Winnetka Bluff Protection Complaint

Case: 1:24-cv-03576 Document #: 1 Filed: 05/02/24 Page 1 of 29 PageID #:1
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
WILLIAM JACKSON,
KATHLEEN JACKSON, solely in her
capacity as Trustee for the Kathleen P.
Jackson Trust,
CHICAGO TITLE AND TRUST
COMPANY, solely in its capacity as Trustee Case No.: 24-cv-03576
for Trust No. 05-16-106-074-0000,
435 SHERIDAN LLC, an Illinois limited
liability company,
ANDREW G. BLUHM,
CALM RESIDENTIAL LLC, an Illinois
limited liability company,
AMANDA DAY,
JOHN AND FRANCESCA EDWARDSON,
MARY ANN FITZGERALD,
CHRISTINE E. FUSSELL, solely in her
capacity as Trustee for the Christine E.
Fussell Revocable Trust,
STEPHEN R. FUSSELL, solely in his
capacity as Trustee for the Stephen Ryan
Fussell Revocable Trust,
459 SHERIDAN ROAD LLC, an Illinois
CHICAGO TITLE LAND TRUST
COMPANY, solely in its capacity as Trustee
for Trust No. 8002363558,
DMITRY AND VICTORIA GODIN,
for Trust 9622,
liability company,
HARA INVESTMENTS LLC, an Illinois
BARBARA JANE IRWIN,
KAREN S. KIERSEY, solely in her capacity
as Trustee for the Karen S. Kiersey Revocable
Trust,
liability company,
WILLOW TRUST MANAGER, LLC, solely
in its capacity as Trustee for the Willow Road
Trust,
425767420-v1\NA_DMS
TERRY AND DONNA MCKAY,

for Trust No. 8002389583,
BARBARA AND RICHARD SILVERMAN,
765 SHERIDAN ROAD LLC, an Illinois
limited liability company, and
HENRY SUGAR, LLC, a Delaware limited
liability company,
Plaintiffs,
v.
VILLAGE OF WINNETKA,
Defendant.
COMPLAINT AND JURY DEMAND
Plaintiffs, WILLIAM JACKSON, KATHLEEN JACKSON, solely in her capacity as
Trustee for the Kathleen P. Jackson Trust, CHICAGO TITLE AND TRUST COMPANY, solely
in its capacity as Trustee for Trust No. 05-16-106-074-0000, 435 SHERIDAN LLC, an Illinois
limited liability company, ANDREW G. BLUHM, CALM RESIDENTIAL LLC, an Illinois
limited liability company, AMANDA DAY, JOHN AND FRANCESCA EDWARDSON,
MARY ANN FITZGERALD, CHRISTINE E. FUSSELL, solely in her capacity as Trustee for
the Christine E. Fussell Revocable Trust, STEPHEN R. FUSSELL, solely in his capacity as
Trustee for the Stephen Ryan Fussell Revocable Trust, 459 SHERIDAN ROAD LLC, an Illinois
limited liability company, CHICAGO TITLE LAND TRUST COMPANY, solely in its capacity
as Trustee for Trust No. 8002363558, DMITRY AND VICTORIA GODIN, CHICAGO TITLE
LAND TRUST COMPANY, solely in its capacity as Trustee for Trust 9622, 411 SHERIDAN
LLC, an Illinois limited liability company, HARA INVESTMENTS LLC, an Illinois limited
liability company, BARBARA JANE IRWIN, KAREN S. KIERSEY, solely in her capacity as
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Trustee for the Karen S. Kiersey Revocable Trust, 445 SHERIDAN LLC, an Illinois limited
liability company, WILLOW TRUST MANAGER, LLC, solely in its capacity as Trustee for the
Willow Road Trust, TERRY AND DONNA MCKAY, CHICAGO TITLE LAND TRUST
COMPANY, solely in its capacity as Trustee for Trust No. 8002389583, BARBARA AND
RICHARD SILVERMAN, 765 SHERIDAN ROAD LLC, an Illinois limited liability company,
and HENRY SUGAR, LLC, a Delawares limited liability company (collectively “Plaintiffs”), by
and through their attorneys, Baker & McKenzie LLP, for their complaint against Defendant
Village of Winnetka (“Winnetka”) state as follows:
PRELIMINARY STATEMENT
On February 6, 2024, following a legally deficient administrative process, Winnetka
amended its Zoning Ordinance to enact MC-01-2024, a punitive bluff regulation that prohibits or
otherwise severely limits Plaintiffs’ ability to develop their private properties located along the
shoreline of Lake Michigan. The ordinance deprives Plaintiffs and other lakefront property owners
in Winnetka of the value, use, and enjoyment of their bluffs and the lakefront properties for which
they paid substantial sums. Winnetka’s unfounded and misguided reliance on a rote statement of
protecting “public health, safety, and welfare” to justify this blatant and unjustified attack on
Plaintiffs’ property rights rests on false premises. The public does not own the bluffs. The public
has no legal access to the bluffs. No bluffs located in Winnetka, and certainly no bluffs on
Plaintiffs’ private properties, have ever failed. There is no safety hazard to the public. There is
no safety hazard related to bluff development undertaken consistent with Winnetka’s long-
established building and permitting requirements. Moreover, the public has no obligation to
expend resources to maintain the bluffs. Instead, that obligation and that expense remains with
Plaintiffs, the very parties from whom Winnetka has deprived the right to use and enjoy that same
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property. Plainly put, Winnetka cannot mandate aesthetic preferences through an ordinance
enacted under the guise of protecting the “public health, safety, and welfare.”
In passing MC-01-2024, Winnetka caused Plaintiffs and other private property owners
along the lakefront damages in an amount well beyond Winnetka’s annual revenues. It is no
exaggeration that, when considering all the private properties in Winnetka negatively impacted by
MC-01-2024, damages may well be in the hundreds of millions of dollars. Outrageously,
Winnetka never even considered the devastating economic impact of passing and, ultimately,
enforcing this ill-defined and unjustified ordinance. That economic impact includes severe
diminution of property values throughout the village, the resulting damage to Plaintiffs and other
property owners, and the potential for legal damages beyond Winnetka’s ability to pay.
Winnetka’s process violated the procedural and substantive due process rights of Plaintiffs and
deprived Plaintiffs of property without just compensation under Federal and Illinois law. The
ordinance should be invalidated. If not, Plaintiffs should be compensated in full for the taking of
their property.
PARTIES
1. Plaintiffs are residents of, and property owners in Winnetka, which is in the State
of Illinois.
2. On information and belief, Defendant Village of Winnetka is a municipal body
existing under the laws of the State of Illinois and the Illinois Municipal Code, 65 ILCS 5/1.
3. Plaintiffs listed herein are fewer than the group of potential plaintiffs whose private
properties have been or may be negatively impacted by the MC-01-2024. Plaintiffs reserve their
rights to amend their Complaint and Jury Demand to add additional plaintiffs with respect to Count
II and III.
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JURISDICTION AND VENUE
4. This Court has personal jurisdiction over the action because Winnetka is a
municipal body existing under the laws of the State of Illinois, and Winnetka is located in this
district.
5. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §
1331, because this action arises under federal law, specifically United States Const. amends. V &
XIV and 42 U.S.C. § 1983.
6. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b), because Defendant
is located in the Northern District of Illinois and the events or omissions giving rise to Plaintiffs’
claims occurred here.
BACKGROUND
A. Timeline Leading Up to the Passage of MC-01-2024
7. According to Winnetka’s Engineering Department, there are 112 properties in
Winnetka along the Lake Michigan shoreline and the vast majority of those properties are privately
owned.
8. At a January 10, 2023 Study Session of the Winnetka Village Council (the
“Council”), Winnetka’s Village President Chris Rintz announced that the Council would be
providing an “educational component regarding the lakefront regulations related to private and
public land.” During that Study Session, the Council discussed lakefront zoning and regulation in
other Illinois communities along Lake Michigan.
9. During the public comment portion of the Study Session, a resident encouraged the
Council to allow a subcommittee for lakefront homeowners to discuss issues impacting private
lakefront properties. On information and belief, no such subcommittee was ever established.
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10. At that same Study Session, another resident urged the Council not to amend the
existing ordinances that governed development in the steep slope areas.
11. At a July 6, 2023 Regular Council Meeting, the Council introduced MC-08-2023,
which amended “the Text of the Village Zoning Ordinance to [e]stablish a Study and Permit
Abeyance Period for Construction in the Steep Slope Area Along Lake Michigan.” The stated
purpose of MC-08-2023 was to establish a study period from July 6, 2023 to April 6, 2024 and to
pause construction activity in the steep slope zone (the “Permit Abeyance Period”).
12. At the July 6, 2023 Regular Council Meeting, multiple residents voiced concerns
about the Permit Abeyance Period and its negative impact on lakefront property values. The
Council disregarded those concerns.
13. At a July 18, 2023 Regular Council Meeting, President Rintz “assure[d] members
of the public that the Village [was] not seeking to interfere with homeowner property rights but
rather [to] utilize the study and permit abeyance period to ensure that Council can make the best
decisions regarding the issues at hand.”
14. Concerns related to the moratorium were again raised at the July 18, 2023, Regular
Council Meeting. Once again those concerns were disregarded.
15. The Council adopted MC-08-2023 at the July 18, 2023 Regular Council Meeting.
16. During the Permit Abeyance Period, Winnetka did not accept applications for, and
did not issue, any permits for new construction within the steep slope zone.
17. At a September 12, 2023 Council Study Session, the Council discussed potential
lakefront regulations relating to construction in the steep slope bluff area along Lake Michigan.
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18. At that same session, “President Rintz inform[ed] members of the public that the
purpose of the study session [was] to discuss matters relating to the lakefront regulations and [that]
there w[ould] not be any adoption of rules and/or regulations.”
19. At the time, the Council still had not made clear why it was considering steep slope
bluff regulations for the properties along Lake Michigan. During the Public Comment portion of
the Study Session, one attendee requested that the Council “indicate their purpose for
implementing steep slope regulations.”
20. Additionally, at the September 12, 2023 Study Session, residents and property
owners once again voiced opposition to the implementation of regulations along the lakefront.
Once again, these concerns were not considered.
21. On January 9, 2024, the Council held a public hearing introducing an initial version
of MC-01-2024. The President and the Council initiated an application to consider amending Title
17, “Zoning” of the Winnetka Code of Ordinances (“Zoning Ordinance”) concerning establishing
bluff regulations for development in the steep slope area along Lake Michigan and to amend the
definitions for the lot line and the front yard setback along Lake Michigan (“Code Amendments”).
22. Members of the public voiced concerns about MC-01-2024 negatively impacting
property use, property rights and property values.
23. At that Regular Council Meeting, President Rintz “emphasized the importance of
trust and having a collaborative approach on Village business between the Council and the
residents on Village.”
24. At the February 6, 2024 Regular Council Meeting, multiple members of the public
once again voiced their concerns that MC-01-2024 would have a negative impact on their property
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values along Lake Michigan and noted the potential need for compensation for the takings. The
Council did not address these concerns.
25. At that same meeting on February 6, 2024, President Rintz acknowledged that he
had had “never been sure whether this… ordinance was absolutely necessary.” He went on to
state, however, that certain property owners had “taken negative paths” and diverted from
“appropriate behavior and taste.” At no point at the meeting did President Rintz indicate that a
bluff regulation was necessary for protecting the “public health, safety, and welfare.”
26. At that same meeting on February 6, 2024, with little to no debate or analysis and
before the official end of the Permit Abeyance Period, the Council adopted a final version of MC-
01-2024. Ex. 1, MC-01-2024 (as enacted) (“the Ordinance”).
B. The Ordinance as Enacted
27. MC-01-2024 states its purpose as:
Bluffs are inherently fragile and subject to erosion due to glacially formed soils
containing unstable sediment, rock and silt. Development and construction activity
in and around bluffs could be hazardous to people and property and could accelerate
the erosion process. This Chapter is not intended to regulate the aesthetic qualities
of the bluffs. Instead, this Chapter is intended to protect the bluffs and ensure that
construction on the bluffs of Lake Michigan within the Village do not cause
environmental or ecological damage to Lake Michigan or the surrounding areas of
the Village, or otherwise create harm or risk to the public health, safety, and welfare
of the Village, its residents, or visitors.
28. The Ordinance’s purported justification based on “health, safety, and welfare” are
nonsensical because the bluffs in question are all present on private property, and present no danger
to the public beyond the boundary of the private property.
29. Further, the Ordinance’s premise that the Winnetka bluffs are glacially formed is
untrue.
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30. Winnetka failed to provide any geotechnical, erosion, vegetation, soil, bluff, slope
or Lake Michigan water level analysis or report regarding the slope or high water mark to support
the need or basis for the Ordinance. Moreover, Winnetka has failed to explain how the Ordinance
advances the stated objectives of erosion protection, and in fact it does not advance such
objectives.
31. Residents, including Plaintiffs, were shut out of meaningful collaboration with
respect to the Ordinance. Winnetka failed, at all times, to provide essential information to the
public regarding the need for and basis of the Ordinance to enable a meaningful opportunity for
Plaintiffs and the public to evaluate and comment on the Ordinance.
32. MC-01-2024 amended Section 17.30.050 of the Zoning Ordinance of Winnetka
titled “Front and Corner Yard Setbacks,” of Chapter 17.30, titled “Lot, Space, Bulk and Yard
Regulations for Single-Family Residential Districts,” of Winnetka’s Zoning Ordinance, by adding
a new subsection I(7) to Section 17.30.050, which was as follows:
“Section 17.30.050 Front and Corner Yard Setback. Exceptions and Limitations.
7. Front Yard Setbacks for Lakefront Properties. Development on lots abutting Lake
Michigan between the ordinary high water mark of Lake Michigan and the
tableland as defined by Section 17.82.020 will also comply with Chapter 17.82,
Steep Slope Regulations and Chapter 15.78 Lakefront Construction. For lots
abutting Lake Michigan, the required front yard setback is the toe of the bluff or 50
feet from the ordinary high water mark, whichever results in the line farthest from
the ordinary high water mark.”
33. Chapter 17.82 of Winnetka Code was introduced and adopted with MC-01-2024.
Ex. 1, Ex. A to MC-01-2024, Chapter 17.82, Steep Slope Regulations (“Steep Slope Regulations”).
34. Section 17.82.020 established a “Steep Slope Impact Area” which includes lots that
include or are adjacent to a bluff, and is defined as “that portion of the lot lying between: (1) [t]he
toe of the bluff; and (2) [t]he line representing the intersection of the table land (or if no such
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intersection, the table land extended) of such lot with a 22 degree slope (2.5H:1V ratio) extending
upward from the toe of the bluff …” Steep Slope Regulations, § 17.82.020.
35. Each of Plaintiffs’ private property includes a Steep Slope Impact Area as defined
above.
36. MC-01-2024 divides the Steep Slope Impact Area into portions that correspond to
different development prohibitions. Section 17.82.040 established prohibitions on development
in the “Steep Slope Zone,” and sets forth:
A. Any Development that is authorized pursuant to [Winnetka] Code, this Title, or

other ordinance or regulations of [Winnetka], may occur in the steep slope zone if
approved by the Director, upon review of an application in accordance with this
Chapter; provided, however that only the following structures are permitted within
the steep slope zone …” [Emphasis added.]
37. In other words, MC-01-2024 not only amended Winnetka’s existing zoning
ordinance to create a newly defined “Steep Slope Zone,” it also, for the first time in Winnetka,
prohibits all development on private property in that zone outside the possibility of being granted
permission to build a few defined and discrete structures as detailed below. Specifically, MC-01-
2024 prohibits construction and expansion of, among other things, residences within the Steep
Slope Zone.
38. Section 17.82.040 limits development in the Steep Slope Zone to the following
structures subject to Director approval:
• Retaining walls and other structures that are necessary for slope stabilization;
• Structures on the exact foundation of a previously existing structure;
• Mechanical and electrical lifts;
• Stairs not greater than five feet in width;
• Decks not greater than 50 square feet;
• Fences; and
• Boat houses.
Id. § 17.82.040.
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39. The provision for the possible, discretionary development of the discrete and, for
the most part, purely functional structures does not mitigate the Winnetka’s violations of law nor
its takings.
40. The Steep Slope Zone is defined as the portion of the slope impact area of a lot that
lies between the steep slope line and the toe of the bluff. Id. § 17.82.020. The Steep Slope Line
means a line representing the intersection of the table land (or if no such intersection, the table
land extended) with a 27 degree slope (2H:1V) extended upward from the toe of the bluff. Id. The
Table Land means land at the top of a bluff where the slope is less than a 5.7 degree slope (10H:1V
ratio). Id.
41. Moreover, MC-01-2024 adopted new regulations that require Plaintiffs and other
residents to acquire permits to develop on other areas of their private property outside the Steep
Slope Zone.
42. Plaintiffs and residents must obtain approval from Winnetka’s Director of
Engineering for development in the “Steep Slope Transition Area.” Id. § 17.82.030. The Steep
Slope Transition Area is the portion of slope impact area of a lot lying outside the Steep Slope
Zone. Id. § 17.82.020.
43. Section 17.82.050 establishes the development standards in the Steep Slope
Transition Area and, again, gives Winnetka’s unelected Engineering Director enormous discretion
to grant and deny permits.
44. Section 17.82.050 sets forth that “the Director … will consider [an] application in
light of the standards of this section relating to landscape planning, soil mechanics engineering,
hydrology, geology, environmental design, structural and coastal engineering, and structural
architecture.” Id. § 17.82.050. Moreover, Winnetka’s Engineering Director “may determine that
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certain standards of [Section 17.82.050] do not apply to every application.” Id. Under Section
17.82.050 “[t]he [Engineering] Director will have the authority to determine if the application in
its totality satisfies the purposes of this Chapter ….” Id. [Emphasis added.]
45. The permitting process in MC-01-2024 is unreasonably vague, ambiguous and
unreasonable in that it provides the Engineering Director with undefined latitude on what will
matter for a permit application and what is required for a permit to be approved. It leaves Plaintiffs
and other residents in the untenable and unjustifiable position of having to guess, or to undergo
the expense of submitting multiple, amended permit applications, as they endeavor to figure out
what the Engineering Director will consider when reviewing permits to develop in the Steep Slope
Transition Area. And, of course, what the Engineering Director may consider could very well
shift from property to property and permit to permit.
46. In sum, under MC-01-2024, Plaintiffs cannot develop any structure, outside the
very limited approved structures in the Steep Slope Zone, which still must be approved pursuant
to an opaque and vague permitting process. The Ordinance only allows development in the Steep
Slope Transition if Plaintiffs obtain a permit. Whether the permit is granted is at the sole discretion
of the unelected Engineering Director who decides what matters for each individual permit
application pursuant to unknown criteria. As a result of this Kafkaesque process, Plaintiffs are
deprived of their use and enjoyment of their lakefront, which was the impetus for their purchase
of their properties and a significant determining factor setting the price they paid for those
properties.
47. Plaintiffs were previously free to develop any structure in the Steep Slope Zone and
the Steep Slope Transition Area before MC-01-2024 as long as they obtained a permit under
Chapter 15.78 of the Winnetka Village Code. That Chapter provided a much more structured,
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defined permitting process than the process established by the adoption of MC-01-2024 and
Chapter 17.82 (described in greater detail below).
48. The Ordinance unfairly leaves owners responsible for maintaining the bluffs
without the corresponding benefits of ownership.
49. MC-01-2024 provides the following graphic which depicts the areas on Plaintiffs’
property where they can no longer develop:
Ex. 1, Ex. A to MC-01-2024, § 17.82.020.
C. The Ordinance’s Detrimental Impact on Plaintiffs’ Lakefront Properties
50. MC-01-2024’s prohibition on development negatively impacts Plaintiffs’ and other
residents’ property values.
51. Winnetka did not undertake any serious analysis of the impact on property values.
Even an initial and rudimentary analysis would have demonstrated a loss of millions of dollars per
property. In the aggregate, the damages greatly exceed Winnetka’s annual revenues.
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52. MC-01-2024 decreases the total area of developable property on Plaintiffs’
property substantially.
53. Plaintiffs bought their property on Lake Michigan with an expectation they would
have an opportunity to develop their properties. Part of the value of owning lakefront property is
the ability to develop on the land closest to the lake, including building on or around the bluffs.
Now that Plaintiffs are restricted from doing so, the most valuable portions of their property cannot
be developed.
D. Previous Permit Requirements Established a Rigorous and Adequate Framework to

Regulate Construction on Property Along Lake Michigan
54. Winnetka’s existing building and permitting requirements adequately regulated
building and construction on property along Lake Michigan. Indeed, Winnetka has not
experienced any bluff failures in private properties along the lakefront.
55. Chapter 15.78 of the Winnetka Village Code establishes the “permitting
requirements for construction along, adjacent to and within Lake Michigan.”
56. In order to construct on property abutting Lake Michigan, residents are required to
obtain a permit and any construction without a permit is subject to monetary penalties. Winnetka
Code, § 15.78.030.
57. A permit applicant must apprise and consult with Winnetka on the progress of the
review of the covered construction by the permitting agencies so Winnetka can (i) fully understand
exactly what type of construction or activity is being proposed by the application, (ii) provide
comments and feedback on the application and project throughout the federal and state review
process, and (iii) make a decision on the required permit within fourteen days. Id. §§ 15.78.040 &
15.78.050.
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58. Winnetka’s Engineer is tasked with deciding to grant or deny the permit. Id. §
15.78.060. Winnetka Code provides that multiple criteria must be satisfied to acquire a permit
from the Engineer:
• The applicant must receive and provide all required permits for the covered
construction from the permitting agencies.
• The height of the covered construction and any related structures will be no greater
than what is minimally necessary to achieve the intended and proper purpose of the
project and to be consistent with the purposes set forth in Section 15.78.010 of the
Code.
• The covered construction and any related structures must comply with all other
applicable provisions of Winnetka Code, including, without limitation, the
construction permitting requirements of Chapter 15.32 of the Code.
• The covered construction and any related structures must include only what is
minimally necessary to achieve the intended and proper purpose of the project and
to be consistent with the purposes set forth in Section 15.78.010 of the Code.
• The covered construction and any related structures will not create any public safety
hazards, including, without limitation, by unreasonably obstructing or otherwise
interfering with ingress or egress to adjacent public beaches or private property.
• The covered construction and any related structures will not block or otherwise
unreasonably interfere with the ability of public safety personnel to conduct search
and rescue or other public safety operations.
• The covered construction and any related structures will alter existing sight lines
along the Lake Michigan shoreline no more than is minimally necessary to achieve
the intended and proper purpose of the project and to be consistent with the
purposes set forth in Section 15.78.010 of the Code.
Id. § 15.78.080.
59. The Engineer has inspection rights during the construction should a permit be
approved. Id. § 15.78.090.
60. The Code allows applicants to appeal to the Council the decision by the Engineer.
Id. § 15.78.070.
61. Unlike MC-01-2024 and Chapter 17.82 of the Code introduced with MC-01-2024,
Chapter 15.78 establishes a collaborative process with property owners. The process under Chapter
15.78 is much better defined than the process adopted by MC-01-2024 and Chapter 17.82.
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62. Building on private property in Winnetka along Lake Michigan already had a robust
and adequate set of requirements. MC-01-2024 was unnecessary and undercuts the collaborative
benefits of the permitting process.
E. Winnetka Improperly Relied on Other Municipalities’ Zoning Ordinances
63. In January 2023, the Council requested the Community Development and
Engineering Departments to analyze steep slope ordinances in other Illinois communities.
Memoranda submitted to the Council reviewed the ordinances of Evanston, Glencoe, Highland
Park, Kenilworth, Lake Forest, Lake Bluff, and Wilmette.
64. Glencoe, Highland Park, Lake Bluff and Lake Forest are located north of Winnetka
and the topography in these communities is distinct from Winnetka. The region north of Winnetka
is comprised of steep cliffs and bluffs formed by erosion compared to the topography in Winnetka
which is flatter with a gentler slopping region with bluffs formed by the deposition of sediment.
65. Kenilworth is directly south of Winnetka and does have a steep slope ordinance.
But two of the other examined communities, Evanston and Wilmette are south of Winnetka and
do not have steep slope regulations. Evanston and Wilmette have relied on the same system to
regulate bluff development as Winnetka prior to the adoption of MC-01-2024.
66. Each of these communities have distinct topography and bluffs. Thus, each
community must enact ordinances to suit the specific needs of their own bluffs.
67. In the Community Development and Engineering memoranda, the focus of the
analysis was on the dimensions for the steep slope ordinances and regulations. Little attention was
paid to the distinct nature of each communities’ topography and bluffs.
68. In spite of its unique geology, the Council abrogated its duties and decided to
legislate by simply saying “me, too.”
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COUNT I
Declaratory Relief – Substantive Due Process Violations

Approval of MC-01-2024 on February 6, 2024
28 U.S.C. § 2201(a) & ILCS Const. Art. 1, § 2
69. Plaintiffs repeat, re-allege, and incorporate by reference all prior paragraphs
contained in this Complaint.
70. 28 U.S.C. § 2201(a) provides that this Court may declare the rights and other legal
relations of any interested party seeking such declaration, whether or not further relief is or could
be sought. Any such declaration shall have the force and effect of a final judgment or decree and
shall be reviewable as such.
71. An actual controversy exists between Plaintiffs and Winnetka because Plaintiffs’
dispute that the passage of MC-01-2024 was within the power of Winnetka and because passage
of the Ordinance affects Plaintiffs’ rights as residents and landowners in Winnetka.
72. Plaintiffs and Winnetka are parties having adverse legal interests, mainly Winnetka
believes that its passing of MC-01-2014 was valid and Plaintiffs assert that it was a violation of
federal and state law.
73. The dispute is of sufficient immediacy and reality to warrant issuance of
a declaratory judgment because MC-01-2024 is now in effect and Plaintiffs cannot develop in the
steep slope zone under MC-01-2024. If they do, they are subject to penalties.
74. Winnetka’s approval of the MC-01-2014 on February 6, 2024 was arbitrary and
unreasonable, unrelated to a legitimate legislative purpose, and failed to consider the rights of
Plaintiffs as mandated by the Illinois Supreme Court in LaSalle National Bank of Chicago v.
County of Cook, 12 Ill.2d 40 (1957) and Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill.2d
370 (1960) (hereinafter the “LaSalle/Sinclair factors”).
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75. Winnetka must consider the LaSalle/Sinclair factors when passing an ordinance,
and those factors are: (1) the existing uses and zoning of nearby property; (2) the extent to which
property values are diminished by the particular zoning restrictions; (3) the extent to which the
destruction of the value of plaintiff's property promotes the health, safety, morals, or general
welfare of the public; (4) the relative gain to the public compared to hardship imposed upon the
individual property owner; (5) the suitability of the subject property for the zoned purposes; (6)
the length of time the property has been vacant as zoned, considered in the context of land
development in the vicinity; (7) community need for the proposed use; and (8) the care with which
the community had undertaken to plan its land use development. La Salle, 12 Ill. 2d at 48; Sinclair
19 Ill. 2d at 378. Other courts also determines that whether a comprehensive government zoning
plan for land use and development exists should be considered when determining a zoning
ordinance’s validity. Forestview Homeowners Ass'n v. County of Cook, 18 Ill. App. 3d 230, 232
(1st Dist. 1974).
76. Winnetka failed to properly consider or apply the LaSalle/Sinclair factors when
passing MC-01-2024.
A. The LaSalle/Sinclair Factors
a) The existing uses and zoning of nearby property
77. Under this factor, courts generally analyze the existing uses and zoning of nearby
property such as within the same neighborhood or in close proximity to subject property.
78. However, MC-01-2024 is unique in that it amends the zoning laws of the properties
on the Lake Michigan lakefront and modeled itself after other municipalities steep slope zoning
ordinances.
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79. The Council did not properly assess this factor because it did not take into account
that the topography and bluffs in each community are distinct. The Council focused on the steep
slope regulations of Glencoe, Highland Park, Lake Bluff, Lake Forest and Kenilworth for no valid
reason.
80. The Council ignored that the lakefronts of Glencoe, Highland Park, Lake Bluff and
Lake Forest are north of Winnetka and share a distinct topography from Winnetka.
81. Kenilworth is the only community south of Winnetka with steep slope regulations.
However, the Council disregarded the fact that Wilmette and Evanston, the other two communities
south of Winnetka that were analyzed, have no steep slope regulations.
82. Yet the Council enacted MC-01-2024 because these other communities have steep
slope ordinance. Trustee Handler was quoted in the Chicago Tribune stating, “[a]ll of our
neighbors have this in place and have had it in place for quite some time. We’re not inventing
something new here.”
83. However, two of Winnetka’s closest neighbors do not have steep slope ordinances
in place.
84. The Council may have looked at other uses and zoning of nearby properties but
disregarded those that did not support its optimal goal, to restrict development on Plaintiffs’
property.
85. Moreover, the comparison it did perform was flawed. Winnetka has a distinct
topography and location compared to all of the other communities. Basing Winnetka’s steep slope
ordinances on distinct environments is deficient. Winnetka needed to devote more time to precisely
developing the correct regulations for Winnetka.
19
86. The need to slow down was acknowledged by President Rintz, who stated shortly
before the vote on the Ordinance: “I suggested on multiple times that we would, that we should,
and I’ve talked to my colleagues on this, that we should potentially delay this so we can have those
conversations and I’m going to put that out there again tonight. And I know you guys don’t want
to do it, and that’s fine. But I believe that, that a couple conversations and a few weeks isn’t going
to make a difference one way or another. We still have plenty of time in the abeyance period and
I think these would be important conversations to see if we could do something to avoid the
litigation.” Unfortunately, the Trustees ignored President Rintz’s reasonable advice and passed
the Ordinance.
b) The extent to which property values are diminished by the particular

zoning restrictions
87. At the January 9, 2024, and February 6, 2024, Council meetings and study sessions,
the Council did not properly evaluate the diminished value of property owned by residents in
Winnetka. Other residents voiced those concerns, but the Council failed to address them
sufficiently.
88. The materials submitted in support of MC-01-2024 by the Council did not properly
address the issue either. For example, the Council did not commission any valuation study.
89. MC-01-2024 has significant effects on lakefront property in Winnetka. The
ordinance decreases the developable land substantially.
90. Plaintiffs and other residents of Winnetka cannot develop on the most valuable
portions of their land, the area closest to Lake Michigan.
91. The loss of value to Plaintiffs’ and other residents’ properties is in the millions of
dollars.
92. The Council failed to consider this factor properly.
20
c) The extent to which the destruction of the value of plaintiff's property

promotes the health, safety, morals, or general welfare of the public
93. Not only did the Council not consider the diminished value of property owned by
residents of Winnetka, but the Council did not sufficiently establish how MC-01-2024 promotes
of the health, safety, morals, or general welfare of the public.
94. MC-01-2024 states its purpose as:
Bluffs are inherently fragile and subject to erosion due to glacially formed soils
containing unstable sediment, rock and silt. Development and construction activity
in and around bluffs could be hazardous to people and property and could
accelerate the erosion process. This Chapter is not intended to regulate the
aesthetic qualities of the bluffs. Instead, this Chapter is intended to protect the bluffs
and ensure that construction on the bluffs of Lake Michigan within the Village do
not cause environmental or ecological damage to Lake Michigan or the
surrounding areas of the Village, or otherwise create harm or risk to the public
health, safety, and welfare of the Village, its residents, or visitors.
95. Despite MC-01-2024’s conclusory assertion, the ordinance does not ensure the
health, safety, morals, or general welfare of the public.
96. The private property owners can, and have, ensured the safety of the bluffs
themselves.
97. Moreover, the permitting requirements under Winnetka Code provide for a
collaborative process between the residents, the Council, and the Engineer. The safety of the bluffs
can be ensured in that process. And given that the Engineer has inspection rights once a permit
is approved, Winnetka will have a role in the proper development that protects the bluffs.
98. Given that the safety of the bluffs is already ensured under existing law, the
destruction of the property values outweighs any perceived promotion of the health, safety, morals,
or general welfare of the public.
21
99. Moreover, because the Council did not consider the damage to Plaintiffs’ property
values, they clearly did not comply with this factor that tasks the Council with weighing that
destruction of property value with the health, safety, morals or general welfare of the public.
d) The relative gain to the public compared to hardship imposed upon the
individual property owner
100. The Council did not compare the relative gain to the public as compared to the
hardship imposed on the individual property owners. As demonstrated above, there is little need
for MC-01-2024 and the hardship imposed on the property owners is great.
101. The residents, the Council, and the engineer can ensure the safety of the bluffs
through the permitting process.
102. Moreover, it is unclear what the relative gain to the public is by the passage of MC-
01-2024. Outside the conclusory assertions that MC-01-2024 promotes the health, safety, morals
and general welfare of the public, the Council has failed to establish the benefit, especially where
the bluffs exist on private property to which the public has no access.
e) The suitability of the subject property for the zoned purposes
103. The reasons that Winnetka did not properly address this factor are similar to the
reasons it did not properly evaluate the uses and zoning of nearby properties.
104. Winnetka focused on the ordinances of other communities that have distinct
topography and bluffs. They skipped the crucial step to evaluate whether Winnetka’s bluffs were
suitable for MC-01-2024’s purposes.
105. Two of Winnetka’s closest neighbors, Evanston and Wilmette have no such
ordinances.
22
106. Moreover, Winnetka has decided to take individual property owners out of the
equation. Those property owners have just as much incentive, if not more, to ensure protection of
the bluffs on their own property.
f) The length of time the property has been vacant as zoned, considered
in the context of land development in the vicinity
107. This factor is inapplicable to the decision to pass MC-01-2024.
g) Community need for the proposed use
108. The Council did not properly articulate the community need for MC-01-2024.
109. Throughout the process, the Council continually made conclusory statements on
the value of the “preservation of bluffs.” Plaintiffs’ rights to use and develop their private
properties outweigh any amorphous statement regarding a community benefit flowing from the
“preservation of the bluffs.”
110. Moreover, Winnetka continually disregarded Plaintiffs’ and other residents’
comments that bluff preservation could be ensured by the property owners themselves through the
permitting requirements. Winnetka, the Engineer, and property owners already had a system in
place that ensured the protection of the bluffs under Chapter 15.78 of Winnetka Code.
111. The reason the Council stayed silent on those points is because there is no
community need for MC-01-2024.
h) The care with which the community had undertaken to plan its land
use development
112. Many of Plaintiffs have development plans that date back to before the passage of
MC-01-2024. Additionally, many of Plaintiffs purchased their properties to develop on land in
the steep slope zone.
23
113. Winnetka did not properly consider the effect MC-01-2024 would have on
development plans of Plaintiffs’ property.
114. Moreover, there are numerous existing structures in the steep slope zone. In the
Executive Summary for the introduction of MC-01-2024, Winnetka explained that property
owners with existing structures in the steep slope zone would not have to demolish those structures.
115. But this does not account for the issue that existing structures will inevitably need
to be developed due to destruction or damage or natural decay. Moreover, Plaintiffs or residents
may desire to move existing structures on their properties. MC-01-2024 or the Council’s
deliberations regarding the Ordinance do not account for this.
116. Under MC-01-2024, Winnetka can reject property owners’ ability to address such
issues with their existing structures.
117. Thus, the Council did not properly consider existing land use development plans.
i) Whether a comprehensive government zoning plan for land use and

development exists.
118. Winnetka had an existing comprehensive government zoning plan for land use and
development.
119. Under Chapter 15.78 of Winnetka Code, the Council, Engineer, and property
owners were required to work together to properly develop along Lake Michigan. Moreover, there
was a defined set criterion and process the property owner needed to comply with.
120. MC-01-2024 is not in harmony with that regime. It cuts off the collaborative goals
of the permitting regulations under Chapter 15.78 and shuts the property owners out of the
conversation. MC-01-2024 completely forbids development in the Steep Slope Zone and the
permitting process for development in the Steep Slope Transition Area are vague and affords the
Engineering Director authority to deem what matters.
24
121. Plaintiffs had a defined process to obtain a permit under Chapter 15.78 and now are
left guessing at what they must do in order to obtain a permit under Chapter 17.82 introduced with
MC-01-2024.
122. The Council disregarded that the proper process was already in place in order to
achieve their ultimate goal, to prohibit development in steep slope zone.
B. MC-01-2024 Violates Plaintiffs’ Substantive Due Process
123. Thus, Plaintiffs’ substantive due process rights have been violated pursuant to the
Illinois Constitution, Article. 1, § 2 because Winnetka did not properly consider or apply the
LaSalle/Sinclair factors.
124. Winnetka’s decision to approve MC-01-2024 was arbitrary and unreasonable,
unrelated to a legitimate legislative purpose, and failed to consider the rights of Plaintiffs because
it disregarded the damage that MC-01-2024 would have on Plaintiffs’ rights, arbitrarily based MC-
01-2024 on ordinances of different communities and never articulated the true need for the
ordinance.
WHEREFORE, Plaintiffs respectfully request this Court enter an order declaring:
a) That Winnetka’s passage of MC-01-2024 was arbitrary and unreasonable,

unrelated to any proper legislative purpose, and in violation of Plaintiffs’
substantive due process rights pursuant to Article I, § 2 of the Illinois
Constitution;
b) That MC-01-2024 is invalid as a matter of law;
c) Any other relief this Courts deems equitable and just.
COUNT II
Compensation for Winnetka’s taking of Plaintiffs’ property without just compensation

through the Approval of MC-01-2024 on February 6, 2024
United States Const. amends. V & XIV and 42 U.S.C. § 1983
25
126. The Takings Clause of the Fifth Amendment to the United States Constitution
prohibits the government from taking private property for public use without just compensation.
127. The Takings Clause applies to the State of Illinois through the Fourteenth
Amendment and 42 U.S.C. § 1983.
128. To state a takings claim, Plaintiffs must show:
• a property interest;
• that has been taken under the color of state law (a public use); and
• without just compensation.
129. Plaintiffs all own property which is impacted by the passing of MC-01-2024.
130. Winnetka passed MC-01-2024 for a public use, MC-01-2024 lists its purposes as
follows:
• “To protect the environment and the integrity of the Lake Michigan coastal area
that is a distinctive and valuable feature of the Lake Michigan shoreline;”
• “To recognize the potential for hazards that could affect health and safety to
persons and property from significant bluff and shoreline development;”
• “To maintain the stability of the coastal bluffs and shorelines and to reduce the
risks of coastal erosion, undermining, slumping, or collapse of the bluffs, and
to protect the waters of Lake Michigan from unnatural sedimentation;”
• “To promote the recommendations of the Village of Winnetka Comprehensive
Plan relative to the constraints that should be considered in developments that
impact coastal areas and environments ….”
Ex. 1, MC-01-2024.
131. MC-01-2024 prohibits all development, outside the potential for a very few, limited
permitted uses, in the steep slope zones of Plaintiffs’ properties.
132. Plaintiffs could develop in the steep slope zone before the passage of MC-01-2024.
Many of Plaintiffs purchased the land specifically with the expectation and understanding that they
would be permitted to develop in the steep slope zone of their properties. Now Plaintiffs cannot
develop and MC-01-2024 is expected to reduce each Plaintiff’s property value in the millions of
dollars.
26
133. Winnetka has denied Plaintiffs of all economically beneficial or productive use of
their property in the steep slope zone rendering the land useless.
134. The passage of MC-01-2024 was for a purported public use and resulted in the
taking of Plaintiffs’ properties.
135. Since Winnetka passed MC-01-2024, Plaintiffs have received no compensation and
are owed just compensation.
a) That Winnetka’s passage of MC-01-2024 was a taking of Plaintiffs’ private

property under the color of law by Winnetka;
b) That Plaintiffs have not received just compensation for the taking;
c) That Plaintiffs are owed and awarded in an amount to be determined at trial;
d) Any other relief this Courts deems equitable and just.
COUNT III
Compensation for Winnetka’s taking of Plaintiffs’ property without just

compensation
through the Approval of MC-01-2024 on February 6, 2024
Illinois Const. Art. I § 15
137. Article I, section 15 of the Illinois Constitution provides that “[p]rivate property
shall not be taken or damaged for public use without just compensation as provided by law.”
Illinois Const. Art. I § 15.
138. The takings clause of the Illinois Constitution provides greater protection for
property owners than its counterpart in the United States Constitution, because it provides a
remedy for property that is damaged, in addition to property that is taken.
139. To state an Illinois takings claim, a Plaintiffs must show:
• a property interest;
27
• that has been taken or damaged under the color of state law for a public use;
and
• without just compensation.
140. Plaintiffs all own property which is impacted by the passing of MC-01-2024.
141. Winnetka passed MC-01-2024 was passed for a public use, MC-01-2024 lists its
purposes as follows:
• “To protect the environment and the integrity of the Lake Michigan coastal area
that is a distinctive and valuable feature of the Lake Michigan shoreline;”
• “To recognize the potential for hazards that could affect health and safety to
persons and property from significant bluff and shoreline development;”
• “To maintain the stability of the coastal bluffs and shorelines and to reduce the
risks of coastal erosion, undermining, slumping, or collapse of the bluffs, and
to protect the waters of Lake Michigan from unnatural sedimentation;”
• “To promote the recommendations of the Village of Winnetka Comprehensive
Plan relative to the constraints that should be considered in developments that
impact coastal areas and environments ….”
Ex. 1, MC-01-2024.
142. MC-01-2024 amended Winnetka Code to prohibit development, outside limited
permitted uses, in the steep slope zone which extends onto Plaintiffs’ property.
143. Plaintiffs could develop in the steep slope zone before the passage of MC-01-2024.
Many of Plaintiffs purchased the land specifically to develop in the steep slope zone. Now
Plaintiffs cannot develop and MC-01-2024 is expected to reduce Plaintiffs’ property value in the
millions of dollars.
144. Winnetka has denied Plaintiffs of all economically beneficial or productive use of
their property in the steep slope zone rendering the land useless.
145. The passing of MC-01-2024 was for a purported public use and resulted in the
taking and damage of Plaintiffs’ properties.
28
146. Since Winnetka passed MC-01-2024, Plaintiffs have received no compensation and
are owed just compensation.
a) That Winnetka’s passing of MC-01-2024 was a taking of Plaintiffs’ private

property under the color of law by Winnetka;
b) That Plaintiffs have not received just compensation for the taking;
c) That Plaintiffs are owed and awarded in an amount to be determined at trial;
d) Any other relief this Courts deems equitable and just.
JURY DEMAND
The Plaintiffs demand a trial by jury of all issues so triable pursuant to Rule 38 of the
Federal Rules of Civil Procedure.
Dated: May 2, 2024 Respectfully submitted,
By:
Mark Lionel Karasik (ARDC No. 6180292)
Colleen Baime (ARDC No. 6217224)
Jon Ebner (ARDC No. 6291526)
BAKER & McKENZIE LLP
300 East Randolph Street, Suite 5000
Chicago, IL 60601
Telephone: (312) 861-8615
Mark.Karasik@bakermckenzie.com
Colleen.Baime@bakermckenzie.com
Jon.Ebner@bakermckenzie.com
Counsel for Plaintiffs
29

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Case: 1:24-cv-03576 Document #: 1 Filed: 05/02/24 Page 1 of 29 PageID #:1

UNITED STATES DISTRICT COURT

TERRY AND DONNA MCKAY,

COMPLAINT AND JURY DEMAND

Plaintiffs, WILLIAM JACKSON, KATHLEEN JACKSON, solely in her capacity as

limited liability company, ANDREW G. BLUHM, CALM RESIDENTIAL LLC, an Illinois

limited liability company, AMANDA DAY, JOHN AND FRANCESCA EDWARDSON,

Village of Winnetka (“Winnetka”) state as follows:

On February 6, 2024, following a legally deficient administrative process, Winnetka

MC-01-2024, damages may well be in the hundreds of millions of dollars. Outrageously,

2. On information and belief, Defendant Village of Winnetka is a municipal body

JURISDICTION AND VENUE

XIV and 42 U.S.C. § 1983.

6. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b), because Defendant

claims occurred here.

A. Timeline Leading Up to the Passage of MC-01-2024

7. According to Winnetka’s Engineering Department, there are 112 properties in

other Illinois communities along Lake Michigan.

existing ordinances that governed development in the steep slope areas.

Council disregarded those concerns.

decisions regarding the issues at hand.”

Council Meeting. Once again those concerns were disregarded.

there w[ould] not be any adoption of rules and/or regulations.”

implementing steep slope regulations.”

Once again, these concerns were not considered.

property use, property rights and property values.

Council did not address these concerns.

01-2024. Ex. 1, MC-01-2024 (as enacted) (“the Ordinance”).

B. The Ordinance as Enacted

27. MC-01-2024 states its purpose as:

to the public beyond the boundary of the private property.

Plaintiffs and the public to evaluate and comment on the Ordinance.

32. MC-01-2024 amended Section 17.30.050 of the Zoning Ordinance of Winnetka

Regulations for Single-Family Residential Districts,” of Winnetka’s Zoning Ordinance, by adding

a new subsection I(7) to Section 17.30.050, which was as follows:

different development prohibitions. Section 17.82.040 established prohibitions on development

in the “Steep Slope Zone,” and sets forth:

A. Any Development that is authorized pursuant to [Winnetka] Code, this Title, or

structures subject to Director approval:

Zone. Id. § 17.82.020.

to grant and deny permits.

45. The permitting process in MC-01-2024 is unreasonably vague, ambiguous and

shift from property to property and permit to permit.

Chapter 17.82 (described in greater detail below).

without the corresponding benefits of ownership.

property where they can no longer develop:

Ex. 1, Ex. A to MC-01-2024, § 17.82.020.

C. The Ordinance’s Detrimental Impact on Plaintiffs’ Lakefront Properties

50. MC-01-2024’s prohibition on development negatively impacts Plaintiffs’ and other

residents’ property values.

52. MC-01-2024 decreases the total area of developable property on Plaintiffs’

D. Previous Permit Requirements Established a Rigorous and Adequate Framework to

54. Winnetka’s existing building and permitting requirements adequately regulated

experienced any bluff failures in private properties along the lakefront.

requirements for construction along, adjacent to and within Lake Michigan.”

from the Engineer:

approved. Id. § 15.78.090.

benefits of the permitting process.

E. Winnetka Improperly Relied on Other Municipalities’ Zoning Ordinances

Engineering Departments to analyze steep slope ordinances in other Illinois communities.