FIRST DIVISION

									February 18, 2003

No. 1-01-1947

LASALLE NATIONAL BANK as Trustee 	)		Appeal from the						

Under Trust No. 104471, and 		)		Circuit Court of

H. REED HARRIS,				)		Cook County.

							)		

							)		

	Plaintiffs-Appellees,		)			

							)

			v.				)

							)		

DUBIN RESIDENTIAL COMMUNITIES 	)

CORPORATION, an Illinois 		)

Corporation, DUBIN AND ASSOCIATES,	) 

INC., an Illinois Corporation,	) 

FIRST BANK AND TRUST CO. OF 		)

ILLINOIS TRUSTEE, Under Trust 	)

No. 10-1950: 3213 N. WILTON 		)

CONDOMINIUM ASSOCIATION, an 		)

Illinois Corporation; and 		)

3215 N. WILTON CONDOMINIUM 		)

ASSOCIATION, an Illinois 		)

Not-For-Profit Corporation,		)		Honorable

				       		)		Bernetta D. Bush,

	Defendants-Appellants.	  	)		Judge Presiding.	

	JUSTICE O'MALLEY delivered the opinion of the court:

     LaSalle National Bank and H. Reed Harris (Harris) filed a

complaint alleging that Dubin Residential Communities Corporation

(Dubin Residential), Dubin & Associates, Inc. (Dubin &

Associates), and First Bank & Trust Company of Illinois (First

Bank & Trust) (collectively, defendants) used part of the

property located at 3213 North Wilton (3213 Property) in Chicago

to obtain two different building permits in order to build a six- unit condominium on the adjoining property located at 3215 North Wilton (3215 Property), allegedly in violation of several Chicago

zoning ordinances.  The trial court dismissed the case in favor

of the defendants, adopting defendants' view that the complaint

was barred by laches.  Harris presents the following issues on appeal: (1) whether laches applies to the instant case; and (2) whether laches can estop a unit of government from the exercise of its police power. 

	For the reasons set forth below, we reverse and remand for

further proceedings.		

BACKGROUND

	H. Reed Harris is an attorney and the owner of residential

property located at 3229 North Wilton in Chicago.  That property

is located north and within 1,200 feet of the properties at issue

here.  See 65 ILCS 5/11-13-15 (West 2000).  In his suit, Harris

seeks to abate the "illegal use of portions of the 3213 Wilton

Property to overbuild on the 3215 Wilton Property."  On or about

July 19, 2000, Harris sent a letter to David Dubin, president of

Dubin Residential and Dubin & Associates, accusing defendants of

zoning violations which allegedly occurred some three years

before.  On November 13, 2000, Harris filed a verified complaint

for injunction and other equitable relief pursuant to section 11-

13-15 of the Illinois Municipal Code (the Code) (65 ILCS 5/11-13-

15 (West 2000)).  Section 11-13-15 provides, in pertinent part: 

	   "In case any building or structure *** is used in violation of an ordinance or ordinances *** under the Illinois Municipal Code, or of any ordinance or other

regulation made under the authority conferred thereby, ***

any owner *** within 1200 feet in any direction of the

property on which the building or structure in question is

located who shows that his property or person will be

substantially affected by the alleged violation, in addition

to other remedies, may institute any appropriate action or

proceeding (1) to prevent the construction ***, (2) to

prevent the unlawful occupancy of the building ***, (3) to

prevent any illegal act ***, or (4) to restrain, correct, or

abate the violation.

	   *** [T]he court with jurisdiction of such action or

proceeding *** may issue a restraining order, or a

preliminary injunction, as well as a permanent injunction,

upon such terms and under such conditions as will do justice

and enforce the purposes set forth above.

	   ***

	   An owner or tenant need not prove any specific, special

or unique damages to himself or his property or any adverse

effect upon his property from the alleged violation in order

to maintain a suit under the foregoing provisions."  65 ILCS

5/11-13-15 (West 2000).

	The complaint alleges that on or about May 17, 1995, Dubin &

Associates applied for a building permit to construct a 51-foot, four-unit condominium building with parking in a garage in the

rear yard for four vehicles at the 3213 Property.  However,

Harris asserts that Dubin & Associates was not the owner of the

3213 Property until June 13, 1995.  The dimensions of the 3213

Property were 25 feet wide and 135 feet deep.  On or about July

14, 1995, Dubin & Associates was issued a building permit for the

3213 Property. 

	The complaint further alleges that Dubin Residential deeded

portions of the 3213 Property to trust No. 10-1950 in two

separate conveyances, both dated August 24, 1995.  The first deed

conveyed the "East 20 feet of the North 8 feet" of the 3213

Property to the trust and was recorded on August 28, 1995.  The

second deed conveyed the "East 40 feet of the North 6 feet," "the

East 8 feet" and "the North .25 feet" of the 3213 Property to the

trust.  The latter was recorded on January 26, 1995.  Harris'

complaint avers that the conveyances violated Chicago zoning

ordinances because they:  (1) divided the 3213 Property lot; (2)

reduced the size of its northside side yard; and (3) reduced the

size of its rear yard.  

	On or about February 29, 1996, Dubin Residential applied for

a building permit to construct a 55-foot high, six-unit

condominium building on the 3215 Property.  Plaintiff maintains

that First Bank & Trust became owner of the 3215 Property land

trust on June 19, 1995, with Dubin Residential as the beneficial

owner of the trust.  Plaintiff's complaint further alleges that Dubin Residential's 3215 Property building permit application

violated the off-street parking zoning ordinance which required

that the six spaces be located on the same property unless a

"special use" was authorized from the Chicago Zoning Board of

Appeals, which had not been done.  Harris asserts that without

the "illegally acquired extra land," the 3215 Property does not

provide the required off-street parking space for each unit on

the same zoning lot as the building.  Moreover, Harris asserts

that Dubin Residential's building permit application to build the

six-unit condominium on the enlarged 3215 Property violated

several zoning ordinance sections because it included portions of

the 3213 zoning lot.

	Other allegations include:  the 3213 Property extends one

foot beyond the property line; the 3213 Property does not have a

handicapped parking space; the 3215 Property has no minimum front

yard; the 3215 Property does not have a handicapped parking

space; and the 3215 Property has insufficient side yards.  The

complaint further provided that the illegal use has caused Harris

to suffer continued "grave and irreparable loss," an award of

damages is not an adequate remedy to abate the illegal use of the

properties, and it is necessary that a temporary injunction issue

to bring the property into compliance with the zoning ordinances. 

	On January 29, 2001, defendants filed a motion to dismiss

the complaint pursuant to section 2-619 of the Code of Civil

Procedure (735 ILCS 5/2-619 (West 2000)), asserting the affirmative defense of laches.  Defendants maintained that laches applied where more than three years had passed between the time

they began construction of the buildings, completed them and sold

the units to third parties.  The motion further alleged that

"[f]or a number of years, Dubin has had no interest in either of

the Properties and no control over their disposition." 

Defendants further asserted:  (1) the property has been

completely developed; (2) Harris delayed in asserting his rights;

(3) defendants lacked knowledge of or notice that Harris would

asserts the claim or right; and (4) injury or prejudice would

occur if the claim is held not to be barred.  

	The affidavit of the president of Dubin Residential and

Dubin & Associates, David Dubin, was submitted in support of

defendants' motion to dismiss.  The affiant stated that

subsequent to the issuance of the building permit, the four units

in the 3213 Property were sold to third parties between April 22,

1996, and August 30, 1996.  Also, the six units located at the

3215 Property were sold to third parties between April 17, 1997,

and August 29, 1997.  David Dubin affirmed that at no time prior

to the construction and sale of the units did Harris raise any

claims relative to any alleged violations.  Further, "[n]either

Dubin Residential Communities Corporation nor Dubin & Associates,

Inc., nor any other related entity, has any interest in either

the 3213 Property or the 3215 Property." 

	On January 30, 2001, Harris filed a motion for default judgment against First Bank & Trust, the trustee of trust No. 10-

1950, the 3213 Property's condominium association and the 3215

Property's condominium association.  On February 13, 2001,

plaintiffs filed a motion to nonsuit defendant condominium

associations.  The associations were nonsuited without prejudice. 

	On April 24, 2001, the trial court heard arguments in

support of defendants' motion to dismiss.  Defendants argued that

because Harris knew that these buildings were being built, he was

charged with constructive notice and required to investigate any

potential zoning violations; there were no zoning violations;

Dubin was unaware of any claim until July 2000; and prejudice

would occur if the claim was not barred.  Harris maintained that

there was no notice of zoning violations, constructive or

otherwise, because "[y]ou can't see that there is anything wrong

with the buildings from just looking at the construction that

went on."  Harris stated that his inquiry was triggered by a

comment made at a subsequent zoning board hearing on June 16,

2000, that the 3215 Property was "overbuilt."  After researching

the permits and conveyances, Harris became concerned that a

violation had occurred prompting his letter to Dubin in July

2000.  

	In granting Dubin's motion to dismiss, the trial court

stated:

	   "I was concerned about the-- Mr. Harris' position of his

knowledge position.  But I believe the element of the nature of the relief that I must give in terms of not moving

forward on the laches position in my view outweighs his

argument about when he had notice.  I think that it is

reasonable what the defendant has argued, that you were

charged with notice. *** I mean, because of the kind of

remedy that I would have to impose in this matter if I was

to ultimately impose in this matter if I was to ultimately

find favorably for Mr. Harris. 

	   So I am not making a determination on the merits of his

argument, I am just indicating that I believe that it is

barred by laches at this particular point.

* * * 

	   Well, I am not concerned about the builder, developer.  I

am more concerned about the impact that is going to have on

the residents that live in this property at this point. 

That's my decision."  

	Following the court's ruling, Harris further argued that he

was not seeking demolition or reconstruction, but sought Dubin's

compliance and the trial court's determination of appropriate

relief.  The trial court granted defendant's motion to dismiss

and held that laches barred the claim.   

	Harris filed a combined motion for reconsideration and leave

to file an amended complaint to add a prayer for relief seeking

fines payable to the City of Chicago for each day the violations have continued since July 2000.  A hearing was held on Harris'

motion to reconsider and to amend.  The motion was denied.

ANALYSIS

	Harris maintains that laches does not apply because he had no notice of the alleged zoning violations and acted promptly

upon discovering the problem.  Further, he contends that no

prejudice can result because defendants have not changed their

position, been prejudiced or suffered hardship predicated upon

his delay.  Defendants allege they will be prejudiced if the

claim of laches is barred.  

	Laches is a defense that is asserted against a party who has knowingly slept upon his rights and acquiesced for a great length

of time, and its existence depends upon whether, under all the

circumstances of a particular case, a party is chargeable with

want of due diligence and failing to institute proceedings before

he or she did.  Pyle v. Ferrell, 12 Ill. 2d 547, 552, 147 N.E.2d 341 (1958). 	In determining the applicability of laches, four factors should be considered:  "'(1) [c]onduct on the part of the

defendant giving rise to the situation of which complaint is made

and for which the complainant seeks a remedy; (2) delay in

asserting the complainant's rights, the complainant having had

notice or knowledge of defendant's conduct and the opportunity to

institute a suit; (3) lack of knowledge or notice on the part of

the defendant that the complainant would assert the right on which he bases his suit[;] and (4) injury or prejudice to the

defendant in the event relief is accorded to the complainant or

the suit is held not to be barred.'"  Slatin's Properties, Inc. v. Hassler, 53 Ill. 2d 325, 330, 291 N.E.2d 641 (1972), quoting Pyle, 12 Ill. 2d at 553.

	Whether the defense of laches is available is to be determined upon the facts and circumstances of each case.   Nancy's Home of the Stuffed Pizza, Inc. v. Cirrincione, 144 Ill. App. 3d 934, 941, 494 N.E.2d 795 (1986).  Like any affirmative

defense, the burden is on the defendant to establish laches by a preponderance of the evidence.  O'Brien v. Meyer, 281 Ill. App. 3d 832, 834, 666 N.E.2d 726 (1996).  "The party asserting

estoppel [through laches] must show prejudice or hardship rather than mere passage of time and must demonstrate that the delay

induced him to adversely change his position."  Gersch v. Department of Professional Regulation, 308 Ill. App. 3d 649, 661, 720 N.E.2d 672 (1999).  Lack of diligence must result in some

inequity to the adverse party such that it would be unfair and

unjust to allow the belated assertion of the claim.  Nancy's Home, 144 Ill. App. 3d at 940-41.  "If the defendant is not injured by the delay, laches is inapplicable."  Nancy's Home, 144 Ill. App. 3d at 941.  

	As the reviewing court, we must examine the record to

determine whether the judge's finding that the defendants have established laches was against the manifest weight of the evidence.  See O'Brien, 281 Ill. App. 3d at 835.  

	Defendants maintain that a review of the record and the

factors set forth in Pyle demonstrates that Harris' delay is such that laches should apply.  First, the properties were completed and occupied by the time plaintiff filed his claim.  Second,

plaintiff should be charged with constructive notice of zoning

violations simply by the fact that construction commenced on the

property in the immediate vicinity of his own Wilton property and

he was able to view that activity, but nonetheless delayed

exercising his rights.  Third, Harris failed to notify Dubin

until more than three years after the projects were completed and

the units were sold to third parties.  Fourth, "[t]he only manner

in which Dubin could comply with a potential injunction order is

to purchase back all of the units in the Properties, and

reconstruct the buildings," thus causing prejudice to defendants

and the current residents.  

	It is essential that the party asserting the defense of

laches plead and prove, not only that a considerable amount of time has elapsed with resultant prejudice, but also that the

opposing party had prior knowledge or notice of the facts giving

rise to the claims.  See Gersch, 308 Ill. App. 3d at 661.  There is no question that plaintiff had no actual notice of the zoning

violations he claims have occurred.  Therefore, for defendants to prevail in their defense of laches, they must show constructive notice.  Constructive notice is defined as "[n]otice arising by

presumption of law from the existence of facts and circumstances

that a party had a duty to take notice of ***; notice presumed by

law to have been acquired by a person and thus imputed to that

person."  Black's Law Dictionary 1088 (7th ed. 1999).  Defendants

argue that Harris should be charged with constructive notice

based upon his ability to observe the size of the buildings and

the adjoining parking lots, which were in plain view from his

nearby property.  It is defendants' assertion that plaintiff was

then required to investigate the appropriate public records in

order to discover any zoning violations. 

	Plaintiff asserts that he had no constructive notice by the

mere fact that he could observe the buildings being built and he

was reassured about their conformity by the display of City of

Chicago building permits.  Plaintiff maintains that he was only

alerted to possible violations by a comment made by a board

member at a hearing before the Chicago Zoning Board of Appeals on

an application for a special use of an off-street parking space

for the 3215 Property, one of the properties that is the subject

of this suit.  A new off-street parking space had to be found for

one of the units because a flood had rendered the parking for

this unit unusable.  The board member said: "How often the

Chairman keeps saying, parking will determine the building in the future.  I guess this site was overbuilt." (Emphasis added.) 

	During oral argument in opposition to the motion to dismiss,

plaintiff acknowledged that he was not actually present at that

Chicago Zoning Board of Appeals hearing, but nonetheless became

aware of the statement.  Harris asserts that he had no reason,

prior to the Chicago Zoning Board of Appeals hearing, to suspect

that zoning violations existed.  We agree.

	Both parties cite Pyle in support of their positions.  In Pyle, the appellant was a resident of California when he became aware of his ownership rights to an Illinois mineral estate after

the death of his mother in 1932.  By his own admission, appellant

did not at any time between 1932 and 1954 either visit the land

or pay taxes or attempt to learn of their status.  Pyle, 12 Ill. 2d at 550.  When he returned to Illinois in 1946, he did not inspect the property or the property records.  In 1954, he became

aware that the estate had been sold to the appellee for

delinquent taxes.  In an action to quiet title, appellant

testified that he never received notice of assessments or tax

sale proceedings.  Defendants asserted laches.  In holding that laches barred plaintiff's claim, the court observed that there was evidence that the appellant became aware of his interest in

the property in 1932.  However, the purchaser bought the mineral

estate for delinquent taxes in 1936, received a tax deed in 1938,

paid taxes for 20 consecutive years, caused a joint interest in the mineral estate to be conveyed to his wife in 1951 and

executed an oil-and-gas lease covering such estate in 1953. 

Pyle, 12 Ill. 2d at 554.  The court reasoned that these were all matters of public record, and although appellant claimed to not

have had notice of any of these matters adverse to his ownership,

such public records served as constructive notice to him, where

the adverse claimant was not guilty of any affirmative act of

deception to prevent suspicion and inquiry.  Pyle, 12 Ill. 2d at 554.  The court wrote, "[t]he test is not what the appellant knows, but what he might have known by the use of the means of

information within his reach with the vigilance the law requires

of him."  Pyle, 12 Ill. 2d at 554.  

	In Slatin's Properties, plaintiff filed suit to quiet title on two lots.  Defendants asserted that plaintiff was precluded

from instituting his suit to quiet title because it was barred by

laches.  The Illinois Supreme Court agreed.  Slatin's Properties, 53 Ill. 2d at 331.  The record demonstrated that plaintiff and

its predecessors in title had never paid any general real estate

taxes or special assessments levied upon the two lots in question

for approximately 40 years.  The court held that by virtue of the

payment of taxes for approximately 40 years by the defendants,

the plaintiff should have been put on inquiry as to defendants'

adverse claims and was, therefore, barred by laches from asserting any claims to the premises in question.  Slatin's Properties, 53 Ill. 2d at 331.  The court reasoned that all four Pyle factors were met and noted that defendants' payment of taxes for nearly nine years after plaintiff acquired title to these

lots was a matter of public record and defendants did not commit

any deceptive acts that prevented plaintiff from discovering his

possible claim.  Slatin's Properties, 53 Ill. 2d at 331.  Further, the court reasoned that under the particular facts of

that case, plaintiff failed to exercise the required vigilance by

which it could have ascertained defendants' claims and promptly

instituted the necessary action.  Slatin's Properties, 53 Ill. 2d at 331. 

	While the above-mentioned cases differ from the instant case

in that they involve parties challenging the title to real

property, we find their reasoning instructive in determining

whether plaintiff had constructive notice here.  Those cases

generally hold that matters of public record establish

constructive notice and the unreasonable delay in asserting a

claim may make the defense of laches available to a defendant who did not cause the unreasonable delay.  Unlike the instant case,

those cases also contain evidence of indifference and negligence

on the part of the plaintiff in asserting his rights after being

given reason for inquiry or clearly put on notice.  

	The following cases are also instructive in determining

whether matters of public record constitute constructive notice to the complaining parties and whether laches may bar recovery:  Blaul v. Dalton, 264 Ill. 193, 197, 106 N.E. 196 (1914) (while no demonstration of fraud in connection with execution of the deed,

there was evidence that one of the complainants had occasion and

opportunity to investigate the facts, and no reasonable excuse

for delay shown); Neagle v. McMullen, 334 Ill. 168, 181-82, 165 N.E. 605 (1929) (evidence existed that appellants had notice as

to the condition of the title or could have been aware by the

exercise of due diligence); Miller v. Siwicki, 8 Ill. 2d 362, 366, 134 N.E.2d 321 (1956) (deed to property was public record

and constituted constructive notice); Bays v. Matthews, 108 Ill. App. 3d 1112, 1119, 440 N.E.2d 142 (1982) (although aware that

the property was being taxed, plaintiffs made no inquiry

regarding the property's tax status); and Szymanski v. Glen of South Barrington Property Owners Ass'n, 293 Ill. App. 3d 911, 914 689 N.E.2d 272 (1997) (laches applicable where plaintiffs offered no reason for four-year delay between their initial objection and

filing suit). 	See also Moore v. Moore, 15 Ill. 2d 239, 243-44, 154 N.E.2d 256 (1958) (recording of deed ten months before the

marriage did not constitute constructive notice to wife so as to

bar complaint eleven years after the recording); Tarpoff v. Karandjeff, 17 Ill. 2d 462, 471, 162 N.E.2d 1 (1959) (no reason to excite suspicion in plaintiff to search the records and make

inquiry); Amgro, Inc. v. Johnson, 71 Ill. App. 3d 485, 489, 389 N.E.2d 688 (1979) (in the absence of evidence of any

circumstances such as to raise suspicion or cause inquiry,

insurance company not charged with constructive notice of

litigation between secured creditor and insurance agency); De Kalb Bank v. Purdy, 166 Ill. App. 3d 709, 725, 520 N.E.2d 957 (1988) (laches not applicable because defendant had constructive notice of plaintiff's rights when trust deed was a matter of

public record for over 10 months before defendant signed his

lease).

	The two fundamental elements of laches are lack of due diligence by the party asserting the claim and prejudice to the

opposing party.  Van Milligan v. Board of Fire & Police Commissioners, 158 Ill. 2d 85, 89, 630 N.E.2d 830 (1994).  Under the facts of this case, we hold that the equitable defense of

laches does not apply.  Defendants have not met the burden of demonstrating either constructive notice to plaintiff of possible

zoning violations or that his delay of four months was

unreasonable once he was put on notice.  Although the conveyances

were of public record, there were no triggering factors to raise

suspicion and/or investigation by the mere fact that the

buildings were being built, especially where a valid building

permit was posted on the construction sites.  Because we find no

lack of diligence, we see no inequity to defendants such that it

would be unfair and unjust to allow the assertion of the claim.  See Nancy's Home, 144 Ill. App. 3d at 940-41.  Whether the party's delay is enough to constitute laches depends upon the circumstances of each case (Higgins v. Brunswick Corp., 76 Ill. App. 3d 273, 279, 395 N.E.2d 81 (1979)), and here, these

circumstances do not support a finding that Harris had the

constructive notice required for the defense of laches to be applied. 

	Defendants also assert that the only manner in which they

could comply with a potential injunction order is to purchase

back all of the units, demolish and then reconstruct the

buildings.  It is true that pursuant to the section under which

Harris asserts his claim (65 ILCS 5/11-13-15 (West 2000)), the

court may, in its discretion, issue a preliminary or permanent

injunction in order to restrain the violation of an ordinance. 

However, as the trial court stated in its oral ruling, the merits

of Harris' zoning violation claim have not been ruled upon. 

Therefore, we remand this case to the trial court to hold

proceedings on the merits of Harris' claim that the building

permits were acquired fraudulently, and that the properties were

constructed and used in violation of existing zoning ordinances. 

In the event that the trial court finds in favor of plaintiff, it

may fashion a remedy appropriate to sanction defendants' conduct

and to compensate plaintiff.  Taking the consequences of one's

conduct is not the same as "prejudice," as defendants contend in their brief.  Relief is not limited, as defendants maintain, to

demolition and rebuilding of the buildings in question.  Rather,

the trial court could order that defendants pay a fine or fees

commensurate with the harm done.  We leave the specific remedy to

the sound discretion of the trial court, if one is found to be

required.  See Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 517, 524 N.E.2d 561 (1988). 

	Harris also asserts that laches cannot estop a unit of government from the exercise of its police powers.  Because we

reverse and remand for further proceedings, we will not address

this assertion. 

	For the foregoing reasons, the trial court's dismissal based

upon the affirmative defense of laches is reversed and we remand to the trial court for further proceedings in accordance with

this opinion.

	Reversed and remanded with directions.

	GORDON, P.J., and McNULTY, J., concur.

	REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

	TITLE

	of Case

	Docket No.

	COURT

	Opinion

	Filed

	JUSTICES

	Appeal's

	Origination.

	Counsel for

	APPELLANT

	Counsel for

	APPELLEE

LASALLE NATIONAL BANK as TRUSTEE, Under Trust No.

104471, and H. REED HARRIS,

			Plaintiffs-Appellees,

		v.

	DUBIN RESIDENTIAL COMMUNITIES CORPORATION,

an Illinois Corporation, et al.,

			Defendants-Appellants.

	No. 1-01-1947

	Appellate Court of Illinois

	First District, 1st Division

	February 18, 2003

	JUSTICE O'MALLEY delivered the opinion of the court:

		GORDON, P.J., and McNULTY, J., concur.

	Appeal from the Circuit Court of Cook County.

	The Hon. Bernetta D. Bush, Judge Presiding.

	For Appellant, H. Reed Harris, of Chicago.

	For Appellee, Katriina S. McGuireMatthew E. Luecke, THOMAS L.

BURDELIK & ASSOCIATESS SCHAIN, BURNEY,

ROSS & CITCITRON, LTD.CHAIN , of Chicago.