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

Background

Plaintiff owns three agricultural-zoned tracts in Winnebago County, Illinois.
She challenges the 2009 amendment to the county zoning ordinance that made wind-farm permits easier to obtain.
Her fear is that a nearby wind farm would harm her property in various ways, though no wind farm has been built yet.
The suit targets the County Board, the County Zoning Board of Appeals, and county officials; private wind-farm companies are not defendants.
The district court dismissed the federal and state claims for failure to state a claim; the Seventh Circuit affirms.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does plaintiff have standing despite prematurity?	Plaintiff argues prospective harms and diminished property value confer standing.	Defendants contend no concrete injury exists until a wind farm is built.	Plaintiff has standing despite prematurity.
Does the takings or due process challenge fail as a matter of law?	Amendment effects a taking/due-process injury by facilitating adjacent wind farms.	No direct taking; procedural changes do not deprive property; due process rights not violated.	No federal takings or due process violation; ordinance constitutional.
Is the Illinois takings claim viable under 'damaged' property concept when nothing is built?	Illinois constitution protects property from damage; broader than federal takings.	No direct or indirect physical disturbance without a wind farm.exists.	Illinois claim fails for lack of actual damage.
Did re-enactment of the ordinance moot the challenge to the 2009 provisions?	Re-enactment could moot the 2009 changes.	Substantive provisions remained largely unchanged and are not mooted.	Re-enactment does not moot the substantive provisions; challenge remains viable.

Key Cases Cited

American Bottom Conservancy v. U.S. Army Corps of Engineers, 650 F.3d 652 (7th Cir. 2011) (standing with non-litigated yet imminent harms can be shown)
Brandt v. Village of Winnetka, 612 F.3d 647 (7th Cir. 2010) (standing where injury may be speculative but real)
Korczak v. Sedeman, 427 F.3d 419 (7th Cir. 2005) (standing and conventional due-process considerations)
Summers v. Earth Island Institute, 555 U.S. 488 (U.S. 2009) (injury-in-fact requirements and standing standards)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (standing prerequisite for federal jurisdiction)
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (U.S. 1992) (takings analysis requires actual deprivation or transfer of property)
Muscarello v. Ogle County Board of Commissioners, 610 F.3d 416 (7th Cir. 2010) (prematurity and procedural challenges to local ordinances)
City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099 (Ill. 2004) (nuisance-type and regulatory balance considerations in public regulation)
Napleton v. Village of Hinsdale, 891 N.E.2d 839 (Ill. 2008) (rationality review for legislative enactments)
Thornber v. Village of North Barrington, 747 N.E.2d 513 (Ill. App. 2001) (rationality review under Illinois law)
Village of Wilsonville v. SCA Services, Inc., 426 N.E.2d 824 (Ill. 1981) (nuisance and balancing approach under Illinois law)
Dobbs v. Wiggins, 929 N.E.2d 30 (Ill. App. 2010) (nuisance and balancing framework)
Pasulka v. Koob, 524 N.E.2d 1227 (Ill. App. 1988) (Restatement-inspired nuisance framework)