Posted by: Patricia Salkin | January 4, 2013

7th Circuit Court of Appeals Dismisses Challenge to Wind Farm Regulations Finding No Taking and No Due Process Violation

Plaintiff Patricia Muscarello, owner of three agricultural tracts in Winnebago County, Illinois and notorious opponent of wind farm development, brought suit against the Winnebago County Board’s 2009 zoning amendment which made it easier to construct wind farms in the county, as well as against the County’s Zoning Board, numerous county officials, and several private wind companies, none of whom had obtained any wind rights at the time of suit.  The District Court had dismissed the entire action for failure to state a claim, and Muscarello appealed.

The Seventh Circuit noted that Muscarello’s “blunderbuss” of federal and state challenges included no requested relief from the private companies, and thus chose to ignore the claims against those parties.  Further, since the Zoning Board and County officials were serving in an advisory capacity to the County Board’s decision, the Court chose to treat the case as only against the Winnebago County Board.

The County Board’s amendment changed wind farm laws from a scheme which required special use permits for wind farms, subject to a long list of review requirements, to one which treated wind farms as a permitted use, requiring that the project pass a zoning clearance and obtain a building permit before the farm could be constructed.  Muscarello claimed that, should a wind farm be constructed adjacent to one of her properties, the County’s zoning amendment would indirectly cause several different types of damage to her property, including “depriving the property of the full extent of the kinetic energy of the wind and air as it enters the property”; reducing the amount of light entering the property; making the property susceptible to ice throw, blade throw, shadow flicker, noise, electromagnetic radiation, stray voltage, lightening damage, and interference with cellular, radar, television, phone, GPS, and wireless communications services; preventing crop dusting on her land; causing her land to become dryer; and killing raptors, which would then require that she apply pesticides to her land.

Given that Muscarello did not live on the property, nor did she express any plans to construct buildings there, nor did she provide any information regarding the types of agricultural activities taking place or proposed for her property, the Court held most of Muscarello’s claims were too conjectural.  Other claimed impacts, such as interference with communications technology or radiation impacts, are not settled within the scientific community and would be very hard to prove absent any specific proposed activities for Muscarello’s property.

Some claims, however, were enough to form the basis of a suit.  While the Court acknowledged that some of the claimed harms—such as noise, ice throw, blade throw, or shadow flicker—are potential negative impacts of wind farms, the Court found quite puzzling Muscarello’s claim that an adjacent wind farm would substantially reduce the amount of wind available on her property.  Muscarello was a “pertinacious foe of wind farms” and, as such, was unlikely to ever take advantage of wind energy potential on her land.  Still, the Court found that these potential injuries, while speculative, were not so speculative that Muscarello failed to prove standing to bring the case.

On the question of a taking, however, the Court noted that no wind farm has been constructed in the County, and no project has yet sought the zoning clearance or building permits allowed by the amendment.  Thus, the amendment resulted in no cognizable taking under federal law.  Illinois state law does provide broader takings protections, awarding compensation for any taking of or damage to property, with damage defined as a direct physical harm to the parcel.  However, since there has been no physical damage to, or threat of physical damage to, Muscarello’s property, there was no case for a takings claim even under state law.

Muscarello also made a due process claim, arguing that the amendment deprived her of her property without due process of law.  However, the Court noted that the County’s amendment merely changed the procedures for obtaining wind farm approval—it did not actually confer permission to construct a wind farm on any property, nor did it guarantee the construction of wind farms anywhere in the County.  Further, the zoning change was a legislative decision which impacted every property owner in the county, thus an adjudicative process hearing all property owners’ concerns before making the blanket change was not required.  For those reasons, Muscarello could not sustain the due process claim either.

In a separate explanation, Judge Holmes objected to the finding that standing existed in this case, arguing that such a finding would give federal courts grounds to intrude on local land use decisions if there existed a single hypothetical harm to an individual property.  Rather than cast the case in terms of a taking, Judge Holmes argued that the case should have proceeded under a nuisance theory, and Muscarello should have been required to wait until a wind farm had been proposed before allowing her to claim that its presence near her property would be a nuisance.  Judge Holmes noted that “[f]or 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 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.”  Thus, until such an evil had actually emerged, Muscarello should be prevented from continuing with her crusade against it.  However, the County’s ordinance was merely meant to ease onerous regulations and encourage wind development, which is clearly within the municipality’s authority to do. Both judges agreed to affirm the lower court’s dismissal of Muscarello’s claim.

Muscarello also had brought a similar suit against Ogle County wind ordinances in 2010, based on property she owned there.  A summary of that 7th Circuit case is available here (http://lawoftheland.wordpress.com/2010/07/13/seventh-circuit-court-of-appeals-dismisses-windmill-case-alleging-takings-on-ripeness-grounds/).

Muscarello v. Winnebago County Board, 2012 WL 6062515 (7th Cir. 12/7/12)

The opinion can be accessed at: http://www.ca7.uscourts.gov/tmp/OK19GUKM.pdf


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