APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
GREEN, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
This is an appeal from the trial court's order of May 20, 1980, which denied petitioners leave to intervene, and from the order of July 24, 1980, which denied their petition for rehearing and for leave to file an amendment to their original petition. The issues presented for review are: (1) whether the trial court erred in denying petitioners' intervention as a matter of right; and (2) whether it was an abuse of discretion to refuse petitioners' permissive intervention.
Plaintiff Jean Bishop filed this action on her own behalf and on behalf of the class of similarly situated construction companies who made payments to the Village of Brookfield (hereinafter Village) pursuant to Ordinance No. 28-41. This ordinance as enacted in 1968 provided:
"It shall be unlawful for any person to connect, or to cause to be connected, any sanitary sewer service pipe servicing a building without first depositing twelve dollars ($12.00) per front foot of the property to be serviced by the connection, for all property located between Shields Avenue and 47th Street, and Deyo Avenue and Custer Avenue. This deposit will be used to pay for future installation of storm sewers to service the adjoining property. If the cost of the installation of storm sewers runs in excess of twelve dollars ($12.00) per front foot, the property owner will be required to pay the difference as a portion of a special assessment levied for said purpose. If this cost of installation is less than the deposit, any excess will be refunded to the property owner of record as of the date of the completion of the construction." Book of Ordinances of the Village of Brookfield, Illinois, ch. 28, § 28-41 (1968).
In her complaint plaintiff alleges that she and the other members of her class were required under the 1968 ordinance to make payments as a condition precedent to being permitted to connect the residences which they had constructed to the Village's sewer system. She further alleges that in March 1979, the said ordinance was repealed and replaced by a similar ordinance (Book of Ordinances of the Village of Brookfield, Illinois, ch. 28, art. IV, § 28-41 (1979)), and that this latter ordinance was declared unconstitutional in La Salle National Bank v. Village of Brookfield (1981), 95 Ill. App.3d 765, 420 N.E.2d 819.
She alleges that during the years 1968 to March of 1979 the Village collected approximately $300,000 under the terms of the 1968 ordinance and no part of these funds have been used for their intended purpose, namely to defray the cost of constructing storm sewers. Further, that these monies were collected illegally, that the 1968 ordinance was unconstitutional and that plaintiff and members of her class are entitled to the return of deposits made pursuant to this ordinance. In the alternative, plaintiff argues that even if the 1968 ordinance was valid, upon its repeal the Village lost all rights to retain such deposits and should return the collected funds, together with accumulated interest, to the depositors.
Less than three weeks after plaintiff filed her complaint, petitioners who are property owners in the area designated by the 1968 ordinance filed a petition for leave to intervene together with a proposed answer and counterclaim. They sought class certification to represent all other property owners within the designated area and also leave to file a counterclaim, as a class, against the Village. In their petition they alleged that they were the present owners of property in the area described in the 1968 ordinance and that any deposits made by plaintiff and members of her class to the Village were made for the use and benefit of petitioners for the purpose of defraying the cost of installing storm sewers for their respective properties. They further alleged that their interests were adverse to the Village and that therefore the Village could not adequately represent them. Finally, they alleged that they will or may be bound by a judgment entered in the pending action.
In their proposed answer and counterclaim, petitioners denied that plaintiff was entitled to the return of funds on deposit with the Village and alleged that plaintiff voluntarily contracted with petitioners to make said deposits for the sole use and benefit of petitioners in order to defray the cost of installing storm sewers. They prayed that plaintiff's complaint be dismissed, that petitioners be properly certified as a class and that the Village be directed to pay petitioners all monies collected pursuant to the 1968 ordinance together with accrued interest.
In response to the petition to intervene, the Village alleged that petitioners did not set forth any contract between themselves and plaintiff and that the Village would adequately represent petitioners' interests.
Thereafter, on May 20, 1980, an order was entered denying the petition to intervene. On June 11, 1980, petitioners filed a petition for rehearing with a proposed amendment to their original petition in which they further alleged that the monies collected pursuant to the 1968 ordinance were held in trust by the Village for the sole and exclusive benefit of the property owners. Petitioners further alleged the unavailability of the real estate sales contracts between themselves and plaintiff but stated that the contracts provided, in part, as follows:
"Sellers (Bishop Construction Company) shall pay for the installation of sanitary sewer, sidewalk and deposit with the Village of Brookfield, the sum of $12.00 per front foot to be used by the Village of Brookfield to apply on the cost of storm sewers when installed."
A hearing was had and on June 24, 1980, an order was entered denying petitioners' petition for rehearing and also their motion for leave to file an amendment to their petition to intervene. Petitioners appeal.