that amount of i rebutted evidence that the property d at issue is actually sound plan commercial and entitled to the broad uses under that classification including the proposed residential hotel yet as before the trial court included d a dozen pages of development text repeatedly referred to this property as plan commercial the testimony of gulf village d representatives that it was specifically rezoned in order to allow for those planned commercial uses and even as form testimony of the tenant david that's our own zoning expect or inspector who acknowledged that this property d is plan commercial with all the uses that come with that and the zoning is in place for decades to come in ruling the point what is the point of the development plan so there's the zoning of the zone there's the rezoning regime but then there's a development plan your client submitted how does that operate does it operate to limit your right to development based upon wasn't that the planet as it is something else only for the specific prohibitions contained within the development text your honor those d zoning resolution and this is undisputed allows for d d plan commercial developments and so what you do is you present a plan with his tax and the whole tax is the plan itself and that is approved and has the force of law as the operative zoning upon this property so here the property was rezoned of land commercial the only limitations upon use contained within that tax is against salvage yards slaughter houses adult oriented uses and we look to that plan then is that sort of the operative regulatory regime is really no longer in a sense zoning and this is undisputed you looked at fourteen dollars as to what the permitted uses are in a planned commercial area and instead the development plan requirements only require that you identify the approach that it uses we did that is honor judge watson hung his decision upon something called my home which in no way was meant to limit the permitted uses within the planned commercial area and so the fact of the matter is the residential hotel to squarely within the broad  uses is everything within section fourteen point zero three the d requirements of the zoning resolution merely say when you proposed development tax itemize those uses that are prohibited we did so it was approximately seven uses and the property then becomes owned as planned commercial what the trial court judge did was find a passing reference to retail in something called concept plan and say aha you limited the permitted uses but actually the development taxed at least a half dozen times in the record your honor identifies this as land commercial broker raii of commercial uses permitted under fourteen three we know not only that the development tax controls and has the force of law but we  also under the petro decision cited here at page eleven i believe d our the judge watson hanging everything on that concept plant is contrary to ohio law in that case much as here there was nearly a drawing commercial d not that it includes specifically hotels but that in general this d residential hotel would be a commercial type operation and then you rely on the no restrictions by implication is that a fair reading of what you're saying well what we were i upon is it was planned commercially your honor and therefore anything allowed under fourteen point zero three is allowed on the property and frankly it's a very broad zoning classification that allows for motels anything that services the traveling public or any other activities not prohibited and so under ohio law anything not specifically restricted any your clients the fair notice but you submit the plan and so if you submit a plan why would we similarly interpret that i guess against the the zoning and city when this is so beyond the zoning law no you're not interpreting it as the zoning authority in fact what we did was rezone it planned commercial and therefore under the zoning resolutions terms your title to all permitted uses within fourteen point zero three the only thing the zoning resolution required at fourteen six was that we itemize prohibited uses because the default otherwise you get all of the permitted uses under fourteen dollars there is no requirement was any resolution nor under ohio law that a landowner rezoning must use because once his plan commercial and this is frankly under ohio's owning a lot cut and dry once it's own plan commercial you are entitled to all of the permitted uses itemized in the plan commercial district which is that for th to termination as de baets the sone as specter acknowledged as part of his d job to get it and he would not give it to us even though he understood it as he testified at age eighty nine and ninety of his deposition that it was part of his job duties and the developers from some of the reading i thought of those as two separate steps it sounded to me like just now you said the certificate would be this used determination can you help me they do say would d you just said which is d that we won't give it to you because you're wrong but at other points in their briefing they say well there is no such thing as it used to terminations that this is something that your side has just made up they have said that there is no such thing the only problem is the person charged with that duty has said under oath at eighty nine dollars ninety cents in his deposition it's absolutely his job it's absolute and i meet with somebody is there somebody else in ohio o powell that has a piece of paper called hughes determination that they got he has sent letters he has sent e mails he even sent an e mail d to us go ahead and get an assisted living facility on the site showing it's not retail it's plan were vested by time tracked in this zone ng and when we were his own plan commercial we have a vested right in that sounding that can't be changed by the city of power that's not disputed and so we are entitled to build this permitted use under an apartment building a residential people stay for twelve months and pay their own feelings but well your honor they're the minimum stay is thirty days is licensed as a hotel under state law in back income per nish with someone at the front desk and the state legislature again has license these as hotels mr batts again under oath acknowledge that he understands these are permitted uses and plan commercial districts throughout central ohio that they use as permitted under dollars was not reasonably disputed at the trial court level instead the city argued that we didn't have a vested right or it wasn't right well in fact judge watson did acknowledge that we could have a vested right through contract and that these claims were and some formal way to get permission to build it you want to build it is a reason why you haven't done that yes i'll give you three reasons actually very quickly we don't need to give yourself the right has passed it under clear principles of it's his duty to do so he understands that it's not unusual to be asked and he's required under the code to give them and thirdly have seen clearly in the record to do so would d be futile it requires basti engineering and planning tens of thousands of dollars that they've clearly said they're never going to allow and so under the banner case this court should not close its doors to us when we let it be when pursuing burger administrative procedures is a waste of time and money all right but mr miller it's my understanding that you did not file the application for the zoning certificate is that correct that is correct your honor instead we asked merely the acknowledgment in keeping with our vested right of the existing zoning they were permitted to build a residential hotel city with detailed information about this proposal he's asking for a use to determination the zoning inspector wrote us back and said i don't have enough information to make this determination in his deposition however he said no in fact i did have enough information it is part of my job to make these determinations and now i can tell you that is not that's what i want to do in my did you know why did you not file a formal application for the zoning certificate because the use determination is provided for by the power city code because our rights and resigning are vested and cannot be changed the way the wedge we case that you judge karen decided and i argued and frankly they've already shown me that such an application would be futile his official capacity as the city's development director and serving ministry the owners this is a purely local zoning matter this matter should not be before this court nor should have been there for the district court before it despite golf village seeking to develop its property in what it calls it as a residential hotel and despite its insistence that its permitted use it has failed to comply with the most basic zoning requirements the required clause across every jurisdiction state of ohio and that is the submission of an application for a zoning certificate or the submission of an application for a building permit alright i just asked that question and the answer lies mr betts in his sworn deposition testimony said that he would have denied the us there's d only a certificate had it been formally submitted out why isn't that sufficient when you have sworn testimony as to what the action would have first of all honor that was not mr betts a sworn testimony as i read it mr betts indicated that from the information that he has he has indicated that this does not appear to be a permitted use and nd of all even assuming that mr betts had made that has a zoning certificate require certain information certain documents and certain it and the developer to its house to the truth of those facts without that information the city cannot make an informed decision if mr betts eventually but what further what further facts as a city need to know i mean they know what the what the agreed zoning d is for d the planned commercial zoning here are they they know what the residential hotel is proposed what further facts of the city nature well your honor zoning permitted uses on a piece of property are determined by how the property is u opposed to the other way around that is correct except for the fact that in ohio it has been up hill that you can have prohibited which means that as is the case here and as a side in our brief any use that's not specifically really allows it allows nortel's it allows anything to facilitate the transportation of people or whatever i mean it's about the broadest categor a something that's commonly used by all developers was it just happen to be a one off instance and this circumstance i'm trying to identify how this operates the ease of the zoning regulation and then anything that you might subsequently have to approve of course your hon or it is common in any plan development as golf villages and has some area g is there is a development tax in a development plane those go hand in hand to determine what uses what regulations into twelve month lease or they call them the units will not be furnished the units will be the primary addresses for those items they will have to secure their own cable their own television their own telephone in their own utilities and this residential hotel will be advertised in local current guides to get tenants that your honor is a is a apartment complex in an apartment complex there's certainly not a motel it's certainly not permitted in a commercial use and there's testimony from trade tower the representative for gulf village that this is not zoned residential in a portman would be a residential d use so is theory i would say would depend on the particular zoning tax for any particular district or piece of property can vary among jurisdictions this district has pacific zoning for residential or hartman's  development plan which they agreed to and they claim i met i go back to my questions about the development plan because for me the case inches on this and i still can't quite figure out how this operates supposed all phillis wanted to build an office here only covered by the development plan what would they have to do what additional permissions would they need from the city to build an office that everyone agrees is covered by the plan he submitted in the approved previously that this case hinges on the following they would need to submit certificate and they would need to submit an application for a building permit because without those two items they do not have a vested interest in in the zoning and use of that property as this as this court decided wh on certain properties but the zoning certificate establishes the particular use for the particular property for example let's assume this was let's assume for the sake of this argument this isn't facts zone commercial and assuming argument that there's no such thing as a used determination in other words there if they had had as i understand it they're willing to file is owning the certificate a building permit  as long as you say that in general this is a permitted use i presume if they want to build a fifty story apartment hotel there's probably something against that that would d come in with the zoning certificate but would anybody else in your hypothetical say to heck with any other permission will go straight to the zoning certificate is d that is that your argument at this point not not quite your honor the use determination that golf physical mail or otherwise say yes this is ok or d no your lose d go away there is no official manner in which he does this these are very informal these this  the gulf village itself tells us it's being used it identically to an apartment complex he can certainly make a determination at that point informally again that this does not appear to be a permitted use of the pro but as a golf village to the woods what it is is that is that turning on things like how long is the lease and whether it's furnished and whether you have a doorman and a uniform well it st turns questions there's this question about how it's being operated but the threshold question is what is permitted and in the uk st we have to decide was permitted and when you get that application for the zoning certificate are you looking back at the development plan or the broader is zoning regulations determine what's permitted the city is looking at the development plan your honor but even assuming it and that it isn't specifically does not include the broad commercial uses that  k and ok and council the reason that they lose on that is that the word commercial would not include a hotel well i think that's the secondary argument you honor that this site is not for those broad commercial uses under that development plan that that that's barrios for retail of this restaurant in other uses as plan and for this specific site it's identified as a words should we look forward says anything not anything not permit it is prohibited i'm sorry your ocular is there a particular page or a section of the document you're referring to that says anything not permit it is prohibited yes your honor it's in our brief i do not have that specific page number here in front of me but i believe it is in the zone a resolution that  at the end of the day there is no vested interest because as this court decided wedgwood interest is not best until an application is filed and the local zoning process is or complied neither of those that have been here even assuming they have this is not a permitted use on the property under the development when we city would or is the binding zoning for this or even under the more generic commercial purpose you're calling something a hotel which is an apartment judge driven is correct that any prohibition on the use of property needs to be specifically articulated we don't have that here so instead you would be turning zoning on your head to allow the decision of the city or port of your plan commercial balance are a lot about providing maximum flexibility developers not flexibility that's why the developer pursues this type of whites ability and so what we have here is a permitted use under fourteen point  the spirited defense i heard today residential hotel is not a commercial use is the st i've heard of it you won't see it in the record below instead it was only contested there in a little for summary judgment of the other declaratory judgment action regular and judge group and he also acknowledged i know what i do with this it would be rejected and so your honor under all the evidence today before you there is at the very least disputes that material fact as to d is the evidence so one sided that you must find as a matter of law certainly for the city of power for all the reasons we describe it is not but i would tell you that every single piece of evidence in the record both on the text and the witness testimony supports our position such that you could enter judgment that this is a permitted use that in fact we have a vested right and there have been violations of procedural and subsidy due process i in fact ask that you do so your honor so total judgment