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Patricia A. Muscarello v. Winnebago County Board

December 7, 2012

PATRICIA A. MUSCARELLO, PLAINTIFF-APPELLANT,
v.
WINNEBAGO COUNTY BOARD, 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.

The opinion of the court was delivered by: Posner, Circuit Judge.

ARGUED SEPTEMBER 11, 2012

Before BAUER, POSNER, and WOOD, Circuit Judges.

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 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- 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- 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 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.

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 ...


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