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Seventh Circuit Rejects Challenge to Wind Farm Regulations

Muscarello v. Winnebago County Board, 2012 WL 6062515 (7th Cir.) involved a farmer challenging defendant’s provision for wind farm zoning, citing possible hazards from shadow flicker, reduction of light, noise, ice and blade throw, interference with communications and crop dusting, raptor loss, and similar matters.  Some of these harms were conjectural and other harms to agriculture were unproven.  The court noted that the only relief sought was against Defendant County and that various wind company defendants should have been dismissed for that reason.  The 7th Circuit noted that the District Court dismissed the suit, “a blunderbuss of federal and state claims” under FRCP 12(b)(6), i.e., that there was no claim under which plaintiff would be entitled to relief.

Under the challenge Code amendment, wind farms became permitted uses in certain zones, subject to setback and environmental standards.  No application for this use had been filed and Judge Posner, writing for the majority, observed for the court that a “pall of prematurity hangs over the case.”  Nevertheless the court found standing based on plaintiff’s allegations of loss of property value, stated at $500,000, to be sufficient, though Judge Posner observed that the number was “suspiciously rounded and unexplained.”

The court found no taking as there was no showing of a transfer of ownership or of rendering plaintiff’s land valueless, nor any case under the Illinois Constitution under which in addition to taking there was a guarantee of just compensation for the damaging of property.  Neither ground was sufficiently alleged in this case.  Similarly, the court found no deprivation of property under the federal Due Process clause by this change in procedure for wind farms from a conditional use to a permitted use – a change the court found too remote for any loss.  Moreover, the court noted that the instant challenge was facial in nature, so the court could not speculate on a possible application made on or near plaintiff’s property.  Judge Posner observed:

"Evaluating the plaintiffs objections to the ordinance would require comprehensive knowledge not only of wind farms and their effects pro or con on the environment and on energy independence, but also of the most valuable potential uses of all rural land in the county.  A judge could review the ordinance for rationality, but that is an undemanding test, and the national interest in wind power as a clean source of electrical energy and as a contribution to energy independence is enough to establish the ordinance's rationality.  (There is federal money to support wind farms; why shouldn't Winnebago County try to get a bit of it by making it easier to build wind farms in the county?)  For a court to allow a hypothetical harm to one person's property from a yet to be built (or even permitted to be built) wind farm to upend a county-wide ordinance would be an absurd judicial intrusion into the public regulation of land uses.

Stepping down from the dizzying heights of constitutional law, we can restate the plaintiff’s contention as simply that a wind farm adjacent to her property would be a nuisance. That is a more sensible conceptualization of her claim than supposing as she does that she has a property right in her neighbors' use of their lands. Should any of them create a nuisance by building a wind farm, she can seek to abate the nuisance when the wind farm is built, or maybe a bit earlier, when a permit to build it is granted.  The fact that the County Board has zoned agricultural property to allow wind farms would complicate her effort to establish that it was a nuisance, but not defeat it. The operation of the wind farm might turn out to cause a kind or amount of damage that the Board had not foreseen, and in that event the ordinance would not bar the suit.

Sufficient unto the day is the evil thereof. For all one knows, no wind farm will ever be built close enough to any of the plaintiffs properties to do any harm, let alone harm sufficient to constitute a nuisance under the standard for determining nuisance, which involves a balancing of the costs and benefits of the land use claimed to have caused a nuisance. Even a wind farm that was only a stone’s throw from one of her properties might do no damage to it, given the use to which she puts her Winnebago county properties – of which we have not been informed."

The court also noted the procedural challenge to the adoption of the ordinance in the initial version of this case which was mooted by the reenactment of the same and dismissed various other challenges to the ordinance, procedural and substantive, as well.  The District Court decision was thus affirmed.

It is difficult to bring a facial challenge to a regulation in the absence of a clear procedural or constitutional infirmity.  Plaintiff must await a permit proceeding to challenge the application of the ordinance under constitutional and statutory standards.  Judge Posner has once again enlivened this rather dull application of constitutional law.

Muscarello v. Winnebago County Board, 2012 WL 6062515 (7th Cir.).


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