whether by omitting all public notice and denying the neighbors an opportunity to pursue any remedy available in the state law the seattle department of planning and development deprive them of a property interest protect about this just you know i just say i'll start with it's disturbing on some level that the people don't care anything about it and then the next thing they know this thing is up and they don't have a chance and this and the statute of limitations has run on loop and all of that but the flip side of it is that when you asked create a property interest when it deals with zoning you know you're there i'm  pandora's box just flying open so i'm trying to under look generally the property owner would be that they would be contesting under lupa would you actually have standing under that  yes absolutely washington courts have interpreted lupa to give standing to the neighbors yes i was just the city wouldn't get up here and deny that you would have had standing no and they admitted it in the district court and there's the first part of the district court's decision concludes that there is standing in the city did not deny right on this historical a lot exemption yes does it contain what to tell me your position on whether it contains any discretionary criteria and also tell me what in your view has been the city's position on whether it's discretionary or non discretionary starting with the city the last question i believe the city excuse me i believe this is position is that it is a non discretionary decision that they have to grant an exemption in some cases including in this case when the developer shows a historic map for example it is open session that it is not a discretionary decision because there are specific criteria in the seattle municipal code so this exemption it so it's not enough to have a historic tax lot that doesn't do it they have to show that the log was established as a separate building site so you're saying it's nondiscretionary absolutely there are standards and that's what makes it property that's the current few in the ninth circuit and many they say it's nondiscretionary also you said it's their view that it's also non discretionary well that they have then why are they saying  doesn't create a property right well i think they use the word disc they can speak for themselves but what they said before is they took the position that they had to grant this exemption which doesn't fall from the statute the second says you have think that it's important to go to cases which summarize the current few that the supreme court and the majority of circuits about what is really property for due process building still at its very much here well but the time to appeal on the loop is twenty one days after the decision to grant the exception the builder got the exception waited twenty one days brought a bulldozer fundamental unfairness on day twenty understand that basically what the neighbors want to say they want all oughts to have five thousand square feet right which is the zoning not necessarily know well there are three potential transferred from a federal prison in hawaii which is his home state to the state of california and he didn't like that so he protested then went to the hearing and the nice supreme court said no because he has no right to be which cannot be removed except for cause it's not limited to employment cases and that if explained further would entitle mean means internment does not mean a guaranteed result it doesn't mean logan goes to a hearing it gets job back no he has to prove that he was terminated because of his disability not because of some other reason so the entire movement was the cause of action itself the right to go to a hearing and to prove that his employer violates state law to the no i process you're just saying you were the process you were doing notice so that you could bring a lawsuit under that vehicle or you could make a challenge under the vehicle that's allowed under washington law it's the university did not have to renew his contract the university could do whatever it wanted and so he had a hearing there would be no standards to apply and that's what makes it not property in this case what makes it property is because this is a type of decision like in logan there are criteria they can all just say this you can build a second house in the backyard they have to prove so if it's a non discretionary the historical exemption to ration arry had you had notice you could have filed under lupa and then what you could have shown that they were wrong as a matter of exemption that they grant second they decide but of course the exemption only gives them a little triangle a thousand square feet that's not buildable then they convert the triangle into a rectangle and have a one thousand square foot rectangle that they conclude that you can build a ration area right now no no no none of it does discretionary here's and here's the law so the first decision is not  because the exemption decisions not discretionary because the law has to be established as a separate building site and that's in the municipal code itself and it was since then interpreted by a washington two tax lots but only one site you still cannot use a one boundary just went to create two sites because before there was only one and in this case there was only one site even if there were two historical also was only one si shown that each of these decisions is illegal so it's not procedure for the purpose of procedure as an wroth for example or olam this is an entryway into the court system the only way in this case that would allow them to show that the decisions that affect their property rights were unlawful there was no such  had notice of the hearing but they didn't see it because it was noticed by publication in this case there is no notice at all what would you tell us about this poll that when the bulldozer comes and the first notice neighbors get that something's going on next door all their access to state remedies is cut off completely i see i have a minute and a half hours save that  really it's really kind of bothersome here i mean it bothers me that they didn't get any notice i mean i know someone behind me wants to wanted to build something with a five foot variance and all the neighbors got you know a notice in the area that you could object if you wanted to go to a meeting before they put the whole thing up but here they don't get any notice and would you concede that they could have under  standing there yes your honor they are next door neighbors and they would have standing but they received all the notice that's required on the person on pardon me which was not on that's right your honor our c w thirty six seventy b one forty two excuse me thirty six seventy b one forty rand two that says that local jurisdictions can determine what notice it will give to the public for administrative decisions and that's exactly what these are the lot the lot boundary just meant as a ministry to decision that is is not subject to what's what what if what if they pass something that said that they could take your property for eminent domain without giving you any notice and the bulldozers were out would that be constitutional no it wouldn't your honor but our stamp with that be an administrative decision that you could  n that without notice could you repeat the question you know why wouldn't that be an administrative decision that would fall under your definition of requiring no notice and getting a bulldozer out or doing the decision to make yet decision to take property back eminent domain what is different about that that would make it not an administrative decision that comes within your argument well first of all the city did not take any aspect of exercise of the of eminent domain by the city is a legislative action it's the city council that engages in that and that itself will require notice it's going to require a whole panoply of of notifying the the property owner and that you're going to condemn that property i don't think was that a legislative decision and this decision was an administrative why they have to pass an ordinance to do in the domain yes they do that's how you acquired property in the state it just seems that it's just because you say no notice is required the sat and our inquiry well i mean so that you can do and my understanding is that you c had a non discretionary decision it is a non discretionary they're all nondiscretionary to say that if it's a non discretionary decision then then if you're wrong what but as a matter of law if your progress as a matter of law how can someone challenge that it's lupa right well it's lupa but and if there's no notice requirement for lupa how can you how can you exercise and i mean it's it sounds like here to me that the developer waited over what twenty two days and then it was too light so if you got to understand that when you come to a court and you say that you have no you know not it that there is no remedy for a wrong and it's not discretionary and so as a matter of law the city can make a legal error and there's nothing that people can do and that you're not required to give any notice or sort of you know notice and what our state supreme court said is that we're going to look to the zoning code in determining whether or not the zoning code sufficiently constrains the decision maker with respect to the third party and in the next are party just like these neighbors complained that this projects going to impact my property and i didn't receive notice and therefore i mean title to the access loop as a matter of right in our court said no we're going to go look at the zoning code and we're going to determine how that code constrains the decision maker significantly constrains the decision maker or not and found that there was nothing in that do and how does that significantly constrain decision makers so that the neighbor has a protected property interest again under lupa and an ash view bloomquist what our court of appeals said is that in th right under the zoning code our facts are like durland there is a nothing in our zoning code that the neighbors can point to there's not a thing there that they can point to that would say there's something that c square foot zoning standards you start there and it did because for a couple of reasons one it was planted i think in the one nine hundred well probably in the lady thousand nine hundred six was planted as a separate plot beyond says this excuse me christian the seattle says this and it cited in our brief it says that if you take a parcel and it just it from a triangular to a rectangular in this case even if you make it build  up all and i'm not conceding that it wasn't build a boat in a triangular shape it would have been an odd looking house but it would have been built of all but a glue or something or an igloo if there's you look around this town and under the state subdivision act and that's again a state supreme court decision so the fact that this will be a shifted from shifted lot from triangular to rectangular in made it more buildable it's still exempt from the state well i mean in terms of that obviously you can create a remedy but let's let's just say if you had fifteen minutes from the decision to file under blooper what that be really giving someone an avenue twenty one days isn't very long it's want or than fifteen minutes but i'm just wondering is what is that well it seems that it's a loser i don't think it's a loser at all your honor because what the city did it is it provided general notice to the public because it put all three of these decision in its online ministry to record so that's one form of notice  but notwithstanding that when the loop twenty one dig clock clicks off that's the end of it and well tell me the parade of horribles if we created a property right here i'm not i'm just talking about the phatic ok that's the way it was already just because something doesn't seem fair doesn't mean you create a property right but just tell me the parade of horribles here why couldn't it be cabin to this particular situation tell me what it would be well what it means is that the city of seattle alone issues probably over ten thousand mistreated permits a year and that's to be a small fraction of the administrative permits that are issued in the ninth circuit and what that is going to mean is that all of that there's going to be a tremendous financial in administrative burden there will be succeed nif delays in all of these permits building permits lot boundary adjustments throughout the ninth circuit that's the parade of horribles you know our plus our our supreme court has a lot of concern about the constitution to the constitution may not care about those of horribles but i'm just what well from a constitutional perspective if you call this cause a cause of action a property right i don't know where you're going to stop from there i mean the one case i can think of his bodie in and what that court was dealing with is marriage and the right to dissolve a marriage that's a that's a darn fundamental aspect of human existence if you cost if you say all of building permits all lot boundary ju or or the causes of action that would challenge those i don't know where the boundaries are and where you stop i can't foresee that well if the due process that had to be afforded was notice that isn't doesn't mean that everything would be stopped i mean that's it's i guess you might have more liberal challenges but when you create a possible challenge can you say well i only i really created it but i don't want anyone to use it well i just want to go back to you know the prate of horribles in there the courts have circumscribed pretty narrowly where they're going to say you have a right in a cause of action and that's what they're asking here in the loop action therefore we get notice but you open that gate your honour's i don't see where you stop it but opposing counsel said the supreme court opened the gate in logan by thinking that a cause of that is a property right what's your response to that well logan that statute was a for cause employment terminations statute it created both procedure in the substantive right you have to contrast control in this context i respectfully request that it's there's few sco and not logan because there's nothing in lupa that has a for cost and you're what does it says you're going to file this paperwork you know put this stuff in the record we're going to have a hearing and then the judge many remain and approve or deny the decision saying structure as in the statutory  and like to wrap up if i may your honor in conclusion the court should reject the plaintiff's request to constitutional ice in ministry of notice they failed to demonstrate that they have a protected property interest in the state subdivision entitled to notice in congo it's quite the opposite under state statute and are all municipal code they're not entitled to notice and none of the cases that the plaintiff cite to should lead to the result every ministry to permit in the ninth circuit and that's where it would have to end up is subject to notice and i guess i'll wrap up with i think this i recall respectfully request that this court uphold the district court's matter what matters on the harris which is the leading case in the ninth circuit is not the label but the nature of the action the court needs to look at the action and see what kind of decision are we talking about here and brighter where he uses the same definition so i think this is where the law is now on what is the kind of decision that turner's due process it has to be adjudicated and it has to have standards which we do and it also has to a small group of people in an exceptional way there's no question everybody hears within one hundred feet they are exceptionally affected by this so they meet the definition and then thirdly counsel talks about durland or a still property interest we look to state law to determine whether or not there is a property interest so if the washington supreme court tells us that there is no property interest then that's what we have to look to in applying the constitution well washington state supreme court can interpret washington law to decide what is property and what is not property but the question whether federal law consider something a property interest that's worthy of due process protection is absolutely one question that if that what case says that whether or not there is a property interests is determined by federal law as opposed to state law constitutional and the sophos whether or not the process is constitutionally is a federal question but whether or not there is a property right is a matter of state law the constitution does not bestow this property rights that's correct the state will begins the analysis it doesn't in the in house and look for example at logan in mormon illinois supreme court said there is no property right here and us supreme court said yes there is in memphis light it says although the underline substantive interest is created by an independent for such a state law yes federal constitutional law to come is whether that interest rises to the level of a legitimate claim of entitlement contacted by the due process the memphis life and state law determines the extent of the property interest and then federal law determines whether or not the constitutional due process has been met to protect that in