Appellate Court Rules in Favor of Wind Farm Developer
An Illinois municipality enacted a zoning regulation that restricted the generating power of wind energy conversion systems. A wind farm developer that sought to construct a wind farm on land outside the municipality but within 1.5 miles of its limits sued the municipality, claiming the zoning regulation was constitutionally invalid and outside the scope of the municipality's authority. The trial court ruled in favor of the municipality, but the Appellate Court reversed in Hickory Wind, LLC v. Village of Cedar Point.
After a municipality adopted a zoning regulation that prohibited any wind energy conversion structure or wind turbine designed to generate more than 120% of the electricity demand for the parcel on which it is located in the municipality and in the area within 1.5 miles of the municipality, a wind farm developer (Hickory Wind, LLC) filed a lawsuit challenging the regulation. The trial court found in favor of the municipality, holding that Hickory Wind failed to offer evidence that the zoning regulation exceeded the municipality's authority or was constituted impermissible exclusionary zoning, and that any "as-applied" challenge was not yet ripe. That ruling was appealed.
On appeal, the Illinois Appellate Court reversed the ruling in favor of the municipality and ruled in favor of Hickory Wind on its "exclusionary zoning" claim. The Appellate Court noted that a zoning ordinance is "impermissibly exclusionary if the affected activity is effectively prohibited anywhere within the municipal limits." In this case, the Appellate Court determined that the zoning regulation on wind farms was not a "mere limitation" or restriction, but an outright ban. The Court acknowledged that municipalities have the authority to place reasonable limitations on things like height, blade length, tower density, and the like but that a regulation that restricts energy generation in such a way that it renders commercial wind power economically impossible is "both a violation of public policy and is also, in effect, an unauthorized ban." Because the municipality was non-home rule, it had to rely on statutory authority to regulate and the Court held that state law permitted regulation, but did not expressly authorize municipalities to ban commercial windmills. The Court declined to address the constitutional arguments since it resolved the case on non-constitutional grounds.
There was a dissenting opinion in the case that would have deferred to the municipality on its own zoning regulations because state law specifically permits regulations of wind farms and no regulatory scheme preempts the municipality's zoning ordinance. The dissent also would have acknowledged the "potential impact that proposed 17 650-feet-tall windmills (taller than the St. Louis Arch) will necessarily have on the value of nearby homes and the possible chill they may place on subsequent residential and commercial development."
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