we're here calverton whose homeowners association against the county cause of action so i think i can be relatively brief as you're no doubt aware the gravimeter of this action is that the county defendants have arbitrarily and capriciously forced the  calverton hills homeowners association to assume the county's responsibility with respect to the soup sewage treatment plant and that their actions represented on unconstitutional taking and violations of both the plaintiffs equal protection and due process rights for which there is no was administrative in fact your honor the the county owns the s t p and the land upon which it is located in the county accepted delivery of the of an easement and a bill of sale which rendered under the terms of the one nine hundred seventy three recorded agreement between plaintiff's predecessors in interest and the and the county that that event made the county responsible for the operation and maintenance of the s t p sewage treatment plant the taking is there are two in fact the you give me a moment  here the as the court below itself acknowledged the takings clause applies to situations where the government occupies land or encroaches on plaintiff's land and attempts to enforce a regulation simply goes too far  describes that those interest the interest in the in the in the delivery of utilities as property rights for that the county cannot take without due process and in fact has a no further obligation to notify the the the  victims if you will of the you know of their respective remedies in the event that the county proposes to do such to terminate utilities or in this case the county the utility provider so the taking is twofold that the the core of the complaint and the evidence submitted in opposition to the county's motion to dismiss showed the following the county owns and the s t p and the land on which it's located the county accepted delivery of the easement and bill of sale rendering it responsibility responsible for the operation of the s t p under the terms of the one nine hundred seventy three agreement which is recorded in a county clerk's office the that's had power and particular obligation is referenced that paragraph nineteen of that agreement the county has since that time used its code the course of powers of the state to require the homeowners association to  take advantage of administrative remedies that are available to you how do you address that well you know i think that the that the court was the court below  improperly in my estimation relied upon the way i'm city test this is not in my estimation a williamson city case this is analogous to the memphis light case let me let me let me put the question another way your clients are alleged to have violated the suffolk county sanitary code right my wrong there were they the county was had had noticed my clients to appear for and yes for administrative potentially article seven a yes yes yes and and that code contains a provision that enables you to seek a variance or waiver of the requirements of article seven right the the yes i understand your honor of course but that isn't it that is an administrative proceeding and i think that that's a step is a stretch to think that they then admit that in the ministry of hearing under the auspices of the suffolk county department of health is going to hear issues you know is going to is competence or even within its jurisdiction to resolve issues such as ownership there i mean they  right that and there's there's no dispute in that regard judge the my our contention is that there is no there's no point to it it would be pointless it's an administrative proceeding and they simply don't have the author already to resolve the issues that you you're talking about the and once again i would reiterate that that's the that and of the administrative or the role of the administrative tribunal is to is going to be to prescribe to to greenman it i just don't think i'm repeating myself and i don't i don't intend i don't want to the you know that is an administrator at an administrative tribunal being asked to resolve a constitutional issue and i just you know i think that's well outside of their raw their expertise and their jurisdiction as if just a little more you're out of the  what is important to keep in mind that in addition to the what is you know the obvious obligation of the county to under their own under their own agreements is that as as was the case as the supreme court found with respect to the the utility customers in the memphis light case the condominium residents have a protected interest in their sewage treatment services there's no allegation that provision hearing of been conducted at any juncture there's no need or that notice this is not a land use case this is the what they what the court and williamson the basis for that ruling was that the the court required a full record in order to in order to you know in order to it for reasons of judicial economy to prevent the you know the it's a ripeness standard it's to prevent the court from hearing cases that had not yet run their course to the variance process that might correct issues such as unconstitutional takings during the course of the variance process they might you know that you know requirements might be relaxed and you know that there are no such procedures applicable to the case that bar this is agreement with the record here have your car never raised the issue of responsibility for the plan and we think county or any of the well we've sort i have we raise there the issue arose at least you know i think it's a row arisen several times over the course this is this is the there's a forty year plus history of the sewage treatment plant in a rose i you know to my knowledge in connection with the two thousand where the plant is now approaching the end of its useful life and requires large scale upgrades or replacement to comply with the current health codes the county is demanding that the residents of this moderate income of a modern income condominium assume a cost that i don't want to exaggerate but it may approach seven million dollars the numbers that have been thrown around in in the neighborhood of five to seven million dollars the county correctly points out in it that the homeowners association has attempted to secure financing but has been unable to do it do so this is because what the you know it's it's quite likely more than likely that what was contemplated at the time of the  that seventy three agreement was that the count that that the county would form a sewer district operate the plant and float bonds and and that that sewer district would be handling the finances at this juncture that wouldn't you know that were and that are necessary to you know to finance the modernization of the plant the problem here is that you have the county which has title to the property is now telling the in is directing the homeowners association which doesn't own the plant and therefore can't you know has nothing courts while it are about twenty sixteen when enforcement proceedings resumed as a result of the of the progressive failure of the sewage treatment plant of there was a consent order negotiated and the way the consent order and the consent and in the consent order the homeowner's association bound itself to to replace the sewage treatment plant and from the execution of that consent order forward and  is there is an administrative review there's a there's a review board within the county department of health services and there is always a that's what's a should do that's what they should have done that's what they should do and there isn't the ok and they stick in there and there is an article seventy eight you and not the execution of the consent order that that would have concluded that enforcement action and that enforcement action was concluded with the signing of that agreement now that agreement that agreement was was not honored by the homosexual underage parkers and they're claiming a car some sort of constitutional violation one of the things right this is a stipulation that they entered into voluntarily i mean that i understand and on the merits that's your argument but why it why aren't they entitled to raise  constitutional question now before the united states district court because the what what was before the of the county just before the commencement of this lawsuit was and that was another and forstmann proceeding resulting from the homeowners associations failure to comply with the obligations that it agreed to in the earlier consent your view was that they should have that that point pursued an appeal within the administrative agency at that point yes exactly have a ground for objection there are processes for them to have pursued at hand and some they may do it you're suggesting and assume also that as you suggest as you're indicating there's no merit to that to this  punitive appeal then you lose what happens then in your view of the of the department of health services what would be empowered to commence another enforcement action another enforcement so at that point they lose on the appeal of the force of the action it's then in your view that they're entitled to bring in article seven the proceeding absolutely i think there's no question about that and the next  practice what the department usually seeks is compliance and that's where the million dollars comes in right well at the time at the time the homeowners association agreed to replace the sewage treatment plant where you know about two thousand and eight the projected for replacement was about one one and a half million or so but they never did act on that and now they are complaining before the federal courts that the cost has escalated to somewhere in the neighborhood of seven million  and they don't acknowledge that that has occurred because of the passage of time due to their inaction will soon for the argument that you prevail here today on your view they're still entitle to pursue the administrative remedy within the health department yes and there's no there's no time limitation or other procedural obstacle that you would interpose to such a procedure in other words if they went there and then you came up with the argument hoops wrong place or another mother probably not know not all of the other department never did schedule a hearing on this latest and forstmann action so nothing has taken place they can proceed and you would have them proceed and you impose no no procedural obstacle to that process no that's that's correct that's correct we would not i'm sorry i'm out you know i'm i'm still somewhat used  without referring to it i i couldn't be used to say with certainty but i believe so and and even after that while they were developing the plans they did go so far as to retain an engineering firm to develop plans for the new sewage treatment plant and they did then applied to a county program to obtain funding and in that up in the application for that funding they did represent that they owned the sewage treatment plant they represented under oath that they represented the plant and the the application for funding was denied but the denial of the application had nothing to do with the question of ownership it was on it was on the other merits to my understanding and this is this is what brought judge spot to the conclusion that that rightness was the ground that supported the dismissal for lack of subject matter jurisdiction here thanks very much like you're a loser of