respects we believe this court should take the  the lower court decision is the proper way to proceed here i moved with me several good motions to dismiss upon the merits of the case at the appropriate time for now we simply must not be denied the right to prosecute our action thank mulligan it seems to me and i think your presentation was very limited in about this but it seems to me that the dispute with the town that was immediate here is as to whether you can build the projected building on that property and my long about that but then why if you could obtain a variance and i take it that the theory of the town is that this property is owned residential and to that the size or scope or something like that of the projected garage exceeds what would you believe is that you are substantively entitled to build the building you want because properly the property is cemetery your right to build the building that you are trying to build but is the underlying state law issue of whether that property by virtue of the grant  back in one thousand otu is for ever cemetery property or whether since that land passed through other people's hands who were not cemeteries in the time between process clause that is to say the due process clause concerns the appropriateness of the procedures that are used in enforcing and either creating zoning or enforcing zoning but the dispute you've got is whether you have in effect a property interest in using that property as cemetery property because of a state law grant that antecedent property is taken or whether the taking of the property was done in accordance with due process there is a question of whether there is a property interest and that's determined by state law a is in litigation in the state courts as we speak to create a fair reading of our complaint sets for further causes of action under the federal constitution including the taking how the grant of property in one thousand no to operates then there's nothing left for the federal court to do is that not right i much sure i would agree with that totally it doesn't sound crazy i'm crazy but we let me try to put the issue another way or at least ask a question relevant to at least my understanding of this as i understand it the state supreme pending for over a year yes amazing ok but while that is pending why aren't you collaterally is stopped by what is currently a valid judgment of the state courts from content from making the contention about what property interest you have because the state courts have so far decided that you don't have that property interest that would be a decision me excuse me i'm a smoker i understand what you're saying but the trouble that i'm having is the application that you made the denial of which you say deprives you of property rights is one that is subject to the possibility of a variance that is you might be able to build the exact building that you want to build and therefore not be deprived of your property rights at all and we don't know that until the variance option is pursued on the other hand what you want to fight about you don't want to apply for a variance because you maintain you have a state law property interest that the state courts have so far firmly denied that you have so why is it right for us to decide the due process issue of the taking of your property by means of a denial of an application to do a particular thing when a you might be able to do that thing and be the reason why you don't want to find out whether the town will allow you to build the thing you want to build is because you're being stiff necked about your rights that are under litigation in the state courts and that have so far been decided against you why should a federal court jump into this in order not to decide whether the procedures are fair by which you've been denied the right to do a particular thing but in order to soley to decide that you have a property right under state law that the state courts say you don't have why is that an appropriate thing for a federal court to do because we have the right to bring a federal case which we have done and will be all over the issue issue because if it's decided as a matter of state law that the property is cemetery property not that it's owned by a cemetery but that is properly dedicated as a matter of land use to cemetery uses that that that should be decided by the federal court even though there's not really going to be a federal issue as to procedures or zoning or anything of the sort you are saying the federal court should intervene and decide the state law issue now which is not really necessary to decide whether you can build the garage you want to build and which is being litigated in the state courts that's what you're asking the district  just as well as federal courts adjudicate federal claims and if you were there and the busy state court could have resolve those issues that proceeding and if not why why not i prove your claims are some are obviously not set in the federal statutes early satisfy still meaningful application for a variance required in some cases we have the assurance whether the south partially dedicated to cemetery years the process lasted for twelve actions actual and direct affront right yes but we hold in the st case that you will perish on the grounds that in fact it was final and if not final then to find the lieberman go ahead good afternoon your honors may please the court my name is edward lieberman and i am arguing here today on behalf of richard m one fortunately is quarantining at home in light of the fact that we had originally waived oral argument and only found out yesterday that we were to argue number one number two that i would be arguing my my argument will be mercifully great williamson williamson williamson and  this is a you know we can quibble with some of the statements made about the facts of this case but i don't think that's particularly pertinent to this discussion  being digging in the town's heels had nothing to do with the zoning board of appeals had to do with the town board on the parcel that is across the street from the parcel in question appellant actually filed the use variance application for the same use on the parcel it described it described the parcel as separate from the cemetery parcel moreover before the zoning board of appeals the appellant's council stated clearly and concisely that once the ownership of the parcel pas academic so we would argue that very simply the case was clear under williams and murphy that in order to be final it must be an application in order to be final and in order for a quick review in court to determine how the zoning ordinance will be applied to a parcel there must be an application for development not an interpretation an actual application for development in the form of a variance generally speaking and with respect to the issue of and clearly that hasn't happened here the appellant has clearly acknowledged that they have not they have thus far refused to to seek a variance with respect to the futility argument i would refer the court to its decision dreyer where as here the applicant was advised and here it's even stronger than that they have not done and in view of the fact that it hasn't been done there is no  i don't want to use a word like intransigent but that the town firmly believes that this property is not open to use as a cemetery as of right am i right about that correct and that was the issue before the zoning board was whether they have the absolute right to use it for cemetery purposes and right so right so if they said we'd like to bury some bodies allow this to be turned into a cemetery so long as it's done under variance it has the a discretion and authority to do so zoning board ok i hear what you're saying but at any rate the application that was made here was an application to build a larger house with a larger garage or maybe the same house with a larger same's i don't know but a larger garage anyway is important to this that's the application that was before the town yes no now has the application that was before the zoning board zoning board i'm sorry was for an interpretation that they have the right to use it as of right now in support of that they right right but the particular use that they are proposing is for this garage right that was the only structure but that they did not they were asked and my recollection is that they did not limit themselves to that alone and from the it's obvious from the brief that they actually intend a lot more than that they intend to be able to use it for interm well that's what they say they have a right to do but you're saying that the actual application fee for the zoning board was not limited to the plan for building the structure board was the structure well and the building inspector didn't have before him some plan for a muslim or a grave it is no building inspector was shown plans for a particular building and he said that's not appropriate in this residential area but you could apply for a variance isn't that the state of play yes ok but you could extrapolate that to any you know i had a famous believe and you're not helping yourself because seems to me that what you're saying is this is all futile because really what the fight is about is about how the  neither you nor they have any real interest in whether they can build a big garage on this property the fight is all about the property right and whether as of right based on a nineteen otu grant they can do anything they want that is cemetery use on this property including making it a cemetery and you say they don't and they say they do isn't that final decision or your client made a final decision that your right and they're wrong and that's not going to change i'm not sure i follow that question but well i mean they're saying that it's futile for them to ask for a variance i futile for them to do anything because you're never going to allow them to use that as a cemetery that's why you're filing them i don't know how they could make that argument not having applied for it ok there are there are any number of ways that aid the structure can be built that by variance or or by adjusting the size right so suppose they made an application to for a variance that would permit them to build this particular structure that the building inspector denied would they be able to reserve their rights in effect and say look we think that we have a we're not conceding that we need a variance because we think we have a right to do this as of right but let's just bracket that question and apply for variances that permissible or would you take the position that by asking for the variance they have conceded in errantly that they don't have a right to build to use this for cemetery purposes as a right and in point of fact we advised them that they could have from the very beginning they could save themselves years of all of us years of litigation by simply adding a alternative relief the variance in other words they could have applied for the interpretation and said in the alternative if the appeal is denied we request therein ok i understand yes but but of the issue of interpretation whether somebody has the right to use a property as of right is very different and the standards are completely different for there for an application for variance a nifty zoning board were to deny this i'm not saying it will but let's say it does for the sake of argument then that that decision would be review but that but the standards are completely different and the it's not uncommon that an appeal would be denied but a variance would be granted and usually they are asked for at the time in this particular case p p l and for reasons that frankly i don't understand refuse to do that it has well st of all it is already done that it's word that's reversing the order here here they have already made that argument duly long but i would think that covert may have something to do with that the decision the appellate division i think was in last may i think all of us in two minutes and i think that our judges alicia and mario asked some very astute questions and the fact of the matter is when it comes down to it for the purposes of this motion this is not the williamson case and with all due respect to the lower court i understand she expressed honestly from the beginning she had doubts about getting involved in local real estate matters and  provide an opportunity to get out of it but that case has been partially reversed already on that nd bomb and it's time that that if this persists we're cemetery or another land developer and the simple issue is was that be allowed to proceed and again i state that the state court judge had the same issue they moved to dismiss our petition on the grounds that the zeevi a decision was not final it clearly rause and given the history it is absurd for any rational human being to think that they would ever give us a variance which we believe we don't need in the st place because we are a cemetery have been since  preserving our sacred mission