managed properties and dull for approximately ten years prior to the issues giving rise to this case and for approximately ten years mack operated its business in the village adult without incident but these notable inciden the owner which in this case is making history the legal interest is in many cases the tenant vacates the property leaving a very large and eight water hole and in many instances that is an uncollectable that against the tenants so the village without hesitation pursue smack industries for payment of this debt in fact the village will not issue a rental occupancy permit to allow a new tenant occupied the property or allow untended to switch the water bill into that new and its name until the prior bill is satisfied in full so in essence what the village is doing is it's depriving mag industries the ability to earn revenue on its own its properties in the village hall so that it's a business interest and as i stated there's one hundred fifty properties at issue so with each instance of dolphin refusing or failing to enforce its ordinance matt continues to incur liability and potential that as well as real that so does the village  expect for compensation in those instances where the tenant doesn't pay for the water bill absolutely the village requires mack industries to pay one hundred percent of the outstanding water bill as well as it turned out feed in the event the water was contract against all related to damages suffered by mac industries because dulcie refused to follow reports of water ordinance as written cult three which is not at issue before this court sounded and retaliatory caught up against the village mechanism by notifying the village in each each instance when the water bill became excessive in the town it was a pain so matt would pick periodic we get the water bills for each of the respective tenants on their properties and would contact the village adult and say there is a three hundred or four hundred to five hundred dollars water bill on this property it's not paid please enforce your ordinance as written please read tag it or ticket it for shut off and then if the hell it doesn't pay the bill within ten days pretty ordinates the property is supposed to be  water suppose we turned off the property so essentially matt would would police the ordinance for it all dealt with hep do was take the action provided for or in the ordinance and in many instances and i know this isn't isn't relevant for all but in many instances with the other suburban community surrounding gulp that mac deal said when turn off notices issued to that tent seventy five percent of the time if not more they go and pay the water bill because they don't to make sure that these water bills are paid i mean can't me ask take other steps to protect itself such as i've seen you know we see many times that you know provisions in in leases that say that you need to you need to pay the utilities every every month and you need to show us a page until it belittling month otherwise we'll i mean i think are other ways other than forcing the the municipality to act in a certain attending notice on them on the tenant and then go through the eviction process which is very timely very costly and with the backlog sure it doesn't resolve the tenant getting out of the property until four five six months later in the meanwhile the water damages continue to accrue with the water bills continue to accrue they continue to remain on paid and then matt ultimately bears responsibility for payment of same additionally judge we did  saying that it's more convenient for me back to him the village enforce its rights with regard to making sure that the water bills are paid and wouldn't the village shop around say it's more convenient for up for the village since we have to expend public monies in policing these things it's more convenient for the village they have met police their rights well i would think it would be in the best interest of the village adult to inforce waterboard said written because don't buy such water from the city of chicago it incurs that that the city of chicago related to the provision of water it's in tof best interest to make sure that that that is satisfied by collecting from the organic that's what th but doesn't dalton have the right to make those decisions on its own because it doesn't all have the right to allocate us resources in a particular way and this particular case isn't all the sided that it doesn't want to allocate additional record resources towards policing these water bills on a monthly basis if certainly if your honour's find that this is not a contract as detailed in the brooks and other case law he cited then your honor is probably correct that under toward an end user a tenant and or the owner of the property sounds in contract and therefore isn't barred by toward immunity well follow up not just spotless question is there any case law that indicates that the courts have that type of authority i think the only case law that would speak to that would be the case law that characterizes the provision of water service as a contract between a municipality and user in which case the cases that we cite ro notices that are no judge they were not sending notices let was received in the notices and that was receiving delinquent water and then in many instances smacked was receiving shut up notices on properties that were eight current and had since they are simply not noticed one of the parties they're sending the water bills they're actually sending the water bills the water bill themselves to the tenet and that matters don't get dealt and actually pulling copies of the water bottles so the tenant is getting the water buil and we are doing what your honor suggests which is we are fighting eviction cases against tenants we are getting judgments against tenets and they're essentially uncollected if the tenets not paying the rent they're not paying the water the water bill is a smaller issue  should we do anything why should we enforce our ordinance at ri discretionary provision my response to that is when the ordinance is permissive uses the term may and does term may frequently and that in the various ordinances don't know how they can collect the provision of water without having some type of obligation on both the recipient of the water and the entity providing them so we're not arguing that they can amend the appeal simply arguing that they should enforce it the way it's currently written in fact if we take their their argument to its logical conclusion there'd be personally no check or balance on it water and all in other words don't do what they want charge what they want and it could be arbitrary in fact situation the court allowed five years of overpayments to be recaptured and that's what we're centrally are that's one of the dishes you have here is that we were flat out overcharge for water and if the at least argument is taken to its logical conclusion we have no recourse toward immunity would allow them to charge whatever they wanted whenever they want it and we would not be able to challenge that i fall on the totem neuron in your brief you object to the villages reliance on  herzog directed village officials who refused to turn off water on severely delinquent accounts he directed village officials to turn all accounts that were already paid by mack industries head new ten in there so we've got a new tenant in there that has nothing to do with an outstanding balance which was paid by matt prior to the new tenant moving in yet dalton goes out and turns the water off presumably because three months before we sent them a notice saying turn the water honestly i don't i don't have that information i'm sure the situation situation was corrected in a matter of days which certainly would be more than a few days another situation which results in and in the safety or conscious disregard for the safety is mr herzog directed the police department to refuse police services to mak mak mak industries property managers would go out to the tenet properties to collect rent or would cooperate property inspection and they'd be threatened by the occupant of the property and they would call the police and the police would refuse to comment back to direct statement from the police to the magnets are simply was you're on your own we're not coming out same issue with respect to fire services maquette a fire at one of its properties the alarm went off the police were dispatched forty one minutes later and the property was essentially burned to the ground if they had been dispatched in a timely manner the fire department could have been call and the property would have been saved matt incurred thirty thousand dollars in damage just related to that iris there was a refusal to issue occupancy permits for property that were that had just gone through the annual rental inspection the refused to issue the occupancy permits for the rentals there was a direction by mr herzog to reinspect mak properties that had just gone through and passed the annual rental inspection daulton is different than many  inspection where the property turns over they do it the village comes up doesn't your rental inspection dolphin doesn't do that yet they engaged in a practice recently of requiring inspections of property that had already been inspect protected from tort u v b as he engaged in the systematic practice of wolf one one one at a minimum we've suffered thirty thousand dollars in damages related to a destroyed home because fire wire services were denied so are you looking for cleared up a remediation contractor to demolish the home remove any specificity of the home was an older home and that remediation contractor said they tried to apply for a permit with cook county dog directed dolphin to require mack to install new water meters before transfer stamps would be issued on the sale of several mack properties so mack her three to four hundred dollars per home to install a new water heater for no apparent reason mack industries really wants to do and what they are capable of doing and have conceded they're capable of doing they have they are in the best position to select which tenants they believe will pay their bills pay the round they're in the best position to craft language in their leases to require certain payments and to monitor tenants and to make sure the water bills are being paid by their tenants with their attempting to do it seems is to really to force the terms of their leases on to the village and the inn for us to monitor for the village to monitor the hundred fifty one different tenants that may or may not be in the various properties legislation so is this actually the law in the village or this is actual forcible ordinance yes your honor the municipal ordinance it was attached actually to the complaint too so the court is free to review it in its entirety as part of the two six title that i saw of which was exhibits four and five to the the complaint i believe where the ordinances themselves i mean if there is something the record that says it likely is the same copy of the ordinance that appears otherwise look at it in the record and we we respectfully beg to differ with councils view of what he read tagging provisions and the disconnection provisions of the ordinance itself actually provide work and frankly in the lower court and again there's no transcript to rely on that but much of which is being argued in our brief was brought up during those hearings with respect to the permissive notice and that the use of the phrase of read tagging and authorizing the shut up is exactly that is the court indicated it's in authorizing of it there's no deadline that's in force there's no specific time frame by which the village is to do it and there's no requirement that the villages where about this assume there are six there so there's for the exact same scenario your honor because that particular ordinance as i read it it again authorizes and directs notification to go out that the notification is given in writing to the owner and the user is that the delinquency exists and that the services shall be discontinued without further notice if the notification that goes up to tell them that that will occur so this is just to get back to  here the village just made a determination that they're going to let mek go after its tenants for the water and match them because they have other things and per the ordinance it's the owner is jointly and severally responsible for the bills the owner of the property that i don't know why they put it in a nefarious like that the owner should somehow be responsible for his bill they're the owner of the property they may have tenants there i don't know sometimes who was there it was not there is the owner of the property it seems right and correct in that  didn't act quick enough even though there's no timeframe for the village to act within its own ordinance but didn't act quickly enough to do it mack one of the to do again based on the limited resources that the village has at its disposal and the village again you know does its as it's phrased in that one instance that there was a water shut off and that again at the ministerial level of someone who has it shut off the water and that the allegations that are being made is against higher you know the village it administrator conspiring or somehow you know involved in this again water service gets disconnected and it's unfortunate if someone had moved in there it was one instance but again it's well it your contention is that there's that there's nothing in on whether or not there's a kind of contractual relationship at all between any one the village and hang on absolutely your honor we regard the provision of water and with regard to the unfortunate water regardless of what they say it serves or whether they're for this our position in our brief is that this court should not should decline to apply the very limited purpose of the groups holding to the situation and from that standpoint again the broader picture the policy concerns of hamstringing it local municipalities by requiring in these circumstances that a contract be imposed or be viewed as a contract specifically for purposes of again this is an enforcement you didn't enforce you ordinance as quickly or as the way we like that again that's the classic scenario of the toward a community section has it is there on the books and again we would respectfully a to take a more cautious approach in the heat of the national rail road passenger court case from the united states supreme court which again said that the law is not intended to create private contractual or vested rights but merely declares policy to be pursued until the a local municipality very limited resources would again be hamstrung by being put in a situation again where in order to even let's say to amend a new ordinance to to provide actual notice to way we wanted to type scenario i don't think that those would benefit from a case that moving forward in the legal system that again could put it at the contractual risk liability and and one that again it should be immune from and i believe that again if the court follows the u s supreme court a cautious approach the horde of unity actually apply to enforcement of action where they want this declaration that you are violating or not  were instance that in fact the toward immunity that they were getting was two to zero eight which dealt with all administrative proceedings or are prosecuting a proceeding in that and that that doesn't apply with respect to of permit license or to get approval it's covered under that specific community as well but i do understand your honor in the issuance of a citation for example could if called up for hearing result in a ministry of circumstances isn't it and some type of administrative proceeding to your right item testified as pled there's no actual proceedings or actual administrate of ramifications from  allegation that he directed people to do this there's nothing a follows in the record regarding actual fines violations that i have it's more along the lines of they just haven't shut off the water quick enough and they're there for we've incurred these bills it at the end of the day i believe that mack is in the best position to control its tenants to control its leases and draft well but there has to be some way i think he's he if you have a role inspector or row village employee that starts to issue citations against a property think which is not implied but with respect to the other nine hundred eighty three correct right but under the only statute is as drafted again the nefarious motive  property damage as a direct tort result from his initiating a war or failing to allow a response again this is one where the report perhaps if there's some sort of retaliatory claim available to them i don't think there's property images here from the standpoint of other than your honor suggested maybe the property damage of the house but again the toward damages allege that was really covered as you can follow nine hundred eighty three because at the end of the day your honor i think the immunity is here and all that was but is the state court action that under the federal action again he might run into resistance from the standpoint of the timing that he alleges this occurred and i don't know then that would be a water services ordinance as it's written we're not asking them to do anything differently we're not asking them to enforce our lease we're not asking them to a big tents but we're asking them to do and i hope as i read their the sort of rates and charges remain unpaid and the water supply of the premises against what should such rates and charges from a so i stand in shall be authorized to read taking a shot of the village clerk shall send specific notice to the owner of the premises change entirely on this court's finding that the provision of water is a contract certainly if it's not a contract and it's a tort that tort immunity would apply but that the issue i have is the statu ordinance refers to a the provision of a commodity water and b it references consumer and cost all of which sound in the contract and then we have the case law that such that is specifically on point all  not a port if it's a contract it's got to be enforced the way it's written mack is not asking for anything more than that counsel spoke about the national railway and that case a doesn't deal with water b it deals with inner city passenger railway transportation and in that case the united states is not a party to the agreement united states an act of legislation legislation that said that amtrak and the providers have to enter into a contract that would exempt the railway providers from providing this inner city passenger transportation united states was never a party that contra so the court is essentially saying the supreme court essentially said they're not even a party to the extent there is a contract it's not with the united states it's between amtrak and the railway providers and then justice palmer i think you hit the nail on the head with respect to the toward immunity the ordina ordinance violations are arbitrarily issued there are fines associate with those violations and there are hearings that it absolutely administrative process that would take mr herzog actions outside of the protections afforded by to absolutely judge i asked for leave to a men generally not specifically directed in one thousand a very action the trial judge dismissed this case outright because he believed everything was barred by court unity although there is no no transcript we can have a court order that