vested rights land use case there is only one remaining issue whether the circuit court heard in determining that thirteen fifty lake shore associates expenditures of two hundred seventy two thousand and twenty two dollars and eight in reasonable reliance on the probability of obtaining a building permit consistent with the preexisting plan development zoning in title meant was substantial all other issues have been previously resolved in favor of thirteen fifty like vested rights the question now is whether the circuit court's decision adverse to thirteen fifty's vested rights was erroneous just like the three prior adverse circuit court decisions i like in the limited time available today to focus on three principal issues first the role of preexisting vested rights precedence second the placing use of materiality in determining substantiality inferred the meaning of the nature in character of thirteen fifty like sure associates first with respect to the role of the preexisting vested rights precedence yours an earlier appeals of this case i argued before you that the vested rights case l expenditures to be substantial for vested rights that were far less than two hundred seventy two thousand and twenty two dollars and eight hundred cents and this was true in both constant dollars and as adjusted for inflation this court and then the supreme but my point is that by adopting the totality of the circumstances test neither this court nor the supreme court rejected the objective standard or the use or the comparison of the amounts paid in one particular case by comparison with what had been called substantial in previous cases indeed the objective analysis continues just one of several factors but trial court has to take into account the criminal case specifically listed the objective amount spent as one of the factors in failed to take into account the previous case law that had shown that the objective of no restraint it was an attempt to use a straight arithmetic test on first of all i would reject the straight arithmetic test because he suggested that he really had approved a two percent test as this court supposedly had found in the castle lino case truly from a review of the opinion in the castle ino case it does not appear that this court adopted a two percent threshold standard of substantial ty in fact it appears to have been dictated rather than any decision an illumination of an argument that might be made rather than any statement of position with respect to the validity of that argument and rightly so because if you pick a threshold it seems perforce that you must have some basis for saying why that threshold is a threshold right is that the two percent makes something substantial whereas some might might argue one and a half of one percent things are you distributed forty six million dollars your partners twenty don't want two thousand i mean all of those examples which you cite your honor in which the circuit court excited go not to the proportional alice of assets and i want to go there in talking about the her concept of materiality the supreme court see that was one of the considerations nature and character is one of the considerations although the supreme court did not you know any greater detail indicate what it meant certainly we believe the evidence was presented showing that in fact with respect to those various financial factors that twelve percent of net income six percent of gross profits ten percent of cash flow from operations two percent of total revenues one percent of total depreciated assets and four percent of owners equity that all of those significant that net income was one point six million dollars we presented evidence undisputed on rebutted by anyone from the city but that was a material notion which respect to the accounting standards of the  that and i'll accept the city's ana but these were material expenditures that had to be taken into account in determining substantiality now the city suggests that there's a way to do it but something can be material but not substantial because although  respect to a financial decision in the in the case of materiality big enough to provide protection under the law of esther rice in the substantial concept now they're not exactly the same the city suggests that materiality covers change in order to respond to the needs of its residents and accordingly the city concludes a greater threshold is wanted for substantially and i think that's a useful approach because the trial court here gave no reason for saying what was admitted lee material was somehow insubstantial the difference is that here there was no duly enacted zoning change at issue when thirteen fifty sought its part to approval in fact in december o hundred seven january february march and early april of one nine hundred ninety eight when thirteen fifty repeatedly requested its part to approval from the city of chicago and was improperly refused there was no new city council determination of public health anywhere in this case doesn't wash that's my point now the question then becomes judge what is the best case that you have any for the proposition zoom case materiality it i did a nationwide search to try to find any cases that thirty or explain the notion of substantiality and i couldn't find any i tried to do a nationwide search to find a threshold for the proportionality analysis i couldn't there's a lot of factors to be considered but how do you consider those factors shall have considered the purchase price and site should you consider the purchase prince rupert said yes he should consider the purchase price quite frankly you know stuck with after hearing nevertheless he says we've got to consider it it's difficult in these circumstances to figure out a car exactly these things should be consider the trial judge's findings evidentiary support i mean that's not disputed issue in this case the real question was cases the application of the law let me go back to the question jeff hoffman that you raised initially right is one of the half of one percent enough right should that be substantial again there is no case law that tells us why that should be a threshold we think the best approach was taken by the trial judge in the cooking case who looked and said how much could they have spent could they have spent given where they were in the context before the whole process started the applicant budgeted about a quarter of a million dollars to fraud to the part to approval stage that's what they spent the city suggests well maybe you could have vested rights by going out and buying the property but no is not this is a seventy plus million dollar development now that the simple fact that you would expand x amount of dollars through a certain point in time really has little relationship to what the total project cost is it's not like somebody could go out and buy the steel and the concrete the filmy that's not this case our point is that the nice retro percentage of substantiality is necessarily very small when you're dealing with a very expensive development through more expensive the development less money here now you're no not at all we're not saying they have to spend less money as a percentage of the total project cost they would have to spend right indeed i go back and dollars gribben spent above cmon money you did he was building for nine hundred thousand you were building for seventy two million i agree your honor my point and i say this with all substantial to a company that has the assets in excess of twenty five million is the other substantial amount of money now you are come who would say well if we forgot it on our balance sheet it would be immaterial right because if we went for one percent according to the testimony no it would not be material so you could leave it off the balance sheet so better on fear you are off the book an objective amount of money becomes less substantial the more money case we do not agree but what you've just done is train for two different concepts twenty seven percent doesn't have anything to do with the financial assets of the party including twenty seven percent the orthodox right twenty seven percent has to do with the nature in character factor i happen to think you're right that the nature and character factor relates to the financial assets i also feel that relates to the risk averse in this but apparently there was some suggestion by the city and by the trial  in this case that in fact nature and factor relates to the fact whether somebody is a large developer or small home owner again respectfully recorded out in the break he didn't say that and i don't believe you your honor said that in castle leno and even if they did what does it mean how much how wealthy most wealthy beat it can only be a judge respectfully i would suggest by these percentages that you and i have been talking about here in this case there's no testimony or evidence that thirteen fifty is a developer at all they've never developed any property compare that to the expense of the development experience of the plaintiffs in encrypt it and in addition we think the trial judge erdman are probably running out of time here judge  trial judge by conflating the assets of the applicant thirteen fifty later associates with various of its investors and with its affiliates managing agent draper cramer there's absolutely no suggestion without the support of the testimony that the expenditure of over a quarter of a million dollars would be i think easily absorbed and barely noticed there's no testimony of that whatsoever so for these reasons your honor and i know are probably going over my time  if you look at the totality of the circumstances the objective evidence test strongly supports vested rights the proportionality test the and how much could be spent we believe strongly supports vested rights the nature and character given the financial assets we believe supports vested rights given that it's past the guidelines of materiality and nobody has gestated right material it's going to churches are not substantial and finally with respect to the nature and character we've got a risk averse inexperienced developer never having done it before for these reasons we believe your honor the circuit court heard it in coming to its conclusion of in substantia in reaching its determination that thirteen fifty years expenditures were to insubstantial to qualify for best the right that determination was not against the manifest weight of the evidence and this court should accordingly affirm the judgment this morning i intend to address the three explicit factors that this healey court set forth for determining substantiality proportionality nature and character cost of the property and then turn to the factors thirteen fifty would like to add half of one percent of the total projected cost of the development which was seventy two million dollars the circuit court correctly calculated that percentage and correctly concluded on that basis that thirteen fifty was not very far along toward completing the much as it could have at that particular stage of the project however and also adds that no developer in the future will be able to get a building a vested right at the party stage because the the amount of the total cost of the development is too great but that leaves us out the fact that it is not relevant according to healy what might happen in a future case and that is no reason to undermine the circuit court's conclusion that in this particular case the project was not far enough along to qualify first it's a vested right and it unfair to it usually the municipality is free to change the zoning in order to address the needs of the community so that's the typical presumption this is an exception to that for developments it's about bits that have gone far enough along where there's been a significant a substantial a meaningful change in position on behalf of the property owner such that it would no longer be fair to allow the zoning to change at the last minute warning to the supreme court one changes position by making an expended by making expenditures doesn't make any difference how far along it is just that it's a question of it according to the supreme court have you read a substantial expenditure were a lot of money towards completing a seventy two million dollars project is not one half of one percent oh i agree with that your honor and their story and they're certainly does do not have to be any particular number of best of rights granted in the future for the for the world to operate fairly if it turns out that future developers at the party stage are not able to spend enough to substantially change their position in a way meaningful to their own financial pictures well that just means they're not entitled to a vested right as rain or has to find to find it because by definition they haven't changed their position enough to earn it the next factor that the court has set forth is the nature and character factor and that is useful to put into perspective the dollar amount that expands because of this court noted in castle you know as the supreme court has explained just examining the dollar amounts in a vacuum doesn't tell us whether these amount spent is meaningful to the particular property owner who is making the expenditure and again the point is to determine whether there's been a meaningful change of position for that individual as the court this court used the example in castle you know with a twenty thousand dollar expenditure by a homeowner being quite different from twenty thousand dollars by a multimillion dollar real estate partnership there are fifty claims that this test is unfair it sued large developers but really it's the same task for everyone no matter whether individual or large homeowner because each property owner have to spend any amount that's significant to their financial pictures before they earn about that right so although the dollar amount for the individual homeowner will be smaller than the dollar amount to be substantial to the large developer there is still have to cross that threshold of being meaningful to that particular property owner no court this court the circuit court or the supreme court has defined the nature and character factor the way thirteen fifty tries to urge which is how much experience the real estate developer has or how we develop a person feels about spending money before the decision is made to go for the project thirty fifty claims it's an inexperienced developer because the partnership form of it's company never developed property before despite the fact that as a corporation and of course did develop property even if it is an inexperienced developer that should not entitle it to a vested right for an amount that is insignificant to its financial picture and whether the developer is frugal risk adverse penny pinching not so for that is  irrelevant because that looks at the wrong point in time it looks at how the developer feels about spending money on a project before the decision is made to go forward with the project perhaps thirteen fifteen was reluctant to embark on the project but ultimately it decided to go forward with the seventy two million dollar project once a decision is made the question becomes did they spend enough to be meaningful to them to their financial picture that they spent an amount that was significant now whether they felt uncomfortable spending that amount if the task were as thirteen fifty urges then they could be subject to manipulation and self serving testimony as the circuit court recognized thirty and fifty claims to be frugal and penny pinching before the reasons that just because it is a fiduciary and it owes duties to its investors to not spend their money freely and to not make investments that don't tension we have return well in the future every developer is going to claim that in and accurately and not not be testifying and truthfully that's just the nature of of having a fiduciary duty but that doesn't mean that the expenditure that gets made is so significant that it it represents a substantial change  and if the tests were about frugality or risk adverse and it's also it would lead to potentially the absurd result that an individual homeowner who is comfortable spending money has a number of cars like to take vacations would have to deplete their entire bank account because they feel comfortable spending money and before they qualify for a best right whereas a large multimillion dollar real estate partnership would have to spend just an insignificant amount to its financial picture and yet right the cost of the property is the third explicit factor the supreme the circuit court appropriately gave that no significance in this case because the property was not purchased in reliance on the zoning it was purchased twenty five years before the zoning came into existence and comparing the amount of the expenditures to nine hundred fifty to purchase price doesn't tell us anything about whether there's been a substantial change in position for thirteen fifty thirteen fifty finally there are certain factors that thirteen fifty would like to add into the totality of the circumstances test here but the circuit court appropriately declined and gave them no weight first or little weight first  materiality materiality is a concept that is quite different from substantiality it's an accounting term and it is a task for what is the minimum threshold for including something on a balance sheet what could conceivably be relevant to a stakeholder an investor or someone making a decision about the company but it does not necessarily follow that because it is a process that minimum threshold so it counts as material that it also represents such a substantial change in position that the expenditure should qualify for vested rights so the circuit court therefore correctly held that it was not march that it was marginally relevant but not persuasive in this case and even if this that factor should have been considered more strongly it does not explain why the circuit court's weighing of the totality of the circumstances should change thirteen fifty focuses on it wants a bright line test of this material therefore it must be substantial but that discounts what healy said which is to continue or consider the totality of the circumstances finally with respect to past cases thirteen fifty again are just this court that it should compare the amount spent here to the amount spent by developers in cases decided twenty to fifty years ago which were decided by definition before the healey case and therefore did not consider the factors that were in the supreme court discounted the factors that are relevant in this case and it reached the correct result and left for further for further questions we respectfully request the court to affirm the circuit court's judgment and i would see the remainder of my court upheld all of these so this court's determinations of the role say one the date on which thirteen fifty eight could no longer rely good faith on the probability of obtaining a permit and because the concept of substantiality is fact based the supreme court returned it to the lower courts to the old the lead of the trial court for the factual determination  whether the amounts expended by thirteen fifty late show or associates in this case were sufficiently so substantial as to afford them a vested right now judge palmer we submit in the trial below followed these determinations of the role to the latter the trial court considered all of the evidence of factual circumstances offered by the parties overruling any objection by the opposing partners and indeed with respect to materiality or the evidence on materiality as of accounting concept judge palmer said it's relevant but not  and that is the quintessential function of a trial or of fact in a bench trial as in this case we respectfully submit that it cannot be reasonably argue that the trial court did not consider the totality of circumstances as directed by the decisions in this case by this court as well as the supreme court now thirteen fifty says time and time again that the trial court rulings in the same equivalent to a bright line rule no it didn't as we suggest a careful reading of judge commerce decision neither one of them are under any obligation to analyze and distinguish the totality of circumstances of every similar case that precedes the one it bar and some your owners or team fifty failed to carry a spirit of proof and given the totality of circumstances and evidence considered by the trial court its decision was clearly not against the manifest weight of the evidence such that an opposite conclusion is clearly evident or the factual findings on which it is based are on reasonable arbitrary or not based on the evidence to quote this court's standard of review or announcement finally runners we suggest that under any rational and objective analysis faces flight review said you know yes and no i want to be very clear with respect to the question of evidentiary issues whether there was sufficient evidentiary support for example just palmer said the total amount of expenditures is two hundred seventy two thousand and twenty two dollars and eighteen cents hey that's manifest weight of the options we all know that with respect to the various percentages that i quoted earlier percentages of of the financial positions that's manifest which is the evidence that's that's kind of and in counsel's arguments is is i think very illustrative of this it all comes down it looks like to various thresholds ok we know objectively what the amount of the expenditure is where we can compare them to other cases we know where proven we can look at we can say a few things about britain if there was a twenty seven percent expenditure that was found to be but but we don't have money you have to plan my understanding was always that when there's only one case in the  thousand dollars a lot of money you know it's the fall of a common law in determining what is a substantial amount of money for purposes of vested rights i want to get hung up in suggesting that this is the only standard but it is useful in this case if for example interrupt you if that evidence is out there but there is no evidence that would convert the expenditures versus the owners equity into a number eight base threshold counsel indicated that somehow or another is insubstantial in other words you've got this you've got to figure out where the threshold is counsel for the city argued both with respect to the total project cost answer the applicants of materiality would be a way to measure it there is no evidence whatsoever of any other way to measure a significant threshold i respectfully suggest contrary mr headland that we individuals they're very good things you're going there will be there we go again says going into what we would consider to be irrelevant testimony is the any relevant then one question of whether two hundred thousand dollars is a substantial obama chose if it was a corporate six statement he never lied again i'm going have to disagree with you judge and respectfully but again assume for a moment today that is is correct a little relevance is something that happens three years later to determine the need substantial you know i do a lot and i expend a lot of money ninety percent of my income in three years later i hit the lottery because that suddenly make my rights no longer vested respectfully i disagree those the significant issue in this case again goes to the determination of what these thresholds are we had i had great hopes in light of the way the law vested rights has evolved over the last decade in part because of this case the judge ponders decision would tell is support he's fine and his judge hoffman's cites there's a lot of evidence in the record with respect to the relative wealth of thirteen fifty and with respect to the total cost of the project but what is utterly lacking in the record and i think this goes to a question that you asked troughing is what is the significant threshold what difference does it make that thirteen fifty had annual income of one point six million dollars you know if if i had to spend twelve percent of my income it's significant to me that substantial to me maybe it's not to mr gates or rockefeller but what is missing in the trial court's analysis he's any  that through better history a vested rights would otherwise be determined to be substantial we start with that then if he's going to find it in substantial because it is such a small percentage of the total project cost where such an insignificant amount of the applicants assets that he's going to tell us what is the significant what is the threshold that renders something that would otherwise have been substantial now being substantial ones really because i don't  keeley allows him to just him or her whatever to just say well i'm a throw this all in the pot and i'm just going to come to a decision even if he gets one person to say an expenditure of two hundred thousand dollars is not isn't saying that it's not you know i was thinking well i'm sick counsel table we talk about one half of one percent i mean there's a standard in the law and that we all know it's a heck of a lot smaller than that it's one tenth of one percent that's the blood alcohol limit for drunk driving now that comes from the legislature ok that's where that comes from but we know why that is a significant threshold because somebody that's got the authority to make that decision has made it what is there about one half of one percent or two percent or twelve percent of net income that makes it insubstantial that's what's missing in this case we tried to prove it we offered evidence to prove it the judge didn't like it ok he didn't like it then what else is there to make what w occurred as a matter of law where your honor if if if you believe the standard is clear i think it's clearly alone is because there's simply nothing in the record to support this conclusion by the trial court i've taken way too much time i thank you for that time