Seventh Circuit Rejects Challenge to Wind Farm Ordinance
County officials amended a zoning ordinance to make it easier for residents to build wind farms. Plaintiff owns three tracks of land zoned agricultural in the county, and brought suit in federal court out of concern that a wind farm on adjacent property would damage her land because of the potential for interference with electronic communication, lightning damage, and electromagnetic radiation. Plaintiff alleged that County officials violated the takings clause of the U.S. Constitution and the Illinois Constitution, as well as the due process clause.
The district court dismissed the lawsuit for failure to state a cause of action. The Seventh Circuit affirmed. Muscarello v. Winnebago County Board, Nos. 11-2332 & 11-3258 Cons. (December 7, 2012). First, the Seventh Circuit held that plaintiff failed to prove a taking pursuant to the U.S. Constitution because the ordinance does not transfer possession of any of her property or limit its use. Further, the Court found that plaintiff did not assert a valid argument for a taking pursuant to the Illinois Constitution because no wind farms have even been built within the county and no physical disturbance of property has occurred. The Court also rejected plaintiff’s due process argument, finding that merely allowing residents to build wind farms is insufficient to establish a deprivation of property. The court also acknowledged that even a nuisance suit would fail as plaintiff had not actually suffered any harm. Merely the possibility that a wind farm might someday be built nearby is not enough to establish sufficient harm.
Post Authored by Erin Baker, Ancel Glink.
0 comments:
Post a Comment