Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge

Robert M. Dow, Jr. Sitting Judge if Other

than Assigned Judge

CASE NUMBER 12 C 4785 DATE 3/25/2013

CASE

TITLE

Long, et al. vs. KZF Development, et al.

DOCKET ENTRY TEXT

For the reasons stated below, Defendants’ motion to dismiss or in the alternative for summary judgment on

Plaintiffs’ federal claims [15]is granted. The Court declines to exercise supplemental jurisdiction over Plaintiffs’

remaining state law claims and they are dismissed without prejudice. 

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

I. Background

In May 2011, KZF Development (KZF) and/or Dundee Partners (Dundee) removed approximately 180 trees

from a 6.8 acre residential parcel in Northbrook, Illinois (the Site). Plaintiffs Robert and Sheryl Long allege

that the tree removal causes flooding, which has, among other things, damaged their home. On June 15,

2012, Plaintiffs filed this lawsuit alleging violations of the Clean Water Act, 33 U.S.C. § 1365 (Count I), as

well as nuisance, trespass, and negligence under Illinois law (Counts II – IV). 

Count I is brought under the “citizen suit” provision of the Clean Water Act. At least 60 days before filing

their Clean Water Act citizen suit, Plaintiffs were required to give notice of the alleged violation to (1) the

EPA, (2) the state in which the alleged violation occurs, and (3) the alleged violator. 33 U.S.C. § 1365(b)(1)

(“[n]o action may be commenced” without notice to the EPA, the state, and the alleged violator); see also,

e.g., Hallstrom v. Tillamook County, 493 U.S. 20, 31 (1989) (holding that an identical notice requirement in

Resource Conservation and Recovery Act was a mandatory precondition to suit); Friends of the Earth, Inc. v.

Gaston Copper Recycling Corp, 629 F.3d 387, 399-400 (4th Cir. 2011) (holding that adequate notice is a

mandatory precondition of a Clean Water Act citizen suit). Moreover, Plaintiff may only allege ongoing

violations in a citizen suit, and the Court must dismiss the suit if it alleges “wholly past violations.” See, e.g.,

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 64 (1987). 

In the motion before the Court, Defendants argue that Count I must be dismissed because Plaintiffs did not

provide proper 60-day notice — they gave notice to KZF, not Dundee, which owns the Site — and even if the

proper parties were given notice, the notice letter alleged nothing more than that Defendants lacked required

12C4785 Long, et al vs. KZF Development, et al. Page 1 of 8
STATEMENT

permits, a problem that was cured before Plaintiffs had a right to sue and, in any event, long before Plaintiffs

filed this lawsuit. Thus, Defendants argue, Plaintiffs’ only properly-noticed claims are “wholly past” and

therefore, regardless of who was given notice, Count I must be dismissed and with it the entire complaint

because Count I is the basis for federal jurisdiction. 

On January 16, 2012, Plaintiffs sent the EPA, the Illinois Environmental Protection Agency (IEPA), and KZF

a “60-Day Notice of Intent to Sue for Violations of the Clean Water Act” (Notice). The Notice, which is

attached to Plaintiff’s complaint, states that the Longs’ own property is “within approximately 50 yards from

[“the Site”] owned by KZF Development.” The Notice continued: 

KZF Development is the owner of the Site and is, therefore, responsible and liable for all land

disturbing construction activities on the Site. See 33 U.S.C. § 1365(a)(1); 33 U.S.C. §

1362(5). Additionally, KZF Development is the lead operator of the land disturbing activities

outlined in this notice letter and, thus, is also liable for all Clean Water Act violations

associated with such activities as an “operator.” Id.

The Notice went on to describe two alleged violations of the Clean Water Act. First, “[s]ince at least May 11,

2011, KZF Development has engaged in land disturbing activities on the Site * * *, without [National

Pollutant Discharge Elimination System (NPDES)] permit approval and authorization.” Without that

required permit, the Notice continued, “every day stormwater is discharged from the Site is a separate Clean

Water Act violation.” Second, “[o]n or around May 11, 2011 KZF Development commenced land disturbing

construction activities, and continues to engage in such activities, without implementing and adhering to a

Stormwater Pollution Prevention Plan (SWPPP). * * * According to the [IEPA] records, KZF Development

has not submitted, and IEPA has not approved, a SWPPP for KZF Development’s land disturbing

construction activities on the Site. * * * Under federal law, every day that stormwater is discharged from a

regulated construction site, without adhering to and complying with an authorized SWPPP, is a separate

Clean Water Act violation.” The Notice concluded that “should the above violations continued at the end of

the 60-day notice period, the Longs intend to file suit against you for all past and ongoing violations of the

Clean Water Act.” 

Instead of issuing separate NPDES permits, the IEPA has issued a “General Permit” that contains the

requirements applicable to all covered stormwater discharges. See www.epa.state.il.us/water/permits/stormwater/construction.html. A developer can avail itself of the authorization provided by the General Permit by

submitting a Notice of Intent (NOI) to the IEPA that contains all required information. 

On February 7, 2012, Dundee filed an NOI and Incidence of Noncompliance with IEPA requesting coverage

under the General Permit and indicating that it should have filed earlier notice that Dundee would be

replacing Mega Development (the previous developer) on the project. Dundee also advised the IEPA that it

would be using the same development plan and SWPPP that the previous developer had been using, and it

attached that SWPPP to its filing. On March 7, 2012, the IEPA sent Dundee a letter confirming that it was

covered by the General Permit. 

On March 12, 2012, in response to Plaintiffs’ 60-day Notice, KZF wrote to Plaintiffs and stated that the Site

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STATEMENT

is “not owned by KZF Development as alleged, but rather by Dundee Partners, LLC. As a result, your notice

has been sent to the wrong party and is defective.” The letter went on to state that even if Plaintiffs’ notice

was not defective, the citizen-suit provision of the Clean Water Act only permits suits for an “ongoing

violation” and quoted the Supreme Court’s opinion in Gwaltney. The letter maintained that there is no

“ongoing violation” at the Site because the owners were now authorized to operate under the General Permit

and a SWPPP identical to that of the previous developer.

II. Legal Standard

Summary judgment is proper if “the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). To avoid summary judgment,

the opposing party must go beyond the pleadings and “set forth specific facts showing that there is a genuine

issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and

citation omitted). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Id. at 248. The party seeking summary judgment has the burden of

establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). Summary judgment is proper against “a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will bear the burden of proof at

trial.” Id. at 322. The party opposing summary judgment “must do more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986). “The mere existence of a scintilla of evidence in support of the [opposing] position

will be insufficient; there must be evidence on which the jury could reasonably find for the [opposing party].” 

Anderson, 477 U.S. at 252.

III. Analysis

A. Clean Water Act Claims (Count I)

In their opening brief, Defendants argue that Plaintiffs’ Clean Water Act claim must be dismissed because

they sent Notice to the wrong party: the Notice was sent to KZF, but Dundee is the owner. Despite having

been so advised by KZF, Plaintiffs did not send a new notice, but instead sued KZF and Dundee. Plaintiffs’

response brief explains that both the owner and “operator” of a construction site are required to ensure

compliance with the General Permit, both can be liable for Clean Water Act violations, and that KZF is the

Site’s operator. See, e.g., Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1143-44 (10th Cir. 2005);

see also www.epa.state.il.us/water/permits/storm-water/construction.html (operators — defined as “person or

persons with control of construction project plans and specifications, or day-to-day operational control of

activities necessary to ensure compliance with storm water NPDES permit conditions” — required to obtain

permit coverage). This argument is persuasive: KZF is listed as the “developer” on zoning documents; it

makes its operational control clear in a letter to Northbrook (“Attached is a list of steps KZF has taken to

comply with Village regulations,” listing tree removal, mowing, demolition of homes, among other things);

and a sign on the Site proudly declares that the Site is “Another KZF Development.” 

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STATEMENT

In addition, Plaintiffs explain that although the Notice was sent to KZF as an owner or operator and not to

Dundee, the actual owner, Dundee is managed by KZF Dundee, which is managed by KZF Holdings, which

is managed by Daniel Zivin, Joel Kogen, and Suzanne Kogen-Friedman, who are the corporate officers for

KZF Development. Moreover, KZF Development and Dundee share an address and the same registered

agent, Daniel Zivin. Plaintiffs’ Notice was addressed to KZF Development, Suzanne Kogen-Friedman, Joel

Kogen, Daniel Zivin, and Steven Friedman. 

And, of course, the owners of the Site had actual notice: Plaintiff’s Notice caused Defendants to correct the

problems it described. Taken together, the Court is confident that Plaintiffs’ Notice was not invalid as to

KZF merely because it misdescribed KZF as the owner. The notice requirement in 33 U.S.C. § 1365(a)(1) is

a mandatory prerequisite of a Clean Water Act citizen suit, but Defendants do not cite any case explaining

that partly mischaracterizing an entity nullifies notice. See Atlantic States Legal Foundation, Inc. v. Stroh

Die Casting, Co., 116 F.3d 814, 819 (7th Cir. 1997) (notice was sufficiently precise when the defendant

“knew exactly what [the plaintiff] was concerned about and it was taking steps to address this matter”).

But the Court need not dwell on that point, because Plaintiffs’ Notice is insufficient in another respect: the

Notice identified two possible violations of the Clean Water Act (Defendants were not covered by the

General Permit and had no SWPPP); Defendants conceded those problems and addressed them. Plaintiffs did

not put Defendants on notice of any additional violation, or any violations that Defendants did not promptly

address. Plaintiffs now allege that the SWPPP is not a valid SWPPP. “Among other flaws,” the Plaintiffs

now claim that the plan (which they call an SESC Plan, or a purported SWPPP): 

a. Does not reflect the current conditions of the Site, as required by NPDES Permit ILR10,

Part IV(C). 

b. Does not contain a site map with the drainage patterns and approximate slopes anticipated

before and after major grading activities, as required by NPDES Permit ILR10, Part IV

(D)(1)(e). 

c. Does not describe appropriate controls and the timing during the construction process that

the controls will be implemented, as required by NPDES Permit ILR10, Part IV (D)(2).

Instead, the SESC Plan states that best management practices will be “implemented on an asneeded basis to protect water quality.” (Exhibit C, SESC Plan, Part 2(B).)

d. Does not include a site map identifying the location of major structural and non structural

controls for stormwater management, as required in NPDES Permit ILR10, Part IV (D)(1)(e). 

e. Does not include an explanation of the technical basis used to select practices to control

pollution where flows exceed predevelopment levels, as required in NPDES Permit ILR10,

Part IV (D)(2)(b)(ii). 

f. Does not include a record of dates when major grading activities occur, when construction

activities cease on a portion of the site and when stabilization measures are initiated, as

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required in NPDES Permit ILR10, Part IV (D)(2)(a)(i). Instead, the Plan expressly states that

this information “should be included in the SWPPP.” (Exhibit C, SESC Plan, Part 2(C)(1).) 

g. Fails to identify the contractors that will implement each measure identified in the SWPPP,

as required in NPDES Permit ILR10, Part IV (F)(1). Instead, the Plan expressly states that this

information should be identified in the SWPPP. (Exhibit C, SESC Plan, Part 2.). 

h. Fails to include signed certification statements by all contractors and subcontractors

identified in the SWPPP, as required in NPDES Permit ILR10, Part IV (F)(2). Instead, the Plan

expressly states that, “[a]ll signed certification statements should be maintained in the

SWPPP.” (Exhibit C, SESC Plan, Part 2.) 

i. Fails to set forth stormwater management controls that are designed for a storm event equal

to or greater than a 25-year, 24 hour rainfall event, as required by NPDES Permit ILR10, Part

IV(D)(2)(b)(iii). 

j. Is not signed, as required by NPDES Permit ILR10, Part IV(B). 

Compl. ¶ 67. Plaintiffs’ did not give Defendants notice of any of these alleged flaws. The Notice addressed a

separate (and prior) issue: the failure to be covered by required plans. Defendants admitted they were not

covered, took action, and the IEPA concluded that Plaintiffs are now “covered.” If, notwithstanding

Defendants’ response, Plaintiffs believed that issues remained, such as the detailed problems listed in the

complaint, Plaintiffs (if they wanted to have the option of bringing a citizen suit, at least) were required to

give Defendants notice of those problems, which would have given Defendants a chance to address them and

avoid suit. 

In Gwaltney, the Supreme Court held that Clean Water Act citizen suits must be for ongoing violations of the

Act not only because of the language of § 1365 — its “pervasive use of the present tense,” permitting suits

against any person “who is alleged to be in violation” of the Act — but also because (among other reasons)

allowing suits for “wholly past violations” “renders incomprehensible” the notice provision at issue in this

case. 484 U.S. at 59-60. The notice provision 

requires citizens to give 60 days’ notice of their intent to sue to the alleged violator as well as

to the Administrator and the State. § 1365(b)(1)(A). If the Administrator or the State

commences enforcement action within that 60-day period, the citizen suit is barred,

presumably because governmental action has rendered it unnecessary. § 1365(b)(1)(B). It

follows logically that the purpose of notice to the alleged violator is to give it an opportunity

to bring itself into complete compliance with the Act and thus likewise render unnecessary a

citizen suit. If we assume, as respondents urge, that citizen suits may target wholly past

violations, the requirement of notice to the alleged violator becomes gratuitous.

Id. (footnote omitted and emphasis added). EPA regulations reinforce the point made by the Supreme Court

about the purpose of the notice requirement and offer additional guidance about the content of the notice:

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Notice regarding an alleged violation of an effluent standard or limitation or of an order with

respect thereto, shall include sufficient information to permit the recipient to identify the

specific standard, limitation, or order alleged to have been violated, the activity alleged to

constitute a violation, the person or persons responsible for the alleged violation, the location

of the alleged violation, the date or dates of such violation, and the full name, address, and

telephone number of the person giving notice.

40 C.F.R. § 135.3. Citing this same authority, the Seventh Circuit explained that [i]n practical terms, the

notice must be sufficiently specific to inform the alleged violator about what it is doing wrong, so that it will

know what corrective actions will avert a lawsuit.” Atlantic States, 116 F.3d at 819. “The key to notice is to

give the accused company the opportunity to correct the problem.” Id. at 820; Center for Biological Diversity

v. Marina Point Development Co., 556 F.3d 794, 800 (9th Cir. 2008) (“[The 60-day notice] is not just an

annoying piece of paper intended as a stumbling block for people who want to sue; it is purposive in nature

and the purpose is to accomplish corrections where needed without the necessity of a citizen action.”). 

In Atlantic States, the court concluded that a notice letter complaining about discharges from outfall 3 were

sufficient to permit a lawsuit complaining about discharges from outfall 4, when the discharges from outfall 3

had been rerouted to outfall 4 in response to Plaintiffs’ notice. Atlantic States, 116 F.3d 819-20. The fact that

the Defendant took action to correct the problem supported the conclusion that the defendant “knew exactly

what [plaintiff] was concerned about,” and so the notice was sufficient. Id. at 819.

In this case, the Court believes that it was clear which parties Plaintiffs considered responsible (whether

incorrectly identified as the owner or correctly as the operator, the owner and the operator took responsive

actions), but it was not evident that Plaintiff was complaining about anything other than Defendants’ failure

to be covered by the General Permit and a SWPPP. A different conclusion would put too much weight on the

statements in Plaintiffs’ Notice that Defendants must also “adhere to an authorized” plan. Giving such

weight to that phrase would position Plaintiffs to sue over any shortcoming of the SWPPP (not “authorized”)

or any deviation from its dictates (not “adhering”). That, however, would undermine the purpose of the 60-

day notice, which, as discussed, is to give Defendants an opportunity to rectify the problem and avoid suit and

to provide the EPA and IEPA an opportunity to take action before a citizen suit. Plaintiffs’ entirely general

admonition that Defendants must adhere to authorized permits did not fulfill that purpose in view of

Plaintiffs’ specific allegations in this lawsuit. See, e.g., Karr v. Hefner, et al., 475 F.3d 1192, 1206 (10th Cir.

2007) (affirming dismissal of citizen suit claims because the plaintiff’s notice letters lacked specificity: “They

are hardly more helpful than a letter telling Defendants merely that they have violated the [Clean Water Act]

at each listed site.”); Center for Biological Diversity v. Marina Point Development Co., 556 F.3d 794, 801

(9th Cir. 2008) (“We have sometimes been slightly forgiving to plaintiffs [about how detailed notice must

be], but even at our most lenient we have never abandoned the requirement that there be a true notice that

tells a target precisely what it did wrong, and when. The target is not required to play a guessing game in that

respect.”). 

Once Defendants cured the specific problems identified in Plaintiffs’ Notice, if Plaintiffs believed that

Defendants remained in violation and wanted to motivate Defendants to change their conduct with the

possibility of a citizen suit, Plaintiffs needed to provide Defendants’ with another notice, one with sufficient

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information to address the problems that would eventually be the subject of a federal lawsuit. The Court

rejects the idea it is foisting an impossible burden on Plaintiffs by requiring that this suit be supported by a

notice containing details not available at the time of the first (and only) Notice. That Notice was good, but

just not for the claims Plaintiffs seek to advance in this lawsuit. The Court could not square a different result

with fundamental requirement that a 60-day notice must “be sufficiently specific to inform the alleged

violator about what it is doing wrong, so that it will know what corrective actions will avert a lawsuit.” 

Atlantic States, 116 F.3d at 819. 

Not having given Defendants notice of the violations alleged in this lawsuit, but only for violations that had

already been addressed by the end of the 60-day notice period and that were therefore “wholly past” by the

time Plaintiffs would have been permitted to sue for properly noticed ongoing violations, Plaintiffs’ Clean

Water Act claims must be dismissed. See, e.g., Friends of the Earth, Inc. v. Gaston Copper Recycling Corp.,

629 F.3d 387, 399-403 (4th Cir. 2011) (holding that “the district court erred in finding violations that were

not alleged specifically in the plaintiffs’ notice letter” and no penalties could be imposed for those violations);

ONRC Action v. Columbia Plywood, Inc., 286 F.3d 1137, 1144 (9th Cir. 2002) (holding that some of the

claims raised in the plaintiff’s complaint “were not properly raised in its 60-day citizen suit notice; thus, the

district court correctly held that it lacked subject matter jurisdiction over those claims”).

B. State Law Claims (Counts II – IV). 

Plaintiffs’ federal claim must be dismissed, and the Court is now required to decide whether to retain

jurisdiction over Plaintiff's state law claims. See 28 U.S.C. § 1367(c)(3). The Seventh Circuit, animated by

the principle of comity, consistently has stated that “it is the well-established law of this circuit that the usual

practice is to dismiss without prejudice state supplemental claims whenever all federal claims have been

dismissed prior to trial.” Groce v. Eli Lilly, 193 F.3d 496, 501 (7th Cir. 1999); Alonzi v. Budget Constr. Co.,

55 F.3d 331, 334 (7th Cir. 1995); Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir.

1993); see also Wright v. Associated Ins. Co., Inc., 29 F.3d 1244, 1251 (7th Cir. 1994) (“When all federal

claims have been dismissed prior to trial, the principle of comity encourages federal courts to relinquish

supplemental jurisdiction * * * ”); see also Horton v. Schultz, 2010 WL 1541265, at *4 (N.D. Ill. Apr. 16,

2010).

In Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251–53 (7th Cir. 1994), the Seventh Circuit noted that there

occasionally are “unusual cases in which the balance of factors to be considered under the pendent

jurisdiction doctrine judicial economy, convenience, fairness, and comity — will point to a federal decision of

the state-law claims on the merits.” The first example that the Court discussed occurs “when the statute of

limitations has run on the pendent claim, precluding the filing of a separate suit in state court.” Id. at 1251. 

That concern is not present here, however, because Illinois law gives Plaintiff one year from the dismissal on

jurisdictional grounds of state law claims in federal court in which to re-file those claims in state court. See

735 ILCS 5/13–217; Davis v. Cook County, 534 F.3d 650, 654 (7th Cir. 2008). Dismissal without prejudice

of the state law claims also is appropriate here because the case is at an early stage and substantial judicial

resources have not been committed to the state law counts in Plaintiffs’ complaint. Wright, 29 F.3d at 1251. 

Finding no justification for departing from that “usual practice” in this case, the Court dismisses without

prejudice Plaintiff’s state law claims without discussing their merit under state law.

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IV. Conclusion

For the reasons stated above, Defendants’ motion to dismiss or in the alternative for summary judgment on

Plaintiffs’ federal claims [15] is granted. The Court declines to exercise supplemental jurisdiction over

Plaintiffs’ remaining state law claims and they are dismissed without prejudice. 

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