Lawsuit ensures wind farm won’t be a breeze

By Stuart R. Wahlin

Staff Writer

As predicted in the editorial (“Can the county board undo its mistakes?” in the Nov. 4-10, 2009, issue) and news pages (“Lawsuit could be blow to wind farm” in the Oct. 28-Nov. 3, 2009, issue) of this publication, a lawsuit has been filed alleging, among other things, violation of due process. As a result, a proposed wind farm project in Winnebago County is not likely to break ground anytime soon.

An eight-count complaint, filed Jan. 19 in federal district court, names as defendants the Winnebago County Board, County Board Chairman Scott Christiansen (R), the Winnebago County Zoning Board of Appeals (ZBA), ZBA Chairman Jim Webster (R), Winnebago County Planning and Zoning Officer Troy Krup, Minneapolis-based Navitas Energy, Inc., and its parent company, Gamesa Corporación Tecnológica.

Patricia Muscarello, the plaintiff, is an Arizona resident who owns land adjacent to the proposed Navitas wind farm project in Winnebago County, which is planned as one component of a larger wind farm straddling the convergence of Ogle, Stephenson and Winnebago counties.

Muscarello is requesting that damages of at least $500,000 be awarded for “depreciation of use and value” of her property as a result of the wind farm text amendment’s approval as a permitted use, which requires no public hearings prior to the siting of wind turbines throughout the county.

Timeline

June 18, 2009, Navitas applied for a text amendment to allow commercial wind power generation as a permitted use in Winnebago County.

June 25, 2009, board members directed the ZBA to conduct a public hearing regarding the proposed wind farm ordinance.

July 31, 2009, the ZBA published notice of the hearing in the Rockford Labor News. According to the lawsuit, state statute requires the notice to be published for three consecutive weeks, but the ZBA only published the notice in one issue. Additionally, the lawsuit asserts that the Rockford Labor News is “an inadequate method of providing public notice” to “relevant portions” of the county regarding the proposed text amendment. The lawsuit notes that Muscarello, as an impacted landowner, received no notice, and that she did not find out about the hearing until afterward. The notice made no mention that wind power-generating facilities were being considered as a permitted use.

Furthermore, the lawsuit alleges, the ZBA failed to provide the public with an agenda, a copy of the proposed text amendment, a list of witnesses to be called by the applicant and the subjects on which they would speak. Muscarello’s complaint also alleges the public was not made aware the hearing would be its only opportunity to provide testimony and evidence regarding the siting of wind farms, until it was too late.

According to Illinois statute 55 ILCS 5/5-12020: “There shall be at least one public hearing not more than 30 days prior to a siting decision by the county board. Notice of the hearing shall be published in a newspaper of general circulation in the county.”

The complaint alleges the ZBA failed to provide proper notice, “even though the public hearing concerning the windmill text amendment was effectively a hearing concerning a decision siting a wind farm…anywhere in Winnebago County.”

The lawsuit also asserts the public had inadequate time to obtain legal counsel and expert witnesses.

Aug. 17-18, 2009, a public hearing was conducted before the ZBA, during which Navitas presented its case first. Members of the public were then allowed to provide testimony, which Navitas was permitted to rebut before the hearing was closed. The complaint suggests the public should have been afforded an opportunity to cross-examine the petitioner’s witnesses, and that no empirical data supporting the assertions of the applicant’s experts was placed into evidence.

During the second night of testimony, the lawsuit notes, “Webster also stated for the first time, after all public witness objectors had already testified and that portion of the public hearing was closed, that it was very important they understand that the hearing is their only opportunity to provide evidence and testimony for the record.”

According to the lawsuit, the ZBA failed to consider a number of tenets of the zoning ordinance, including a duty to protect and conserve open spaces and agricultural land.

The ZBA subsequently recommended approval of the text amendment to the Winnebago County Board, which adopted the measure as a permitted use Oct. 22, 2009. As a permitted use, versus a special use, wind turbines may be sited anywhere in the county without further public hearings. Essentially, all a wind farm developer needs to proceed is a building permit after a review by county staff.

Had the text amendment been treated as a special use, which would require public hearings for each proposed site, the ZBA and county board would have been required to assert that findings of fact had been met to prove the project is in compliance with standards of the zoning code. Findings of fact must show, for instance, that the special use would not be injurious to surrounding properties.

The lawsuit alleged the text amendment is in violation of state statute, “because it does not require the public hearing that 55 ILCS 5/5-12020 requires before any siting decision by the county board.

“Under 55 ILCS 5/5-12020, commercial wind power generating facilities cannot be treated as a permitted use without violating state law, and can only be treated as a special use, which requires a public hearing before a siting decision,” the complaint adds. “The windmill text amendment deprives the plaintiff of due process of law by denying her the right to a public hearing before a siting decision.”

On the night the board passed the text amendment, Paul Gorski (D-5) made a similar argument, fearing the county may be opening itself up to litigation. Bob Kinnison (R-10), Dorothy Redd (D-6) and Steve Schultz (R-2) joined Gorski by voting in favor of sending the matter back to the ZBA for further review, but the motion failed.

“My major concern with the wind farm text amendment, which I have stated repeatedly in public meetings, is that I believe state law requires us to have a public hearing to review each wind farm application,” Gorski explained to The Rock River Times after the Oct. 22 vote. “I had hoped to put that hearing language in our ordinance so we all knew what the process was. The hearing language never made it into our ordinance. However, if state law requires a hearing for each application, we are still bound to hold that hearing, regardless of whether we mention it in our ordinance or not.”

He added, “If we fail to hold hearings for each application, I believe the county is opening itself up to lawsuits.”

Gorski, now a defendant as a county board member, declined to comment after learning of the lawsuit.

‘Invalid, illegal,

unconstitutional and void’

Muscarello’s lawsuit asks the court to find the text amendment “invalid, illegal, unconstitutional and void” on the basis the application, public notice and public hearing were improper under state and federal law.

Count II of the complaint alleges board members and the ZBA “have unreasonably and illegally taken, injured and damaged” Muscarello’s property, and that it was “not for a public purpose, but rather to provide private economic benefits to Navitas, a private entity.”

The complaint asserts the proposed Navitas wind farm project would deprive Muscarello of the “full extent of the kinetic energy of the wind and air” to her property. The lawsuit also states her property would be subject to shadow flicker, reduction of light, noise, the potential for “ice throw” and “blade throws” from the turbines, as well as radar, television, wireless and satellite interference. The complaint also notes higher probability for lightning strikes, electromagnetic radiation and stray voltage as concerns, and that the turbines would prevent crop dusting on her agricultural land.

“The windmill text amendment is harsh, arbitrary, oppressive, prohibitory, and confiscatory upon the plaintiff’s property,” Muscarello attorney John Rearden Jr. asserts in the complaint. He added the measure “will unjustly, severely, materially, and substantially restrict, impair, limit, and deprive plaintiff of many of the current uses of the property, as well as additional, new, future, higher and better uses of plaintiff’s property.”

The complaint also argues Muscarello’s property value will be substantially and detrimentally impacted, for which more than $500,000 in damages is requested.

“Plaintiff has a clear, ascertainable and protectible right to (i) not be deprived of property without due process of law, (ii) be free of unreasonable trespass upon her property, and (iii) be free of substantial nuisance upon her property,” the eighth count, seeking injunctive relief, states.

The complaint asks that the board and ZBA be enjoined from “administering, enforcing, or adopting” the text amendment, “or otherwise infringing upon” Muscarello’s property rights.

The lawsuit further requests that Navitas and Gamesa be enjoined from constructing wind turbines on property adjacent to Muscarello’s.

Not Muscarello’s

first go-round with turbines

In 2006, Muscarello filed a similar lawsuit to halt another Navitas project in Ogle County, where she also owned property adjacent to the proposed “Baileyville Wind Farm.”

In 2007, U.S. District Judge Philip Reinhard dismissed the lawsuit, but Ogle County State’s Attorney Ben Roe indicated the litigation has moved to the appellate level.

Ogle County held nine public hearings prior to granting Navitas a special-use permit to construct 40 turbines.

After Winnebago County approved the permitted-use ordinance last year, Ogle County Planning & Zoning Administrator Mike Reibel told The Rock River Times: “I believe that, due to the magnitude of wind farm projects, and their impact—real and/or perceived—the public expects an opportunity to be heard.

“Since each project is somewhat unique, a special use provides an opportunity to the county to impose specific conditions upon the project to ensure the protection of the health, safety and general welfare of the county,” Reibel added.

In Stephenson County, 10 property owners filed a lawsuit in 2007 to halt the proposed “Lancaster Wind Farm,” another Navitas project. The plaintiffs were represented by attorney Charles Muscarello (relationship to Patricia unknown).

According to the Freeport Journal-Standard, although a settlement was reached in August 2009, construction on the 31-turbine wind farm is not expected to begin until at least 2011.

Wind farms in Stephenson County were also approved as a special use after public hearings, but Stephenson County Zoning Director Terry Groves indicated they were first approved as a permitted use, until litigation changed the county’s mind. He noted, however, he still thinks adequate public input and restrictions could be applied to the permitted use model.

“I think there should be some sort of mechanism for the public to address concerns, rather than just having someone start to dig in the back yard and, all of a sudden, you’ve got a 60-unit wind farm,” he said.

“My permitted use had higher standards, more restrictive standards, than the special use has now,” Groves added. “But, the objectors—they didn’t like it, because they wanted public hearings. They wanted somebody like the county board to have oversight on it, instead of my office, or the standards that I had.”

In the fall, Groves told The Rock River Times he’d like to give permitted use another shot, but that he’d wait to see whether anyone challenges the ordinance in Winnebago County.

According to a Jan. 5 article in the Journal-Standard: “Local officials are also watching out for what happens in Winnebago County, Groves said. While that county has adopted a permitted use ordinance, there is still time for objectors to file a lawsuit, he said.”

County’s response

Reached for comment Feb. 2, Dave Kurlinkus, deputy of the state’s attorney’s civil division, said he’d just received a copy of the complaint and that he’s still working his way through it.

He noted the county will be filing its official response in about 60 days.

“I think we felt at the time that what we were doing was adequate,” Kurlinkus asserted. “When we were involved in going through and putting the ordinance together, like any new area of the law, I think you go through, and you try to analyze everything that’s out there. And I think after having reviewed what was done at the Zoning Committee and what the county board wound up passing as the ordinance, we think…that we made the proper analysis at the board level.”

Navitas did not respond to requests for comment.

From the Feb. 3-9, 2010 issue.

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