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Dato v. Village of Vernon Hills

SEPTEMBER 28, 1965.

HAROLD E. DATO, MOUNT VERNON ESTATES, INC., A CORPORATION, AND ELMER CLAVEY, INC., A CORPORATION, PLAINTIFFS-APPELLEES,

v.

VILLAGE OF VERNON HILLS, A MUNICIPAL CORPORATION, OF ILLINOIS, DEFENDANT; KILDEER COUNTRYSIDE SCHOOL DISTRICT NO. 96 AND BOARD OF EDUCATION OF KILDEER COUNTRYSIDE SCHOOL DISTRICT NO. 96, LAKE COUNTY, ILLINOIS, PETITIONERS TO INTERVENE AS PARTY-DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Lake County; the Hon. GLENN K. SEIDENFELD, Judge, presiding. Affirmed.

ABRAHAMSON, P.J.

This appeal is taken from an order of the Circuit Court of Lake County denying the petition of a school district to intervene in a zoning case.

On July 7, 1964, the Board of Trustees of the Village of Vernon Hills, pursuant to a recommendation of their Zoning Board of Appeals, rezoned certain property in the Village from a "R-5" classification to "R-4." The pertinent distinction between the classifications is that "R-4" zoning permits only single family residential uses while "R-5" permitted, among other uses, mobile-home parks.

Plaintiffs-appellees filed a complaint under the Declaratory Judgment Act alleging that they are the owners of a certain tract of land affected by the rezoning that they had purchased with the intention of operating a mobile-home park. They seek a determination that the new zoning is "unreasonable, discriminatory, invalid, null and void" insofar as it affects their property.

The appellants herein, the Kildeer Countryside School District No. 96 and Board of Education of Kildeer Countryside School District No. 96, both appeared and testified at public hearings before the Zoning Board of Appeals and the Village Trustees in opposition to the old "R-5" zoning. Thereafter, they filed their Motion to Intervene in the pending Declaratory Judgment Action under Section 26.1 of the Civil Practice Act (Ill Rev Stats c 110, § 26.1) and prosecute this appeal from the trial court's denial of that motion.

The Petition states that if the property in question is used for a mobile-home park that it would increase the number of school children in the district and, at the same time, be taxed as vacant property, thus greatly reducing the assessed valuation per child in the district. It also alleges that the Village itself is without sufficient funds to employ experts to adequately defend the suit. The allegations in the Petition are not denied by any of the other parties.

Section 26.1 provides for the intervention, under certain specified circumstances, by third parties, into pending lawsuits. The section enumerates instances where intervention is a matter of right, and others where it is permissible at the discretion of the trial court. Since appellants contend that they were entitled to intervene as a matter of right, we shall concern ourselves only with that portion of Section 26.1.

"(1) Upon timely application anyone shall be permitted as of right to intervene in an action: (a) when a statute confers an unconditional right to intervene; or (b) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant will or may be bound by a judgment, decree or order in the action; or (c) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court or an officer thereof."

While it is not clear on what sub-section of this paragraph appellants rely, it does appear that they feel a recent amendment to the Municipal Code confers upon them the unconditional right to intervene. A new paragraph was added to the Zoning Division of the Municipal Code (Ill Rev Stats 1963, c 24, § 11-13-20) which provides as follows:

"In any hearing before a zoning commission, board of appeals or commission or committee designated pursuant to Section 11-13-14, any school district within which the property in issue, or any part thereof, is located shall have the right to appear and present evidence."

Prior to this amendment, school districts had no standing to appear at zoning hearings or, obviously, to intervene in any litigation growing out of such hearings. Appellants here urge that the new provision implies the authorization to go beyond the hearing and appear in any resulting litigation.

We cannot agree with this contention. A school district derives its existence and powers wholly from the General Assembly. It has no inherent powers. Goedde v. Community Unit School Dist. No. 7, Macoupin County, 21 Ill. App.2d 79, 89, 157 N.E.2d 266; People ex rel. Dilks v. Board of Education of Paxton Community High School No. 117, 283 Ill. App. 378, 388, 389.

We cannot but conclude that the General Assembly would have clearly so stated had it intended that school districts should be permitted to engage in any litigation resulting from zoning disputes in which they may have an interest.

It is well known that zoning is primarily a legislative function. School districts often have a real and significant interest in zoning, but only indirectly. It is proper that they should be allowed to bring their views to the attention of the particular legislative body considering zoning which affects their interests. The new provision cited grants them this right. But to conclude that this grant inevitably ...


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