specially concurring in part and dissenting in part:
I concur with the majority opinion on all issues, but dissent with respect to the award of attorney fees. Well-settled rules of statutory construction provide that fee-shifting statutes are in derogation of the common law and must be strictly construed. Carson Pirie Scott & Co. v. State Department of Employment Security, 131 Ill. 2d 23, 49, 544 N.E.2d 772 (1989). The majority, however, interprets section 11— 13 — 15 of the Illinois Municipal Code so broadly as to pervert its plain language and completely undermine the legislative intent of this section of the Code. Ill. Rev. Stat. 1991, ch. 24, par. 11 — 13—15 (now 65 ILCS 5/11 — 13—15 (West 1994)).
The Illinois Municipal Code provides in pertinent part:
"In case any building or structure, including fixtures, is constructed, reconstructed *** or maintained *** in violation of [a building] ordinance *** any owner *** 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 *** to restrain, correct, or abate the violation. ***
If an owner *** files suit hereunder and the court finds that the defendant has engaged in any of the foregoing prohibited activities, then the court shall allow the plaintiff a reasonable sum of money for the services of the plaintiff’s attorney.” Ill. Rev. Stat. 1991, ch. 24, par. 11 — 13—15 (now 65 ILCS 5/11 — 13—15 (West 1994)).
In interpreting statutes, this court must ascertain and give effect to the true intent and meaning of the legislature. Pliakos v. Illinois Liquor Control Comm’n, 11 Ill. 2d 456, 143 N.E.2d 47 (1957). In so doing, we must give the language of the statute its plain and ordinary meaning; in other words, we may not declare that the legislature did not mean what the plain language of the statute imports. Maloney v. Bower, 113 Ill. 2d 473, 479, 498 N.E.2d 1102 (1986). Here, the majority has strained the meaning of the term "correct” in order to give a meaning clearly not contemplated by the legislature or case law. As the court explained in Burroughs v. Hills, 564 F. Supp. 1007, 1019 (1983), the statute in question "creates a limited right of action on behalf of certain private parties to enforce municipal ordinances by way of injunction.” By describing the private action as a proceeding to restrain, correct or abate a violation, the Illinois General Assembly did not contemplate the prosecution of a common law action for damages. To the contrary, an action to restrain, correct or abate remains, in essence, an action for injunctive relief.
Consequently, a private party is entitled to attorney fees only to the extent that he or she establishes "a substantial contribution, independent of the actions of the municipal authorities, to the ultimate success in correcting or preventing violations of the municipal ordinances.” City of Chicago v. Higginbottom, 219 Ill. App. 3d 602, 607, 579 N.E.2d 890 (1991). Thus, any right to attorney fees in this case ceased once the circuit court entered its original restraining order on March 8, 1991. Launius v. Najman, 129 Ill. App. 3d 498, 502, 572 N.E.2d 170 (1984) ("Once compliance had been accomplished by the city’s action, there was no basis upon which to award fees to the plaintiff”).
The majority, however, erroneously considers attorney fees justified under the posture of a "corrective action.” The majority has confused an action to "correct” a zoning violation with an action to recover damages. In the process, the court has transformed what has heretofore been an act limited to zoning enforcement into an action for negligence and damages.
By way of example, assuming hypothetically an adjoining landowner’s property has been damaged as a result of a Code violation. Independent of the landowner’s efforts, the local municipality obtains a stop order. The landowner later files an action sounding in negligence to recover for the damages to his or her property. If successful, the landowner may be awarded damages, but is not entitled to attorney fees.
Suppose, however, as under the facts of this case, that the same landowner were to file, an additional count pursuant to the Code under the theory — now supported by this court’s opinion — that a "corrective action” is still viable. The successful landowner is now entitled to attorney fees despite the fact that he or she contributed nothing "to the ultimate success in correcting or preventing violations of the municipal ordinances.” City of Chicago v. Higginbottom, 219 Ill. App. 3d 602, 607, 579 N.E.2d 890 (1991). In effect, the landowner has used the zoning enforcement statute to sponsor his or her otherwise generic common law action for damages.
Finally, the majority’s use of an analogy to pollution remediation cases is misplaced. Aside from the fact that the language of the statutes differ in significant respects — Title V’s definition of "corrective actions” specifically includes "clean up” and "soil remediation”— the whole tenor of the pollution remediation statutes reflects the public policy in achieving land reclamation. It is not surprising, therefore, that courts assess clean up costs for, among other things, soil remediation. Reimbursement of pollution "costs” under Title V, however, is clearly not analogous to the shifting of "attorney fees” under the zoning enforcement section of the Municipal Code. Had the General Assembly intended to incorporate Title V’s expansive concept of "corrective actions” into the Municipal Code, it would have expressly so indicated.
For the foregoing reasons, I respectfully concur in part and dissent in part.