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Yusuf v. Village of Villa Park

OPINION FILED DECEMBER 27, 1983.

ALI YUSUF ET AL., PLAINTIFFS-APPELLEES,

v.

THE VILLAGE OF VILLA PARK, DEFENDANT (ROBERT MCDANIEL ET AL., INTERVENING APPELLANTS).



Appeal from the Circuit Court of Du Page County; the Hon. John S. Teschner, Judge, presiding.

JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

This action involves an appeal from an order of the circuit court of Du Page County granting summary judgment for plaintiffs-appellees Ali Yusuf, individually and for the use and benefit of the Islamic Foundation, an Illinois not-for-profit corporation, and Board of School Trustees (formerly the County Board of School Trustees), for the use and benefit of School District No. 45. Plaintiffs' lawsuit was filed on December 21, 1981, alleging that the action of the defendant Village of Villa Park denying plaintiffs' application for a special use permit was arbitrary, capricious and unreasonable and denied plaintiffs their due process and equal protection rights under the Illinois and Federal constitutions.

At issue on this appeal is the zoning of certain property located on the west side of Addison Street in Villa Park, Illinois. To the north of the subject property is vacant land, and to the east are single-family homes. The subject property and all of the nearby Villa Park property are zoned for single-family homes; R-2 under the Villa Park zoning ordinance. The remaining land around the property lies in the village of Lombard. To the south of the property are single-family homes and to the west are a bank and two churches.

The property is owned by plaintiff Du Page County Educational Region for the use and benefit of School District No. 45 (District 45). On the property is a school house formerly used as a grammar school, a small parking lot and an area used by the neighborhood children as a playing field. Plaintiff Ali Yusuf (Yusuf) is a real estate investor. On November 7, 1980, he entered into an agreement to purchase the subject property, but performance was conditioned upon Yusuf being able to obtain a special use permit. On November 6, 1981, Yusuf assigned his interest in the property to the Islamic Foundation (Foundation). The Foundation is a religious association of 200 Muslim families which conducts various worship and educational activities for its members and which rents facilities from the village of Villa Park for these purposes.

Yusuf filed his special use permit application with the Villa Park Plan Commission (Plan Commission) in January 1981 and the Plan Commission held three hearings on the application in February and March 1981. In his application, Yusuf proposed that the subject property be operated as a day-care center and that the Foundation would use the facility as a culture center including a night school and a mosque. The day-care center would operate from 6:30 a.m. to 6 p.m., and night classes would be conducted until 9 p.m. five days each week. Worship services would be held on Friday and Sunday afternoons. To accommodate the additional cars expected to be parked at the culture center, Yusuf's plans provided for the addition of 77 paved parking spaces.

At the close of hearings, the Plan Commission voted eight votes to one to deny Yusuf's application. Plan Commission members expressed specific reasons for denying the application: the extended hours of operation would create additional traffic and would place additional burden on the neighborhood; the proposed center would utilize village services, but as a tax-exempt facility would generate no revenues; only two Villa Park families would use the center; and the paving of land to provide the additional parking spaces would exacerbate an already-serious flooding problem. On April 20, 1981, the Board of Trustees of Villa Park voted to accept the Plan Commission's recommendation and to deny Yusuf's application.

Plaintiffs thereafter filed on February 23, 1982, an amended complaint for declaratory and injunctive relief, alleging that the action of the village was arbitrary, capricious and unreasonable and denied plaintiffs their due process and equal protection rights under the Illinois and Federal constitutions. On June 9, 1982, plaintiffs filed a motion for summary judgment. The evidence upon which plaintiffs relied consisted of the transcripts of the proceedings before the Plan Commission and affidavits attached to the motion. The village filed a cross-motion for summary judgment and a response to plaintiffs' motion. The trial court granted plaintiffs' motion on August 3, 1982. Thereafter, the village and plaintiffs entered into an agreement in which the village agreed not to appeal the adverse judgment.

Petitioners to intervene-appellants, Robert and Gail McDaniel (McDaniels), who are owners of the home adjoining the subject property to the south, and the Villa-Bard Community Association (Association) learned of the agreement between plaintiffs and the village on approximately August 29, 1982, and petitioned the court on September 2, 1982, for leave to intervene and to file a motion for reconsideration of the order granting judgment to plaintiff. On September 15, 1982, the trial court ruled that the intervention petition was untimely, denied the petition, and entered a finding pursuant to Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)) that there was no just reason to delay enforcement or appeal. Petitioners filed a timely notice of appeal.

Petitioners assert that the trial court improperly denied their petition to intervene as untimely. Petitioners argue that once they learned their interests were not being adequately represented and protected by the village, they acted diligently and filed their intervention petition in a timely fashion. In response, plaintiffs argue that the trial court did not abuse its discretion in denying petitioners' intervention petition. Plaintiffs contend that since petitioners were aware of the litigation from its inception and raised no new grounds for relief in their petition, the decision not to intervene prior to judgment precludes their post-judgment attempt to intervene. Plaintiffs also argue that the case authority cited by petitioners is inapposite and that petitioners have no standing to intervene because they alleged only a general interest in the zoning decision based upon the proximity of their property to the subject property.

• 1 The first issue presented is whether petitioners have standing to maintain this appeal. Plaintiffs contend petitioners may not appeal from the judgment on the merits because they were not parties to the litigation in the trial court. Petitioners cite Nott v. Wolff (1960), 18 Ill.2d 362, as authorizing their appeal in this case. In Nott, two landowners in the village of Wilmette planned to build a motel, but after village residents submitted a petition to the village board requesting that the zoning ordinance be amended to prohibit the construction of a motel, the landowners filed a petition for writ of mandamus requesting the village manager to issue them a building permit. The hearing referee, after considering the evidence, ruled the amended ordinance was void as applied to the subject property and recommended that the court issue the writ of mandamus. The trial court affirmed the referee's finding and certified the case for direct appeal to the supreme court. The defendant village did not prosecute the appeal, but a bank which was not a party in the trial court appealed as an owner of property adjoining the land on which the motel was to be constructed. The supreme court rejected the appellee's claim that the appeal should be dismissed because the bank was not a party of record, was not injured by the judgment, and did not have an appealable interest. Instead, the Nott court held the bank had standing to maintain the appeal.

The similarities between Nott and the instant case require the conclusion that petitioners here have standing to maintain this appeal. Both the appellant in Nott and the petitioners here were not parties in the trial court. In both cases, the municipality representing the public chose not to appeal, and the party seeking to appeal alleged as its injury the diminution in value of its property which was in the vicinity of the subject property. Plaintiffs in their appellate brief fail to address petitioners' contention that Nott controls the instant case. In light of the similarity between the facts in Nott and those here and in the absence of contrary authority cited by plaintiffs, we conclude petitioners possessed the requisite standing to maintain this appeal.

• 2 The next issue is whether petitioners had standing in the trial court to file their intervention petition. Plaintiffs argue that petitioners have failed to demonstrate an injury sufficient to confer standing to challenge the trial court's action. The only authorities cited by plaintiffs, however, are cases stating the general principle that a party must have a direct injury or personal stake to possess standing.

Petitioners respond that their allegations in their intervention petition demonstrate a special and not simply a general injury, and therefore, such allegations confer standing. In their petition, petitioners allege: the McDaniels own and reside at the property adjoining the subject property; the members of the association are homeowners located in the vicinity of the subject property; and the proposed nonconforming use would result in additional traffic and noise at extended hours of the day and night, would have a substantial adverse impact upon the members' and McDaniels' quiet enjoyment of their property, and would have an adverse impact on the value of their property which is near the subject property. We conclude these facts constitute sufficient allegations of injury to confer standing, for adjoining landowners possess rights which can be affected adversely by declaratory judgment actions and these rights constitute an interest in the zoning decisions which is distinct from that which the general public can assert. (Anundson v. City of Chicago (1970), 44 Ill.2d 491, 495-96; Bredberg v. City of Wheaton (1962), 24 Ill.2d 612, 623-24; Truchon v. City of Streator (1979), 70 Ill. App.3d 89, 92-93, 388 N.E.2d 249, 251-52.) Thus, plaintiffs' claim that petitioners lack standing in the trial court to contest the zoning decision is unpersuasive.

• 3 Plaintiffs argue that even if petitioners had standing to intervene, their intervention petition was not timely and therefore, the trial court's denial of their intervention petition was not an abuse of discretion. Whether intervention is sought as a right or by leave of court, the petition must be timely filed. (Childress v. State Farm Mutual Automobile Insurance Co. (1968), 97 Ill. App.2d 112, 239 N.E.2d 492.) Section 2-408 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-408), which governs the right to intervene, is to be liberally construed. (Wheeling Trust & Savings Bank v. Village of Mount Prospect (1975), 29 Ill. App.3d 539, 331 N.E.2d 172.) The determination of whether a petition ...


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