the next case of the day which is cause and number seventeen day one one one five eight eventually investment versus city of  i'm michael hassen i'm here representing davinci investor limited partnership one of the two appellants with mr daniel griffith mr hester is here representing mr griffith and we have an agreement between the parties to split issues for argument purposes and i will be addressing judgment case for the trial court erroneous lee granted summary judgment in a hotly disputed factually intensive case the trial court said that there were there were undisputed facts when in fact there are facts in this record that dispute the undisputed facts of the trial court said existed and for that reason the trial court should not have determined the equal protection claim as a matter of law we have a clock isn't a rational basis to deny it when more people opposed this one than the one two years before that was approved i do not believe so your honor and the reason why those you mean you disagree with me factually or legally i just get more people oppose this want more people more people sent letters in opposition yes i believe it's not rationally related to this ordinance because those those people that opposed it sent their letters or emails and things like that specifically said i don't want a car wash on this corner that is a use objection and they use was granted in one nine hundred ninety one when this property was put into a p d p d for c s uses and that zone is that matter under the constitution maybe there is some arlington municipal ordinance that was violated but why does that make it unconstitutional if stiff city council member whose number one interest is getting reelected said boy the public doesn't like this one let's vote it down and that happens every day on the decisions every kind of legislative body makes in this country i believe it goes back to your very first question which is is this rationally related to a legitimate government interest and that city could not indict and act zoning ordinance that says we're going to only approve things if a majority of the people that show up allow us to why not that would be that would be removing our right to use our neighbors don't have a right to determine what what what land is used for in their communities is not a legitimate use of the governmental power kay says your honor i don't believe that's been briefed in the court so i'm not i'm not certain i can point this court to a case that says that we have a neighbor to get around all the time that's why you know it's hard to find like waste dumps no one wants waste dumps and all kinds of things in their neighborhood and they and politicians say boy i don't want the voters to get upset because i put a waste dump or in this case a car wash in my neighborhood i'm not going to allow that it's at least these we have all these cases from people looking at these companies that do waste management they can never find places for their dumps because no communities want to no in this case this property was owned in one thousand nine hundred one with a permissible use of a car wash and what they've done is take away that permissible use on a development plan application where the development plan application itself says you have to meet the statute the ordinance that the city council own for use as a car wash but it still requires city council approval before it could be used as a car wash correct that is correct your honor and so today it city council have the discretion to grant or deny the application i do not believe the council had discretion to deny because the ordinance itself the development plan says the development plan organised ordinance says you have to incorporate these eight factors and then the ninth factor says nothing in those eight factors will limit the council in requiring more stringent standards to protect the public's health safety and welfare other than that of reference do you have any  language in the statute that the city council use which require mandatory approval if all of the other factors were met there i do not believe there is mandatory language in the ordinance and i do not believe there is a language in the ordinance that allows the city to simply deny i believe it silent and and which would suggest that city council had discretion to approve or did not but on the equal protection claim your honor prior shortly twenty months prior they granted that same development plan under the exact same ordinance for a different car wash less than two miles away i think the property description was  exactly on all four corners as the applicants though there were differences between those two properties were there not well your honor and there's always going to be differences in the properties so when the city council and its discretion looks at two different applications with two different applicants they have a decision to make as to whether or not to approve or deny well rick correct your honor and so in this instance absent mandatory language requiring approval why wouldn't the duly elected officials of that city be vested with the authority to look at the two different applications and make a decision because we have a right to be treated equally under the law as our equal protection right and in this particular case a similarly situated property was treated differently was granted a permit granted a development plan on a similarly situated property that we did not receive so we were treated differently and that is our north of six flags the corner or the area where the street car wash case is on cooper street a little south of that and a little east but they're within two miles of each other they're both prominent intersections into the inter into the entertainment district in the city or isn't as welcome to arlington sign or something but near this one or both at both you think yes and so what the what the trial court said here was it was it they were undisputed facts that show that these two properties were not s situated however he relied on evidence in saying that he relied on the city's evidence and ignored the nonmoving evidence as a summary judgment case in which the trial court took as true everything the mov and ignored everything the nonmoving said about those similarities and sizes one that is one huge factor because it courts of said size use and scope for what you have to look at immaterial material facts on size use and scope to determine whether or not they are similar similarly situated there's no dispute this one generated more public opposition and the city councils some of the membership it changed while it's interesting that the membership to change because the one council member that took office between the time that cooper street property was approved and our property was denied is mr charlie parker mr charlie parker set out on a on a and this is all in the record set out on a mission to have this denied because he was not going to allow a car wash to be on that corner and so that shows why they weren't similarly situated in two years ago you had a council that didn't really care about the car wash now you have a new member elected who according to you is mission in life is to destroy this car wash it or not similarly situated actually shows the arbitra capricious nature of this decision your honor the old someone told a new politician comes in and changes policies as different policy views it's not it's not simply a policy view your honor he's taking away a constitutionally protected equal protection right to be treated the same think your brief says something like this was a political decision it wasn't to promote the safety and health of the community therefore it's arbitrary and capricious one that make every wall that gets passed in this country arbitrary and capricious the fact that it's a political decision i don't believe so your honor i believe that we're focusing on the facts of this case as to why we're equally we are treated differently than a similarly situated compared to property so because politically influential people didn't like it that makes it a violation legal protection every time a tax break is passed because politically influential people have the pull in congress or or in austin the state legislature that makes it arbitrary and capricious it is arbitrary and capricious when it is done behind closed doors with a specific if you look at the wheeler opinion there is no legitimate governmental interest behind denying this development plan and approving the cooper st there is no legitimate public health safety or welfare argument to be made it is arbitrary and capricious and therefore it is not rational and that is what the we are court found i have  process issue with regard to constitutionally protected property rights and i want to make it clear that the constitutionally protected property right that we are asserting here today is in the use of the property as a car  to wanted to build the car wash mr griffin well i think i think that and i think the other problem is now that there's that there's doubt as to what they approve uses mean and i don't think anybody knows what can be built there because in one thousand nine hundred one these uses were approved and others basically saying no you can't you can't build a car wash or what else can you do so the problem is that you don't have a guaranteed use of the property even though you even though you should  so any problem it is owned multiple use property where your honor the ordinance there's two reasons that the use is constitutionally protected in this case first of all the ordinance that was used to  for the the plan development had mandatory language in it and i'll read it the say that it the permitted uses in this district shall be determined at the time that the district is approved because that's nine hundred ninety one so the permitted uses shall be determined in one nine hundred ninety one it goes on to further state the use is approved in accordance with this section shall not be changed on a concept brief or final development plan unless approving such as amended but doesn't endorse it was letterman but doesn't it simply mean that that allows you to go to the city council and seek that use that these are the uses for this property therefore i can prepare a application applying for this use but it still require city council approval you couldn't go and ask the city council to approve a none primitive use you can simply go and ask city council for a permitted use then that's the way i'm honor the way that i would state it is that but no am i incorrect that you still have to go before city council and get approval for a primitive use i believe so you have to go before city council to get the development plan approved but that use itself has already been approved and it's mandatory well and the land itself you're seeking a permitted use but city council still has to approve the plan which includes the permitted use correct correct ok for us and so just to make it clear we are not claiming and this court has already ruled that we have a constitutionally protected right in the  property and the development plan if the development plan was the real reason that this was denied we probably wouldn't have a case now to section two forty five may make that a little bit different but that's not the case here that this is this use was denied not the development plan well the use was approved so we can use it for a car wash subject to rules regulations guidelines and then reasonable restrictions ok so when we when we apply for a car wash that uses already established now we have to meet the rules regulations guidelines and restrictions that are put on it but at the end which we did but at the end of the day the city council has to approve or not approve and i ask your co counsel this and i'll ask you this is there anything that you can point me to where basically city council is compelled when faced with a development plan for a permit it use their compay all to grant their approval yes you are ok i would be the language in this in the ordinance itself that says that the you shall be determined when the plan development that's the use and that's not the approval is there anything that says that you can point me to a city council shall approve no however we don't have to in this case because there were no they the city council did not use their discretion to place restriction in the hapless aggression why isn't their denial part of their discretion because because their denial affectively denies the use which is approved and is there is a mandatory right to the use so effectively the denial when when you meet all the requirements and the guidelines and and i i'm not going to get to a lot of this but when you meet all of the requirements guidelines regulations and that you're still denied to think that means two things number one the denial had been based on the use can't be based on the requirements under the that the city put on you could because based on the judgment of the city council members who and considering the application or the development plan as a whole and what's in the best interest of their city as two city council collectively making a decision we say no but that decision was made in one thousand nine hundred one to allow the use as a car i'm talking about the development i understand and i think that's where yes they could do that they could have told us and that although they did in this case they divide didn't deny the right to move forward with the development of the property the development plan as explained to them even if it was for permitted use they they denied the development plan and it's our position that they could not have denied the developer development plan outright they either had to approve it or conditionally approved it based on the order you're saying they had no discretion i'm saying that they had no discretion because to give them discretion would deny the use which was already approved and the process of determining whether the use should be approved was done in  why it could have been amended but it was not then why go before city council at all if city council was comparable to approve a development plan that's put forth a permitted use why not just go to some it manager in some agency that checks off the boxes and grants it why do you have to go before city council the highest governing authority in the city to get approval for something that you say that they were compelled to grant in the first place because they could have place restrictions for health safety and welfare and handsome of the property they could have you said all those boxes were checked they well they were because they didn't communicate any other boxes that we had to check so they could have they chose not to they chose just outright and i if they said build a ten foot gilded wall around it then then that would be a requirement and then we would either happen to have the decision of either meaning meeting it or not but we were given that choice we were just told even though your development plan meets all of the criteria we're still denying and we're not going to tell you why we're not going to tell you what you have to do to get it approved we're just going to deny it and your and that are clearly stating they didn't have the discretion to do so i'm clearly stating they did not have the discretion to change the use tha at least court my name is ed vos and i'm here on behalf of the city of arlington who is the defendant below it is apple in this case today sitting with me at table is assistant city attorney cynthia weathers so she's here from the city to observe and help me here this court should affirm the decision of the district court the granite summary judgment i'm in favor of the city because the district court correctly determined that as a matter of law plaintiffs subsystem due process claim equal protection claim and takings claim under state law were without merit under the undisputed an undisputable facts and what are those facts i think the court has indicated through its questioning pretty good knowledge of i think what happened as far as the facts go and that was that in one nine hundred ninety one the plan development district was established for this property actually for a bigger part of the property and this was the last one point four five acres that were undeveloped that was owned by the davinci investment group and then they contracted with mr griffith to develop it as a carwash so to do that they had to submit a development plan and the ordinance is very clear about needing to get a development plan approval even though there's a list of uses in the ordinance in the p d ordinance that said could be used here so they went through that they applied for development plan approval they went before the planning and zoning commission and they presented it they modified it a few times and it's usually ultimately the the development plan was denied there they had the right to appeal to the court of appeals i mean sorry that's where i am they had a right to appeal to the city council and the council agreed to hear the appeal in they listen to it and i want to make sure the court is aware that in the record we transcribed the entirety of the city council hearing that listened to and determined this development plan application its d p thirteen dash one and in the record that transcript appears on pages twenty three thirty nine through twenty three fifty two in that hearing listen to not just the applicants counsel and to those in favor of it but also listen to the neighbors who are opposed to it at the end of the hearing the motion was made by counsel and parker who said that he does not believe the development plan has mitigated the compatibility issues nor did he believe that  neighborhood and he also didn't believe that it takes into consideration the concerns of the majority of neighbors so he moved to do not and the vote was five four in favor of that motion which meant that the development plan was  so i listen to what mr hester said just a few minutes ago and he said that they didn't provide any reasons of the city council didn't have any reasons stated about why they did not this i don't think the record bears as out the record shows that there were at least three reasons stated at the conclusion of the public hearing on this on this particular development plan application but you don't even need the reasons to be the ones that actually motivated the decision to pass rational basis it just there just has to be a conceivable reason so if you standing here today can come up with a conceivable reason that gets asked rational basis right does and the district court not only looked at the reasons that were stated but also looked at the rational basis part of things and that was course was in the can in the context of the protection klein being the differences between this particular development plan of cation and what the plaintiffs have pointed to that was approved a couple of years before at what they call the cooper car wash we call it the the quick trip development but as part of a quick trip development there was a car wash component of that and so they've been pointing to that but our position was and we presented the evidence to the court the district court showed how there were similar that they were not similarly situated that there were significant differences between both of those at the both of those projects and so that also provides a rational basis for our position and that's what are the significant differences those differences are outlined in the record on pages twenty three fifty five through twenty three fifty seven that is actually a summary of the difference is we actually put in the the paperwork so that showed what was approved in two thousand and eleven under different counsel and what was presented in twenty thirteen a couple years later district development plan d p so d p thirteen dash one was a development plan approval pedia levin at seven was requesting as zoning change from office community service and multi family eighteen to a plan development that was for community service uses with exclusions and with a development plan the property size was different in the thirteen ash one here it was one point four five acres in particular property the one point four to five acres is a little north the ownership was different here we had the ownership but eventually investment one of the plaintiffs in the case in the pedia levenson area of the city actually aand two point nine six acres of the five point one four nine acres and then quick trip on the the remainder of the property location was in a different council district this d p thirteen dash one was in council district one nor sector pedia leavened our sevens in council district three other property frontage was different frontage in this scenario i was on two different roads in p t eleven that seven it was only on one road and there was different characteristics about that location with one being on two roads and being next to a residential neighborhood and how they're going to desk traffic issues opposing counsel seem to suggest that city council approval was almost mandatory in requiring approval and that once the boxes were checked for permitted use city council was then and in a position simply to approve i think he said it was a second condition conditionally approved if i heard correctly there was no option to deny what say you to that i think you're wrong and here's why there's nothing in the ordinances that say that there's nothing and heard what he said and you recount it very well just a minute but there's nothing in the city's ordinances that required it in fact in the city's ordinances is just the opposite there was discretion in the cities review of the development plan the district court cited in particular section n dash three hundred subsection isa section nine it says nothing less than show limit the council's ability to require more restrictive standards necessary to protect the public's health safety and welfare are already what the motions and the motion from councilman parker had three things that were not satisfied and that were i think additional requirements that needed to be satisfied and they weren't satisfied to the council's least five of  to their mind to to let this go forward and interestingly one of those council also made the point you could also address this that by denying the use of the property for a car wash city council was basically voting against a premade it years that had been in place for some time as evidence by his briefing so what say you  regard and the city council wasn't faced with the citing whether this was a lawful use or not that wasn't what before what was before them arlington has or had an unusual zoning ordinance admittedly unusual but it's undeniable that there were two steps involved here the first step happened in one nine hundred ninety one when the plan development district was approved and in that p d the evidence is in the record that list all the uses that are available for any of them to be approved however they had to have a development plan approval or concept brief approved now one of the complaints they've made here is that they were somehow entitled to a lesser stringent standard under a concept for a first development plan either way they still had to get approval and not just prove about staff like in a planning scenario one of the questions earlier was you know why how is this different from when i did a staff member can just look at a checklist and just say this is ok it true this had to go to the city council answer just it is true that ordinances made it clear in section five dash three hundred of the ordinances it says the procedure for the development plan  plan approval is outline and section five dash two hundred five days two hundred says the city council has authority to approve and it's proving a zoning change what's the zoning change the zoning changing clothes and section five dash one hundred an application for development plan approval it wasn't an approval of the use it was to approve or not the development plan that was submitted and whether or not it met with what the council deemed it was there just the authority the their discretionary authority to determine whether this fit and they determined that it didn't this isn't the only discretionary language that was side to and i'm what i mean is the section nine dash three hundred subsection the nine if you look at section mandates three hundred the development plan has a lot of discretionary and subjective standards listed in it the has to have gross design standards it has to have be compatible with existing uses adjacent to the site the standards should include landscape and screening regulations exactly what those are are not specified by particular detail like you would see perhaps in a platter some other detail so was it correct to say that city council vote was more a vote on the development of the property as a opposed to a vote on the permitted use of the property exactly then that's what was facing them was this particular development plan application on how it was to develop the property and then on that point i believe council referred to city council's decision as arbitrary saying that they were not treated equally and so you've outlined what you believe to be a rational basis for the decision and you said that there were three reasons that were stated on the at the time the decision was made that's right and of course as judge posner indicated as far as rational basis goes an equal protection context we could come up with others i mean i was going through the list and i didn't get to finish but i mean there's more differences than what i was going through between the previous carwash and beauty development with other things added to it versus this smaller development that was just a car  as already has been pointed out by the court there were a couple of council members who were on the council back in two thousand and eleven who were not only council in two thousand and thirteen and the courts have said we cited those in the brief that that in of itself is a significant difference to show that these properties in these applications in these situations were not the same so that their claim that these properties were similarly situated under these facts just doesn't hold water in as is without merit and the district court review that reviewed the differences and and came to that conclusion now  one of the things that we have asserted in this appeal as i believe is that the prior decision that this court made about three years ago when it was faced with  appeal at that time of behalf of the individual council members who used to be part of the case was that they were entirely qualified immunity and so the court ruled on the qualified immunity issue by looking at the two step the two parts and first it shows whether or not there's constitutional harm here in i think that issue goes to what we've been talking about and that is because there was discretion and it's not just arbitrary discretion it was not some sort of  wild discretionary decision it was made here it was actually based on what the ordinances say that discretion meant that there was no in title meant to approval of this development plan a listen to some of the questions of course raised earlier today about where in the ordinance is is there something that mandated that the city council must approve this development plan if all the boxes are checked number one whether or not all the boxes are checked based on the ordinance provisions in there provided in the record is still a matter of where i think reasonable minds can differ obviously it did at the city council level forum thought it did five and thought it did so  whether or not all the boxes are checked isn't a given there's nothing if we were faced with a situation where i had an ordinance that i was trying to defend and it was like a plat ordinance where it said ok here's a development plan  provision in here are the requirements in the development plan shall be approved when you have met these a b c d etc then a b would be a whole different case i don't know if i'd be here but we don't have that there's nothing in the city's ordinances at that time that says you shall approve development plan if all these factors are met that's totally different than what we have like you know in just  situation this was a development that has subjective factors tied to it and so there was nothing in there in the city's ordinances in the city council was not faced with a ministerial decision it was faced with a discretionary decision  don't like it but that is what the rules were when they made their application nothing changed rather applications pending these they knew that going in and they they were very diligent in trying to make changes to it to try to gussy it up to make it look as pleasing as possible but the final decision maker was the council and they pointed to a lot of evidence about councilman parker and his his political leanings and local politics and that kind of thing but it wasn't just his decision it was a decision of nine members of the are considered council and there's nothing in the record that shows or supports their argument that says they had to approve it now that was what happened three years ago when this court issued his decision to say well ok we're looking at whether or not there's constitutional harm here least that the bit that was in the count in the qualified immunity context understand that but it's the same question here is there constitutional harm and it's the same facts it's the same issues and that is that you know there wasn't anything in here that required approval so therefore there was no property right if there's no property right then don't have a s process going now started law the case in judge connor agreed with that and then went the extra step and went through an analysis of what the evidence showed about whether or not there is any merit to their treated differently from someone similarly situated with no rational basis i think we've already addressed that i did brief one issue though that judge a connor really kind of avoided and in the in clearly established that you can have an equal protection claim based on a zoning decision is that going to be law the case for what you like and not law the case for what you don't like that's why i put it t you but as my time runs out i think that the decision in favor of the of the at the opponents in this case would i think reverse some well established president in this court and also in the u s supreme court and open up that really would open up the opportunity for more folks to complain about local land use decisions and above the federal courts as more of a to its constitutional obligations thus the city actions must be rationally related to some other independent and legitimate interest and that's exactly why we have an equal protection claim in this case that the trial court in accepting all of the city's facts as true the movement's facts and not listing to the to the nonmoving facts aired in summary judgment on the protection claim of mr voss just got up here and said these two properties that cooper street property and our property are are of vastly different sizes that's not true at all the cooper street property is on a individual tract an individually planted lot that is one point three acres our property is one point four acres mr vos says it's five point one because that's four tracks of land that were involved the issue that mr vos brought to your attention saying that cooper street has frontage on one side is disingenuous when they make their argument that it's five acres because if it's five acres there's property frontage on two sides just as there is on the cooper street project this is the problem that the trial court did not resolve the trial court said it's undisputed that these facts exist but those facts are actually in dispute in the record and there is a reasonable difference of opinion as to what those facts are and why this provides two properties are similarly situated and for the trial judge on summary judgment to make the decision as a matter of law that they're not similarly situated he violated the rules of summary judgment and that's why we're asking this court to reverse the summary judgment on that equal protection claim and remand it back for trial one quick question for you and this is the counter question that i asked for opposing counsel who has stated that the decision was rationally base what can you point to in the record would suggest that the decision was arbitrary all of the communications between council members and people who were in a pub in opposition to this all of the ignoring of the immediately adjacent properties that supported this the particular project and the and the five month program of charlie parker and jimmy bennett who are council members saying we will kill this it council so just the opposition to the development plan the arbitrary nature of city council's decision not the opposition it's the manner in which it was developed is the manner in which it was solicited and it's the ignoring of the actual guidelines that are set out in the ordinance which we without question every single city council member agreed in their depositions and that's in the record that we met all those guidelines for our development plan approval thank you counsel thank you all of the requirements there were placed upon this use were met and you ask if the statute says if we made all the requirements that is it mandatory that they grant the property of the development plan well i would turn that around and say there is nothing in the ordinance that allows them to deny the development plan dorn it says that they can put additional restrictions based upon health safety and welfare did not say they could just outright deny it so they but they did not do that in this case what they did is they stated some amorphous statements as to why they were  development plan did not mitigate compatibility issues the project would not enhance the neighborhood and fail to take into consideration concerns of the majority of the neighbors any of those decisions are stated reasons rational basis for denying the development plan i would say they don't development and hansing the neighborhood that is not a rational basis for city council but not by the development of property has done a really good job of making this about the development plan the problem is we met all of the guidelines that were set forth that took into account and hansen of the neighborhood and that kind of things and so once we met those they state use that we're talking about the city's making about the development plan but they don't have any mandatory language or any language allowing them to deny the development plan amount of time thank you sir thank you council we'll take this matter under advisement