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WRITER’S DIRECT LINE

312.832.4596
djpugh@foley.com

CLIENT/MATTER NUMBER
139493-0101

January 9, 2024

President Christopher Rintz and Members of the Village Council

Village of Winnetka
510 Green Bay Road
Winnetka, Illinois 60093

Re: Objection to Proposed Ordinance MC-1-2024 Regarding Steep

Slope Area Along Lake Michigan

Dear President Rintz and Council Members:

My firm represents William Jackson, 771 Sheridan, who is opposed to the introduction
and adoption of proposed ordinance MC-1-2024 (the “Ordinance”), establishing regulations for
development in the steep slope area along Lake Michigan. The Ordinance as drafted goes far beyond
what is needed to ensure its stated goals of promoting safety and protecting the lakefront landscape,
and will cause very serious and unnecessary harm to many of the property owners along the bluff.

The Ordinance Will Have a Detrimental Impact on Affected Properties:

The Ordinance would significantly reduce buildable lot area and significantly limit
design flexibility. The architectural case study prepared by Seth Romig, attached as Exhibit A,
illustrates that, as applied to 771 Sheridan, the lot area available for development would be reduced
by thirty four percent (34%). We believe this will greatly reduce the value of most, if not all, lakefront
properties in the Village. This conclusion is further supported by the Memorandum of George Kisiel,
attached as Exhibit B.

The Jacksons’ property at 771 Sheridan provides an excellent example of the harm that
the Ordinance would cause. After remaining vacant for nearly five years, due largely to the presence
of a 200-year-old heritage pine at a key location, the Jacksons purchased the home in the configuration
as shown on the Site Plan (attached as Exhibit C), which was in disrepair, containing a dilapidated
shed, circuitous stairway and inadequate retaining wall. Fortunately, because the Ordinance was not
in existence, they were able to beautifully redesign the site into a spectacular home site, which met the
family’s needs and corrected all the problems with the stairs, shed, and wall, all while executing a
design that preserved the heritage pine (see Exhibits D and E, attached). This site configuration would
not be allowable under the Ordinance and the Jackson would not have purchased the site if those
restrictions were in effect. While a process is proposed under the Ordinance to allow one to seek
approval from the Director of Engineering, it requires extensive and time-consuming plans, studies,

AUSTIN DETROIT MEXICO CITY SACRAMENTO TALLAHASSEE

BOSTON HOUSTON MIAMI SALT LAKE CITY TAMPA
CHICAGO JACKSONVILLE MILWAUKEE SAN DIEGO WASHINGTON, D.C.
DALLAS LOS ANGELES NEW YORK SAN FRANCISCO BRUSSELS
DENVER MADISON ORLANDO SILICON VALLEY TOKYO
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January 9, 2024
Page 2

and governmental review in order to obtain approval. The Jacksons (and most prospective property
owners) simply would not have gone through that laborious, onerous, and subjective process before
making the decision to buy the lot. They would have gone elsewhere.

Because we believe the Ordinance would pose a serious impediment to land sales along
the lake, and would result in much lower property values there, we believe the Village’s tax base
would suffer as a result. Given that there appears to be no study of the Ordinance’s impact on the tax
base, we are requesting sixty days to investigate this. We believe it is an important component to
consider before taking action.

Legal Non-Conformities:

Second, the Ordinance would create much hardship to those living in these homes, as
they can’t move their patios, decks, etc. (again without going through a very subjective process).
Given that at least 158 accessory structures are affected and at least 18 homes (estimate are much
higher), this seems a very unfair burden, affecting many improvements, and goes for beyond
addressing safety. To use the example of 771 Sheridan, many people simply want to put improvements
in a different location or have a new design. They should be allowed to do so.

Grandfathering In:

Now, the staff report makes much of the fact that the existing structures are
grandfathered in, but there are a lot of problems with being grandfathered in. As a land use attorney, I
often help property owners whose buildings have been damaged or destroyed, yet cannot rebuild or at
least cannot rebuild in the manner they would like, due to grandfathering provisions. For example,
they may have had the patio in one place and it would be better to put it in another place. Currently,
they have that right; this would take that away.

Similarly, if the foundation is cracked, a building official could deny them the right to
rebuild. Without clear standards that govern what could be denied, the bluff owners are concerned
about arbitrary action. More clear criteria is needed to make it clear if a homeowner does x and y,
they will get their permit. They want to keep the rights that they have now and feel that it is unfair and
unnecessary to take those rights away, especially in the name of safety and when they have taken such
care to protect the bluffs already.

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What’s the Rush??

Finally, the Village has an abeyance period until April, so why rush into this now?
Given that each lot has its own unique buildable area, depending on height and slope of their bluff, the
bluff owners need more time to engage engineers, conduct topo surveys, and analyze the impact on
their lots. In addition, we believe a study should be done to analyze the impact of this proposal on the
tax base. As a result, we are asking the Village Council to defer the matter to the second meeting in
March, to give all parties time to better assess the impact and to craft a fair resolution. A number of
residents echo our request for extra time: we are in receipt of at least eighteen letters requesting this.
We would greatly appreciate the extra time.

The Ordinance is Legally Deficient

In Illinois a zoning ordinance is judged by whether it bears a rational relationship to a

legitimate legislative purpose and is “neither arbitrary nor unreasonable.” Napleton v. Village of
Hinsdale, 229 Ill. 2d 296, 307 (2008). When determining if an ordinance is arbitrary or unreasonable,
the courts in Illinois utilize the factors outlined by The Illinois Supreme Court in its landmark cases
of 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).

The LaSalle/Sinclair factors are designed to allow a systematic inquiry into the public
good versus individual harm when considering whether a zoning ordinance is arbitrary and
unreasonable. The LaSalle/Sinclair factors include: (1) the existing uses and zoning of nearby
properties; (1) the extent to which a particular zoning regulation diminishes property values; (3) the
extent to which the diminution of the plaintiff’s property values promotes the health, safety, morals,
or general welfare of the public; (4) the balance between the gain to the public versus the hardship to
the individual property owner; (5) the property’s suitability for the zoned purpose; (6) the amount of
time the subject property has been vacant as zoned in the context of land development in the vicinity;
(7) the community’s need for the proposed use; and (8) the care with which the community undertook
to plan its land use development.

Here Mr. Kisiel has provided an opinion that the proposed regulations are inconsistent
with the established pattern of existing zoning and land use in the area affected, implicating factor 1.
He has also provided testimony regarding significant diminution of value of lake front property,
implicating factor 2. Contrast this with the staff materials submitted in support of the ordinance which
do not contain any valuation study or evidence that values will be unaffected, or a study of the trend
of uses and zoning in the area showing that this regulation is consistent with existing uses and zoning.

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Mr. Kisiel’s report points out the significant Steep Slope regulation in place, by way of
existing construction regulation. Despite the ordinance recitals’ generic references to the protection
of people and property against destruction or damage from possible bluff erosion, the staff’s
submissions again do not include engineering reports or assessments finding that further regulation
beyond the existing recently enacted Section 15.78 of the Code is needed to slow down or halt erosion.
Indeed, Mr. Kisiel’s report also shows that the ordinance does little of nothing to promote the safety
of general welfare of the public. Plus, owners in the Steep Slope area have spent significant sums
already stabilizing the bluffs. This must be balanced against that fact that there was no evidence
presented by expert engineers to any sort of imminent erosion or environmental degradation in the
absence of this proposed ordinance being passed.

As a Council you also need to weigh the balance here between the diminution of
property values and gain to the public. Owners believe the damage vastly exceeds any benefit. But is
the Council even in a position right now to weigh the loss of property value or the benefit to the public
given the absence of any Village sponsored appraisal and lack of valuation support for the need of this
ordinance?

Finally, the LaSalle/Sinclair factors speak to the care in planning this ordinance. We
really do applaud you for your study sessions, but there is legitimately a lot more to address and
understand. Even the staff pointed out its report that it was “difficult to illustrate potential impact on
each lakefront property without individually looking at each property” (which the staff noted could be
accomplished within 30 days by working with a GIS mapping consultant). In short, this situation calls
for a clearheaded systematic weighing, based upon expert input, of the individual harm versus the
public good, something our client strongly believes has not happened. Let’s take the time to do this
correctly.

Sincerely,

Donna J. Pugh

DJP:mdn
CC: W. McKenna (w/ encl.)
P. Friedman, Village Attorney (w/ encl.)

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 Table of Contents

EXHIBIT A: Case Study Analysis of 771 Sheridan, prepared by Seth Romig, AIA
EXHIBIT B: Steep Slope Regulations MC-01-2024 Memo, prepared by George Kisiel, AIA, AICP
EXHIBIT C: Site Plan – Prior to Recent Development (771 Sheridan)
EXHIBIT D: Site Plan – Current Conditions After Development (771 Sheridan)
EXHIBIT E: Before and After Photos (771 Sheridan)

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A S S O C I A T E S I N C . EXHIBIT B
M E M O R A N D U M Page 1

date T u e s d a y , J a n ua r y 9, 2024

to: Winnetka Village Council

from: G e o r g e V. K i s i e l , AIA , AIC P

Okrent Kisiel Associates, Inc.

re: S t e e p S l o p e R e g u l a t i o n s MC-01-2024
V i l l a g e o f W i n n e t k a , IL

cc: File

My name is George Kisiel. I am a licensed architect and a certified planner. I am a member of the
American Institute of Architects, the American Planning Association, and the American Institute
of Certified Planners. I am the president and owner of Okrent Kisiel Associates, Inc., where I have
been employed for over 40 years. I have been accepted as an expert witness in planning and zoning
in the courts of Cook, Lake, Will and DuPage Counties, Illinois and have appeared before numerous
planning and administrative review boards throughout the Chicago metro area including those in the
Village of Winnetka.

The purpose of this memo is to state my preliminary opinions regarding the proposed amend-
ment to the Winnetka Zoning Ordinance (Ordinance No. MC-01-2024) authorizing restrictions on
steep slope areas along Winnetka’s Lakefront and the revising the definition of lakefront property
eastern boundary.

The proposed Steep Slope Regulations propose a method for establishing a “Steep Slope Zone”
and “Slope Transition Area” the former generally defined by a 2:1 slope drawn from the toe of
the existing bluff to where it intersects the table land and the latter a 2.5:1 slope also drawn from
the toe of the existing bluff to where it intersects the table land. The proposed regulations re-
strict the use of the Steep Slope Zone area to 1) Retaining walls necessary for slope stabilization;
2) Structures on the exact foundation of a previously existing structure; 3) Mechanical or electrical
lifts; 4) Stairs … no greater than five feet in width; 5) Decks … no larger than 50 square feet; 6)
Fences; and 7) Boat houses (not exceeding) 860 square feet of gross floor area.

In general, the effect of this change is to limit construction within the Steep Slope Zone to certain
accessory structures, prohibit the construction of principal residences or habitable area within the
Steep Slope Zone and prohibit the expansion of existing residential (or any other) structure that
exists within that zone. The buildable lot area is significantly reduced by these provisions signifi-
cantly limiting design flexibility. The diagrams on the following page prepared by Architect Seth
Romig AIA illustrate reductions in buildable area of lot that approaches 40 percent.

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These constraints would likely have an adverse impact on the value of properties affected. This
would be most pronounced on any undeveloped or underdeveloped properties that would be
candidates for redevelopment. Winnetka’s lakefront properties are unique and derive extraordi-
nary value due to their adjacency to Lake Michigan and the topographic variation that provides the
opportunity for spectacular views and equally spectacular architectural expression. The proposed
ordinance eliminates the ability to take advantage of those properties’ most unique and valuable
attributes. The result is a likely significant diminution in value for vacant and underdeveloped
properties. Developed properties would also likely experience some diminution of value due to
the inability to expand existing structures into the steep slope zone. In addition, a significant
number of properties would be made non-conforming by these provisions. Current estimates

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indicate at least 18 of the lakefront properties’ principal structures and at least 158 accessory struc-
located in the steep slop zone likedly resulting in half or more of the 88 lakefront properties being
made non-conforming.

The proposed boundary revision establishes the U. S. Army Corps of Engineers administrative
Ordinary High-Water Mark (OHWM) as the eastern boundary of properties fronting Lake Michi-
gan. The effect of this change on many of the lakefront properties is to move the property line
west reducing the lot area for the purposes of calculating the maximum development program via
the Winnetka Zoning Ordinance’s Floor Area Ratio (F.A.R.) provisions (§17.30.040) thus reduc-
ing the development rights of at least some of the property owners. The above diagrams indicate
losses between 3 to 5 percent of allowable floor area and up to 40% of buildable lot area due to
the proposed regulations.

The impacts of these regulations raise serious questions regarding the validity of the proposed
ordinance under Illinois law.

Many properties along Winnetka’s lakefront have indeed been developed utilizing areas in the
Steep Slope Zone for both principal residential structures and a broad range of accessory struc-
tures. Current zoning allows this type of development by right. This development pattern is well
established, and recently constructed developments continue to follow that established pattern.
Given the large number of properties that would be made non-conforming by the ordinance, the
proposed regulations are inconsistent with the established pattern of zoning and land use in the
area affected.

As mentioned earlier, Winnetka’s lakefront properties are unique and derive extraordinary value
due to their adjacency to Lake Michigan and the topographic variation that provides the op-
portunity for spectacular views and equally spectacular architectural expression. The proposed
ordinance eliminates the ability to take advantage of those properties’ most unique and valuable
attributes. The result is a likely significant reduction in value for vacant and underdeveloped prop-
erties and some reduction in value for developed properties due to the inability to expand. Along
with that diminution in value, there is the potential for future reduction in tax base and revenue for
the Village.

This raises the question as to whether the loss in value is offset by the protection of the public,
health, safety, morals or general welfare for the general public. The proposed ordinance states as
its purpose:
“…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 Michi-
gan 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,

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its residents, or visitors.”

The fact of the matter is that any significant construction in the Village must obtain a building
permit. The permit process in Winnetka requires plans prepared by either a Licensed Architect
or Structural Engineer. These professionals are trained, licensed, and required to fulfill continu-
ing education requirement to maintain their licensure. They certainly consider the risks and take
appropriate measures in the design of facilities on sloping sites with sensitive environmental
characteristics. It is important to note that the recently enacted §15.78 of the Winnetka Zoning
Ordinance which now governs Lakefront Development contains more than adequate provisions to
protect the health, safety, welfare and morals of the community. Furthermore, historically, Win-
netka’s lakefront has been safely developed with no incidents of failure or endangerment to the
public even prior to the enactment of §15.78. The additional requirements of the proposed ordi-
nance do little, if anything, to further the already adequate protections raising significant questions
as to whether the loss of value to individual property owners is offset by the degree to which the
health, safety, morals, or general welfare of the public is further protected. It should be noted that
unlike §15.78, the decisions of the Village Engineer regarding any permitted construction within
the Slope Transition and Steep Slop Zones are not guided by any defined criteria for approval al-
lowing for potentially arbitrary decisions that could negatively effect property owners. All in all,
the proposed steep slope regulations appear to be more of an effort to discourage development
on or near the lakefront bluff and regulate the apperance of the lakefront properties when viewed
from offshore, than protecting the public health, safety and welfare.

Given that the proposed regulations are inconsistent with the existing and established pattern of
zoning and land use, that here is a strong likelihood that individual property owners will experi-
ence a diminution or loss of value, and that that diminution or loss is not offset by any significant
protection of the health, safety, morals or general welfare of the general public, my preliminary
opinion it that the proposed ordinance is likely to be arbitrary and capricious and not substantially
related to the protection of the health, safety, morals or general welfare of the public.

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EXHIBIT C
EXHIBIT D
EXHIBIT E