delivered the opinion of the court:
Plаintiff brought this action against defendant Village of Mount Prospect (hereinafter “the Village”) seeking to declare the zoning ordinanсe of the Village unconstitutional as applied to its property. The court below denied petitioners leave to intervene as defendants in the action, and on the same day entered a final judgment order by agreement of plaintiff and the Village settling thе dispute. Petitioners appeal from both orders contending that the court erred in determining that their petition was not timely filed.
On August 14, 1973, a complaint was filed seeking to declare invalid the zoning ordinance of the Village as being arbitrary, discriminatory and oppressive as applied to plaintiff’s property. The complaint alleged that plaintiff wanted to construct a “6 story building containing commercial uses on the first floor and 113 dwelling units in the upper 5 floors.” Such uses were permitted under the Comprehensive Zoning Ordinance of Cook County prior to the involuntary annexation of the subject property by the Village, but the Village’s zoning ordinance prohibited the сonstruction of buildings the height requested by plaintiff. It was further alleged that plaintiff petitioned the Village for rezoning of the subject property, and that subsequent to a public hearing four members of the seven-member Village Board of Trustees voted for the proposed change. However, an affirmative vote of two-thirds of the members was required because the proposed change was “рrotested” by “nearby single family homeowners,” and consequently the change was denied. An answer containing general denials was filed оn behalf- of the Village.
On April 24, 1974, petitioners filed their petition to intervene as defendants. It alleged, that petitioners all own or livе in single-family residences within 500 feet of the subject property, and that the value of their property would be seriously decreased if the subject property was developed as proposed by plaintiff. It further alleged that petitioners at an April 2, 1974, meeting оf the Village Board of Trustees first learned that plaintiff and the Village were about to enter into an agreement to “rezone the subject property to permit the proposed use,” and therefore their interests were no longer adequately represented by the Village.
In its answer opposing the petition, plaintiff alleged that the agreement settled all matters in controversy, аnd further, since the petition was not filed until 9 months after the filing of the complaint, it was not timely. The agreement, which was attached as аn exhibit to plaintiff’s answer, stated that plaintiff would be allowed to construct 80-dwelling units in a single building on the subject property, that it would be cоmpelled to provide certain sewage improvements for the property, that it commit itself to an agreed upon site рlan, and that no commercial uses would be allowed. *
On May 31, 1974, the trial court denied petitioners leave to intervene and entеred a judgment on the agreement between plaintiff and the Village.
Opinion
Petitioners’ sole contention is that the court below erred in denying them leave to intervene.
Section 26,1 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 26.1) provides in pertinent part:
“Upon timely application anyone shall be permitted as of right to intervene in an action * * * when the representation of the appliсant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by a judgment, decree or order in the аction * * *.”
Section 26.1 is to be liberally construed. (Bredberg v. City of Wheaton,
In the instant case, of course, the issues raised by plaintiff in its complaint and contested by the Village in its answer were never brought to trial. The record reveals that petitioners filed their petition promptly after the April 2 Board of Trustees meeting at which they first lеarned that the Village had agreed to settle the dispute. This filing was made over 5 weeks before the court entered the final judgment order signifying its acceptance of the settlement. Moreover, there is no doubt that petitioners, as adjoining landowners, possessed an interest in the action which was sufficient to permit their intervention. (Anundson v. City of Chicago,
We note that plaintiff has pointed out that what is complained of by petitioners in their petition and proposed answer is the relief first sought by it (the construction of 113 residential units plus commercial uses in a six-story building) and not the agreed settlement (the construction of 80 residential units). Plaintiff argues that the controversy into which petitioners wished to intervene no longer existed. We believe, however, that since the court could have rejected the proposed settlemеnt, the controversy remained in existence until the final judgment order was entered. It is to be noted that petitioners apparently did not know the precise contents of the agreement when they filed their petition. Counsel has represented at oral argument that the details of the proposed settlement were not revealed at the April 2 Village Board of Trustees meeting nor were tire pleadings amended to reflect the contents of the settlement.
In view of the fact that the denial of leave to intervene in the instant case raises the possibility of the initiation of additional litigation, and that the petition was filed in a timely manner, we (1) reversе the judgment on the agreed order between plaintiff and the Village, (2) reverse the order denying petitioners leave to intervenе and (3) remand the cause for further proceedings.
Reversed and remanded.
BARRETT, P. J., and SULLIVAN, J., concur.
Notes
The Village did not file an answer in opposition to the petition for leave to intervene nor has it filed a brief in this appeal.