Some people just do not want certain activities conducted in their back yard, even if those activities which may benefit the community as a whole. Patricia Muscarello is such a person when it comes to wind farms being put up near land she owns in Winnebago County, Illinois. Despite Ms. Muscarello’s best efforts, the 7th Circuit Court of Appeals decided the Winnebago County Board could rezone wind farms as permissible use of agricultural land.
Prior to 2009, a property owner in Winnebago County had to jump through several procedural hoops to obtain a special permit to develop a wind farm on his/her property. However, in 2009, the Winnebago County Board amended the ordinance to declare wind farms as permissible use of agricultural land, thereby, making wind farm development easier from a procedural standpoint. Ms. Muscarello filed suit against the Winnebago County Board alleging the amendment constituted a government “taking” of her property. A “taking” is legal speak for government activities on your property or a neighboring property which deprive you of your use of the property or renders your property essentially worthless. Ms. Muscarello complained the side effects of a wind farm developed on her neighbor’s property would negatively affect her property to the tune of $500,000. The Court admitted some side effects of wind farms including shadow flicker, noise, ice and blade throw and the death of birds were real concerns; referencing several articles which you can visit here, here, here, here, and here. Yeah, I know, the Court really did their homework.
Despite Ms. Muscarello’s valid concerns, the Court found several problems with her claim. The first being wind farms had not been developed or were in the process of being developed near her property. Therefore, no such “taking” of her property had occurred nor was in the process of occurring. Second, wind farm development was never banned in Winnebago County prior to 2009. Rather, the amendment potentially made the administrative process for development easier. The Court determined that greasing the wheels for development did not impose a restriction on her land and did not constitute a taking.
In sum, the Winnebago County Board’s amendment did not take Ms. Muscarello’s backyard, which was never protected from wind farms in the first place.
You can find the Court’s complete order here.
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