APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. CURRY, Judge, presiding.
MISS PRESIDING JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 15, 1980.
The Village of Northbrook (Village) appeals from an order of the Circuit Court dismissing its action against the County of Cook (County), William F. Harris, building commissioner of Cook County, Lena Bruno, zoning administrator of Cook County, and Sydney R. Olsen, recorder of deeds of Cook County. The Village sought a declaration that the County's zoning classification of a certain parcel of property (subject property) was invalid and that the Village's subdivision regulations applied to the development of the property. Northbrook Trust and Savings Bank (Northbrook Trust), the legal titleholder of the subject property, petitioned the court for leave to intervene and filed a motion to dismiss the complaint alleging the action was barred under the doctrines of res judicata and estoppel by verdict. The County joined in the motion to dismiss. The trial judge allowed the intervention and dismissed the Village's complaint finding all the issues were barred by the judgment in a prior case involving the Village, County and Northbrook Trust. Northbrook Trust & Savings Bank v. County of Cook (1977), 47 Ill. App.3d 879, 365 N.E.2d 433, appeal denied (1977), 66 Ill.2d 631, cert. denied (1978), 434 U.S. 1069, 55 L.Ed.2d 771, 98 S.Ct. 1249.
The subject property, which is contiguous to the corporate limits of the Village of Northbrook, is located at the northwest corner of Willow Road and Shermer Road in unincorporated Cook County. It consists of approximately 17.9 acres.
The prior action was brought by Northbrook Trust against the County after its application to change the zoning classification of the subject property from R-3 single-family residence district to B-4 general service district with a special use of a planned development was denied. Northbrook Trust sought to develop the subject property by building a shopping center and 31-unit multifamily development. *fn1 Northbrook Trust alleged that the R-3 zoning classification of the subject property was constitutionally invalid. The Village and various other parties intervened as defendants. The trial court declared the Cook County zoning ordinance to be unconstitutional as applied to the subject property and included in its order the following:
"B. That the plaintiffs, or any person claiming by, through or under them, are entitled to use the subject property for a general service planned development in substantial compliance with the plans submitted in evidence in this cause.
C. That the County of Cook, and its agents, servants and employees and each and every one of them, and the intervenor-defendants, their agents, servants and employees and each and every one of them, be and they are hereby enjoined from enforcing the provisions of the Zoning Ordinance of the County of Cook insofar as said ordinance prevents the use of the subject property as aforesaid, and further the County of Cook is directed to issue to the plaintiffs or their successors in title, upon proper application and upon compliance with all applicable codes and all necessary permits and licenses for the erection of a general service planned development in the manner herein provided, and that they be further enjoined from interfering with the plaintiffs and all persons claiming by, through and under them, from utilizing the subject property as hereinabove decreed to be their right."
This order was affirmed on appeal. Northbrook Trust & Savings Bank v. County of Cook.
Subsequent to the decision of the trial court but prior to the decision of this court, the County adopted a comprehensive amendment to its zoning ordinance. Under the amendment, the subject property was reclassified to C-4 general commercial district subject to a special use and R-6 high density residential district subject to a special use. It is this zoning ordinance that the plaintiff in the instant case seeks to have declared invalid but only insofar as it reclassifies the subject property to permit the proposed development by Northbrook Trust.
On appeal the plaintiff argues that its action should not have been dismissed because: (1) the Village is entitled to have its full day in court and (2) Northbrook Trust is estopped from raising the doctrine of res judicata because both count I and count II of the present action are completely different from the cause of action in the prior suit.
The Village contends that it was not permitted the full rights of a party to the cause of action in the prior suit. Specifically, the Village states that it was denied the right to cross-examine adverse witnesses introduced by Northbrook Trust because the assistant State's attorney, representing the County, conducted all cross-examination. The Village contends that, as a result of this limitation, it was denied a truly adversary proceeding.
The Village relies on Albini v. Stanco (1968), 61 Misc.2d 813, 306 N.Y.S.2d 731, but we find that case distinguishable. In Albini the plaintiff had been voluntarily dismissed out of a prior action in which he was a defendant, leaving his co-defendant, a municipality, to defend the validity of a zoning amendment. While this lawsuit was pending, there was a change in administrations and the municipality notified Albini that his building permit, which had been issued in accordance with the zoning amendment, was being revoked. Albini commenced his own action against the municipality seeking a declaratory judgment that the zoning amendment and his permit were valid. Thereafter a decision in the first lawsuit was rendered finding the zoning amendment invalid. Albini's subsequent lawsuit was not barred by the doctrine of res judicata because the court found Albini was not a party or privy to a party and had been diametrically opposed to the parties in the prior action. Notwithstanding res judicata implications, the court held Albini was entitled to his day in court since the prior proceeding had not been in any sense an adversary proceeding.
• 1 In the case at bar the Village intervened as a party-defendant in the prior suit and remained a party throughout the trial and appeal. Furthermore, the County remained aligned with the Village and defended the validity of the R-3 zoning classification of the subject property throughout the prior trial. The County did not adopt the amended zoning ordinance which would allow the planned development by Northbrook Trust until January 1976, approximately six months after the trial court entered its final judgment order ruling against the defendants. The Village's present complaint admits that the County actively defended its position during the trial and "maintained at all times the unreasonableness of the requested rezoning" and actively prosecuted the appeal of the matter at least until January 19, 1976. For these reasons we fail to see how the Village can now contend that it was denied a truly adversary proceeding in the earlier litigation.
• 2 We also reject the Village's argument that it was improperly denied the right to cross-examine adverse witnesses in the prior action. Such an error cannot be asserted in the present proceeding since it is clearly a collateral attack upon the prior ruling. (See People ex rel. White v. Busenhart (1963), 29 Ill.2d 156, 193 N.E.2d 850.) The proper avenue to address such an error was through direct appeal of the ...