Renewable Energy Law: Muscarello v. Winnebago County Board, Case No. 11-2332 (7th Cir. 2012)

A federal appeals court recently affirmed a lower court’s dismissal of a lawsuit where the plaintiff alleged a taking under the federal and Illinois state constitutions, as well as nuisance claims, and procedural challenges to an amendment of a county ordinance in regard to a renewable energy wind project.

In Muscarello v. Winnebago County Board, the plaintiff, a landowner with multiple agriculturally-zoned tracts, filed a lawsuit against the Winnebago County Board (the “County”) on the basis of 2009 amendment to the County’s zoning ordinance that made it easier for an owner of agriculturally-zoned land to obtain permission to build a wind farm. Although no one had yet applied for a zoning clearance or building permit for a wind farm in the County and no wind farm has actually been built anywhere therein, the plaintiff worried that a wind farm on a property adjacent to hers would cause substantial damage including noise, radar and cell phone interference and stray voltage among other colorful claims. While the United States Court of Appeals for the Seventh Circuit acknowledged that some of the plaintiff’s concerns may be speculative, the injury “need be neither certain nor great to confer standing under Article III of the Constitution.”

As to the plaintiff’s federal taking claim, the Court nevertheless concluded that no property of the plaintiff’s had yet been taken and will not be unless and until a wind farm is built near her property. Emphasizing that a taking within the 5th Amendment has to be an actual transfer of ownership, or enforcement of a regulation that renders the property essentially worthless to its owner, the Court determined the 2009 County ordinance does not transfer possession of any of the plaintiff’s land or limit her use of it.

The other takings claim was based on the Illinois state constitution, which provides broader protection than the federal clause. Despite her contentions that the 2009 amendment made it easier for her neighbors to build wind farms, and thus constituted a deprivation of her property without due process of law, the Court emphasized that any harm caused to the plaintiff by a change in the procedural rights of other landowners is too remote to constitute a deprivation of property. The plaintiff’s attack on the amended ordinance also failed because the ordinance is considered legislation and local governments “may elect to make zoning decisions through the political process rather than having to use adjudicative procedures to make such decisions.”

After shifting from the constitutional claims, the Court restated the plaintiff’s contention that a wind farm adjacent to her property to be one sounding in nuisance. However, such a claim was not ripe for the Court: “[s]hould any of [her neighbors] seek to create a nuisance by building a wind farm, she can seek to abate the nuisance when the wind farm is built, or maybe earlier, when a permit to build it is granted…For all one knows, no wind farm will ever be built close enough to any of the plaintiff’s properties to do any harm, let alone harm sufficient to constitute a nuisance.”

Jeremy Fetty is a partner in the law firm of Parr Richey Frandsen Patterson Kruse with offices in Lebanon and Indianapolis. He often advises businesses and utilities (for profit, non-profit and cooperative) on organizational, human resources, and transactional matters and drafts and reviews commercial contracts.

The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.

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