City of Marengo v. Pollack
Case Date: 12/30/2002
Court: 2nd District Appellate
Docket No: 2-01-0775 Rel
JUSTICE McLAREN delivered the opinion of the court: Plaintiff, the City of Marengo, filed a complaint allegingthat defendants, Walter Pollack and Northwest Pallet Supply Company(Northwest), were violating plaintiff's 1992 ordinance limitingdefendants' outdoor storage space to 1,000 square feet. Defendants' affirmative defenses alleged a legal nonconforming useand that plaintiff was barred by laches from enforcing the earlierordinance, which limited the outdoor storage area to 10% of the lotsize. After a bench trial, the court found that defendants wereentitled to continue using 10% of their property for outdoorstorage. The trial court rejected defendants' laches claim,however. Plaintiff appeals and contends that, because defendantscontinually violated the earlier ordinance, their use of theproperty was not a legal nonconforming use. Defendants cross-appeal and argue that the trial court erred in rejecting theirlaches defense. We affirm. The only witness during the trial was defendant Pollack. Histestimony, the exhibits, and stipulations revealed the followingpertinent facts. Pollack owns Northwest, which restores and sellswood pallets. Pollack purchased the subject property in 1986 andshortly thereafter began operating the business from that location. The total area of the property is 99,244 square feet. The propertycurrently has four buildings and at one point had a fifth building,which burned down. One of the buildings was used to store pallets. The neighboring properties contain a cemetery, railroad tracks, arental business, and an athletic field owned by a church. Defendants receive broken pallets and immediately repair them. The repaired pallets are stored outside until they are loaded ontotrucks and delivered to customers. According to Pollack, theoutdoor storage of pallets is essential to the business. The original zoning ordinance was enacted in 1959 andreprinted in 1973 (1959 ordinance). We note that sometime between1973 and 1986 the 1959 ordinance was recodified. According to thedistrict map referenced in the 1959 ordinance, the subject propertywas zoned "D industrial," originally the only industrialclassification. One of the many permitted uses was "[i]ndustrialand manufacturing plants, where the operations are conducted in oneor more buildings and not more than ten (10) per cent of the lot ortract is used for the open storage of products, materials orequipment." Marengo Zoning Ordinance |
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