a case tell me why that isn't true but the the theory here your honor of retaliation is that the pursuit of the zoning petition by hampshire set off a movement in the village where the village board inclusion with this  announcement the coalition forms and suddenly complaints are occurring and essentially the the coalition provides a road map to the village how to prevent her i'm sure from essentially telling the village hey this is how you can stock hampshire from pursuing this was your argument about lack of temporal proximity is that this was ongoing that's correct or in the temple or the causal nexus d the owner of the site was going to need to introduce some other type of use to allow for additional revenue by refusing to consider the rezoning and obviously the village recognize this when would be a program to consider it because of what's going on in the club i submit that no not not at this time no i think i think frankly the filing of the lawsuit showed that should something like that occur there would be for the o the motive under the equal protection prong in terms of what was what was the intent here he is that rather than engaging in a meaningful discussion as to what should occur at this site future future development options the village inclusion with this opposition group this small but vocal opposition group which as this court probably remembers this is not the first time that a small but but but vocal opposition group has gotten the village of their neck into trouble i'm referring to the west yesterday school case where the village instead of following legitimate government purposes for example here following are carrying out their comprehensive plan capitulates to pressure and then shuts down the process doesn't allow hampshire to to pursue its development doesn't even meet with hampshire anymore results in executive sessions to stop hampshire from even advocating for their position what  court below found was that there was no plausible connection between those acts and the the theory what i would respectfully submit is that and a motion to dismiss stage particularly when the facts are viewed in the light most allegations in the complaint they weren't conclusory allegations there were clear objective facts is to lane out how we believe we're going to be able to establish that the acts that occurred were because of the  and also quickly on the issue of similarly situated i believe with the court the district court missed was that the issue here are the impacts are all of the clubs or operating nonmember events and that's what the regulation the nonmember of and regulation was aimed at ensuring that the impacts associated with those events are mitigated noise traffic parking etc the the events that occurred at  sensitivity portion of the site that it was distinct but those factors don't not the type of of use for the type of events the number rents are occurring on all these clubs good afternoon may it please the court my name is at granger of to start with judge parker i'd like to answer the question you asked of counsel with respect to money damages that claim is not under appeal counsel indicated that it was the taking claim that was the third cause of action it's not under appeal only the first two causes of action for equal protection and first amendment retaliation are under appeal  you i'm sorry you can answer judge parker thank you i'll get right back to you ok the second is did they submit a rezoning plan yes they did they submitted a plan to the planning board that is an as of right plan it is being actively pursued as far as the planning board is concerned the next step is the f b i s over one year has passed and we've heard nothing from hampshire with respect to that plan it's their obligation to submit the plan and they have done nothing with respect to that and those are the if i to talk about the first amendment retaliation and i turn your attention to the first enforcement techer which was furry nonmember event on september twenty seventh twenty thirteen in a different perceiving the official who prepared the citation stated that he had not witnessed or investigated any event on september twenty seventh that formed the basis of the citation instead he said that he was instructed by the building inspector of one of the receptive one of the recipients of the coalition's letter to investigate the club that makes it sound that the citation was pretextual because of the lack of investigation supporting it tell me why i am wrong about that there was never a trial with respect to the and olvey there was a plea by hampshire for one of the allegations in that the investigation mr serato the fire inspector did not conduct the no question about that but he did speak to other people who knew of the event these were public events they were some hearsay to me would you be able to get that into a trial it in terms of issuing the nos a violation that's proper judge if he was the only one who testified at trial and we had a trial and there presumably would be an objection for years say probably the village would lose on that issue but that wasn't the stage that we were at we were only at the issuing of the violation and certainly that can be done based on hearsay and it was what certainly no evidence of that and keep in mind that the first amendment claim that the appellate here refers to is a submission to the village board not to the planning board in twenty fourteen and the chilling that they allege is something that happened in two thousand and thirteen if they were so chilled why did they submit not one but two re plans to the village why did they plead guilty to the notice of violation why did they agree in the supreme court injunctive action that they would not schedule nonmember of vents pending the proper application to the z b a which they did and which special permit was granted to them if anyone in this case in any case was chilled less than hampshire i don't know who it is frankly they are actively before the first in forstmann tax and in twenty thirteen the coalition's lawyers had been increasingly insistent that enforcement take place that's sound so that's the order that i understand it there was in spring of letters from the coalition to the town and the village board and in  that sense they started these enforcement actions so it seems to me that they are closer to temporal way and not in reverse order well they're certainly in reverse reverse order chronologically but the village did not agree with the coalition on every issue we opposed the coalition on their article seventy eight with respect to the issuance of the special permit and the supreme court affirmed the issuance of the special permit that the the village said that granted to him here so neighbors coming and petitioning the government certainly is a proper act they're entitled to do that but i don't think that in this case the village coward and said oh ok we agree with you because we opposed them in other issues the village did not want a five story building in a sea scuse me critically environmentally sensitive area right on the wetlands of long island sound oh and residential was judge there's about three residences along this road it's all marshland it's all open land there's a golf course that covers all over a hundred acres is known residential was it was owned or twenty that's correct and the plan that they have asked for is a plan that they're entitle to submit as of right and nothing can be done until they submit the is is still pending this issue is still pending it is still pending the plan it we we've waited over a year for them to get the e i a s they haven't done it that's their obligation with their so record talking with counsel who i've known for a while we get along with well i have no idea why they are doing that that something that they have not expressed even indirectly they should be doing it counsel for the planning board is here they haven't expressed anything to him i spoke with him earlier today about just that issue i don't have a theory with counsel do you believe that the club had existed and conducted similar operations including nonmember events for ninety years before september twenty thirty the this club was only formed they bought the property in two thousand and ten they were formed subsisting they took over a failing club and the club was closed for approximately a year a little bit more than that there's a draft of a letter from the new owners saying we're the club was closed in two thousand and nine we're hoping to get members back in two thousand and eleven and start up again so that the club was closed for a good period of time and the there's no direct evidence i suspect off the record that probably yes that did occur not to the extent it's alleged but again it's irrelevant to the issue of was this appellant complying with the statute when it started to have nonmember events in the article seventy eight injunctive proceeding hearing they submitted a list that showed that approximately  over fifty percent of the events that were occurring at that club were non member events far beyond what the statute said they were allowed to do that is really the problem they were just excessive  when they come back to one issue yesterday that mr what's his name who did the inspections or rocco arco testified or i think he testified he must have been in the other proceeding that the building inspector suggested that it be issued this are correct that certainly is the allegation in the complaint and i believe that was the testimony judge i don't recall exactly but i believe on cross examination that is what in the building inspector was one of the recent periods of the coalition's many letters yes that's correct all right thank overall i think the response is you've heard one view the facts and another view the facts but the issue is is that a motion to dismiss the issue is whether there's applause was a plausibility and whether whether one side is possible on the other side of th inappropriate for that the complaint to be dismissed so that discovery can move forward and we can actually put me to those bones the one thing that i do want what do you expect to do are you hearing that relief from us describe to us what the future holds i believe rejected twice by the by the village if the village board doesn't consider it it's not active what is active is in as of right application under the our twenty's own name which hampshire has it's in there only other choice if we can't pursue this rezoning then we have to go under the existing zoning and we're seeking what's called a a cluster subdivision that's a very long process and comply with the our twenty and build houses on the golf course now you know an area that's flat well there's i would disagree with that with that characterization however under new york state law the secret process would bear that out and if there was an undesirable impact then they would have to mitigate the us because if you look at the the scoping document under the i r s it's is very thick there are a lot of studies that have to go into this we are actively preparing in the us it is taking a long time and i know mr mr leask mr simon is very excited to review it