Appeal from the Circuit Court of Cook County. Honorable Bernetta D. Bush, Judge Presiding.
The opinion of the court was delivered by: Justice O'malley
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.
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 ...