Mabrys seek dismissal of city’s complaint

The Vandalia couple that plans to open a restaurant on Vandalia Lake as soon as next week has responded to the city’s legal attempt to prevent the operation of that business at that location.
The attorney for Steve “Luke” and Latisha Mabry filed on Monday a motion asking for dismissal of the city’s complaint for declaratory judgment.
In the complaint filed at the end of June, the city claims that the Mabry’s cannot legally operate a business on their property, which is located on Ill. Route 185 at the bridge over Vandalia Lake, because that area is zoned for single-family residences.
The city claims that in 1988, the couple that owned that property, James and Ann Hediger, agreed to subject that property to single-family residential zoning in exchange for constructing a boat dock.
City Attorney Jack Johnston said at a city council meeting that it is his belief that that agreement and, thus, the zoning designation, is still in effect.
In the motion the Mabry’s attorney, David Cates of Swansea, claims that even though the city did not include with its complaint certification of the ordinance governing the zoning or a description of the structures allowed in single-family residential areas, the couple assumes that such zoning would prohibit a restaurant.
The motion states that the city also did not include a legal description of that property and a legal description of the city limits.
“The reason the city of Vandalia did not include this information is likely because the city of Vandalia knows what is likely now obvious to this court – the subject property is not located within the city limits of Vandalia,” the motion states.
To support that argument, the Mabrys included a copy of a recent tax bill for their property.
“The court will futher note that of the entities levying a tax assessment against the property, it is Shafter Township which is levying a real estate tax and not the city of Vandalia,” the motion states.
Citing court law, the Mabrys’ attorney states in the motion, “Cities ordinarily have no jurisdiction beyond their corporate limits, and municipal ordinances are confined in their application to the territory of the municipality adopting them.
“The Illinois Supreme Court has made it clear that ‘Municipalities have no extraterritorial jurisdiction except insofar as it is expressly or impliedly delegated by statute,’” the motion states.
In the motion conclusion, the Mabrys’ attorney states, “It is the law of Illinois that a municipality, absent some special grant of power from the Legislature, which is absent here, cannot impose ordinances or restrictions on properties which lie outside the (municipality’s) borders.
“As such, the ordinance is inapplicable to the defendants (Mabrys).”
Cates states in the motion that since approving the 1988 ordinance in question, it has been collecting a fee from the owners of the property in question, and that the Mabrys would seek reimbursement were the city’s complaint dismissed.
In addition to the Mabrys, those listed as defendants in the complaint are Debra Hamel, who is Luke Mabry’s mother, and Richard Myers, trustee of the Wait Land Trust.
Latisha Mabry said on Monday evening that, based on their attorney’s advice, she and her husband plan to open their restaurant in the near future, with the tentative opening date being next Friday.