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Judge studies city, Mabry case

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Arguments in case involving lake restaurant given Tuesday

By Rich Bauer, Managing Editor

A Vandalia couple who opened a restaurant on Vandalia Lake last month had their day in court on Tuesday.
But they have to wait to find out whether they can continue to operate that restaurant.
At a court hearing on Tuesday afternoon, Judge James L. Roberts said he would review documents filed by the city of Vandalia and restaurant operators Steve and Latisha Mabry, then issue a written ruling.
At issue is whether the Mabrys can continue to operate The Lake House on property that the city claims bears a residential zoning designation.
The city filed in late June a complaint for a declaratory judgment against the Mabrys, and the Mabrys responded in late June asking for dismissal of that complaint.
In May, when people living near the Mabrys property complained to city officials about a restaurant in a residential area, City Attorney Jack Johnston said he believed that the Mabry property was zoned residential due to a city ordinance approved many years earlier.
In 1988, when James and Ann Hediger owned that property, they agreed to subject that property to city zoning in exchange for constructing a boat dock.
While Johnston has maintained that that agreement is still in effect, the Mabrys have claimed that it is not, due to the fact that there is no longer a boat dock at that location and that they don’t plan to have one.
Roberts started the Tuesday afternoon hearing by telling Johnston and David Cates of Swansea, the Mabrys’ attorney, that he had not opened the case file and knew nothing about the case.
However, Roberts said, he was willing to listen to arguments in the case.
When Cates said that he would like to offer witness testimony, Johnston objected, saying that he believed that “calling a witness is inappropriate,” due to the fact that, he said, “there is a single defense” in this case.
Having witness testimony, Johnston argued, was neither material nor relevant.
Roberts ruled with Cates on that issue, allowing Cates to have Steve Mabry testify.
Asked by Cates whether there are “entities” other than The Lake House operating on Vandalia Lake, Mabry mentioned the Shrine Club and lake marina.
Mabry testified that the improvements to the building on the property owned by he and his wife included a new septic system.
Mabry also testified that his research shows that there are 130 septic tanks on the lake.
Johnston asked only one question under cross-examination – “Where did you get your information on the septic tanks?”
Mabry responded, “The city mayor.”
In his arguments, Cates said that the city cites a state statute regarding public water works and zoning.
He argued that the city’s primary source of water is the Kaskaskia River, and if the city’s argument regarding the specific statute held true, “it could zone up and down the river.
“I don’t think it (statute) is as broad as they want it to be,” Cates said.
Further, he argued, the statute pertains to “preventing or punishing” in cases of pollution.
“In the motion for declaratory relief, there is nothing about pollution (mentioned),” Cates said.
The city’s motion for a declaratory judgment, Cates said, is not about pollution, “it’s about the boat dock.”
In his arguments, Johnston said that the Mabrys claim in their motion seeking dismissal of the city’s complaint that the city has no authority over the lake, because it’s outside the corporate limits.
Johnston said, “There are literally hundreds of municipal (water sources) that are beyond their corporate boundaries.”
His firm – Burnside, Johnston and Sheafor – represents at least four municipalities that have water sources outside city limits.
As far as that being legal, state legislators “laid (that issue) to rest more than 60 years ago.”
Johnston said the Hedigers approached the city about a boat dock and city officials approved that request, but said, “we’re going to exercise our regulatory power. If you do (build a boat dock), you are submitting yourself to the control and jurisdiction of the city.
“This does have a clear relationship to access to the lake and pollutants,” Johnston said.
The city council’s argument in this case “is all about exercising discretion,” he said.
Cates argued that the city does not have that discretion “unless (it is) punishing or prevention pollution.”