In the Zone: Appellate Court Upholds Dismissal of Lawsuit Against County Regarding Denial of Solar Facilities
In January 2023, the Illinois General Assembly enacted Public Act 102-1123 (the Act) which, among other things, amended the Counties Code to codify new standards and procedures for the development of “commercial solar energy facilities” in counties across Illinois. Notable provisions of the Act include the following:
- A restriction that counties may not adopt zoning regulations that “disallow, permanently ortemporarily,” commercial solar energy facilities in agricultural or industrial districts,
- Guidelines regarding maximum setbacks, fencing requirements, height, vegetative screening, etc.,
- A provision allowing counties to adopt standards for solar facilities, so long as county requirements are not “more restrictive” than those specified in the Act,
- A requirement that counties hold public hearings prior to making decisions to approve or deny solar facilities, and
- A provision stating that requests for siting approval or special use permits “shall be approved” if a request complies with the Counties Code, the local county zoning ordinance, and relevant state and federal statutes and regulations.
In 2024, two solar development companies submitted separate applications to a county seeking to develop commercial solar energy facilities within the county. Over the following several months, the developers appeared before the county zoning board of appeals and the zoning committee, which held public hearings and recommended that the county board deny the proposed project under the county’s unified development ordinance (UDO). Both projects were ultimately denied by the county board, and each developer filed a lawsuit requesting (1) a writ of mandamus to compel the county to issue their requested permits, and (2) a declaration that their project applications should be approved. The developers claimed their applications complied with the Act and all provisions of the UDO, and therefore the county was obligated to approve their application and issue all necessary permits for their projects. The county moved to dismiss both cases, arguing that the Act did not give the developers an absolute right to the permits requested.
The trial court ruled in the county's favor, dismissing both cases. The court determined that mandamus was not available because the county could not be compelled to exercise its discretionary zoning authority to issue siting approval or special use permits for the facilities. Furthermore, the court found that the developer’s claim for declaratory judgment was insufficiently plead, and gave the developers an opportunity to replead their complaint. Instead, both developers appealed the trial court’s decision, and the cases were consolidated before the Fourth District Appellate Court.
On appeal, the Appellate Court upheld the decision of the trial court, determining that mandamus was not available given the discretion vested in the county to make local zoning decisions (particularly decisions to grant or deny applications for special use permits). Tate Road Solar 1, LLC, et al. v. County of Winnebago. The Court found the Act did not prohibit the county from exercising discretion in determining whether to issue permits. Instead, by allowing counties to regulate commercial solar energy facilities as “special uses,” the Illinois General Assembly plainly intended that counties maintain some discretion over approval and siting for these land uses. The Court also determined that counties were permitted to apply their traditional, subjective standards used when making local zoning decisions. Additionally, because the Act requires a public hearing before a permit can be issued, the Court found that the county would need to exercise discretion in accepting testimony and evidence, and then weighing various standards to determine whether a permit should be issued. While the Act codified certain limitations on local authority to regulate solar facilities, the Court determined the General Assembly did not eliminate counties’ traditional discretion to make local zoning decisions. Therefore, mandamus was not an appropriate remedy to force the county to approve the developer’s applications and issue permits for the facilities.
As to the developers’ claims for declaratory judgment, the Court found that because the developers did not have a “clear right” to the permits, there was no actual controversy the developers could plead to seek a declaration that their permits be issued. In sum, the Appellate Court upheld the trial court’s decision dismissing the developers’ lawsuits for failing to state a proper claim for mandamus or declaratory relief.
Post Authored by Erin Monforti, Ancel Glink
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