Mabrys file answer in response to city suit

The couple operating a restaurant on Lake Vandalia filed a document on Monday in which they continue to fight the city’s claim that the business is being operated illegally.
David Cates, the attorney for Steve and Latisha Mabry, filed an answer addressing the city’s claims that the Mabry’s property bears a legal residential zoning designation.
In that answer, the Mabrys claim that while the city has attached with its complaint “an exhibit which purports to be an ordinance enacted by the city which purportedly applies to the (Mabrys) lot and purportedly subjects the lot to zoning restrictions,” they deny that the ordinance is valid, was validly enacted and that it “subjects the lot to zoning restrictions.”
The Mabrys filed with their answer eight affirmative defenses in which they argue for a judgment against the city.
In the first defense, the Mabrys claim that Mayor Rick Gottman “and various other individuals associated with the city … attempted to lure (them) into the city limits.
“Particularly, the mayor offered property for the (Mabrys) to lease … which was in the city limits and also adjoining the lake.”
The Mabrys claim that when they rejected that offer, the city “reacted by attempting to have various inspections delayed that were necessary to open the restaurant.
“This is despite the fact,” the Mabrys claim, that the city told them when they requested building and zoning permits that they did not need such permits “because they were in the county and not within the city limits.”
The Mabrys claim that the city “attempted to have various county inspectors improperly withhold approval of inspections” and that they “were forced to contact inspectors outside of the county.
“Once freed from the meddling of the city and its agents and employees, the (Mabrys) received the necessary inspections certifying their business as compliant with necessary regulations,” the defense claims.
“Then the (Mabrys) did open their business, the mayor attended the opening and never made any statement that (they) were in contradiction of the alleged ordinance. As such, the (city) has acted with unclean hands.”
In their second affirmative defense, the Mabrys claim that the city knew of their plans to open a restaurant at that location, and knew that they were “expending considerable sums to hire and train employees,” yet it “failed to timely file a complain until the (Mabrys) had expended valuable time and resources.”
The Mabrys also contend that the ordinance in question “was not properly enacted under the pollution exception for municipalities to protect their water supplies. The city did not do any pollution studies or tests which would demonstrate a need to zone this property as single-family residential.
“There are other restaurants, businesses and farms … on the lake which were not so zoned, which demonstrates the lack of proof that the city validly exercised its pollution control authority.
In another affirmative defense, the Mabrys claim, “There is no proof in the record that the city complied with required state law regarding the enactment of ordinances. The city merely attached a copy of an alleged ordinance.”
The Mabrys claim that when they attempted to get a copy of the ordinance, they were told that it “had been destroyed in a flood.
“Somehow, the (city) then obtained what they claimed was an original copy,” the Mabrys claim, adding that they obtained a copy “after being told one did not exist.”
The Mabrys “demand strict proof” that what the city produced “was an originally and validly enacted document … and deny that the ordinance was validly enacted.”
The Mabrys answer also addresses a clause in the ordinance in question, which states that the application for a boat dock submitted by James and Ann Hediger was “for the balance of the term of the lease.”
The city is claiming that the Hedigers agreed to subject the property in question to single-family residential zoning in exchange for a boat dock.
“The city has not alleged, and cannot allege nor prove, that the Hedigers, who were lessees, not owners … could encumber the property in perpuity.
“Indeed, the alleged ordinance itself recognized that fact by expressly limiting its scope and duration for the balance of the term of lease.
“There is no question … that the Hedigers are not the current lessees of the property. As such, the ordinance cannot apply to the property in question, because it only applied during the time period of the lease, as expressly stated by the ordinance itself,” the Mabrys claim.
“Thus, this ordinance is expired and further does not apply to the property in question, which the (Mabrys) own.”
The Mabrys’ answer state that the city alleges that the ordinance “constitutes a ‘contract’ between the city and the Hedigers. Even were this true, the city cannot enforce a contract against the (Mabrys), as it is black letter law in Illinois that a contract is only valid as between the signatories.”
The Mabrys also contend that the Statute of Frauds mandates that a contract that “affects the rights in interest in land for a period of longer than one year must be in writing and ‘signed by the party to be charged therewith.’”
The couple claims that in order for the city to claim that the ordinance was a contract, the Hedigers would have been required to sign the ordinance.
“As there is no signature, there is no valid contract and the ordinance cannot be considered a contract.
“Further, upon information and belief, Ms. Hediger will testify that she never intended to enter into any contract with the city.”