FIRST DIVISION
February 18, 2003

JUSTICE O'MALLEY delivered the opinion of the court:

LaSalle National Bank and H. Reed Harris (Harris) filed acomplaint alleging that Dubin Residential Communities Corporation(Dubin Residential), Dubin & Associates, Inc. (Dubin &Associates), and First Bank & Trust Company of Illinois (FirstBank & Trust) (collectively, defendants) used part of theproperty located at 3213 North Wilton (3213 Property) in Chicagoto obtain two different building permits in order to build a six-unit condominium on the adjoining property located at 3215 NorthWilton (3215 Property), allegedly in violation of several Chicagozoning ordinances. The trial court dismissed the case in favorof the defendants, adopting defendants' view that the complaintwas barred by laches. Harris presents the following issues onappeal: (1) whether laches applies to the instant case; and (2)whether laches can estop a unit of government from the exerciseof its police power.

For the reasons set forth below, we reverse and remand forfurther proceedings.

BACKGROUND

H. Reed Harris is an attorney and the owner of residentialproperty located at 3229 North Wilton in Chicago. That propertyis located north and within 1,200 feet of the properties at issuehere. See 65 ILCS 5/11-13-15 (West 2000). In his suit, Harrisseeks to abate the "illegal use of portions of the 3213 WiltonProperty to overbuild on the 3215 Wilton Property." On or aboutJuly 19, 2000, Harris sent a letter to David Dubin, president ofDubin Residential and Dubin & Associates, accusing defendants ofzoning violations which allegedly occurred some three yearsbefore. On November 13, 2000, Harris filed a verified complaintfor 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 inviolation of an ordinance or ordinances *** under theIllinois Municipal Code, or of any ordinance or otherregulation made under the authority conferred thereby, ***any owner *** within 1200 feet in any direction of theproperty on which the building or structure in question islocated who shows that his property or person will besubstantially affected by the alleged violation, in additionto other remedies, may institute any appropriate action orproceeding (1) to prevent the construction ***, (2) toprevent the unlawful occupancy of the building ***, (3) toprevent any illegal act ***, or (4) to restrain, correct, orabate the violation.

*** [T]he court with jurisdiction of such action orproceeding *** may issue a restraining order, or apreliminary injunction, as well as a permanent injunction,upon such terms and under such conditions as will do justiceand enforce the purposes set forth above.

***

An owner or tenant need not prove any specific, specialor unique damages to himself or his property or any adverseeffect upon his property from the alleged violation in orderto maintain a suit under the foregoing provisions." 65 ILCS5/11-13-15 (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 therear yard for four vehicles at the 3213 Property. However,Harris asserts that Dubin & Associates was not the owner of the3213 Property until June 13, 1995. The dimensions of the 3213Property were 25 feet wide and 135 feet deep. On or about July14, 1995, Dubin & Associates was issued a building permit for the3213 Property.

The complaint further alleges that Dubin Residential deededportions of the 3213 Property to trust No. 10-1950 in twoseparate conveyances, both dated August 24, 1995. The first deedconveyed the "East 20 feet of the North 8 feet" of the 3213Property to the trust and was recorded on August 28, 1995. Thesecond deed conveyed the "East 40 feet of the North 6 feet," "theEast 8 feet" and "the North .25 feet" of the 3213 Property to thetrust. The latter was recorded on January 26, 1995. Harris'complaint avers that the conveyances violated Chicago zoningordinances because they: (1) divided the 3213 Property lot; (2)reduced the size of its northside side yard; and (3) reduced thesize of its rear yard.

On or about February 29, 1996, Dubin Residential applied fora building permit to construct a 55-foot high, six-unitcondominium building on the 3215 Property. Plaintiff maintainsthat First Bank & Trust became owner of the 3215 Property landtrust on June 19, 1995, with Dubin Residential as the beneficialowner of the trust. Plaintiff's complaint further alleges thatDubin Residential's 3215 Property building permit applicationviolated the off-street parking zoning ordinance which requiredthat the six spaces be located on the same property unless a"special use" was authorized from the Chicago Zoning Board ofAppeals, which had not been done. Harris asserts that withoutthe "illegally acquired extra land," the 3215 Property does notprovide the required off-street parking space for each unit onthe same zoning lot as the building. Moreover, Harris assertsthat Dubin Residential's building permit application to build thesix-unit condominium on the enlarged 3215 Property violatedseveral zoning ordinance sections because it included portions ofthe 3213 zoning lot.

Other allegations include: the 3213 Property extends onefoot beyond the property line; the 3213 Property does not have ahandicapped parking space; the 3215 Property has no minimum frontyard; the 3215 Property does not have a handicapped parkingspace; and the 3215 Property has insufficient side yards. Thecomplaint further provided that the illegal use has caused Harristo suffer continued "grave and irreparable loss," an award ofdamages is not an adequate remedy to abate the illegal use of theproperties, and it is necessary that a temporary injunction issueto bring the property into compliance with the zoning ordinances. On January 29, 2001, defendants filed a motion to dismissthe complaint pursuant to section 2-619 of the Code of CivilProcedure (735 ILCS 5/2-619 (West 2000)), asserting theaffirmative defense of laches. Defendants maintained that lachesapplied where more than three years had passed between the timethey began construction of the buildings, completed them and soldthe units to third parties. The motion further alleged that"[f]or a number of years, Dubin has had no interest in either ofthe Properties and no control over their disposition." Defendants further asserted: (1) the property has beencompletely developed; (2) Harris delayed in asserting his rights;(3) defendants lacked knowledge of or notice that Harris wouldasserts the claim or right; and (4) injury or prejudice wouldoccur if the claim is held not to be barred.

The affidavit of the president of Dubin Residential andDubin & Associates, David Dubin, was submitted in support ofdefendants' motion to dismiss. The affiant stated thatsubsequent to the issuance of the building permit, the four unitsin the 3213 Property were sold to third parties between April 22,1996, and August 30, 1996. Also, the six units located at the3215 Property were sold to third parties between April 17, 1997,and August 29, 1997. David Dubin affirmed that at no time priorto the construction and sale of the units did Harris raise anyclaims relative to any alleged violations. Further, "[n]eitherDubin Residential Communities Corporation nor Dubin & Associates,Inc., nor any other related entity, has any interest in eitherthe 3213 Property or the 3215 Property."

On January 30, 2001, Harris filed a motion for defaultjudgment against First Bank & Trust, the trustee of trust No. 10-1950, the 3213 Property's condominium association and the 3215Property's condominium association. On February 13, 2001,plaintiffs filed a motion to nonsuit defendant condominiumassociations. The associations were nonsuited without prejudice.

On April 24, 2001, the trial court heard arguments insupport of defendants' motion to dismiss. Defendants argued thatbecause Harris knew that these buildings were being built, he wascharged with constructive notice and required to investigate anypotential zoning violations; there were no zoning violations;Dubin was unaware of any claim until July 2000; and prejudicewould occur if the claim was not barred. Harris maintained thatthere was no notice of zoning violations, constructive orotherwise, because "[y]ou can't see that there is anything wrongwith the buildings from just looking at the construction thatwent on." Harris stated that his inquiry was triggered by acomment made at a subsequent zoning board hearing on June 16,2000, that the 3215 Property was "overbuilt." After researchingthe permits and conveyances, Harris became concerned that aviolation had occurred prompting his letter to Dubin in July2000.

In granting Dubin's motion to dismiss, the trial courtstated:

"I was concerned about the-- Mr. Harris' position of hisknowledge position. But I believe the element of the natureof the relief that I must give in terms of not movingforward on the laches position in my view outweighs hisargument about when he had notice. I think that it isreasonable what the defendant has argued, that you werecharged with notice. *** I mean, because of the kind ofremedy that I would have to impose in this matter if I wasto ultimately impose in this matter if I was to ultimatelyfind favorably for Mr. Harris.

So I am not making a determination on the merits of hisargument, I am just indicating that I believe that it isbarred by laches at this particular point.

* * *

Well, I am not concerned about the builder, developer. Iam more concerned about the impact that is going to have onthe residents that live in this property at this point. That's my decision."

Following the court's ruling, Harris further argued that hewas not seeking demolition or reconstruction, but sought Dubin'scompliance and the trial court's determination of appropriaterelief. The trial court granted defendant's motion to dismissand held that laches barred the claim.

Harris filed a combined motion for reconsideration and leaveto file an amended complaint to add a prayer for relief seekingfines payable to the City of Chicago for each day the violationshave 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 hadno notice of the alleged zoning violations and acted promptlyupon discovering the problem. Further, he contends that noprejudice can result because defendants have not changed theirposition, been prejudiced or suffered hardship predicated uponhis delay. Defendants allege they will be prejudiced if theclaim of laches is barred.

Laches is a defense that is asserted against a party who hasknowingly slept upon his rights and acquiesced for a great lengthof time, and its existence depends upon whether, under all thecircumstances of a particular case, a party is chargeable withwant of due diligence and failing to institute proceedings beforehe or she did. Pyle v. Ferrell, 12 Ill. 2d 547, 552, 147 N.E.2d341 (1958). In determining the applicability of laches, fourfactors should be considered: "'(1) [c]onduct on the part of thedefendant giving rise to the situation of which complaint is madeand for which the complainant seeks a remedy; (2) delay inasserting the complainant's rights, the complainant having hadnotice or knowledge of defendant's conduct and the opportunity toinstitute a suit; (3) lack of knowledge or notice on the part ofthe defendant that the complainant would assert the right onwhich he bases his suit[;] and (4) injury or prejudice to thedefendant in the event relief is accorded to the complainant orthe suit is held not to be barred.'" Slatin's Properties, Inc.v. Hassler, 53 Ill. 2d 325, 330, 291 N.E.2d 641 (1972), quotingPyle, 12 Ill. 2d at 553.

Whether the defense of laches is available is to bedetermined 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 affirmativedefense, the burden is on the defendant to establish laches by apreponderance of the evidence. O'Brien v. Meyer, 281 Ill. App.3d 832, 834, 666 N.E.2d 726 (1996). "The party assertingestoppel [through laches] must show prejudice or hardship ratherthan mere passage of time and must demonstrate that the delayinduced 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 someinequity to the adverse party such that it would be unfair andunjust to allow the belated assertion of the claim. Nancy'sHome, 144 Ill. App. 3d at 940-41. "If the defendant is notinjured by the delay, laches is inapplicable." Nancy's Home, 144Ill. App. 3d at 941.

As the reviewing court, we must examine the record todetermine whether the judge's finding that the defendants haveestablished laches was against the manifest weight of theevidence. See O'Brien, 281 Ill. App. 3d at 835.

Defendants maintain that a review of the record and thefactors set forth in Pyle demonstrates that Harris' delay is suchthat laches should apply. First, the properties were completedand occupied by the time plaintiff filed his claim. Second,plaintiff should be charged with constructive notice of zoningviolations simply by the fact that construction commenced on theproperty in the immediate vicinity of his own Wilton property andhe was able to view that activity, but nonetheless delayedexercising his rights. Third, Harris failed to notify Dubinuntil more than three years after the projects were completed andthe units were sold to third parties. Fourth, "[t]he only mannerin which Dubin could comply with a potential injunction order isto purchase back all of the units in the Properties, andreconstruct the buildings," thus causing prejudice to defendantsand the current residents.

It is essential that the party asserting the defense oflaches plead and prove, not only that a considerable amount oftime has elapsed with resultant prejudice, but also that theopposing party had prior knowledge or notice of the facts givingrise to the claims. See Gersch, 308 Ill. App. 3d at 661. Thereis no question that plaintiff had no actual notice of the zoningviolations he claims have occurred. Therefore, for defendants toprevail in their defense of laches, they must show constructivenotice. Constructive notice is defined as "[n]otice arising bypresumption of law from the existence of facts and circumstancesthat a party had a duty to take notice of ***; notice presumed bylaw to have been acquired by a person and thus imputed to thatperson." Black's Law Dictionary 1088 (7th ed. 1999). Defendantsargue that Harris should be charged with constructive noticebased upon his ability to observe the size of the buildings andthe adjoining parking lots, which were in plain view from hisnearby property. It is defendants' assertion that plaintiff wasthen required to investigate the appropriate public records inorder to discover any zoning violations.

Plaintiff asserts that he had no constructive notice by themere fact that he could observe the buildings being built and hewas reassured about their conformity by the display of City ofChicago building permits. Plaintiff maintains that he was onlyalerted to possible violations by a comment made by a boardmember at a hearing before the Chicago Zoning Board of Appeals onan application for a special use of an off-street parking spacefor the 3215 Property, one of the properties that is the subjectof this suit. A new off-street parking space had to be found forone of the units because a flood had rendered the parking forthis unit unusable. The board member said: "How often theChairman keeps saying, parking will determine the building in thefuture. 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 thatChicago Zoning Board of Appeals hearing, but nonetheless becameaware of the statement. Harris asserts that he had no reason,prior to the Chicago Zoning Board of Appeals hearing, to suspectthat zoning violations existed. We agree.

Both parties cite Pyle in support of their positions. InPyle, the appellant was a resident of California when he becameaware of his ownership rights to an Illinois mineral estate afterthe death of his mother in 1932. By his own admission, appellantdid not at any time between 1932 and 1954 either visit the landor pay taxes or attempt to learn of their status. Pyle, 12 Ill.2d at 550. When he returned to Illinois in 1946, he did notinspect the property or the property records. In 1954, he becameaware that the estate had been sold to the appellee fordelinquent taxes. In an action to quiet title, appellanttestified that he never received notice of assessments or taxsale proceedings. Defendants asserted laches. In holding thatlaches barred plaintiff's claim, the court observed that therewas evidence that the appellant became aware of his interest inthe property in 1932. However, the purchaser bought the mineralestate for delinquent taxes in 1936, received a tax deed in 1938,paid taxes for 20 consecutive years, caused a joint interest inthe mineral estate to be conveyed to his wife in 1951 andexecuted an oil-and-gas lease covering such estate in 1953. Pyle, 12 Ill. 2d at 554. The court reasoned that these were allmatters of public record, and although appellant claimed to nothave had notice of any of these matters adverse to his ownership,such public records served as constructive notice to him, wherethe adverse claimant was not guilty of any affirmative act ofdeception to prevent suspicion and inquiry. Pyle, 12 Ill. 2d at554. The court wrote, "[t]he test is not what the appellantknows, but what he might have known by the use of the means ofinformation within his reach with the vigilance the law requiresof him." Pyle, 12 Ill. 2d at 554.

In Slatin's Properties, plaintiff filed suit to quiet titleon two lots. Defendants asserted that plaintiff was precludedfrom instituting his suit to quiet title because it was barred bylaches. The Illinois Supreme Court agreed. Slatin's Properties,53 Ill. 2d at 331. The record demonstrated that plaintiff andits predecessors in title had never paid any general real estatetaxes or special assessments levied upon the two lots in questionfor approximately 40 years. The court held that by virtue of thepayment 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 fromasserting any claims to the premises in question. Slatin'sProperties, 53 Ill. 2d at 331. The court reasoned that all fourPyle factors were met and noted that defendants' payment of taxesfor nearly nine years after plaintiff acquired title to theselots was a matter of public record and defendants did not commitany deceptive acts that prevented plaintiff from discovering hispossible claim. Slatin's Properties, 53 Ill. 2d at 331. Further, the court reasoned that under the particular facts ofthat case, plaintiff failed to exercise the required vigilance bywhich it could have ascertained defendants' claims and promptlyinstituted the necessary action. Slatin's Properties, 53 Ill. 2dat 331.

While the above-mentioned cases differ from the instant casein that they involve parties challenging the title to realproperty, we find their reasoning instructive in determiningwhether plaintiff had constructive notice here. Those casesgenerally hold that matters of public record establishconstructive notice and the unreasonable delay in asserting aclaim may make the defense of laches available to a defendant whodid not cause the unreasonable delay. Unlike the instant case,those cases also contain evidence of indifference and negligenceon the part of the plaintiff in asserting his rights after beinggiven reason for inquiry or clearly put on notice.

The following cases are also instructive in determiningwhether matters of public record constitute constructive noticeto the complaining parties and whether laches may bar recovery: Blaul v. Dalton, 264 Ill. 193, 197, 106 N.E. 196 (1914) (while nodemonstration of fraud in connection with execution of the deed,there was evidence that one of the complainants had occasion andopportunity to investigate the facts, and no reasonable excusefor delay shown); Neagle v. McMullen, 334 Ill. 168, 181-82, 165N.E. 605 (1929) (evidence existed that appellants had notice asto the condition of the title or could have been aware by theexercise of due diligence); Miller v. Siwicki, 8 Ill. 2d 362,366, 134 N.E.2d 321 (1956) (deed to property was public recordand constituted constructive notice); Bays v. Matthews, 108 Ill.App. 3d 1112, 1119, 440 N.E.2d 142 (1982) (although aware thatthe property was being taxed, plaintiffs made no inquiryregarding the property's tax status); and Szymanski v. Glen ofSouth Barrington Property Owners Ass'n, 293 Ill. App. 3d 911, 914689 N.E.2d 272 (1997) (laches applicable where plaintiffs offeredno reason for four-year delay between their initial objection andfiling suit). See also Moore v. Moore, 15 Ill. 2d 239, 243-44,154 N.E.2d 256 (1958) (recording of deed ten months before themarriage did not constitute constructive notice to wife so as tobar complaint eleven years after the recording); Tarpoff v.Karandjeff, 17 Ill. 2d 462, 471, 162 N.E.2d 1 (1959) (no reasonto excite suspicion in plaintiff to search the records and makeinquiry); Amgro, Inc. v. Johnson, 71 Ill. App. 3d 485, 489, 389N.E.2d 688 (1979) (in the absence of evidence of anycircumstances such as to raise suspicion or cause inquiry,insurance company not charged with constructive notice oflitigation between secured creditor and insurance agency); DeKalb Bank v. Purdy, 166 Ill. App. 3d 709, 725, 520 N.E.2d 957(1988) (laches not applicable because defendant had constructivenotice of plaintiff's rights when trust deed was a matter ofpublic record for over 10 months before defendant signed hislease).

The two fundamental elements of laches are lack of duediligence by the party asserting the claim and prejudice to theopposing party. Van Milligan v. Board of Fire & PoliceCommissioners, 158 Ill. 2d 85, 89, 630 N.E.2d 830 (1994). Underthe facts of this case, we hold that the equitable defense oflaches does not apply. Defendants have not met the burden ofdemonstrating either constructive notice to plaintiff of possiblezoning violations or that his delay of four months wasunreasonable once he was put on notice. Although the conveyanceswere of public record, there were no triggering factors to raisesuspicion and/or investigation by the mere fact that thebuildings were being built, especially where a valid buildingpermit was posted on the construction sites. Because we find nolack of diligence, we see no inequity to defendants such that itwould be unfair and unjust to allow the assertion of the claim. See Nancy's Home, 144 Ill. App. 3d at 940-41. Whether theparty's delay is enough to constitute laches depends upon thecircumstances of each case (Higgins v. Brunswick Corp., 76 Ill.App. 3d 273, 279, 395 N.E.2d 81 (1979)), and here, thesecircumstances do not support a finding that Harris had theconstructive notice required for the defense of laches to beapplied.

Defendants also assert that the only manner in which theycould comply with a potential injunction order is to purchaseback all of the units, demolish and then reconstruct thebuildings. It is true that pursuant to the section under whichHarris asserts his claim (65 ILCS 5/11-13-15 (West 2000)), thecourt may, in its discretion, issue a preliminary or permanentinjunction in order to restrain the violation of an ordinance. However, as the trial court stated in its oral ruling, the meritsof Harris' zoning violation claim have not been ruled upon. Therefore, we remand this case to the trial court to holdproceedings on the merits of Harris' claim that the buildingpermits were acquired fraudulently, and that the properties wereconstructed and used in violation of existing zoning ordinances. In the event that the trial court finds in favor of plaintiff, itmay fashion a remedy appropriate to sanction defendants' conductand to compensate plaintiff. Taking the consequences of one'sconduct is not the same as "prejudice," as defendants contend intheir brief. Relief is not limited, as defendants maintain, todemolition and rebuilding of the buildings in question. Rather,the trial court could order that defendants pay a fine or feescommensurate with the harm done. We leave the specific remedy tothe sound discretion of the trial court, if one is found to berequired. 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 ofgovernment from the exercise of its police powers. Because wereverse and remand for further proceedings, we will not addressthis assertion.

For the foregoing reasons, the trial court's dismissal basedupon the affirmative defense of laches is reversed and we remandto the trial court for further proceedings in accordance withthis opinion.

Reversed and remanded with directions.

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