case in the koontz case the supreme court drew a line as to what governments may or may not do with respect to land use approvals in particular that they cannot use a discretionary land use approval or the granting of a discretionary benefit to that an applicant surrender constitutionally protected rights or interests that lack a nexus or rough proportionality to the impacts of the specific approval being sought and that rule as the supreme court stated it includes applies even if there is no entitle mint the benefit in the st instance and even if the entity could otherwise exercise its discretion to deny it outright it also applies whether the demand is for the surrender of real property or an interest in property or monetary exaction the town here however claims it ha landowner that they cannot put restrictions on the sale of that property this would be the st time ever when it's a unique case your honor in the nature of the mechanism they created and we've never said that they couldn't place appropriate conditions upon the sale property however we have said that it has to be related to the impacts of the discontinuance an abandonment of the roads number one and number two if you create this process where you say we are going to transfer ban discontinue the town roads but we're going to put in place a moratori and then we're going to have to come back to us and you don't have to come back to us repeatedly if you ever want to do anything else with your property what you're doing is you're creating a situation where you've now created a discretionary benefit if kreutz want to apply this type of situation going back to the original sell the property under coots they couldn't even ask for him of market value for the property then because under currents that would be disproportionate to what they're losing that would he want remarkable thing well your honor would be a fact specific inquiry it's not this case because we're not challenging that initial aspect of it what we're challenging is that you have here a set of conditions that did we believe exceed the scope of what they could do however it also has to apply to the situations that we are telling this court i am here on and if i'm saying to you of coots one apply t situation a town can say you know this we want to charge above market value for this land to this person and accounts you couldn't do that if that test applies here your honor you wouldn't be able to do that and then say you have to come back to us again and again and pay still more millions of dollars to get a release of this kind of restriction it is a unique case in the nature of the mechanism in the process that they created they created a process that required us to come back to them after this two year moratorium if we wanted to do anything else with the property as code to say this is the limit on what you can do they specifically created a mechanism that required you to come back that's what distinguishes it or makes it a little bit different from sherman you get the same result but you get it a different way what was your cause of action complete at the time that th example there was a mechanism and a formula put in place that was clear defined you knew that was the formula at that point here we had a two year moratorium that said ok we're going to stop you right now from building beyond the one million five  after you get to ninety percent occupancy you wait two years come back to us and in our discretion will decide whether or not to lift it so it isn't fully affectionate but you you are claiming that the imposition the condition that with the way that it changed the process to get to three million if you ever are going to get their parent you are right question because it required you to go to the town board that was in effect when the attend and the resolution was adopted right and your honor with respect to that restriction yes but as the district court correctly found our st member claim isn't time bar because the fact it's a continuing and ongoing violation of the st amendment prevents us to this day from petitioning and under the case law that the district court correctly identified that is a fresh and viable cause of action as long as that st amendment restriction remains in place could they had town have just denied your application to go from that one million eight hundred thousand to three million square feet outright at the time the planning board could have the town board didn't have jurisdiction to do that so what the town board did was they assert and this is one of the state law claims admittedly but they assert the jurisdiction of the planning boards the planning board could have said looking at the impacts looking going through the criteria that are set forth in the zoning code we believe there impacts here that prevent you from getting approval  board could have denied it outright and the town board governs the town as a whole even though new york allows a delegation to have certain authority to the planning board why wasn't it within the purview of the town board to pla some conditions on it and say listen this is a matter for the voters that's what they did there are two aspects to that question your honor one is did the town board have the authority of the jurisdiction to do that and the case that we've identified are briefs makes it clear that once the town board creates a planning  is the bottom line with respect to that it creates a panel with exclusive jurisdiction i think to avoid the type of abuse that you see here which is the town board says we have unfettered discretion we can ask for whatever we want for release of this covenant to allow you to just exercise rights that any other landowner has as opposed to the planning board that has criteria has to follow it has a public process hearing requirements publication requirements that's one of the reasons why it's structured that way and nd of all when we're talking here about this particular case one of the things that we're saying is you town decided to create a discretionary benefit you said if we come back to you you will have discretion that's what they claim they say they have discretion you said in your brief unnoted me that that it was an implied promise that turned out to be  and that that struck me as curious because since it was implied it was never explicit and it was always illusory in some respects and it was just a process for you to come back what why was that an abuse of discretion by your honor it's not the abuse of discretion standard st instance it's the standard with respect to that decision when we come back once you create a discretionary benefit why did that impair your rights then let's put it in day when when you create a discretionary benefit as a town and you say we have discretion when you come back to grant or deny you the release of this covenant once you do that you subject yourself to kreutz because you have created discretionary benefit in the court and said it doesn't matter if you're entitled to it doesn't matter if the town could just say no once they say no but if you do this then those conditions that are attached have to be scrutinized under currents and the reason is because what you saw in sherman this court's on sherman in a public process with the amendment of the zoning code with changes to the site plan approval process that were public there can be a challenge in sherman eventually got to the point where there was a challenge here this is going on behind closed doors each time we go back including in the three years prior is there a new demand it's curious though that what was submitted to the voters in a referendum you call it behind closed doors process the referendum requirement itself is problematic not just because the fact that it serves as a further barrier to entry to the planning board but the burn that places on our st amendment right as a result  your client was entitled to the three million dollars in a three million square feet permit the entitlement issue would be relevant if we were talking about the due process type claims it's not relevant to the unconstitutional conditions doctrine but they were early they were we believe that they were after complying with the process of the plan and you believe they were entitled to a yes after the twenty four months had passed we believe that we were entitled to have a consideration the didn't result in new exactions and i see my time is up i would just briefly conclude that if you allow what happened below to stand you creating a road map to circumvent both currents in this court's decision and sherman as long as the town structures in a way where it happens where you have to come back and they have discretion as they claim unfett limitations grounds and on a failure to see to claim grounds a click it was here challenging an agreement a contract it made twenty plus years ago to body town roads agreement now how does that come about that town according to state law has to pass a resolution abandoning the roads the town passes that resolution and reaches  agreement with a collect go on a purchase price and certain conditions that would be placed upon the property those conditions were restrictive covenant prohibiting further expansion and less  the restrictive covenant was lifted by the town board and was subject to a permissive referendum why subject to a permissive referendum because state law mandates it town law section six hundred and forty two mandates that the conveyance of property by a municipality is subject to a permissive referendum we hear now a clerk was saying that that violates your constitutional rights but if you look back at what they said in  enforceable that's what they told the new york state court system twenty plus years ago but now the same restriction they claim is violating their constitutional rights the lower court correctly and appropriately dismiss this complaint there is no st mate could you address your adversary's argument that the town born didn't have the authority under new york law to instance the town board did not take anything back from from the planning board the jurisdiction under town law section six hundred and forty two to abandon town property or just sell town property is exclusively within the town board that was never within the planning boards discretion it wasn't then it wouldn't be now that the authority to convey real property by a municipality lies exclusively under new york law  that got tied up into the application to expand to three million square feet that is correct klecko could not build them all at the one million eight hundred thousand dollars square foot level that it was proposing without the so they reached an agreement with the town to purchase it and it's the record suggested to me that had they remained at one million eight hundred thousand dollars the town had already expressed through the supervisor pretty clear intention to agree to the been lands that have been flooded regularly and that were ill maintained and so on and it was the changing aspect of the application that caused the town to withhold the approval and i think part of what your adversary is arguing is that they were entitled to fresh consideration of the three million square feet application by the planning board separate apart from and so this was something that was they were entitle to and of doctor and the doctor can apply to a equal protection claim under our case cornwell be robinson so why isn't that sufficient for time our purposes because under the equal protection claim there is approval and we're not so i have a hard time understanding why that that is an untimely claim because there are no known time board acts regarding any comparatively that are alleged the only in in in the time that if someone for example applies to something for the government and they are denied based upon their race for example it happened four years ago but then another person comes up within the three years who is white and gets approved and then at that point it you know the fact that it happened to another person four years ago doesn't mean there's no equal protection claim right well the filk on discontinuance of the road is the only one within the within the statute of limitations and there's nothing in there can why they applied within the three hundred and thirty three years they went back and they apply within the three years and got rejected and then i think at that point they can compare themselves to others even before the three year period when they're saying subject to a permissive referendum which in and of itself would violates the law so there there an argument on the merits of the equal protection claim right but there what they're saying is that they made a request it would violate state law and somehow that triggers a new statute of limitations that can't be they're not they're not linking it specifically to state law or they're just saying that they were not getting approval other people were getting approval and it's not went to any specific and there is no nothing in the complaint that says they actually made a formal request to have the town board vote to lift the restrictive covenant what's your argument on the merits of the protection claim as to why they would not prevail in force timely the argument there are no there are developed on their own property it's now we're comparing apples and oranges when we're talking about the shops and i knew it and in the past ok thank you very much i think we have the argument  leslie you have two minutes of rebuttal i think i'll go straight to the equal protection issues that judge bianca was asking about a minute ago with respect to the acts in the three year period we do allege specifically that we approached the town board they understood it to be an approach to seek lifting the restrictive covenant and the ability to go back to the planning board there's no dispute about that they haven't denied that and in response we got a demand for millions of dollars monetary exaction and other concessions in exchange for granting us back constitutional right that they took from us that action that activity in the three years prior is sufficiently alleged in the complaint it's alleged in multiple places in the complaint and in detail that that occurred i'm sorry and which constitutional right are you focusing on as it is relevant your honor both to the unconstitutional conditions claim with respect to our th amendment rights it's also relevant to the st moment rights because as the district court found it can constitute enforcement it's also relevant to the protection under the continuing violations doctrine we have fresh acts within that period prior to commence a mental argument on the protection claim on the merits is that the shops wasn't didn't wasn't seeking to get access to a road to buy a road in order to accomplish their expansion and that's what this case is whole pack whether or not when someone's purchasing  something from them is a pouty can it be conditioned so how is that similar situated to your client if they didn't need a road to point your honor one the difference is the shop's the door was wide open they could exercise their right they could go to the planning board they could go in normal course the fact that they didn't isn't a material fact the fact that we did is the material fact it was close to us in addition we don't rely only on the shops although we believe the shops are the appropriate compared or they're both zoned as major regional shopping centers they're both sharing very significant characteristics in tenants  it was appropriate and that's not forget this was a motion to dismiss this was add a motion to dismiss stage and at this stage are allegations were more than sufficient with respect to one last point and i see my time is up with respect to what happened twenty years ago and what was happening at the time twenty years ago there was no koontz twenty years ago new york law would not have allowed us to challenge this situation we have here fresh acts that allow us to challenge it because of that continuing series of events as well as constitute a new law