Cloudy Trends Ahead: What We Can Learn from Illinois’ Far-Reaching, State-Level Zoning Protections for Solar Farms

The Illinois Statute

The Statute received much of its power from a 2022 amendment, effective January 27, 2023. That Amendment heavily limited counties’ discretion when handling siting applications for renewable energy farms in unincorporated areas when applications meet several statutory requirements. While the Statute applies to both commercial wind energy facilities and commercial solar energy facilities, for the purposes of this article, the scope is limited to commercial solar energy facilities in unincorporated areas where the county is the zoning authority.

The Statute defines commercial solar energy systems (“solar farms”) as any device that is ground-installed and generates electricity from the sun for wholesale or retail sale. The energy generated from these devices may not be used primarily for consumption on the property where they are installed.

The Illinois Environmental Council intended to prevent counties from enacting ordinances that prevented solar farms, which would harm the state’s climate goals in the Climate and Equitable Jobs Act, by decreasing counties’ discretion to deny zoning approvals for these facilities.

Restrictions on Counties’ Discretion

While the Statute permits counties to establish standards for solar farms, the counties’ standards cannot be more restrictive than the provisions in the Statute.

The Statute prevents counties from restricting the installation or use of solar farms unless the county passes an ordinance that complies with its provisions. Similarly, counties are prohibited by the Statute from placing restrictions on supporting facilities that would preclude the development of solar farms. The Statute also prevents counties from adopting zoning regulations that prohibit solar farms from being developed or operated in agricultural or industrial zones.

Additionally, the Statute has many limiting provisions for a county’s approval process for siting requests. Counties may not deny a siting approval request, special use permit, or modifications to such requests if the request complies with (1) the Statute’s provisions, (2) the county’s zoning ordinance (which is required to comply with the Statute), and (3) any conditions imposed under state and federal statutes and regulations. The Statute also requires at least one public hearing with the zoning board of appeals for the county. This hearing cannot be held more than sixty days after the application for the facility is filed. If a special use permit is required for the solar farm, the Board of Appeals must give at least fifteen days’ notice before the hearing to any municipality to boundaries within 1.5 miles of any part of the property proposed as a special use.

If the developer of the solar farm requires a text amendment or a map amendment (an “Amendment”) to allow the solar farm, a municipality within 1.5 miles of the site or a township in a county with a population less than 600,000 and a plan commission can formally object to the Amendment. If the municipality or township formally objects, the county board must have at least a three-quarters vote to pass the Amendment. However, this provision does not apply to special use permits. In the case of a zoning variation, where such decisions are made by the county board upon recommendation of the zoning board, and where the township with a plan commission in a county with a population under 600,000 or over three million, the county may not approve the variation without a favorable three-quarters vote.

Setback Distances and Site Requirements

Setback distances for certain properties are established by the Statute. Subsection (e)(3) contains a table describing the required setback distances for various structures, which is reproduced below:

Setback Description

Setback Distance

Occupied Community Buildings and Dwellings on Nonparticipating Properties

150 feet from the nearest point on the outside wall of the structure.

Boundary Lines of Participating Property

None.

Public Road Rights-of-Way

50 feet from the nearest edge.

Boundary Lines of Nonparticipating Property

50 feet to the nearest point on the property line of the nonparticipating property.

Other requirements for the solar farm pertain to the solar farm’s perimeter and its solar arrays. For example, the solar farm needs to have at least a six-foot tall fence, but no taller than a twenty-five-foot tall fence, enclosing it. Additionally, a solar farm’s panels cannot be over twenty feet above the ground when the arrays are at full tilt.

Overall, the Statute places many restrictions on counties’ abilities to deny siting requests, delay siting requests, and determine the specific details of the solar farm’s layout.

Recent Case Law Involving Siting of Renewable Energy Farms

Although, at the time of publishing, there are no cases interpreting the Statute for solar farms, there is an instructive case for wind farms, which the Statute also regulates in a similar way to solar farms. Illinois Courts have already faced a complex case regarding a wind farm in Knox County. Multiple plaintiffs attempted to prevent the approval of a conditional use permit and a height variation for Knox County Wind Farm. One of the claims brought by the plaintiffs alleged that the approval of the conditional use permit was arbitrary and violated their substantive due process rights. The Court’s response included reaffirming that it is the municipal body’s responsibility to determine the use and purpose of property, and the Court does not interfere with such decisions unless the municipality’s decision is arbitrary, capricious, or unrelated to the public health. The Court used the rational-basis test to determine whether the regulation by the municipality was arbitrary, and the plaintiffs could not meet that bar.

The plaintiffs also alleged the Zoning Board’s approval of the height variation was against the manifest weight of the evidence. The Court disagreed, finding that the Counties Code and the Knox County Zoning Resolution allows for a variation when there are “practical difficulties or particular hardship”. The Court also restated that factual determinations by the Zoning Board are held to be true and correct unless the determination was made against the manifest weight of the evidence. The Zoning Board based their approval on facts showing that the variation would substantially benefit the community because the project was unfeasible otherwise. Therefore, the Court found the Zoning Board’s approval of the variation to be valid.

While this case does not reference the Statute explicitly, the significance of the precedent set by this ruling is relevant to it. Because the Statute takes away county boards’ discretion to deny applications, and precedent shows that courts give significant deference to the boards’ approvals, the route for any plaintiff who wants to overturn the approval is burdened with significant legal hurdles.

Intergovernmental Conflicts Resulting from the Statute

There has been a lot of activity since the Statute limited counties’ ability to deny solar farm siting applications. Conflicts between the state and counties and between counties and municipalities have arisen. Residents and neighboring municipalities want to deny siting applications based on the 1.5-mile planning radius codified in the Illinois Municipal Code. However, developers are meeting this sentiment with lawsuits.

For example, a 960-acre solar farm will be constructed after the developer and Grundy County settled a lawsuit over subsection (g) of the Statute after the County Board originally denied the developer’s siting request. Vermilion County received threats of a lawsuit from a company whose siting request was denied by the County Board despite its request adhering to the Statute’s requirements.

Hawthorne Woods Village tried to circumvent the Statute’s reach by asserting jurisdiction over the land in question. Originally, the land under consideration was within Lake County Zoning Board of Appeals’ jurisdiction because it was unincorporated. The Village annexed the property, and the land is now under the Village’s jurisdiction. The company that submitted the siting request withdrew its application and is pursuing all legal avenues available against the Village to reverse the annexation.

Other counties are complying with the Statute, but with some reservations. After two solar farm approvals, Tazewell County is concerned that the farms prevent future city growth due to the siting locations “blocking” the remaining direction left to expand. Sangamon County reversed its original decision to deny a solar farm in part due to the restrictions on the Board’s ability to deny the request. Many board members and residents expressed reservations about the farm’s impact on the area, questioning if their county was the best location.

Due to the numerous conflicts that have arisen since the Statute’s overhaul, many attempts to water down its protections have been proposed, but none have passed.

Efforts to Erode the Statute

There are many proposed bills that attempt to weaken the Statute’s broad protections of solar farms. However, as of the date of this publication, none of these efforts have been passed by the Illinois legislature:

Setback Distances (House Bill 4135)

HB 4135 proposes an increase in the distance between the proposed solar farm and any adjacent structures. Instead of requiring 150 feet between occupied community buildings or dwellings on nonparticipating properties and the proposed siting, the bill would require 500 feet, a much higher standard for solar developers to meet, making many projects economically unfeasible.

Labor Agreement Requirement (House Bill 4551)

HB 4551 proposes imposing another barrier to Counties’ discretion to deny an application. This proposal would allow a County to deny a solar farm proposal only if there is no labor agreement with building trades located in the area where construction, modification, or improvements are to be made. This is one example of a trend in Illinois whereby labor unions seek agreements from developers to utilize organized labor.

Additional Notice Requirement (House Bill 3920):

HB 3920 proposes an additional notice requirement for the solar farm owner. The bill proposes that the solar farm owner provide notice to all municipalities and townships that are within 1.5 miles of the proposed farm and provide notice to all property owners whose properties are on the boundary of the farm within thirty days of the application submission by the owner. This differs from the current Statute, which only requires a notice of the public hearing be published in a newspaper of general circulation in the county.

Permitting Prior County Zoning Provisions to Remain in Effect (House Bill 4422, Senate Bill 2892)

Other bills propose that any prior county provisions that pertain to solar farms in effect before the Statute should continue to be in effect for that county. Neither bill allows for the Statute’s protections to affect the county’s provisions if the provision was effective as of January 27, 2023.

Changes to Siting Request Process (House Bill 3146 and House Bill 4037)

Finally, there are some proposed changes to the siting application process. For example, HB 3146 proposes a requirement for a comprehensive agricultural drainage plan to be included in the application to prevent surface or subsurface drainage impacts on land within and outside the solar farm’s footprint. This differs from the current Statute, which only requires an agricultural impact mitigation agreement (“AIMA”) with the Department of Agriculture. The standard solar farm AIMA has provisions regarding underground drainage tiles, requiring the facility owner to repair the lines or to install new drainage tile lines of comparable quality and cost as the originals if there is damage. However, the standard contract does not address concerns about surface drainage impacts.

HB 4037 proposes preventing a solar farm from being placed on a property where the soil’s crop productivity index is greater than 110 per University of Illinois at Urbana-Champaign’s optimum crop productivity ratings of Illinois soil. The bill also proposes land reclamation and recycling plans to be submitted in a developer’s application. These plans must be filed with the Department of Agriculture before the public hearing, discuss how the land will be returned to its original state, and discuss how the materials used for constructing the farm will be recycled. The standard AIMA with the Department of Agriculture does not expressly state that the land must be returned to its original state but instead mentions that best efforts should be used to return the topsoil as close as reasonably possible to its original depth and contour. Additionally, the standard contract does not require the deconstruction plan to mandate the recycling of materials after the facility has reached the end of its useful life.⁵¹

Conclusion

While there are many proposed changes to the Statute, the law remains firm with its far-reaching zoning protections for solar farm developments. Nonetheless, conflicts between and among local governments, developers, and neighboring objectors continue unabated while questions surrounding the law remain to be answered. Efforts to thwart the development of solar farms and water down the Statute are likely to continue, but the Statute’s broad protections intending to increase renewable energy farms remain intact.

Donna Pugh is a Partner with Foley & Lardner whose practice is concentrated on land use, zoning, and incentives involving the development of land. Mike Noonan is Special Counsel with Foley & Lardner who specializes in land use, zoning, and incentives involving the development of land. Michelle Chew is a Summer Associate with Foley & Lardner in business law.