In 2003, Ogle County amended its zoning ordinance to allow for special use permits for windmills used to generate power. In 2005, the County granted Baileyville Wind Farms a special use permit to allow the construction of 40 windmills on its property. An adjoining property owner, Muscarello, was unsuccessful in attempts to halt the special use permit process, and after the permit was issued then filed suit in federal court for a variety of federal and state law claims. She alleged a laundry list of the typical environmental and health arguments asserted against the siting of wind turbines, and then added a bunch of others including: she will be deprived of the full extent of the kinetic energy of the wind and air as it enters her property; her property will be subject to “shadow flicker” and reduction of light; she will have to endure severe noise; ice may be physically thrown onto her property by the rotating blades; there is risk of “blade throw,” meaning that the rotor blades may
come loose and be thrown onto her property; the windmills will cause radar interference on
her property; the windmills will interfere with the reception on her cell phone network; the windmills will disturb her GPS service; her property will be subject to wireless communication
interference; the system will interfere with her television signals; the existence of the windmills will enhance her risk of sustaining damage from lightening; she will be exposed to higher levels of electromagnetic radiation; she will suffer injury from stray voltage; and the windmills will prevent her from conducting crop-dusting operations on her fields. As a result, she asserted a takings claim arguing that there will be uncompensated adverse impacts for her and other nonresidential property owners nearby. She sought to prevent the construction of the windmills and to require the Board to revoke the permit. The district court dismissed without reaching the merits.
The Seventh Circuit affirmed. With respect to the takings claims, the Circuit Court concluded that they were not ripe under the three-prong test set forth in Williamson County since Muscarello admitted she did not seek compensation through available state procedures and she was not excused from exhausting those procedures. The Circuit Court also upheld dismissal of her Equal Protection and Due Process claims.
Muscarello v. Ogle County Board of Commissioners, 2010 WL 2541067 (7th Cir. 6/24/2010)
The opinion can be accessed at: http://www.ca7.uscourts.gov/tmp/Z41FFUSM.pdf
Hat tip to Robert Thomas who reported this case last week on the inverse condemnation blog.
