A judge is considering two motions in the city of Vandalia’s lawsuit against a couple operating a restaurant on Vandalia Lake, including one that seeks a judgment against the city.
During a hearing on Monday in Fayette County Circuit Court, Judge Michael D. McHaney heard arguments on two motions filed by the attorney for Steve and Latisha Mabry.
In one of those motions, the Mabrys’ attorney, David Cates of Swansea, is asking for a summary judgment in the case filed by the city in June of last year.
In a complaint for declaratory judgment, the city maintains that the Mabrys cannot legally operate their restaurant, The Lake House, on property on Vandalia Lake because that area is zoned single-family residential.
In that complaint, the city states that through an ordinance amendment approved in 1988, James and Ann Hediger of Highland agreed to subject their property to residential zoning in exchange for putting in a boat dock.
The Mabrys now own that property, and their attorney on Monday argued the constitutionality of that ordinance.
Cates said that because the property is outside the corporate limits, the city only has jurisdiction on the actual water works.
He claims that state statutes allow the city only to address issues related to pollution, and “the city has articulated no pollution” as a result of the restaurant operations.
“There is no evidence there is a threat to the water source,” he said.
Ryan Connor of Burnside, Johnston and Connor, the city’s legal firm, said that the defendants had not given any notice of what constitutional article had been violated, and that this was the first time that the city had heard arguments on this case being an issue of due process.
Connor told McHaney that it order to fully argue the issue, the city must know whether the defense is claiming that the city ordinance is “unconstitutional on its face or as it applies to the Mabrys.”
He argued that this complaint is not a due process case.
“This is about a boat dock,” Connor said, arguing that the Mabrys subjected themselves to the residential zoning because of the boat dock (agreement).
He told McHaney that the Mabrys knew about that agreement when they made plans for their restaurant.
“They persisted, knowing full well … about the ordinance problem,” Connor said. “They knew there was an ordinance restricting” a commercial business at that location.
“I think the court has to find out what they (the Mabrys) knew and when they knew it,” Connor said.
“It is about the city managing the waterways (and) the boat dock is on the water. The city needs to have control of what sits on its water source,” Connor said.
Cates told McHaney that the city “has known from the beginning that we have an issue with the ordinance.”
Because the property is outside the city, he argued pollution “is the only hook to apply these people” by ordinance, Cates said.
Arguing for a summary judgment, Cates said, “The city has attempted to make an argument that there is some type of an agreement.
“The city argues (that) we have a contract,” Cates said.
“For an ordinance to be valid, (a contract) would have to be signed by the party (involved),” he said, stating that the Mabrys have not signed any such documents.
Believing that the city’s agreement with the Hedigers was not legal, Cates said, “If it wasn’t legal when it was entered into,” it’s not valid with the Mabrys.
“Our people never subjected themselves to it,” Cates said.
The issue is still with the contract and whether it’s legal, he told McHaney.
“This contract has no hallmarks of an ordinance,” Cates said.
He argued that the city failed to provide sufficient authentication of documents related to the issue.
“They can’t authenticate the document (agreement),” Cates said. “We’ve never seen an application (for a boat dock. We’ve never seen a photo of the boat dock. There’s been no evidence of that.”
Connor argued that the city met its obligation on paperwork by including in its complaint the necessary papers and having the current city clerk, Peggy Bowen, certify that the papers were in the city’s files.
“We’ve met the element,” Connor said. “To say (that) there’s no evidence, they don’t like our evidence.”
Connor maintained that the Mabrys do not allege a breach of the contract signed in 1988 through which the city gained the right to enforce the ordinance.
“There was mutual consideration” when the ordinance was enacted, Connor said.
The motions filed by the Mabrys at this time, Connor argued, “is an attempt to rehear a motion to dismiss.
“It really is more simple than what we’re trying to make it here,” he said. “This simply does not have enough in front of it (for a summary judgment).
“It’s not about a constitutional matter, it’ s about a boat dock,” Connor said.
“We are very confident that they knew at a very early time” about the residential zoning of the area, he said.
“It’s about what they knew and when they knew it,” Connor said.
McHaney said that he would issue a ruling on the motions in the near future.
According to court records, the case is set for a bench trial on Dec. 17-18.