¶ 10 In 2017, the Transite Parcel plus the 5.41 feet of land to its east, was transferred to
Eggleston Street LLC., which also acquired the Abutting Parcel in 2018. On December 11, 2019,
the record reveals that an attorney from the law firm representing Eggleston obtained part of the
underlying court file, including two copies of the 1990 Agreed Order to Amend Judgment,
despite not having filed an appearance or having a client that was a party to the case. On that
same day, the 1990 agreed order was refiled, bearing an e-filing stamp from the Clerk’s Office,
but without any record of a notice of filing. Eggleston and a number of adjacent property owners
subsequently filed a zoning application seeking conditional use permits from the City that would
allow, in relevant part, the construction and operation of parking lots at 272 W. Eggleston
Avenue and 276 W. Eggleston Avenue.
¶ 11 The City’s Zoning and Planning Commission held public hearings on that zoning
application on January 20, 2021, February 2, 2021, March 16, 2021, and April 20, 2021. During
the February 2 hearing, the Dungans’ attorney, Mark Daniel, appeared to oppose the zoning
6 application. In addition, attorney Daniel submitted to the Commission a 100-page document
entitled “Elmhurst Neighbors United (Part One) Opposition to Morecci/Roberto’s Application
for Conditional Use” (“Opposition Document”) prior to the March 16 hearing. Daniel appeared
again at the March 16 zoning hearing and gave an oral presentation based on the Opposition
Document and discussing the 1970 zoning case and the resulting 1971 and 1990 judgments.
¶ 12 In 2021, the City Council approved the zoning application and adopted zoning ordinance
No. ZO-27-2021, authorizing the changes necessary to obtain the conditional use permits needed
to construct the parking lots. The Dungans did not seek administrative review of zoning
ordinance No. ZO-27-2021. In 2022, the City approved permits to build the parking lots on the
land, subject to the Association’s interest. Construction later began on a parking lot that included
the addition of structures such as curbs, gutters, 20-foot tall light posts, fencing, and large
stormwater conveyance and detention systems.
¶ 13 On February 2, 2023, the Dungans filed a petition to intervene in the 1970 action,
alternatively asserting intervention as of right and by permission. The petition referred to the
portion of the rezoned property owned by Eggleston as the “Transite Parcel” and made no
mention of zoning ordinance ZO-27-2021. As owners of property (lot 3) named in the 1971 and
1990 orders, the Dungans argued that intervention was necessary to protect their interests in their
land value, the avoidance of nuisance, and neighboring residents’ welfare, health, and safety.
They also sought to uphold the building restrictions imposed in the prior orders. They contended
that the permitted structures violated those orders, which barred development of the Transite
Parcel and the 5.41 feet east of the Transite Parcel with anything other than surfacing until the
Dungan Parcel (lot 3), the Abutting Parcel, and other specified parcels were held in common
7 ownership. It is undisputed that the parcels have never had a common owner since the entry of
the 1971 judgment.
¶ 14 The Dungans argued that the City’s issuance of the construction permits ignored the
restrictions in the earlier orders and demonstrated its abdication of its former role as the
representative of neighboring landowners’ interests during the proceedings that resulted in the
1971 and 1990 judgments. The Dungans asserted that the issuance of those permits, and
Eggleston’s subsequent construction of elements beyond surfacing, adversely impacted them and
their property interests.
¶ 15 Attached to their petition, the Dungans included two pleadings that they intended to file if
their petition to intervene were allowed. Because the Hatches and the Kings no longer possessed
any interest in the subject land, with Eggleston owning both the Transite Parcel and the Abutting
Parcel, the Dungans sought to substitute it, Wild Meadows Trace Townhome Association, Inc.,
and Wild Meadows Trace Condominium Association as the plaintiffs in the original case. The
Dungans also sought an order to enforce the 1971 and 1990 judgments that precluded the
construction of any structures other than surfacing on the Transite Parcel. Noting that the trial
court had retained jurisdiction in both orders, they argued that, under General Motors Corp. v.
Pappas, 242 Ill. 2d 163, 175 (2011), a court with continuing jurisdiction could hear an action
seeking enforcement of a prior judgment as a collateral matter. Their proposed petition to
enforce set forth the relevant chain of title, noted the absence of the common ownership required
prior to any construction other than surfacing on the subject tract, and sought relief that would
prevent Eggleston from making additional improvements.
¶ 16 In its 200-page response, the City contested factual matters pertaining to its new zoning
ordinance (ZO-27-2021), which was necessary to issue the construction permits. It argued that
8 the petition to intervene was untimely and that the zoning change was permissible as a valid use
of its legislative authority, despite the limitations set out in the1971 and 1990 orders. The City
also contended that the petition to intervene was, in effect, a challenge to the new zoning
ordinance after the Dungans failed to seek administrative review of that change. In their reply,
the Dungans denied that contention.
¶ 17 On April 13, 2023, the trial court denied the Dungans’ petition to intervene as well as
their subsequent request for leave to amend their petition, citing the rationale in its prior oral
ruling. The written order stated, “Denial of the Petition to Intervene *** operates without
prejudice to the initiation or continuation of litigation in a new lawsuit, provided, however, that
this Order is final and appealable pursuant to Illinois Supreme Court Rule 301 and 303.”
¶ 18 In its oral ruling, the trial court questioned whether the Dungans had any rights under the
prior orders when the original plaintiffs and their successors in title were no longer parties to the
case. The court also believed that allowing the Dungans to intervene and substitute party
plaintiffs would greatly expand the issues presented beyond those considered by the court in
1971, 1990, and 2019, when the 1990 amended order was refiled. In its oral ruling, the trial court
concluded that it did not “believe that it is necessary or desirable to allow the intervention in this
case when the issues are so diametrically and wildly different than they were before the Court in
those three previous years in which the judgment was entered or amended.”
¶ 19 Without permission to intervene, the Dungans were barred from obtaining leave to file
either their motion to substitute parties or their petition to enforce the prior judgments.
Consequently, they filed a timely notice of appeal from the denial of their petition to intervene.
¶ 20 II. ANALYSIS
9 ¶ 21 The Dungans raise two closely related issues on appeal: (1) whether the trial court erred
in denying their petition to intervene as a matter of right (735 ILCS 5/2-408(a) (West 2022)); and
(2) whether the trial court erred in denying their petition to intervene by permission (735 ILCS
5/2-408(b) (West 2022)). We review the denial of a petition to intervene for an abuse of the trial
court’s discretion. A & R Janitorial v. Pepper Construction Co., 2018 IL 123220, ¶ 15 (stating
that “[a] trial court's decision whether to allow intervention will not be reversed on appeal unless
the court abused its discretion. [Citation.] It is always an abuse of discretion for a trial court to
base a decision on an incorrect view of the law”). Due to the extensive overlap in the parties’
arguments on the two issues, we will address them together.
¶ 22 “In determining whether to allow a petition to intervene, the circuit court ‘must consider
whether the petition to intervene is timely, whether the petitioner's interest is sufficient, and
whether that interest is being adequately represented by someone else in the lawsuit.’ ” Winders
v. People, 2015 IL App (3d) 140798, ¶ 13 (quoting Soyland Power Co-operative, Inc. v. Illinois
Power Co., 213 Ill. App. 3d 916, 918 (1991)). Intervention after judgment is entered may be
allowed when the failure to intervene prior to the entry of judgment is justified or when
intervention is the only way to protect the rights of the party seeking to intervene. Id. ¶ 14.
¶ 23 To support their petition, the Dungans rely on our supreme court’s decision in Anundson
v. City of Chicago, 44 Ill. 2d 491 (1970), a case not discussed by either the trial court or the City.
The facts in Anundson strongly parallel those in the instant appeal. In 1962, the trial court found
portions of a Chicago zoning ordinance unconstitutional as applied to land owned by the
Anundsons. The judgment order granted them and their successors the right to construct a
mixed-use building that adhered to specified parameters, including the provision of off-street
parking, and expressly retained jurisdiction to address future enforcement issues.
10 ¶ 24 Construction on the building began in 1964, shortly after the issuance of the necessary
construction permits. After construction started, an adjoining landowner complained to the Chief
Building Inspector of the City of Chicago about violations, and an order stopping all work was
issued but later rescinded. The neighbor later sent a second letter to the Building Inspector that
went unanswered. He then filed a formal complaint with City officials, challenging the absence
of the required off-street parking in the new construction. After being informed that no corrective
action was planned, the neighbor filed a petition in the circuit court in 1966 that was treated as a
petition to intervene in the original action. The petition alleged that the construction violated the
court’s 1962 decree because it included an unauthorized meeting hall and roof garden and failed
to provide for the mandated parking facilities. The complaint did not challenge the provisions of
the 1962 degree or seek to alter it. The trial court subsequently dismissed the petition. Anundson,
44 Ill. 2d at 494-96. The appellate court reversed and remanded the cause with directions to
enjoin construction until it complied with the restrictions in the 1962 decree. Anundson, 44 Ill. 2d
at 494.
¶ 25 In upholding the appellate judgment, the supreme court rejected timeliness and
jurisdictional arguments similar to those raised by the City here. Anundson, 44 Ill. 2d at 495. The
court found that the neighboring landowner had a sufficient private interest to permit
intervention, citing its holding in Bredberg v. City of Wheaton, 24 Ill. 2d 612 (1962). There, the
court declared that adjoining landowners whose rights could be harmed were entitled to
intervene because their interests exceeded those of the general public. In reaching that
conclusion, the court recognized that “a municipality, concerned primarily with the maintaining
of the municipality-wide zoning pattern, might inadvertently compromise or neglect the rights of
adjoining landowners.” Anundson, 44 Ill. 2d at 495-96. Under “the liberal provisions” of the
11 intervention statute, Illinois courts could act to protect the rights of adjoining landowners by
permitting intervention. Anundson, 44 Ill. 2d at 496.
¶ 26 The court also rejected as overly narrow the claim that its retained jurisdiction extended
“solely” to the original plaintiffs, barring any others from intervening. Rather, the original trial
court had more broadly “retained jurisdiction to enforce its decree, and legal standing to enforce
it was not limited to the plaintiffs.” Anundson, 44 Ill. 2d at 496.
¶ 27 The analysis in Anundson governs the outcome of the instant case. The Dungans’ alleged
that they owned land adjoining the subject property and asserted that the construction of the
parking lot, an alleged violation of the 1971 and 1990 orders, would damage their private
interests. The uniqueness of their interest in the enforcement of those orders is further evinced by
the orders’ specific references to their lot. Although the City may have provided adequate
representation of neighboring landowners’ interests during the original proceedings and its
subsequent unilateral pursuit of an amended order, its adoption of the new zoning ordinance and
issuance of the conditional use permit were sufficient to establish its abdication of that role. See
Anundson, 44 Ill. 2d at 495-96 (recognizing that “a municipality, concerned primarily with the
maintaining of the municipality-wide zoning pattern, might inadvertently compromise or neglect
the rights of adjoining landowners”). Here, as in Anundson, the trial court expressly retained
jurisdiction to address issues involving the enforcement and construction of its prior orders. The
proposed pleadings attached to the Dungans’ petition to intervene demonstrated their intent to
seek enforcement of those building restrictions. Thus, the facts in this case fall squarely within
the scope of the discussion in Anundson.
¶ 28 Nonetheless, the City argues that the petition to intervene was untimely because the
Dungans, who took title to their land in 1995, could have intervened long before 2023. The court
12 in Anundson rejected a nearly identical argument. In rejecting that claim, the Anundson court
distinguished between potential litigants who sought to change or re-adjudicate the original
judgment and those, like the neighboring landowner, who merely sought to enforce its terms “in
accordance with the reservation of jurisdiction to grant such relief.” Anundson, 44 Ill. 2d at 496-
97. Both the Dungans and the petitioner in Anundson fall into the latter group.
¶ 29 Anundson also rejected the claim that the intervenor should have acted earlier by noting
that the “adjoining landowners had no reason to suspect there would be any violation of the
decree” during the nearly two years of “nonactivity” that followed the entry of the 1962 decree.
Anundson, 44 Ill. 2d at 497. After the adjoining landowner observed violations of that order
during the construction process, he promptly complained to the City and continued to pursue
those claims for over a year. “When the [adjoining landowner] determined that his administrative
complaints concerning the failure to provide parking facilities would be ineffectual,” he properly
sought judicial relief “without undue delay,” making his petition to intervene timely. Anundson,
44 Ill. 2d at 497.
¶ 30 Here, the subject parcel remained vacant for decades after the Dungans took title to their
land, giving them no reason to seek intervention. As soon as they became aware of activity that
they believed violated the prior orders, the Dungans objected. After learning that Eggleston was
seeking zoning changes and a conditional use permit that would allow construction of structures
that could violate the prior orders, they strenuously objected before the Planning and Zoning
Commission on multiple occasions. Their counsel appeared at multiple Commission hearings
and submitted extensive written arguments and oral presentations in opposition to the proposed
zoning changes and permit. Although those efforts were ultimately unsuccessful, they
13 demonstrate the affirmative steps that the Dungans took to protect their interests at the earliest
possible opportunity.
¶ 31 Later, after the Dungans became aware of construction activity that they believed
violated the court’s prior orders, they again acted without delay by filing their petition to
intervene. As in Anundson, 44 Ill. 2d at 497, the facts here demonstrate that the Dungans acted
“without undue delay” after determining that their objections “would be ineffectual.” Thus, their
petition to intervene was timely filed.
¶ 32 Nonetheless, the City claims that the Dungans’ attempt to intervene were actually a
belated challenge to the new zoning ordinance and the construction permits issued to Eggleston
after they failed to seek timely administrative review. We are not persuaded by that
characterization. Administrative review actions and petitions to intervene involve entirely
different issues, standards, and burdens of proof. They are not interchangeable. To be allowed to
intervene, the Dungans needed only show that their petition was timely, their interest in the
underlying matter was adequate, and their interests would not be represented in the absence of
intervention. See Winders, 2015 IL App (3d) 140798, ¶ 13 (stating the showing necessary for
intervention). In contrast, an administrative review proceeding would have been focused on the
actions taken by the City and the Planning and Zoning Commission. We conclude that the
Dungans’ petition to intervene is not an improper attempt to overcome their failure to seek
administrative review.
¶ 33 In the trial court’s oral ruling, it expressed additional concerns underlying its decision to
deny intervention, including the absence of any continued involvement by the original plaintiffs
or their successors. That concern was dispelled by the Dungans’ proposed substitution motion. In
that motion, they asked to substitute new parties that possessed current interests in the property
14 for the original plaintiffs, who had long ago sold their interests. Thus, the grant of the
substitution motion proposed by the Dungans would have resolved the trial court’s concerns. In
the absence of leave to intervene, however, the Dungans were unable to file that substitution
motion.
¶ 34 The trial court also premised its denial of the petition to intervene on its belief that the
issues the Dungans raised were “so diametrically and wildly different than they were before the
Court in those three previous years in which the judgment was entered or amended” that the
scope and complication of the original case would be greatly, and unnecessarily, expanded. Once
again, the attachments to the Dungans’ petition to intervene adequately addressed that concern.
The attached copy of the Dungans’ proposed enforcement action demonstrated their intent to
seek only enforcement of the building restrictions in the prior orders. As in Anundson, 494 Ill. 2d
at 496, they were not seeking to re-adjudicate or modify those orders. Because the trial court
expressly retained jurisdiction to address future issues regarding the enforcement of its orders,
the Dungans’ proposed enforcement action properly invoked the court’s continuing jurisdiction.
Accordingly, allowing the Dungans to intervene would not have unnecessarily expanded or
complicated the issues in the case, contrary to the trial court’s oral finding. We hold that the facts
of this case fall squarely within the scope of the rationale in Anundson.
¶ 35 In lieu of addressing the reasoning in Anundson, however, the City relies on the reasoning
in People ex rel. Hartigan v. Illinois Commerce Comm'n, 243 Ill. App. 3d 544 (1993), Seger v.
Du Page County, 58 Ill. App. 3d 858 (1978), and Moran v. Commonwealth Edison Co., 74 Ill.
App. 3d 964 (1979). After reviewing those decisions, we conclude that all of them are factually
distinguishable and fail to support the City’s contentions here.
15 ¶ 36 In Hartigan, 243 Ill. App. 3d at 547, the court found that the reason underlying the
petitioner’s petition to intervene was at cross-purposes with the trial court’s retained jurisdiction.
The court had retained jurisdiction “to implement and administer a refund as outlined in its May
1986 stay order,” but the petitioner sought intervention “for the limited purpose of clarifying and
amending the RMO as to the tax consequences.” Thus, the petitioner’s intent to seek changes to
the order were outside the scope of the court’s retained jurisdiction. Here, in contrast, the
intervenors sought to enforce the limitations in the court’s prior orders, a purpose that falls
completely within the scope of the trial court’s retained jurisdiction.
¶ 37 Turning to Seger, the trial court had issued a declaratory judgment order permitting
limited mining operations to be conducted until a specified date and had retained jurisdiction “to
interpret and enforce all provisions.” The order was later modified to extend the operation’s
termination date, with the apparent consent of the parties. Seger, 58 Ill. App. 3d at 859, 862. The
intervenors were adjoining property owners who sought to join the case about 15 months later.
They raised three arguments: (1) the trial court’s modification was void because it lacked
jurisdiction; (2) the mining operation did not adhere to the order’s depth limitations; and (3) the
operation violated the constitution because it “amount[ed] to a nuisance diminishing their
property values.” Seger, 58 Ill. App. 3d at 859-60. After determining that the order did not
contain the limitations on mining depths asserted by the petitioners, the appellate court upheld
the denial of the petition to intervene as untimely because it could have been filed during the
pendency of the prior proceedings. Seger, 58 Ill. App. 3d at 861. Here, however, the intervenors
could not have sought to intervene in the prior proceedings because they did not acquire title to
their property until 1995, well after the completion of those proceedings.
16 ¶ 38 The facts in Moran are even more disparate. There, the plaintiffs sought the equitable
distribution of settlement proceeds from a contract dispute but never filed a petition to intervene.
Instead, they contended that intervention was unnecessary because “they were at all times parties
to the entire consolidated action and hence there was no need to file a petition to intervene.”
Moran, 74 Ill. App. 3d at 974. The court rejected that claim as unsupported by the record,
concluding that the plaintiffs “were never parties in the breach of contract action wherein they
alleged a settlement had been made” and “were attempting to do by indirection what they had
been precluded from doing by direction.” Moran, 74 Ill. App. 3d at 974. The reasoning in that
case has no application to the instant appeal. Thus, the reasoning in all three of the cases cited by
the City is inapt, and we decline to follow it.
¶ 39 Finally, the City attempts to argue that the construction restrictions in the 1971 and 1990
orders were void ab initio because they went beyond the scope of the original 1970 complaint.
The trial court did not reach that argument in its ruling on the petition to intervene, instead
denying the petition on other grounds. We decline to address it for the first time on appeal. If the
defendants choose to raise that claim again on remand, the trial court may address it at that time.
¶ 40 III. CONCLUSION
¶ 41 Because Anundson governs the facts in this case, the trial court erred in denying the
Dungans’ petition to intervene. Accordingly, we reverse the denial of that petition and remand
the cause to the Du Page County Circuit Court for additional proceedings.
¶ 42 Reversed and remanded.