record there's a bunch of you know it's the typical parties exchange faxed cygnus signatures and all that mr joy there was a third party it was in october mr station right here he also mentioned cases seem to indicate that a provision such as that is set forth in the first paragraph paragraph five that within thirty days of the city council approved the board of directors will call a special meeting of the membership in etc however those cases don't have then as far as i can tell the final paragraph  they decided to bring it up bring it up to date as to what happened between twenty seven twenty then why did you record two thousand and seven and then in two thousand and twelve call it an excess of caution that's all that's all i can tell but i think they were they were both record but i like to i'd like to turn then what are the consequences of this contract is not if it's not the sony as it existed in twenty years and we contend that these apartment buildings are secondly it says that there will be no uses the required conditional permitted use from a permit from the city  ten pardon me how would that have been consistent with the two thousand and ten well it wouldn't about i mean point is if if if we have if the association has to approve a conditional removal was and the about the apartments it's about the gambling operation the supposed right to the presence of other other and that they wouldn't be paying me all this money fight this fight that's the bottom line but let's let's talk a minute is running short let's talk a minute about what happens if the agreement is if the agreements void we have to go back to paragraph thirty three of the nine hundred thirty three bring a new plant paraphrasing bring a new plant quote within the scheme close quote of cobblestone status and what that means means a couple has to do with the name we're not saying mr joiner can't develop refused to recognise the provisions of the covenants that say to bring a new company to bring a new subdivision plat within i'll stone after two thousand and three requires the higher this is the rare case to come before you where both sides agree that there are no questions of material fact we do disagree about a few things it's just a spoke was asking we do perhaps it sounds like we disagree as to what tasks are assigned to the membership versus what tasks are assigned to the association i don't think there's any question that those those things are different tasks in the agreement that we're fighting by two thousand and seven they reference the association has various things to do and then it references the membership of the association it's a very very different animals they ser and understood that his reading of section thirty three of the one nine hundred ninety three his required a vote as he read it required a vote of the membership tire a quorum of five hundred people  three of government i don't think it requires that the developer of tain all this is permission to bring in the reason why we believe that is sort of i guess global in this whole case the rights as i cited in my brief the plan actually states that record class function as deeds in the plants were recorded after this torturous torturous process the plants were record thousand nine three as documents in the chain of time so he writes that the twenty fifth edition this piece of dirt joist starts first from that plant that plat developer again not my claim the developer needed the permission but if they did the permission they need the permission of the entire membership and that then explains how we get to the stu thousand and seven  and this very clear or at least to me language regarding how or why the association or why this agreement itself was conditional upon getting permission of the entire association i think that th they can show is that twelve people show up for membership is five hundred people but quorum is at least five percent they have a boat they have a meeting maybe there is a boat the minutes don't reflect there was much the same passion about whether or not the price that they were able to get was sufficient based upon the work that done the board was very uncomfortable says mr turner testimony hurt the board was uncomfortable it wasn't sure that it had the support of the entire mr joy or would not buy it unless it was platted brand he didn't want to mess around with this survey and what the only one byte it was plastic gram so they had hit permission from something that joyner goshi by them make it clear this contract joiner was not negotiated they did find some documents in discovery whereby drafts of it were sent to his lawyer but there's nothing anywhere in the record that says that either jointer or his lawyer added anything to this this was not something they enjoy or negotiated or was involved in that benefit as as we've argued put it in the testimony was nothing they planted it use a funny book by so nothing in this agreement was a benefit to join or other then c d c was able to clean something up so we could actually buy it and have the title and i think it's important probably this is not something mr meyers argued is opening remarks but it's important to recognize that and i think maybe perhaps one of you mentioned it the timeline here is the the city council approved the twenty fifth edition in september joyner bought it the first of november the homeowners a meeting was then not held until another month later so none of the stuff that mr meyers is talking about concern joy or in the least he wanted a piece of plastic ground he bought a piece of plastic green and importantly when he bought it and the title work was run this particular document which everybody agrees is an encumbrance on real estate was not recorded was not in the chain of title there is no evidence in the record that mr joyner knew this signed let alone whether it was never approved the best they could come up with is that he knew that people were talking about it but as far as he was concerned he was paying a significant amount of money for a piece of plastic ground plastic ground was subject to one thing and that was whatever was recorded on the reporter's office and this document or so deep the issue is is not so much but let's put it this way he's not buying this to hang on he's buying it to do things with it is extremely important to him as a buyer to know what he can and cannot do with it he spends a significant amount of time and money with me making so this this this document and i think that the timing of this is this and i don't mean to human over association they're doing their job but the timing of this thing i think is suspect on the question of whether or not this thirty day requirement why we needed you know you'll notice that the timing of this is this document literally die in two thousand and seven no one remembered it existed but i would suggest to you that when they did the two thousand and ten agreement everybody knew that the two thousand and seven agreement was dead they didn't drag this thing out until after we had won and gotten the zoning that we need don't care about this document it and put it in their first place willing to the next issue which is whether which is count three which is the heads i win tails you lose what t is confused about is they believe the joiners right used to drainage and retention arises from this agreement and therefore if the stream is gone our rights to the they're just flat wrong this little flimsy four page agreement has nothing to do with the rights of many acres of piece of ground to drain into a very complex series of dr ponds and drainage ditches you don't create that kind of complexity in something that was hammered out in four pages whether or not joyner is entitle to be you know that's not the issue the issue is whether we can use these times the right to use the pons arises from a huge complicated statutory scheme as well as a very complicated engineering process that was process would be virtually impossible first of all practically impossible but also legally impossible to her the best example of that is simply this the only defendants in this case are co it is legally would be impossible to be on one but more importantly the rights that we have to not derive from this document you could tear this document up and we'd still have the rights to trade i don't know  we didn't our necessarily about whether we have the right to use the name cobblestone don't care i would suggest to you when i read that the reason that wasn't argued is they don't really want to solve this power three and four were thrown out as a  the reality they're saying whoa whoa whoa you're going to terminate this agreement we're going to game your creator they don't want us out we pay a huge amount we are who are being paid a significant amount of money is assessed matter is he pays a lot of money to maintain those bonds they love to have that money they don't want quirky joiners twenty fifth subdivision out of course you have twenty fifth edition they don't want to have the subdivision think is important to mention somewhat aside there is a gas station a quick and easy gas station a quick easy gas station sells out off it also got a conditional permitted use which would be technically a structure put in place that said at some point in time the developer candied the fines to the homeowners association so that's what this is all about ok well what is the in the  there i understood that mean that when the two thousand and eight covenants were recorded it was very specific as to what part of the nine hundred ninety three covenants were to be included in the two thousand and eight and that was not one of them that is the very good provision regarding the retention detention on the provision that he's referencing right there is the part i think count four which says there are and it is if you don't pay your assessments we can shut you off ok that particular provision didn't make it into the two thousand and eight guidance which means that particular provision does not apply to the twenty fifth edition count i wish i had fifteen minutes to respond but only have five saw to talk fast first of all i'd just quote i think you asked the question are these things been built the answers some of them have been buil you perceive as litigation going on you proceed anyway it's a your risk so the fact that there's a couple of apartment buildings out there i'm sorry he made a considered judgment he was damn the torpedoes full speed ahead and you could you can be sure that mr zirkle informed mr joyner that this thing was out there and it even if he didn't it's constructive notice so the whole business about i wouldn't have done this i would have done that is sheer speculation and again outside the record but the most important thing i want to correct is this issue of the right to use these ponds if you look in mr joiners brief you will not find a single case that says he has the right to use offsite detention and retention areas for his stormwater and that such a right derives from the acts of the city council of springfield or the drainage code now we all know they had under the plaque and when subdivisions are built if you affect the drainage and you're going to if you're turning corn fields into parking lots you have to provide for unsightly the tension unless you have an easement from a third party and i've done lots of that his water can't flow into our ponds because that's the natural drainage course and i've cited the drainage law what we're saying is that the storm water drainage must be subject to houses he has a right to to drain plant late grain his land but what the drainage code or schools or what the plant access and what the case losses is if i have a thirty acre cornfield which is what this was  and i covered over with roofs and parking lots now what i've done is i have significantly accelerated the rate of discharge it's not to say that i can i can i can i have a right to have my water flowing your land but i can have it flowing your way and at a ridge higher than the predevelopment rate and that's exactly it's in the plant at the plant access when you do this you've got to have an engineer  three hundred they all provide for on site the tension and retention of storm flows consistent with plastic and if you if you walk around all the subdivisions it anywhere central or you see these have to own but they're there to detain or retain the farm and so all we're saying this is his water before cross our land just he had not had a a rate higher than the pre