review of the of the patil case leads us to conclude that that it does apply to a due process challenge in this land use context we did not see any language limiting the majorities opinion from this pretext of supreme court on the scope of that and we believe that patel does apply in that it provides actually an additional step that needs to be taken to analyze the do due course challenge in this case and your i don't want to address that just briefly because the in patel lives the second step is that the question is whether the statutes effect as a whole is so unreasonably burdensome that it becomes oppressive in relation to the underlying governmental interest and we addressed our briefing to the federal standard the rational basis test but we believe that we would also satisfy the more the less deferential to the government test looks  hacked request and as we've stated in our in our briefs the city's decision was arbitrary for several reasons first of all because as the district court determined in its order hack zoning request fully complied with the city of couples masterplan and that's that's a key point to our argument obviously that is not enough to prevail under a do process  challenge but but judge gobby did make that determination in his order and the next step in the analysis is to look at what what was the city's decision and in this case after the parties had built went back and forth several times with the city the city made several requests to modify the application and and had filled complied with all of those all of those requests in the city  nonetheless denied the application and our position is that because the master plan at the time it was passed stated the interests of the city and the general welfare of the city with respect to mixed use development it was a document that had been developed over a number of years by the city of couple because built complied with that that there needed to be some pretty significant reason from a motel six and we're going to put in a tanning salon and a nail salon and a mop massage salon for the businesses and then and then have the these apartments which are you know grade c apartments or something like that you would understand one could understand why the city might not find that consistent with its proposal to upgrade the image of of of  the of the downtown or whatever it is correct that's right you know so how how it's one thing to say your plan comply but what do you mean by once how do you say it was so unequivocal see that the city passed the master plan as an ordinance and it became immediately effective so if there were any indication or any desire by the city that the order that the ordinance or the master plan not become immediately effective the city certainly could have put that limitation on it but they did not so that that is the first our position is that now is the not not the right time is not well that's the least that's a that's a weak argument so what are the other the others the second reason was it just doesn't have that feeling that the second reason given by the city council was it just doesn't have that  guidance to landowners and developers on how they could bring mixed use development into the city the third reason given was quote with me it's a personal feeling  contiguous are in the same buildings and new that had a lot of trees and so on but what hotel were you thinking of did you have any contract or any proposals of i don't i'm not sure of the answer to that i know there was a proposal but i don't know if the contract is in the record but i will look at that and try to its wealth in the city you know what your plan was yes they did in that detail i think they did  so are we getting into an aesthetic judgment well i'd it's to fit is it's not stated as well and that's and that's the difficulty of it if the if the members of the council had said that this had stated reason within the general welfare such as that i think we'd have a different case but what what they did say these these all are look like personal statements or personal opinions that don't tie in with the welfare of the city it's nothing like you know the justifications that we've seen in other in other cases where there's talk about traffic or safety or you know those kinds of believe the term used in the case law as usual potations we don't have that in this case so that's the the you have the these personal judgments of the city without any tying them any any evidence tying them to to the general welfare of the city not even the term general welfare is used the fourth reason your honor please bear with me i'll go through the whole list of that's all right on the fourth stated reason was quote i'm beginning to think that mixed use is in the eye of the beholder again your honor this is to to a developer who's working over a period of more than a year at some considerable expense to develop a plan an application that complies with the master plan this is an this is another statement that's it's hard to see what what action you could take in response to that in order to obtain approval of your application there was also a reference to ideal hotel i don't again that i don't believe the record indicates any particular dissatisfaction by the city council with the hotel project itself it's just some some struck notion that it's not ideal but it's or it's not golden and the question is under under the proper legal analysis is that is that a rational does that provide a rational relationship to the city's general welfare  and haggles position in this case is that these all of these statements don't tie into the general welfare and zero promote the general welfare and don't have that rational basis don't have the rational relation there  their employees had recommended approval yes now that that brings up another issue though that's related and that is the procedural irregularity in the consideration of the application not all to three things that during the time the application was was under consideration by the city it became apparent to the city that at least in their minds that they to the city what it actually what it had built application to be considered under those ordinances in addition to the master plan and what happened was on april eight twenty fourteen three things happened at the city council that are important to this case the first one is that the city without providing notice to the public hearing etc as required by texas law the city passed ordinances an two the second thing that happened that day at that meeting was that had built an application for mixed use development under the master plan was denied by the city and the third thing that happened in this is relevant your orders to belts people protection claim on that same day the city council approved the application of the avenue it didn't tap which was another entity that had a smaller proposal for mixed use development that did not satisfy the requirements of the master plan under which the avenue had applied well that was a properly apply the summary judgment standards and did not did not give had both the facts and did not view the facts and inferences in the most favorable light etc as required regulation on the claimant and particularly the extent to which the regulation has interfered with distinct investment back to expectations and the district court found that the contracts for development that were not implemented and the court also felt that the value of the development contracts was over at five point five million dollars you know i see my t please the court to answer a couple of questions or to find a couple of questions that came up earlier it is our belief i have a bit this is not part of the record because we were unable to submit it as part of the record but it appears that at least a portion of the property in question has indeed been sold in answer to the court's question and if the court would prefer we can submit documents to evidence that post here if that's important well so this court has long insisted that the review of municipal zoning is within the domain of the states the business of their legislatures agencies and you dish areas should seldom be the concern of federal courts in the absence of invidious discrimination or infringement of fundamental interest to repeat this risk or true view is confined to whether the decisions were arbitrary and capricious and the requirement of substitute substantive due process under the fourteenth amendment is met irrational basis it depends on the reasons why they voted against it and i believe the record is very clear about those reasons the at pages four thr six of our brief the members of the council or quoted at length regarding the reasons why they felt like this project just wasn't what they were looking for council member don't can it looks like it needs to be designed holistically he had a he had an objection with the appearance of three different projects and one council member branch oh i'd like to see more retail and commercial incorporated in the residential portion both of those are you know i think very reasonable concern i don't understand at all why do you why do you think people really want to live over a pizza parlor your honor i don't know what i do know that there are a lot of developments in the fort worth dallas area that are people want to do that is not important i understand but i'm just trying to understand exactly because it doesn't make sense to me but what you're saying is they were going with they were trying to make compel look like all the other suburban development that that's a fair comment and it's a it's perfectly appropriate thing to be doing as a as the i'm not making an aesthetic judgment i'm just trying to understand well and it's clear that their comments were  informed and influenced by other developments in other parts of the metroplex southlake for example has a south like town square there south philly south lake is about twenty miles west of cop l roughly in the same latitude but it's on the other side of the here well i'm sorry i'm not ok so it's so it's all to the west of d f w toward fort worth right ok but it's but i mean in our view patel created a second basis against which to measure governmental action that's applicable more to individuals statutory schemes and the like and really isn't but they do site what grabbed my attention is that they do cite mayhew as supporting their approach to economic regulation you're you're absolutely right your honor in that case actually is a fairly important part of our position as well and but i think on the facts only of mayhew support you i think that on the facts the  yeah i mean patel is the tell situation involves a different economic group individuals rather than municipalities individuals rather than neighborhoods or city developments and that sort of thing and think it's our view that it doesn't inform the court but if the court chooses to to look to that i think it doesn't change the result in this case the landowners came back to the city council or to the city government two times that's not an unreasonable burden in my view that wasn't enough so basically they were going to have to come back three times  and the concern is residential let's see you could get more of a flavor of a mixed use i would like to see the degree of work done as i have on the residue on the entire development as i have on the residential pieces i would like to see more retail and commercial incorporated in that residential portion right both of which comments were comments that were you know more specific than th parties have been alleging in this lawsuit and they you could take those comments and you you know wouldn't be there would be at least some indication of how to modify the plan to to take care of the council's concerns three questions here one is it right is it the right time and is this the best we can do and i think probably no at all counts and that is to comments on pages  four five and six there are some very there are some much more specific comments about the gold and the if you tell i mean it appears to be more of a shared use than a mixed use what does that mean the concern of presidential well the hotel perhaps is a different issue but i'm not sure they even got to that point the problem was that it was they were separated it's my understanding that's what the i was the first plane brought second plant brought the retail in the apartment that's correct in my understanding was the second plant didn't have enough of those things to them he satisfy the council i mean this you know there's a whole lot of developers you know jargon in this and i don't i don't understand it so you tell me there is substance to it but i just don't understand what these statements a rational basis if you don't even know what the language means well the language i think is very clear to the people making it and i think if you look at the comments on say more than five for them basically what you're saying is that the they they don't have to talk about safety they don't have to talk about mobility they don't have to talk about encouraging families and single people in the same units they don't have to talk about we want roday oh dr rather than target you know they don't have to say anything specific but the fact that they don't like it and they voted against it gives it a conceivable rational basis i believe that's the standard you're on conceivable if any continually conceivable rational basis is a very bizarre and modeled themselves specifically after southlake well i think there were some comments about south lake in this in the record but  just and i think that would be that would be of a very appropriate and a clear indication of what they were looking for the what didn't happen here was that the developer didn't try to discern exactly what they were talking about to try to find out anything more about her i'd be satisfied the employees of the city on the second go around because they recommended approval right that's correct but they didn't satisfy the council and the council's questions work i guess were not clearly addressed the but the getting back to the standard though if any were rational destroy any rational basis even if it's not one that the council adopted is sufficient to uphold these the the court's judgment these were this was the city council given these reasons not developers right so we're talking about ordinary citizens that get elected right on the city council that are given these reasons for denying this rezoning requests that's correct i don't know that any of these people were involved in design or construction i assume hack felt was present at this council meeting yes they were ok and i know i didn't look at this before i came here but i said there was extensive discussion and it cites sixty seventy pages of the biggest to getting getting back to the to the standard the court is is directed to use by the circuit in the absence of any invidious discrimination and by the way the allegations of discrimination here i think are you know that comment means is that even if it wasn't the basis upon which the decision was made if there is a rational basis then the there is no due process violation a great deal of leeway in the consideration be you know any conceivable rational basis for zoning decision is a pretty big bucket and i think that you can't escape can a rational basis be we don't want a motel six we brother have a i don't know caesar's palace or something yes the fancier hotel we don't like this hotel or the reputation  area they are they indicate rational ideas the thing needs to be designed holistically as opposed to there was a spare was a concern that there was a construction here construction here construction here on the property but they weren't connected or integrated holistic means the the car the next comment this looks like it's three different projects and one that informs them that there's at least some integration that needs to happen in the design well they were all off the property i mean if you when you look at the chart you know you had one one or two main entrances and then you had this landscaping around the parking area and then these things intersperse around the parking area i mean again i'm just going off of my driving around houston experience which is that this is not an unusual way to configure a property in houston but you know i realize you have higher standing  that living up there i think i would agree with that but i'm sure the members of the court would but if you're looking at the comments they are i think sufficient to be able to give the potential developer enough guy just about what to do about fix up may he says a court should not set aside as zoning determination for subsumed to due process unless the action quote has no foundation in reason and is mere ivory terry or irrational exercise of power having no substantial relation to the public health the public morals the public safety or the public welfare in its proper sense and then and they denied relief in that one because it had to do with urbanization effect so what is you know what is the public welfare in the proper sense in terms of mayhew not help at all in terms of value i believe that this that's what the residential construction on a mixed use development which are all the rage in north texas now in may or in other places and they do indeed have some public benefit as have any courts in the lower texas court since mayhew rejected any zoning decisions that you're aware of know your own you're not aware of them or they haven't i'm not aware o he might be to address some of the other issues that were raised and in the direct the didn't tap project which was approved around the same time that this project was not approved is a very different kettle of fish it's not comparable to the hack bell development because had built had roughly twenty acres the didn't tap approval had west and two there was no hotel in that in that project there was there were multi story and maybe they met the that project met desired ratios for residential and retail it was also designate designated a missed mixed use neighborhood center a different designation and then the hack bell project had been given so i think they didn't tap really is no evidence of any invidious action by the the city council because it was an entirely different project regulatory taking the regulatory taking issue regulatory type well the regulatory taking issue i think is governed by the  case law which says that there is no regulatory taking if there is no diminution in value of the existing property at the time of the municipal decision let me ask you a question sorry i should remember that ok so it's twenty acres and i'm just wondering how many parcels of twenty acres were in compel around compelled that would have been amenable to the new mixed use concept of their development plan the record doesn't disclose whether there were any but i suspect that if if there were there was no more than one or two others so but i don't know  i'm sort of inferring that myself so if that's the case why do they not have investment back to expectations when they buy this huge expanse of vacant land ri is it's we've cited every one of the cases in our brief but it is not a relevant issue not a taking issue regulatory taking what i thought investment back was part of central standard maybe i'm wrong but well maybe you can address that in a twenty eight j later if you need to make your own all right thank you mr wright to first address this regulatory taking issue and from a few we've cited this language in our brief but the major case says the existing and permitted uses of the property constitute the primary expectation of the land owner tha affected by regulation and judge showed you were you are absolutely right that the property here was in the middle of this mixed use development so the permitted use wasn't it was mixed use and that was the expectation for at the very least judge god be sort of misapprehended what the parameter what was i but i believe you didn't play by saying it was agricultural and therefore you have no right i mean yeah ok believe that's right but i also want to address the questions that came up regarding the types of businesses that would that would come in under under the development if it had been approved and i think i didn't do a very good job of explaining that for the the player who was conceptual what actually would happen in terms of which businesses would be would come in if it had been approved which which businesses would go into the mixed use would still be subject to later permit approval by the city so so it was so they were not at the point of say this hotel or that or that retail business right so that that would would have been determined later but my understanding is that there there have been some concern somebody somebody made the comment at some point it looks as if you're going to build the apartments and you're going to add the retail in the hotel later on right and somebody i mean would that have been wouldn't that have been a legitimate concern i think it would have been think it could have been and i think that that would have been addressed in the process of up to the point of the denial i think i think the developer was trying to address those kinds of issues that i think if that had been a factor for the city that they would have said so but i don't believe they did in this sixty pages of transcript that they cite which evidence the public hearing what presentation did hack tell i mean because i'd forgotten by this time planning and zoning had actually recommend that the staffer recommended approval of the planning inserting commission recommended denial and so packed out was appealing to the to the city council so what was hacked felt presentation call those details at this moment if the court would permit we would make sure so they should have to argument well the record we have the record on line i was just opening hoping we could know what how i had felt was attempting to address these comments well i can't speak specifically to them but in general they were trying to trying to address you know everything that came up to the satisfaction of the city all right and i'm sorry i don't have more detail the court of the with respect to the procedural posture of this case this court of course comes to the court as a summary judgment and one thing i wanted to one case i wanted to mention before concluding was the city of monterrey case from the supreme court because that case is very similar factually we believe to the facts of this case and that is a case where the developer made up location and kept coming back essentially to the city of law to ray and the supreme court described the or the perhaps the court of appeals described the reasons given by the city for denying the application as being very general and what's what's important about city of already is of course that the supreme court the court of appeals reversed a summary judgment in the supreme court affirmed and we understand that that it's  unusual that a summary judgment reversal or i'm sorry a trial is unusual in this context or can be unusual in this context that we cited the city moderate for the for the proposition that it's not unheard of and where the facts support it we think it's appropriate and we we believe that there are in fact issues with respect to each of hack belts claims in this case just that was a takings claim though wasn't regulatory taking it was taking the yes that's correct but doesn't that put a different it i think i think the in terms of the i'm sure you can still graze cattle on this land well i'm not sure we can elephants in the middle of a mixed use development i think the city might have a problem with that