different use permit to operate its retail video store on a twenty four hour basis in a can in a community service zone in the city of the first issue i think the court should reach is whether the applicant has a protected property interests in that conditional use application the city has argued on persuasively we believe that because the underlying ordinance contains language that if the applicant application and if satisfies all the criteria the city may issue a conditional use permit that the city then has discretion and as the city argues with absolute discretion whether to issue that overlay of state statutes which guide and inform the city's exercise of that discretion for example that what state statutes restrict the local entities discretion or as one ninety seven point eight three five that section provides procedures under which theory must be held there must be articulate or a parking elated standards and criteria that an applicant must meet there have to be applicant is making their case they're allowed to present evidence and data to the decision maker others can show up at the hearing and present contrary testimony the difficulty is that an applicant anticipate the kind of arguments that they might face and they can that legitimate expectation arises that when an applicant meets all the criteria which we submit that a fair and objective analysis of the underlying record would reveal that we did that's a different argument that a claim that there acted with a bias the state statutes require that the decision must be based upon facts and upon substantial evidence in the record as a whole and that if we have all those ri you squarely on the head we are in fact entitled to that issue to that permit the statute requires that the decision must be based upon facts that must be based upon criteria and those must be articulated in the land use order and the statute while it's in terms of a land use order granting the decision must specify all that all the criteria are met  infers and in fact in practice in this case a denial of a permit is similarly created by the city as listing each one of the factors and the facts they found in relied on in the record and in this case denying the permit commission or somebody agree with you well not only  as well ever in fact the planning commission was unanimous they don't get the final or they don't have the final say here the city council that when you look at the ordinance the in the context of the state's doctors that informant may i believe is more properly read in the context of shall unless when you look at the purpose of the mission used actually it's described as the purpose of the national youth review is to permit uses when there mitigated there was no suggestion in any portion of the war that there were substantial impact from the application from this riposte views and there was nothing in the record to suggest that there were any type of reasons that i feel after him having practiced in this area of law forever we cannot get the organ supreme court to tell us whether we have the right to cross examine witnesses that's why this thing went sideways in my view i would have been delighted to take this case to move on if i had a proper record to do so i don't know how much time was spent by this war or by the district court in reviewing the actual record of the land use proceeding below but one of the things that that just rather than rely on those two professional engineer traffic studies conducted over a secure period the city council elected in this border which is in the record to hang its hat on the testimony of one ira frank a went out to his front yard one night and pounded cars for forty five minutes and the city council decided that i refrained testimony in the number of cars economy one night for forty five that was somehow more credible and to expectation and i and i believe that i have a hard time with that argument on this record i submit i submit that we do your honor because there is nothing in the cases that we have reviewed that suggests that when ever the there's a standard they have to apply when they have indeed and those standards are contained in the or going to vie statutes which require that only decision must be based on substantial evidence of the record as a whole the city makes because there's a substance of the nation the applicant then has a protected property interest in that decision being substantively correct that then creates the protected property interest and if in fact this court agrees that if the city has any degree of discretion that all it has absolute unfettered discretion then i lose i should sit down but i do not believe that that's the correct analysis it takes us directly through the looking glass and application and arm itself to the teeth and can come in and absolutely meet without any question whatsoever with overwhelming evidence with one question that evidence every single criteria necessary for issu conditional use permit and has a comfort had a bad day or as they just don't feel like it they can say no and you have no redress i cannot imagine that is a correct statement of law possible i mean you might ever a the nine hundred eighty three claim that's actually our third claim for relief which is the supplemental jurisdiction on the merits of the claim right now i'm here suggesting that we were we were not given our due process in the application procedure itself because we didn't have the opportunity of cross examine the witnesses which we suggest is a fundamental piece of due process let me talk about the nature and source of that right we talk about the primarily of initially on everything talk about the from the ancient right being satisfied with victory they sued the city and councillors individually and so on and so forth and asserted a right violation of the right to due process that they never requested at the hearing and never sought to cross examine anybody even with determination is to be made undisputed facts of and use applicant is entitle to at least some degree of cross examination of witnesses of the city to tend to make a kind of sky is falling argument in this that's all that we had rested we do not suggest in any way that full blown judicial hearings necessary merely that some degree of cross examination yet and given that the ninth circuit has previously held  what process one has do is decided on a case by case basis we submit this is the proper case for holding that in a disputed contested place like additional land use matter some degree process let me see if i understand the question is as just a concept in general of a fair hearing require cross examination now cross examination forensic tool cross examination is required to ensure a fair hearing in fact as mr woodward pointed out we did discover cases that said the opposite and that there had to be a right cross exam so the question is really what those seems to me what those fundamental fairness require is that's what the process requires so i well that's really a separate issue to whether you need to have a property interest to have a right to cross examine maybe should address that first if you give you your position i understand is that in the absence of a protected property interest then we don't have to reach the cross examination correct i wonder why is that necessarily the case least as one judge i'm not sure that that that there has to be a property interest for us to address cross examination well if there is no property interest then there is no entitle me to due process and if there is no entitle me to process and there is no entitlement to cross examination because the due process is going to go if your life liberty or and we just don't even get there but even if we see assume that there is that's protected property interest in the conditional use permit and because of that there is an entitlement to due process that entitle process does not automatically extend to an entitlement to cross examination at the type of land use hearing that is involved in this case and that is because in order to is at issue here and the right that is the issue here is to remain open twenty four hours a day instead of fifteen hours a day the next question would be what is the risk of harm if this additional tool is not allowed if cross examination is not allowed how will the applicant harmed and is it a great risk of harm such that we need to allow it and in this case it's interesting that mr woodward has said well we're not looking to cross examine people that don't appear at the hearing we only  could write a letter to the beaverton city council saying this is my testimony my opinion about why this twenty four hour operation should not be allowed  i sat outside my house and counted cars and i counted all these cars and but i don't a caring person with that i just submit it as a letter mr woodward has said he's not seeking to cross examine the written submissions and so how that would affect the fairness of it you know we could have all these written submissions that aren't subject to cross examination that provide evidence in the record that would be allowed to that decision could be based on and then one or two people that did who appear in person that he wasn't allowed to cross exam did the fact that he wasn't allowed to cross examine those two people create this risk that he would be denied the permit on the record here but one of the record  about what the actual as opposed to a hypothetical case is was how many live witnesses were there and how many written submissions in connection with the issue before on the record here i cannot tell you at this point how many were live witnesses and how many were written submissions i do know that the evidence that that  no property and well it could raise a host of other constitutional concerns but what it wouldn't do is establish it properly and whether or not it becomes in the process question is that i would say now that that to say it's not a taking away we're just not going to let you have it specter of unfettered discretion does raise all sorts of concerns as to whether or not that discretion is going to be applied in a way that is impermissible  based on things that have nothing to do with the merits of an application and everything to do with perhaps the applicant's race or behavior of their business perhaps but that it's not a peace process and that is a claim for other constitutional infirmities i'm not sure if i'm answering your question they had to sort of make their decision within the cont yes it is a completely different question there is that there is the question of whether the scheme itself creates a legitimate entitlement to this conditional these permits that language that mandates the issuance of the permit under certain conditions and if that were the case then plaintiff might have an argument that that is not the case this the statute itself contains language that is discretionary the beaverton development code discusses the fact that it's a discretionary it's there subjective criteria t with the question of when is there a legitimate entitle that to a permit such to create a property and this is very clear that only when the issuance of the permit is mandated by the legislative scheme or the administrators code or the rules that are in in place only one and when it's mandated is there an interest when there is discretion as to whether or not the permit is going to no protected interest there's no due process claim so in there there's some forgive the ministry of procedure act of some kind so that somebody could appeal or of zoning board decision i do not have anything to add i believe that an applicant has protected property interests because they have a reasonable expectation of the permit being granted when you look at not only just the development code but the statutory scheme which permits it even to exist and informs the exercise of the local government's discretionary admittedly discretionary powers specifically or as one ninety seven seven sixty three requires their discretionary decisions to be based on substantial evidence in the whole record the appellate review statute or as one to twenty seven once every three said one again requires decisions to be based on substantial evidence an court to reverse them if they're in error in substance or in law to me that is the kind of limitation on their discretion which renders it far from unfettered and far enough down the continuum confer some degree of expectation on the applicant sufficient to confer some degree state law it does there is there is no exhaustion requirement to pursue the ninety three remedies and to have those remedies clarity we believe this is more appropriate for him to have them declared particularly since it has not been declared by the oregon state courts whether or not this cross examine the right of cross examination right exists and to guide the court in fashioning what that right should be i would direct the court's attention to a property interest but you do look at the nature of the private right that's being affected by the official action not necessarily a property right in this case i do believe that it is a property right we would ask the court to reverse the ran