APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 12, 1978.
Petitioners, nonprofit associations and individual homeowners, appeal from an order of the circuit court of Cook County denying their petition for leave to intervene in order to file a motion for a new trial in a matter which had been reduced to judgment. The trial court denied the petition on the ground that the application was untimely.
The original suit was filed on July 15, 1976, by the owners and lessees of certain property located at the corner of 95th Street and Crawford Avenue in the Village of Oak Lawn. The complaint attacked the denial by the Village of a site plan which provided for the development of the property as a shopping center. Plaintiffs contended that the site plan complied in all respects with the Village zoning ordinance. They also challenged the constitutionality of the ordinance.
Five days after plaintiffs' action was filed, all the trustees of the Village Board present at a meeting voted to defend the Village's position in court. Thereafter, the Village filed an answer and resisted plaintiffs' suit. On May 3, 1977, after a trial, the trial court entered judgment for plaintiffs, holding that the site plan was in substantial compliance with the ordinance and that plaintiffs were entitled to develop the property as a shopping center. The court found it unnecessary to rule on the constitutional question. The Village was directed to approve the site plan subject to certain modifications. No further modifications were to be permitted without consent of the Village.
As we have noted, the Village trustees originally had voted to defend the Village's position. In a Village election conducted in April 1977, there was a partial change in the composition of the Board, and a new Village president was elected.
At the Board meeting of May 17, 1977, two weeks after entry of the judgment in favor of plaintiffs, the question of whether to appeal from the trial court's decision was discussed. Several of the petitioners were present and urged the Village to appeal. The new president stated that in exchange for an agreement on the part of the Village not to appeal the decision, plaintiffs had offered to covenant that certain property to the north which was owned by petitioners would be developed only for single-family dwellings. Plaintiffs also offered to grant certain easements and to assume the costs of installing nearby traffic signals. A vote was taken and two newly elected trustees voted not to appeal the court's decision. A trustee, who previously had voted to defend the Village's position, also voted not to appeal. Three trustees voted to appeal. The tie vote was broken by the new president, who voted not to appeal. A motion was adopted that the appeal not be prosecuted subject to the ratification of the proposed agreement by all parties on or before May 27.
On May 27, 1977, the trial court entered an order which approved the agreement entered into between plaintiffs and the Village. The agreement also provided that no portion of the judgment entered on May 3 was to be affected or changed by the terms of the agreement.
On June 2, 1977, petitioners sought leave to intervene. The petition recited that the individual petitioners were residents of the Crawford Gardens subdivision located approximately 500 feet from plaintiffs' property. The petition further stated that petitioners were aware of the litigation between plaintiffs and the Village, but previously had not sought leave to intervene because they believed they were represented adequately by the Village. The petition also alleged that after the May 3 judgment in favor of plaintiffs, petitioners expected the Village would continue to resist. Petitioners stated that the value of their property would be decreased seriously if the judgment were permitted to stand. Attached to the petition to intervene was a motion for a new trial.
Plaintiffs filed an answer to the petition for leave to intervene. In the answer, plaintiffs stated that petitioners were well aware of the trial and had made no effort to intervene or to participate in a timely manner. The answer also alleged that the petition was insufficient because it failed to set forth any specific property owned by plaintiff or failed to set forth what property would be damaged by the judgment.
On June 9, 1977, the trial court, after a brief hearing, denied the petition for leave to intervene on the ground that it was not timely filed. The order of denial also recited that even if permission to intervene were granted, the motion for a new trial would be denied as without merit.
Petitioners contend that the trial court abused its discretion in denying their petition for leave to intervene. Section 26.1 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 26.1) provides in pertinent part:
"(1) Upon timely application anyone shall be permitted as of right to intervene in an action: * * * (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 an order or judgment in the action; * * *."
Petitioners maintain that they were entitled to rely upon the elected officials of the Village to represent their interests adequately, and that such reliance was justified until the entry of the agreed order on May 27, 1977, by which the Village gave up its right to appeal the trial court's decision. Petitioners argue that only then did representation by the Village become inadequate. Petitioners contend further that the judgment and subsequent agreed order seriously jeopardize their ...