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08/27/87 Chicago Title and Trust v. the Village of Mount

August 27, 1987

CHICAGO TITLE AND TRUST COMPANY, AS TRUSTEE, PLAINTIFF-APPELLEE

v.

THE VILLAGE OF MOUNT PROSPECT, DEFENDANT-APPELLEE (CHICAGO TITLE AND TRUST COMPANY, AS TRUSTEE, ET AL., PLAINTIFFS AND INTERVENORS-APPELLEES; THE CITY



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

of Prospect Heights, Defendant and

Intervenor-Appellant)

513 N.E.2d 915, 160 Ill. App. 3d 851, 112 Ill. Dec. 306 1987.IL.1250

Appeal from the Circuit Court of Cook County; the Hon. David J. Shields, Judge, presiding.

APPELLATE Judges:

JUSTICE JIGANTI delivered the opinion of the court. JOHNSON and LINN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

The city of Prospect Heights brings this appeal from an order of the trial court denying its petition for leave to intervene. The village of Mount Prospect initiated the instant proceeding by filing a motion to vacate certain consent decrees entered into between Mount Prospect and the plaintiff in 1971 and 1972. The consent decrees resulted from efforts to settle a 1965 dispute arising from an annexation agreement between Mount Prospect and the plaintiff in its capacity as titleholder to certain property adjacent to the corporate limits of Mount Prospect. In 1985, Mount Prospect filed a motion to vacate the consent decrees and Prospect Heights, an adjoining municipality which came into existence in 1976, sought leave to intervene. The trial court denied the petition on the ground that it was not timely and subsequently entered a consent decree amendment which settled the dispute as to all parties except Prospect Heights. Prospect Heights contends on appeal that the trial court abused its discretion in denying its petition for leave to intervene and that the 1971 and 1972 consent decrees were void from their inception and therefore subject to attack at any time.

This litigation was initiated in 1965 by plaintiff Chicago Title and Trust Company as trustee (property owner) seeking a declaratory judgment that an annexation agreement entered into between it and Mount Prospect was valid and enforceable and that the plaintiff could proceed with the development of the subject property in accordance with the terms of the agreement. Pursuant to the agreement, Mount Prospect zoned the property as a Planned Recreational Open Space District, which permitted office, hotel and residential uses and required that 60% of the area remain open space. On May 11, 1971, Mount Prospect and the property owner agreed to settle the declaratory judgment action by way of a consent decree which reaffirmed the annexation agreement and set forth a plan of development which increased the number of allowable residential units from 1,200 to 2,400. On April 28, 1972, the consent decree was superseded by an amended consent decree which also provided for 2,400 units, but set out a different staging plan, engineering criteria and parking requirements. The court expressly reserved jurisdiction for the purpose of construing, implementing or enforcing the amended consent decree.

Between 1972 and January 1, 1976, the date on which Prospect Heights became an incorporated municipality, 256 residential units were constructed on the property, a 2-million-gallon water tank was constructed and water and sewer lines sufficient to accommodate the maximum development of the property were installed by the property owner. Between 1976 and 1985, 132 additional residential units and a commercial development were completed.

On December 5, 1985, Mount Prospect filed a motion to vacate both the 1971 consent decree and the 1972 amended consent decree on the ground that the property owner failed to develop the property in accordance with the terms of the decrees. Certain homeowners associations and a contract-purchaser of a portion of the subject property were allowed to intervene in the proceeding as additional plaintiffs. On December 20, 1985, Prospect Heights filed a petition for leave to intervene as an additional party-defendant and to file a motion to vacate the 1971 and 1972 consent decrees. The petition alleged that the consent decrees were approved by Mount Prospect without the requisite public notice and hearing and that the plan of development contained in the consent decrees was inconsistent with the development and use of surrounding properties located within Prospect Heights, which borders the subject property. The petition further alleged that the streets and highways serving Prospect Heights were not adequate to accommodate the additional traffic which would be generated by the development and that the development would have an adverse environmental impact upon properties located in Prospect Heights. The proposed motion to vacate contained allegations that the property owner abandoned development of the property. The motion also contained several allegations of special injury and damage which Prospect Heights would sustain if the property were developed in accordance with the 1971 and 1972 consent decrees. Shortly after the petition for leave to intervene was filed, the trial court was informed that negotiations were in progress with respect to further amendments to the consent decrees.

Approximately one year later, the parties requested the court to enter a consent decree amendment which decreased the number and height of allowable residential units on a specific portion of the property and increased the number of parking spaces to be provided. It also obligated the developer of the property to provide certain sidewalk improvements and to contribute $100,000 for the purpose of constructing a fire station. Prospect Heights objected to the proposed consent decree amendment and maintained that it would persist in its petition for leave to intervene. On January 26, 1987, the trial court denied Prospect Heights' petition for leave to intervene for the purpose of challenging the 1971 and 1972 consent decrees on the ground that it was untimely. Although the court allowed Prospect Heights 14 days to file a petition for leave to intervene for the purpose of participating in the proceedings concerning the proposed consent decree amendment, Prospect Heights failed to do so. The court entered the consent decree amendment on February 19, 1987.

Prospect Heights contends on appeal that the trial court abused its discretion in denying its petition for leave to intervene in the proceeding for the purpose of filing a motion to vacate the 1971 and 1972 consent decrees.

Section 2-408 of the Illinois Code of Civil Procedure provides that intervention may be permitted as of right or pursuant to the discretion of the court. (Ill. Rev. Stat. 1985, ch. 110, par. 2-408.) However, regardless of whether intervention is sought as a matter of right or by leave of the court, section 2-408 requires that the petition be timely filed. (Standard Bank & Trust Co. v. Village of Oak Lawn (1978), 61 Ill. App. 3d 174, 377 N.E.2d 1152.) The determination of whether a petition for ...


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