Muscarello v. Winnebago County Board , 702 F.3d 909 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-2332, 11-3258
P ATRICIA A. M USCARELLO ,
Plaintiff-Appellant,
v.
W INNEBAGO C OUNTY B OARD , et al.,
Defendants-Appellees.
Appeals from the United States District Court
for the Northern District of Illinois, Western Division.
No. 10 C 50010—Frederick J. Kapala, Judge.
A RGUED S EPTEMBER 11, 2012—D ECIDED D ECEMBER 7, 2012
Before B AUER, P OSNER, and W OOD , Circuit Judges.
P OSNER, Circuit Judge. The plaintiff owns three tracts
of land zoned agricultural in Winnebago County, Illinois.
Her suit attacks on a variety of grounds, both federal
and state, a 2009 amendment to the County’s zoning
ordinance that makes it easier than it was before the
amendment for an owner of such property to obtain
permission to build a wind farm on it. She worries that
a wind farm on land adjacent to property of hers would
2 Nos. 11-2332, 11-3258
damage the property in a rather frightening variety of
ways, including depriving the property “of the full
extent of the kinetic energy of the wind and air as it
enters” the property; subjecting it to “shadow flicker and
reduction of light,” “severe noise,” “possible ‘ice throw’ ”
(from buildup of ice on spinning blades), and “ ‘blade
throws’ ” (the blades of the windmill might fly off while
spinning); interfering with radar, cell phone, GPS, televi-
sion, and other wireless communications; creating an
increased likelihood of lightning damage and stray
voltage; increasing electromagnetic radiation; preventing
crop dusting (presumably the concern is that crop-dusting
aircraft might be endangered by the wind turbines);
drying out her land; and killing raptors, thus compelling
her to use more pesticides. Some of the feared harms—such
as noise, ice throw, blade throw, shadow flicker (like a
strobe light), and death of birds—are indeed potential side
effects of wind farms. See, e.g., Susan Combs, Texas
Comptroller of Public Accounts, “The Energy Report
2008: Wind Energy,” www.window.state.tx.us/specialrpt/
energy/renewable/wind.php (all websites cited in this
opinion were visited on Nov. 6, 2012); Carl Herbrandson
& Rita B. Messing, Minnesota Department of Health,
“Public Health Impacts of Wind Turbines,” May 22, 2009,
www.health.state.mn.us/divs/eh/hazardous/topics/windt
urbines.pdf; American Wind Energy Association, Wind
Energy Siting Handbook 5-33 to 5-48 (2008), www.awea.org/
sitinghandbook/overview.html; National Academy of
Sciences, “Impacts of Wind Energy on Human Develop-
ment,” Environmental Impacts of Wind Projects 157-62 (2007),
www.nap.edu/catalog/11935.html; Scott Larwood, Califor-
Nos. 11-2332, 11-3258 3
nia Wind Energy Collaborative, “Permitting Setbacks
for Wind Turbines in California and the Blade Throw
Hazard” 27 (June 16, 2005), http://newgenerationdri.
capecodcommission.org/ng480.pdf.
A reduction in wind speed downwind is an especially
common effect of a wind turbine. Kimberly E. Diamond
& Ellen J. Crivella, “Wind Turbine Wakes, Wake Effect
Impacts, and Wind Leases: Using Solar Access Laws as
the Model for Capitalizing on Wind Rights During the
Evolution of Wind Policy Standards,” 22 Duke Environ-
mental L. & Policy Forum 195, 199-200 (2011). And that is
the harm the plaintiff emphasizes—which is odd. For
the only possible harm the wind farm could do to her
would be to reduce the amount of wind energy other-
wise available to her, and the only value of that energy
would be to power a wind farm on her property—and
she is opposed to wind farming.
Some of the harms to which wind farms are some-
times thought to give rise—interference with electronic
communication, lightning damage, and electromagnetic
radiation—are conjectural. American Wind Energy Associ-
ation, supra, at 5-49 to 5-54; National Academy of
Sciences, supra, at 169-73. Even noise, an unquestioned by-
product of wind farming, has no adverse effect on
most agricultural activity; and the plaintiff does not live
on any of the properties involved in this case. Moreover,
there’s nothing in the record about what agricultural
activities are conducted on her properties, or indeed
whether any are, and so there’s no basis in the record
for assessing harm present or prospective to her prop-
4 Nos. 11-2332, 11-3258
erties from the possibility that a wind farm may
someday be built nearby.
The suit is against the County Board, the County Zoning
Board of Appeals, and some County officials, and also
against several affiliated companies that operate wind
farms. But no relief is sought against the companies,
none of which has yet applied for a permit to build a
wind farm in the county, let alone on land adjacent to
any of her properties. She alleges, however, that the
companies have plans to build a wind farm adjacent to
one of her properties. But we’ll ignore the private de-
fendants (the companies)—they should not be parties,
as no relief is sought against them. And as far as the
County defendants are concerned, we can further
simplify our opinion, without affecting our analysis, by
pretending that the County Board is the only defendant;
for the Zoning Board has only an advisory function. See
55 ILCS 5/5-12007, -12009.5.
The district court dismissed the suit, a blunderbuss
of federal and state claims, on the ground that the com-
plaint fails to state any claim on which the plaintiff
would be entitled to relief. Fed. R. Civ. P. 12(b)(6). Her
brief cites diversity of citizenship as the basis for
federal jurisdiction over her state claims. She is a citizen
of Arizona, and none of the defendants is, so there is
complete diversity—but it doesn’t matter, because her
state claims are within the federal courts’ supplemental
jurisdiction, 28 U.S.C. § 1367, as well as the diversity
jurisdiction.
The same district judge had earlier dismissed a similar
suit by the same plaintiff against officials of another Illinois
Nos. 11-2332, 11-3258 5
county in which she owns property, and in Muscarello
v. Ogle County Board of Commissioners, 610 F.3d 416 (7th
Cir. 2010), we affirmed that dismissal. We reached none
of her state law claims in that case, however, and
anyway it involved a different amendment to a different
county’s zoning ordinance—an amendment that allowed
wind farms only if authorized by special-use permits,
just as Winnebago County’s zoning ordinance did
before the 2009 amendment challenged in this case. We
held that the grant of a special-use permit for a wind
farm to be built next to the plaintiff’s property was not
a taking. The wind farm had not yet been built, so no
harm to her property had yet been done, although, the
permit having been granted, the harms she anticipates
from wind farming were more imminent than they are in
this case.
Under the Winnebago County ordinance before it was
amended in 2009, a property owner had to run an
elaborate procedural gauntlet in order to obtain a special-
use permit for a wind farm. See 55 ILCS 5/5-12009.5;
Winnebago County Code of Ordinances, ch. 90, art. II, § 90-
39. The 2009 amendment made wind farms a permitted
use, id., art. X, § 90-353; and although a wind farm
cannot be built before a zoning clearance and a building
permit are obtained, id., § 90-354, a zoning clearance
requires merely a demonstration of compliance with the
zoning code, id. art. II, § 90-73, and obtaining a building
permit presumably is routine. So the amendment made
it easier to build a wind farm in the county, and that
at bottom is the plaintiff’s gripe, as she is a pertinacious
foe of wind farms.
6 Nos. 11-2332, 11-3258
The ordinance was further amended in 2011, mainly to
add provisions for environmental protection and increase
the setback of wind turbines from property lines; that
should have alleviated some of the plaintiff’s concerns with
wind farms, but apparently has not done so.
No one has yet applied for a zoning clearance or
building permit for a wind farm in Winnebago County,
and no wind farm has yet been built anywhere in the
county. As a result, a pall of prematurity hangs over
the case. But injury need be neither certain nor great
to confer standing under Article III of the Constitu-
tion. American Bottom Conservancy v. U.S. Army Corps of
Engineers, 650 F.3d 652, 656-58 (7th Cir. 2011); Brandt v.
Village of Winnetka, 612 F.3d 647, 649-50 (7th Cir. 2010);
Korczak v. Sedeman, 427 F.3d 419, 422-23 (7th Cir.
2005); compare Summers v. Earth Island Institute, 555 U.S.
488, 492-96 (2009); Lujan v. Defenders of Wildlife, 504
U.S. 555, 559-64 (1992). If the plaintiff’s allegations re-
garding the prospective dangers from an adjacent
wind farm are true or even if they are just widely believed,
and if she must wait until a wind farm is built adjacent
to one of her properties to proceed at law, she may find
it difficult to sell the properties now (even before a
wind farm is constructed) at the price they would com-
mand were the zoning amendment invalidated.
In fact the complaint alleges that her properties have
lost $500,000 in value because of the 2009 ordinance.
The number is suspiciously round, and unexplained.
But the complaint was dismissed without a hearing on
jurisdiction; and given the surprising number of potential
Nos. 11-2332, 11-3258 7
adverse environmental consequences of wind farms
(even though the energy they produce is clean and also
reduces consumption of fossil fuels and so contributes
to U.S. independence from foreign oil supplies), it is not
beyond reason that the prospect of having a windmill
adjacent to one’s property might cause the value of the
property to decline. The plaintiff has submitted a map
on which, she argues, is marked a wind farm that a com-
pany wants to build near one of her properties, and
she adds that a wind company once approached her
about buying a wind easement from her. The injuries
she alleges are speculative but not so speculative as to
deny her standing to sue.
Yet it is germane to the merits if not to jurisdiction that
no property of the plaintiff’s has yet been taken, or will be
until and unless a wind farm is built near her prop-
erty—and probably not even then. A taking within the
meaning of the takings clause of the U.S. Constitution has
to be an actual transfer of ownership or possession of
property, or the enforcement of a regulation that renders
the property essentially worthless to its owner. Lucas v.
South Carolina Coastal Council, 505 U.S. 1003, 1015-16 (1992);
Muscarello v. Ogle County Board of Commissioners, supra,
610 F.3d at 421-22; Gamble v. Eau Claire County, 5 F.3d
285, 286 (7th Cir. 1993). The 2009 Winnebago ordinance
does not transfer possession of any of the plaintiff’s land
or limit her use of it.
The Illinois takings clause, however, on which she
also relies, is broader than the federal clause. Article I,
section 15 of the state’s constitution provides that “prop-
erty shall not be taken or damaged for public use
8 Nos. 11-2332, 11-3258
without just compensation.” “Taken” is defined as
under federal law, Forest Preserve District v. West Suburban
Bank, 641 N.E.2d 493, 497 (Ill. 1994), but “damaged”
connotes merely “a direct physical disturbance” of the
plaintiff’s property that causes a loss of value. Patzner v.
Baise, 552 N.E.2d 714, 716-18 (Ill. 1990); Equity Associates,
Inc. v. Village of Northbrook, 524 N.E.2d 1119, 1124 (Ill.
App. 1988); International College of Surgeons v. City of
Chicago, 153 F.3d 356, 367-68 (7th Cir. 1998) (Illinois
law). But as no wind farm has yet been built, there
has been no direct, or for that matter indirect, physical
disturbance of the plaintiff’s property.
She further contends, however, that by making it
easier for her neighbors to build wind farms, the
amended ordinance has deprived her of property with-
out due process of law, in violation of the Fourteenth
Amendment and the corresponding provision in the
Illinois constitution. The word “property” in the
due process clause is defined broadly, and includes
for example liquor licenses and tenured employment
contracts, rather than just real estate and other tangible
property. Perry v. Sindermann, 408 U.S. 593, 601-03
(1972); Patterson v. Portch, 853 F.2d 1399, 1405-08 (7th
Cir. 1988); Reed v. Village of Shorewood, 704 F.2d 943, 948
(7th Cir. 1983); Greenwood v. New York, 163 F.3d 119, 122-
23 (2d Cir. 1998); Richardson v. Town of Eastover, 922 F.2d
1152, 1156-58 (4th Cir. 1991). But all she’s challenging is
a change in the procedure by which the owner of adjacent
property can get permission to build a wind farm.
The harm caused her by a change in the procedural
Nos. 11-2332, 11-3258 9
rights of other landowners—a change that imposes no
restriction on her use of her land—is too remote to
count as a deprivation of property. See Muscarello v. Ogle
County Board of Commissioners, supra, 610 F.3d at 423;
People ex rel. Klaeren v. Village of Lisle, 781 N.E.2d 223, 230
(Ill. 2002); cf. Passalino v. City of Zion, 928 N.E.2d 814, 818-
19 (Ill. 2010). At worst, it raises the spectre of some
future deprivation; and the due process clause does not
protect against spectres.
Her attack on the legality of the amended ordinance
fails for a more fundamental reason. The wind farm
ordinance is legislation. It applies throughout the
county and thus to many different properties owned
by different people having different interests. Some
property owners want to be permitted to build wind
farms—otherwise the ordinance would not have been
amended to make it easier for them to obtain permis-
sion—and at least one does not. “Cities [and other
state and local governments, including counties] may
elect to make zoning decisions through the political
process” rather than having to “use adjudicative pro-
cedures to make” such decisions. River Park, Inc. v. City
of Highland Park, 23 F.3d 164, 166 (7th Cir. 1994); see City of
Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 676-
79 (1976); Coniston Corp. v. Village of Hoffman Estates,
844 F.2d 461, 467-68 (7th Cir. 1988). “Where a rule of
conduct applies to more than a few people it is imprac-
ticable that every one should have a direct voice in
its adoption.” Bi-Metallic Investment Co. v. State Board of
Equalization, 239 U.S. 441, 445 (1915) (Holmes, J.).
10 Nos. 11-2332, 11-3258
These are cases interpreting federal law, but we are
given no reason to think that Illinois law is different.
Adjudicative procedures would not be workable in a
case like this. Evaluating the plaintiff’s objections to the
ordinance would require comprehensive knowledge
not only of wind farms and their effects pro or con on
the environment and on energy independence, but also
of the most valuable potential uses of all rural land
in the county. A judge could review the ordinance for
rationality, Napleton v. Village of Hinsdale, 891 N.E.2d
839, 852 (Ill. 2008); Thornber v. Village of North Barrington,
747 N.E.2d 513 (Ill. App. 2001), but that is an unde-
manding test, and the national interest in wind power
as a clean source of electrical energy and as a contribu-
tion to energy independence is enough to establish
the ordinance’s rationality. (There is federal money to
support wind farms; why shouldn’t Winnebago County
try to get a bit of it by making it easier to build wind
farms in the county?) For a court to allow a hypothetical
harm to one person’s property from a yet to be built
(or even permitted to be built) wind farm to upend a
county-wide ordinance would be an absurd judicial
intrusion into the public regulation of land uses.
Stepping down from the dizzying heights of constitu-
tional law, we can restate the plaintiff’s contention as
simply that a wind farm adjacent to her property would
be a nuisance. In re Chicago Flood Litigation, 680 N.E.2d
265, 277-78 (Ill. 1997); Dobbs v. Wiggins, 929 N.E.2d 30, 38-
39 (Ill. App. 2010); Restatement (Second) of Torts §§ 821D-E
(1979); W. Page Keeton et al., Prosser & Keeton on the Law
of Torts §§ 87-89, p. 619-42 (5th ed. 1984). That is a more
Nos. 11-2332, 11-3258 11
sensible conceptualization of her claim than supposing
as she does that she has a property right in her neigh-
bors’ use of their lands. Should any of them create a
nuisance by building a wind farm, she can seek to abate
the nuisance when the wind farm is built, or maybe a
bit earlier, when a permit to build it is granted. The fact
that the County Board has zoned agricultural property
to allow wind farms would complicate her effort to estab-
lish that it was a nuisance, but not defeat it. The opera-
tion of the wind farm might turn out to cause a kind
or amount of damage that the Board had not foreseen,
and in that event the ordinance would not bar the suit.
City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1111,
1123-25 (Ill. 2004); Meyers v. Kissner, 594 N.E.2d 336, 340
(Ill. 1992); Woods v. Khan, 420 N.E.2d 1028, 1030-31
(Ill. App. 1981); Armory Park Neighborhood Ass’n v. Episcopal
Community Services in Arizona, 712 P.2d 914, 921-22 (Ariz.
1985); Restatement (Second) of Torts, supra, §§ 827, 831;
Keeton et al., supra, § 88B, p. 633.
Sufficient unto the day is the evil thereof. For all one
knows, no wind farm will ever be built close enough to any
of the plaintiff’s properties to do any harm, let alone
harm sufficient to constitute a nuisance under the
standard for determining nuisance, which involves a
balancing of the costs and benefits of the land use
claimed to have caused a nuisance. Village of Wilsonville
v. SCA Services, Inc., 426 N.E.2d 824, 834-36 (Ill. 1981);
Dobbs v. Wiggins, supra, 929 N.E.2d at 38-39; Pasulka v.
Koob, 524 N.E.2d 1227, 1238-39 (Ill. App. 1988); Restatement
(Second) of Torts, supra, § 826; Keeton et al., supra, § 88,
p. 629-30. Even a wind farm that was only a stone’s
12 Nos. 11-2332, 11-3258
throw from one of her properties might do no damage to
it, given the use to which she puts her Winnebago
County properties—of which we have not been informed.
A distinct challenge by the plaintiff to the 2009 ordi-
nance is that it was enacted without the three consecu-
tive newspaper notices required by state law. 715 ILCS 5/3.
She argues that the ordinance should therefore be en-
joined. But the ordinance was re-enacted in 2011, as
we mentioned at the outset of this opinion, and that
mooted any objection to the violation of the notice
statute when the 2009 ordinance was enacted. Maybe
the violation was repeated when the current ordinance
was enacted, but if so the plaintiff can bring a new
suit, challenging its legality.
Yet the re-enactment of the 2009 ordinance in 2011
does not, as the County Board argues, moot the
plaintiff’s challenge to the substantive provisions of the
earlier ordinance (mainly the change of wind farms
from special to permitted land uses). These provisions
are materially unchanged (although slightly altered in
her favor), and an agency cannot by constant re-
enactment moot an earlier statute or ordinance. In at-
tacking the 2009 ordinance the plaintiff is implicitly
attacking the provisions of it that survived into the
2011 ordinance currently in force.
The term “substantive due process” pops up once in
the complaint, but in context refers to the plaintiff’s
procedural complaints—of which the final one is the
County Board’s alleged failure to have complied with an
Illinois statute requiring “at least one public hearing
Nos. 11-2332, 11-3258 13
more than 30 days prior to a [wind farm] siting decision
by the county board.” 55 ILCS 5/5-12020. As there has
yet to be a siting decision for a wind farm, that challenge
is premature—and we doubt that a siting decision (and
therefore a public hearing) would be required for a wind
farm now that it is a permitted land use.
There is, in sum, no merit to the plaintiff’s claim that the
ordinance as amended in 2009 violates her constitutional
rights. It is a modest legislative encouragement of wind
farming and is within the constitutional authority, state as
well as federal, of a local government. The judgment of
dismissal is therefore
A FFIRMED.
12-7-12