twenty dash seventeen to eight from the district of north dakota john patch and no verses were county and all those weren't due process cases and youth and you didn't bring in thinkings clay so there's a there's another bridge which looks like a gulf that you have to cross yes your honor and the clients turned out offered compensation that was brought before the application ever came there was a there is a request purchased this land before this application ever came before the permit was ever brought up but that doesn't change the fact has never been compensation offered for any of these so it's not their own decisions that are offered in the st place and so where there's where the process really is flawed is there is never an individual i's determination as to and there's never an individual as to terminate as to whether  it fits within whether there's ever a burden on the property whether there's a community burden and this comes down to what what really is brought out with exactions case all around is there's kind of the two realities that comes with  violation of state wall unquote now that's a really high hurdle and where does your case get anywhere near that extremely high or it and it doesn't get to that  however well what we argue is that the supreme court sets forth what the standard is and in exceptions determination unlike other land use decisions that are uniformly applied and are case what are your cases where nolan and dolan had been applied in a process case like you're bringing here they've never been a client and a process case and and the reason being i was back to what we've said before workout is the step behind these other cases where it came as a tapings case they never made an individualized determination and they never made a decision as to what the facts will this particular are met how on the community and that's what i get and so back to to the question so are you asking us to apply these supreme court cases in this contest as the st court to do not be changed and this in these ways and this did actually this actually did not bring a the results that were helped by the state of why and where we're challenging it here is that process never be about that process right here it never goes to the point of finding individual eyes actual determinations and so that is where our concern is and where we have to we brought a due process claim instead of the taken spray is because they're not even getting to the factual findings and until those factual findings are are determined there's no way for us to get to the taking place well careful now and i know this is my theme of the day but i'm going to say to you and again i'm miserable but missouri has in st condemnation why doesn't that's a classic remedy at least in missouri for exactly what you're talking about and that doesn't due process problem here right yes there's not a substantive due process problem here or there is a procedural due process thank you and your sick drill due process issue comes down to once again there is now there was never where this case really comes down to the very end of the day is that the process needs to include the saints and what it comes to actually at the end of the day is were county is not making fin specifically and blatantly not making determinations but the supreme court says it must do and process are you making any claim that your client did not have notice or an opportunity to be heard we are not making a claim that they did have notice they had notice but we are saying they did have a meaningful opportunity to be heard because the variance here and itself precludes them from being able to bring those arguments there was an essential nexus opportunity to be heard argument relate by you are d kind of no win dolan argument ok yes yes your honor and and it comes down to the fact that the supreme court created a particular process and they said in that process that there needs to be an individualized determination and there needs to be some effort to quantify the findings to support and support of the dedication goes outside that process and it is not a meaningful hearing at that time and you can see this with the standards that are created in math things matthew says creates three standards essentially and that those standards to make a meaningful here comes out of this essentially what's the private interest take all that private interest is pretty great in this case either they have the right to subdivide or they have the right or they have a permanent loss of property so the determination that period as to determine one of those two things and those are pretty significant and so there needs to be a pretty significant evidence you're hearing so allow for that to be sussed out at the same time the nd element is what is the wris erroneous deprivation of such interest under the current process and the probable bal you of the proposed procedural safeguards risk is guaranteed because they never make that individualized determination they never  time the supreme court already requires them to have this kind of hear it in the st place they need to make those determinations or it isn't a legal exaction anything after that it's already it's already decided they have to make these determinations whether that said in undertaking scans or it's in the process itself they have to make that determination so in the process is the doesn't do these things as is meaningless in a lot of ways and so at the same time they already are making individualized determinations of other factors they have to make individualized terminations as to whether this would be a public good whether the floodplains will be harmed or anything like that they of something that the governing body wants to do a meaningful saying the government would want to do and then a rough proportion and it doesn't have enough force anality that meaning that the taking where in the in the sense of what was argued and central where they said that the regulation itself so all meaningful use of the property that is not an drawer thank your honor may please the court for the record my name's john ward and i'm an attorney for the apple east and defendants ward county district court properly granted word counties motion for s asked this court of appeals to affirm that decision of the district court dismissing the plaintiff's one count due process complaint on the basis that the plaintiffs attempt to substitute the takings analysis that the supreme court set forward and no one versus california coastal commission and don't vs city of to figure this is not the correct standard to apply for due process claim as an additional matter this case is not the takings case the plaintiffs unequivocally procedural due process claims that the plaintiffs on appeal did not raise their substantive due process claim before this court so the sole issue before this court is proceed to all due process the reason that the records courts the controlling precedent here for procedural due process land use case was stated by this court and andersen versus douglas county which provided the plaintiffs argument to the district court and to this court on appeal was that the procedural due process standard was established by the united states supreme court and the cases of no one and d opportunity to be urt yes your honor just so i am clear i guess the question specifically is is if the meaningful opportunity to be heard needs to consider the planet's argument that in an ordinance that creates a valid presumption but it isn't it isn't here because we can we can even make an argument that the presumption shouldn't apply in this case well i think the respect to arguments issues positions and so forth yet and so what i believe has occurred here and what i think we need to consider is th issue that's both for the county commission so here what we're talking about specifically is the development of drugs and before we get to the nd prong of the meaningful hearing involves a right to subdivide property now that property interests no no no the property interest is the right in that to have the right away land taken well if that's the property interest then that's not the property interest that was alleged by but by the plaintiffs here and certainly i think that that's the property interest that would be at issue in a takings case but again they have not let taking scase the property interests that the approval statute for county commissions now specifically in that plan approval statute this statute states dedication of land to any public body may be required as a condition of subdivision approval and shall be clearly shown on the final play act now the purpose for board counties dedication ordinance is specifically stated within its co about substantive due process but if you put it there is not a procedure where you can raise the question of whether there's a substantive due process problem why isn't that a procedural due process problem will certainly be issues were raised before the ward connerly planning it's all due to the mission and were also raised before the were county commission i know that we did attach an audio of that hearing to our appendix and it's included in there and there was a lengthy discussion that occurred between mr peach and the ward county commission were several of  these of these very issues war were discussed but ultimately what was determined was that on the basis of the information that was submitted by mr peach his application mr peach was unconstitutional that the dedication ordinance was unconstitutional because it did not provide for just compensation now that application that's to be submitted is a consideration of things that affect the land or the county it docked at the ordinance originally to provide for certain with space on streets this was done in consultation with various engineers but were county highway department have a piecemeal or a patchwork of of variances granted or for reasons that are not founded in anything that relates to the land and that was part of the problem with erwin's plant applications as well irwin's plant application indicated that his hardship was that his land instead of being worth two thousand dollars per acre as a as a piece of agricultural property would be worth somewhere between forty dollars to fifty thousand dollars as how you're arguing the merits of this we're not we're not u abundantly clear that those cases were taking spaces there is not a thinking scase before this court this case is a procedural due process case as as judge benton pointed out the united states supreme court rejected that very idea in the case of lingo versus chevron where where there was an attempt to substitute due process takings law analysis consideration to just have polygraphy but they just your court found that their records show that perhaps you could raise their concerns in support of the various other than topography is that borne out in fact that that a landowner is in fact able to raise concerns other than those related to the topography of their land in support that the hardship ordinance does provide where it can be shown in the case for a particular proposed subdivision that strict compliance with the requirements of these regulations would result in extraordinary hardship to the sub divider because of unusual topography or other such conditions would result in retired in the achievement of the objective of these regulations so it does also provide that there is some to be clear the characteristics of the variance need to affect the land so what's considered by the county is something that would affect the land so in circumstances where these variances have been granted often it's because that there is no possibility of future development or  that substantially unlikely that there will be future development because you know there's a lake that abuts the road or some other some other factor but the north dakota supreme court has actually addressed those issues in respect to variances has been very clear that that circumstances like this where mr peach is seeking a rocks there's some there's some manner in which the plaintiffs to be critical of this individual as analysis and i don't think anyone would disagree that mr peach and mr irwin were both afforded the opportunity for a hearing and that those hearings considered the individual applications of both of those people but the distinction between this case and  balance between the the government interest and the private interest was much more remote in no way and we're talking about a family that wants to add a nd story not to their home and california wanting  to preserve the ocean view and say well if you want to nd story and we want easement for lateral access to the beach and dolan it was an electrical and plumbing store which they wanted to expand that somewhat remote and then cones was an even different circumstance because koontz involved a monetary exception in lieu of an actual dedication of land and cannot serve a basis here in this case were clearly the the issue was a dedication all of those cases focused on the landowners right to just compensation and all of those decisions decided that the case was a taking and that the government must hate compensation now that's exactly the reason that the analysis that's at issue regarding just compensation is not appropriate in a procedural due process case which evaluates notice and here i see my time's expired so thank you very good proceeding only that the that the ordinance was unconstitutional because it did not provide just compensation is do you agree with that i just apologize i disagree with that