contends that the district court committed a number of errors in connection with the dismissal on a twelve b six basis of its complaint alleging that the city of troy proceed with its project the project would of course be underway today but we have been a fact of we told that our process cannot continue because we do not have the correct zoning the underlying zoning district in this case is  correct ok so the decision that you're challenging is the reject the denial of your application for to rezone that to approve your rezoning request in some form in order to obtain the relief of the result of your secure did that was a motion put to the city council for approval of the i mean we know that it was denied it was voted down it didn't have it was for or against and three for right correct ok it does that have significance that it was their significance her significance because it wasn't five it does have significance because the detroit city ordinance which governs the process for the conditional rezoning application in this case requires the city of troy the city council to do one of three things per resolution it may  the conditional resigning cross which nobody contends happened here it may deny by resolution the conditional rezoning request which nobody contends happened here already made postpone the conditional resigning request which nobody contends i'm confused by that i thought they denied it that they'd been voted down a brazel lucian a motion for a resolution to approve last forty three that was never emotion or a resolution to deny which is required by section barbara section of the order you say you have a substantive due process right under the fourteenth amendment for the form in which they choose to deny your request and then just seems like an astounding let alone counties or a city zoning ordinance that's not the source of substantive due process unless you have a case that says otherwise the wilkinson case started in our primary brief it which is the united states supreme court says that substantive due process rights and constitutionally protected property interests may arise and do arise from state policies and state law so what we have here is the state ordinance structure set up by the city of troy itself which required the city of troy to take certain steps which the planning commission did in this case but which the city of council failed to follow with respect to its own ordinance guidelines so what i hear you saying is that the heart that what you're complaining about is that you never got a denial not that you didn't get an approval but that you never got a denial so if you say denial is necessary i guess i guess the application i don't know if it's still alive is it what do you i don't understand how you're piecing these things together and i think it's important to understand the connection and the inter between the various portions of the ordinance the take an applicant through a conditional rezoning process and establish that legitimate expectation or justifiable expectation in this case that we would be treated in accordance with the troy ordinance itself and i can answer that question first appoint a commission must consider the application to make a recommendation that is better heard the planning commission for me to find and recommendation and a determination that all five ordinance standards have been met we know all that it's undisputed took place over eight months in a tremendous amount of public hearings for to be exact over very long period of time in a lots of concessions the planning department the city manager everybody is in favor of this we show up at the city and what the city council ignores the finding the determination that's been made by the planning commission in this case it ignores the fact how can you say in a four hour hearing that the subject of which was this planning commission commission recommendation that they ignored it didn't agree with it they didn't accept it but to say they didn't that they'd nor did it or they didn't consider all the factors when you look at the four hour recording of the meeting just seems to be ridiculous and i i would i would contend this and i we've contended in a number of different instances in our briefing this is a twelve b six review this is not a rule fifty six motion for s judgment review for judge goldsmith and all that is the recording an official record it is a public record is it is that accurate does it accurately depict what happened at the me cannot sit here today and say that there is anything that i have notice that took place at the meeting that somehow obfuscated by the video so you're saying it'll be fine for us to look at  if this came to us under a fifty six but we can't do it because it's rule twelve even though you can't point to anything that's inaccurate in what's been provided to us as a part of the public record are always so the question considered which which you're saying they've nor it in the tape seems to refute that very very clearly so is that we take it when you look at it to address your question of whether they considered it as opposed to opportunity to develop all of the evidence or record in this case what is the public record beyond the video where all the emails that went back and forth between the city council members one of the city council members are going to say when they're actually under oath in a vote by virtue of taking depositions of each of the city council members i have why they voted the way they did i don't have a case your honor we do it all the time in our lives and or excuse me or  members of voting bodies to determine whether or not they were influenced unduly influenced or whether or not there was factual basis for the arguments that they were contending were true we have an opportunity we believe your honor procedurally under the twelve  to prevail you have to show a violation of a constitutional right in the in an ordinance change not not in a variance i mean you're seeking the zoning change now you do have the master plan but what what is the standard what do you have to show to be able to prevail but the city made an irrational sony decision and in  and i mean the basis of all of this is that you're saying that you have to meet the five requirements i think the law says it's entirely up to them that it's discretionary but you're saying that the discretion has to be exercised in a manner that's not arbitrary and capricious there are you saying something else no that's that's that's very that's a fairly good summary ok you want an opportunity to show that notwithstanding their explanations in this sort of long hearing that the ones that voted against you didn't you're saying a court decides whether they correctly balanced the five factors or is that is it enough that they went through the process i mean i'm sort of confused about because we are you saying that what they said there wasn't the real reason that they were bribed or i mean i don't know what what you're really getting well that's exactly right in a substantive due process decision which stops a project which which i see a negative effect on a and an apple care they have a right to argue the deck decision was arbitrary capricious and that that decision could be set aside by the district court but what case that the city commission in this instance failed to exercise any professional judgment in connection with the examination of the eight months of evidence developed by the planning commission in favor of this project and the  decision is not yours whims of whimsical an arbitrary and capricious and not based in anything other then so is it the fact that they that they just simply got it ron which is your underlying claim here or is it the fact that they didn't articulate why they were denying it in a resolution form that's where you seem to have been about fifteen minutes ago well that's an excellent that's an excellent question because as i said at the very beginning of the argument there are a number of errors here that the to expand your answer to include so many things frankly by the time you get to the two year to the end of your answer i don't even remember whether you're answering the question can you just simply answer the question near near seem the whether you have a property interest is different from the question of whether the city procedurally properly handled the application process in connection that with your property interests it would seem that you would even have a right to enforce the procedural prerequisites of the local all in this unless you have a property interest  or the city of troy ordinance lays out a process under which we can obtain what is a justifiable expectation that we would be approved once the planning commission had found and determined and recommending to the city council that all of the factors under the ordinance for a conditional rezoning had been mapped when the city council then turned around and failed to make a single observation in the minutes about why the planning commission had been wrong about any of those factors is that you will get rezoned in accordance with the with the ordinance all the cases seem to say that that is a discretionary function on the part of the city and if it's a discretionary function you don't have a legitimate property interest in the in in how you want that discretion to be exercised so why are those cases wrong or are they distinguish the primary cases distinguish silver versus franklin township in silver the court was asked to examine conditional rezoning permit similar to the us which contains subjective criteria in that instance the city council  or the city as if it believes the council was was under their wooden structure and franklin township was directed to make those subjective determinations and once those minimum standards fails the project failed those were subjective standards the property owner never obtained any legitimate property interest here it's not the city council that's charted with having to make those decisions it's the planning commission and the planning commission did find and determine that all five factors even the subjective ones were methyl basically are saying if i understand it right then that the city council is bound by the fact the fat the factual decisions made by the planning  last the city council were to have articulated in the record reasons the head exercise professional judgment determined that the planning commission was ultimately incorrect on one or more of the criteria then it would not have been arbitrary capricious so we're right back where we were before what do you rely upon to say that they have to you say they have to articulated in order to be able to validly exercise that discretion so in others who are back to where we were before the the problem here in your mind is they didn't include the reasons for their denial in either the rez in a resolution which is your method number two or in the minutes that's correct so where do we find authority that says that  required to say certain things in either a resolution or the minutes when it seems clear that that the individual members did do all of that on the tape that there was a legitimate basis as stated by the actual decision making body which gave even on the limited review that was required required by the district court enough basis for the court to know that they had exercised professional judgment it says that they for the reason that they have articulated and shown that they had access professional judgment they retired over to a for months under the limited review provided to the district court in those cases are but those were motion for summary judgment fifty six arguments that were brought that's that's ultimately what we feel was was taken away from us in permissibly arm and respectfully by george goldsmith at the district court level in this case and that this required in march a further development of the record but your it so even if they clearly meet all five they have no expectation correct if we start with the text i can hear you if we start with the city council agent of a landowner a conditional rezoning under the michigan zoning enabling act can only be initiated by a landowner and the statute is clear and the offer to conditionally rezone property must be in writing  must be voluntarily me to go to the state who goes on to say that the local you know government shall not alter or add to the conditions and it shall not require that there be any conditions attached to resigning so when i stand appear and say that this is a whol g the seeds to all of the conditions additional conditions the city wants to see and meets all five criteria isn't there an expectation i don't believe so your honor ok so can the can the council say well we think that you have met all five great here but we're denying this counsel say well to be perfectly honest you've metal all of our requirements it's a nice project and you've met all of this the ordinance criteria and  we're we're going to deny it and not give an explanation not give an explanation it's not something that would be acceptable if we're looking at arbitrary and capricious but if you look at this case specifically we had a very  mobilized very why does it matter of which are very arbitrary and capricious that there's no property rights well that that is a very good point if there's no if there's no right to begin with then we don't even get to the that you've met all the qualifications but they don't have a reduced but the developer still does not have a constitutionally protected property interest in that conditional reasoning because that is discretionary decision ok so it's not a matter of arbitrary and capricious you're saying that there's nothing to get i'm saying you don't get to that point i understand so i just want to make sure that i understand you your saying that there's nothing that the city council hindoo with this very motivated by not wanting this particular project right in the in their brain in their backyard so as we have we had there's constantly if we didn't hold a hearing at all that would violate the constitution certainly getting over the hurdle of whether there is a property right you've got the they satisfied the planning commission you had a bunch of neighbors coming expressing most complaints were fairly vague but you know this isn't what i planned on having next door and basically the traffic problems african safety considerations for because the street is narrow and there's no sidewalk and the particular instance for the children was once it's the narrowness of the street the lack of sidewalks it's a traffic and safety consideration for the children getting  to their bus stop i don't believe there's a school back there but those are traffic and safety health would help to offer concerns that were brought up by the public certainly and then you also have the traffic expert saying that you know it's largely imaginary not would have required no i didn't say it or that that but they said that it could be handled they had ways of handling it they said we didn't think it was that much of a concern that we even had to have traffic zoned and to put a multifamily multi story project in that particular residential area it just doesn't fit what is what is in that area it's not actually what i correctly understand that there's actually  a line that goes straight across but if you take a line that goes straight across this area is actually a notch in in that line but this is the only residential area the parcel zoned residential no i think what you might be thinking of your honor i don't there is there was a map in the materials originally filed this document twelve page thirteen of ninety seven p j d four ninety and if the five factors were were quantifiable yes no in other words it can exceed two stories it can be exceeded density of x you can calculate stories and x but when i look at these factors particularly factor number five it's it's a factor that depends upon somebodies judgment people can disagree as to whether the conditions and sure compatibility with adjacent land usages so each don't have to get to your position it seems to me to simply be arguing that the reason why this is discretionary and therefore there's not a legitimate property expectation and then i'm saying this in some detail because i want to get your view and then i want to get his view when he stands back up the planning commission thought that this was compatible ok that's fine they had hearings that's their determination the final decision is the city council they concluded for whatever reason that it was not compatible it seems to me that's the essence of discretion when when the when it's not something that's black and white as to whether you meter you don't mean exactly exactly your honor and that i think i can argue and both so your point is you can't have a legitimate expectation where there's a discretionary factor that's left up to the final decision maker which in this case is not the planning commission it's the city council is is that the essence of the problem here yes and i say articulated below and i believe i hope your ticket here on appeal many of the factors the standards for approval which are sixteen zero four c three a through even many of those factors are subjective in nature and many of those what you could look at it one way judge clay and i can look at it another way and come out come out a different and different ends so that yes and as you're saying judge mckeague that is exactly the essence of a discretionary decision where you could say factor number one about whether protects the public health safety and welfare that seems to be a matter of judgment five is a matter of judgment i'm not really sure the two three and four involve much of an application of judgment on the part of the city but in any event it doesn't matter if you get two out of five in can are based on judge wright and that that has been that has been my position that it and i do you agree that the if you don't have a legitimate expectation whether the procedure that they followed in both having the hearing and documenting the that a liberty interest can be created by laws or policies and i just wanted the court to be to point out we're not talking about a liberty interest wilkinson versus austin talks about liberty interest and the case is so far away from where the zoning case is welcomes and versus austin has building here it is talking about a set of prison inmates who the where the court said there had to liberty interest in avoiding being assigned to supermax prison and avoid particular conditions of confinement confinement so that the case the only i my point that i was going to make was with respect to finding recommendations i hope i made i think i made this point early but i want to stress that again only the only in approval requires a finding a recommendation brother counsel argued to this to the to you all that  somehow city council must adopt that finding and recommend finding a recommendation but that is not how the zoning ordinance for the city trade works at all well he seems to argue either that the city council's bound by the findings of the planning commission that's seems to be one argument or that at least there's a presumption that the city council will follow that recommendation unless the city council essentially overcomes a presumption on behalf of the developer so is there any support for either of those positions that you can find in the ordinance i don't i don't believe her and take about michigan laws on it wasn't it was almost kind of squirrelly in michigan so well but but but you start with the presumption that the zoning that exists is is valid that is based on health safety and welfare welfare issues we wouldn't be here if if tobruk didn't need to rezone the property to build the multifamily multi story but  may accept it may not alter and may not add to and may not require conditions so it is a wholly discretionary i think in general having done these now for two years conditional rezoning are somewhat because it's your essentially as a land as a land owner bargaining away your ability to do with your land whatever you want everyone every you want to do and a street rezoning if you want to if you rezone property you can do whatever they're permitted use is is on that property but if you condition of the zoning you're saying to the city if you give me this rezoning or the looking are going to if you give me this rezoning then this is what i promise i'm going to build i'm not going to pull a bait and switch on you i'm not going to promise to build a multi story multifamily complex and then turn around and build an auto repair shop where you have to build what they promised to build so yes and that's what they proposed to do i don't understand your point my point is it's that that is why that is why the condition rezoning are wholly discretionary by the by the city by wholly discretionary act by the city council the council doesn't have to accept someone's offer to to do something on the property if they don't find it acceptable they don't want that right and then whe in the area they're told these are the five things you have to consider in the end their claim is that they didn't consider them but that is as judgment put out pointed out they were considered in the video they were absolutely considered by by city council each member of city council articulated his or her reasons for voting in favor of or against a particular project and just to make this point because i know i didn't touch on it yet that the video of the city council meeting could absolutely have been transcribed and tash the minutes and would there be no question there shouldn't be any question anyways but there'd be no question that's part of it but then how do you decide whether it's or betraying a person's did they have any chance to prove that well and if i could make this point that i have i apologize if you we have to this court because this is it will be six you have to look at the allegations that are contained in the complaint and the only the only elevation in the complaint that goes to arbitrary and capricious is that city council succumbed to public opposition to the project if you look through the complete the complaint which is very spartan in my opinion that is the only allegation and i guess i am i am baffled by why someone would argue that public opposition being a reason for voting down a project was not is not a valid valid reason we don't hold public hearings we don't take the information from the public the public who is most affected by our proposed project that is those are reasons to to oppose the project there there were reasons articulated articulated there so it's not something that was well you will be putting up with the scale if you're saying even if they don't pertain to the five years i'm sorry i'm sorry you're saying that even if the public opposition does not pertain to the five factors deny the placation you have satisfied all the factors we individually think it's fine but the public opposition of the neighbors is strong enough to cause us insulated from any review if they said yes you've satisfied all the five factors this is a great project but we are going to defer to the objections of your neighbors i don't think my position would be because there's not a substance to due process rights it isn't a constitutionally protected right in the beginning for him to have that rezoning because it is discretionary at the outset he's not doesn't have a legitimate point and construing them to be true our position on appeal here today is just the opposite of what miss de freyne suggested which is that under the silver case once those minimum mandatory requirements have been met under the ordinance and is here were determined and found to have been accurate by the planning commission we did have a legitimate claim of entitlement or a justifiable expectation which establishes that constitutional interest but what why do you get a legitimate expectation because the planning committee if the ultimate decision maker is the city council and the factors clearly envision discretion on the part of the city  council the reason for that is that the troika ordinance itself says that upon a find do terminations that all the five factors are mac and then we asked the city council to consider the planning commission report here along with the planning is made such a find in recommended to the city council the city council therefore is obligated to make contrary findings if it is going to suggest that the planning commission decision was in  standards for approval are satisfied it's what you're arguing is that the finding and determination that's being referred to there is that of the planning commission not the city council is that what the ordinance says is fering to the planning commissioners are referring to the city council it doesn't say either and that's the implication is that it's the place commission this doesn't say either you go to the planning commission planning commission acts in an advisory role to the city council they have the ultimate authority so if the if a finding has to be made that the standards for approval are satisfied why wouldn't that be the decision maker i think again we have to look at the interplay of the ordinance the ordinance says that upon review of the conditional rezoning up locution the city council shall review the pull the application they did their own or can release of the subject of what we believe they may have done the review then the planning commission recommendation which is the fact finding body here the planning department report and then show adopt a resolution doing one of three things but what if they just disagree with one or more the of the findings by the planning commission ignoring the question of how that will whether they do or don't have to articulate in writing that finding actually seem to be saying they're bound by the planning commission and i don't understand why why you would even bother to have more hearings after the planning commission meetings if the city councils actors are actually if they had say in writing why and articulating individual council members reasoning at the during the meeting is not sufficient as that is that that sort of the essence of the problem will be the yes and yes i think that's a simple way of saying it because then th she says is that you have to articulate your reasons in writing to approve but not to deny so what's your response well i think that the city or trade zone or new star say exactly what she's arguing however how is it they're doing they try are a fax of a district court here a visit this is a bench trial could examine whether the decision was arbitrary capricious if they don't articulate but if you're saying that your property interests arises out of the ordinance and the ordinance gives final authority to the city council isn't they're not bound by what the planning commission says and they don't have to state reasons they deny as opposed to approve i'm just what why doesn't that in the case on the question of the property interest well it's o b six stage we don't believe it is we feel we have the right to develop the record of the term and whether those if they have articulated those bases hypothetically which they didn't then we would have the right to challenge those and decide and leave it to the trier of fact as to whether or not a fifty six motion should be granted some point