On January 27, 2023, Governor Pritzker signed a bill that will transform the way counties and municipalities in Illinois locally regulate the development and construction of commercial wind and solar energy generation facilities. This alert from Polsinelli’s Energy Project Development Practice analyzes the new statutory language and highlights some changes that the bill will impose to streamline the patchwork of development standards across the 102 counties in Illinois.

The Broad Scope of the Siting Bill Will Touch All Renewable Energy Projects

The new law revises 55 ILCS 5/5-12020 of the Counties Code, which authorizes counties to establish local standards for wind energy projects. Prior to the recent revisions, developers were subject to myriad local standards that often varied significantly on a county-by-county basis (with some county ordinances being effectively exclusionary). Adding to this complex environment were additional standards adopted by municipalities for unincorporated areas within 1.5 miles of their corporate boundaries. The patchwork of standards and the exclusionary practices of some counties posed a barrier to farmers entering into leases, easements and other agreements with wind and solar developers to supplement their agricultural income. Also, restrictive local standards interfered with the State of Illinois achieving the policy goals established by the General Assembly in the Climate and Equitable Jobs Act, including 100% independence from fossil fuel by 2050.

The new bill (Senate Amendment 2 to HB 4412—referred to here as the “Siting Bill”) makes several significant revisions to section 5-12020. First, it expands the applicability of section 5-12020 to commercial solar energy systems, as defined in the Property Tax Code. It also clarifies its applicability to any wind farm with a nameplate generating capacity of at least 500 kilowatts.

The Siting Bill authorizes counties to regulate the siting of wind turbines and solar panels but with standards no more restrictive than those outlined in the bill. Geographically, counties are authorized to regulate siting in unincorporated areas of the county that are outside the zoning jurisdiction of a municipality and outside the 1.5-mile radius surrounding the zoning jurisdiction of a municipality. The Siting Bill includes a laundry list of siting regulations related to setbacks, height, vegetative screening, shadow flicker, sound, deconstruction, road use agreements and drainage districts. Additionally, it mandates counties with ordinances regulating wind and solar developments to amend their ordinances to be no more restrictive than the Siting Bill within 120 days of January 27, 2023 (since that deadline lands on Memorial Day Weekend, it likely carries to May 30, 2023).

The Siting Bill Sets the Parameters for a Public Evidentiary Hearing for Every Wind and Solar Project

Under the Siting Bill, if a county elects to establish standards for commercial wind or solar farms, then the county board or the county zoning board of appeals must hold at least one public hearing prior to granting a siting approval or special use permit to the facility. The hearing must be conducted under the Illinois Open Meetings Act and shall be held no more than 45 days after filing the application for the siting or special use permit. Interested parties to a special use permit are allowed to present evidence and cross-examine witnesses at the hearing, subject to reasonable restrictions imposed by the county, which may include time limitations on the presentation of evidence and cross-examination. The Siting Bill also requires that the county make its siting or permitting decision no more than 30 days after the conclusion of the hearing.

The Siting Bill Overhauls and Mandates Certain Setbacks in Illinois for Wind Farms and Solar Farms

The Siting Bill establishes the following setbacks for the siting of Wind Turbines:


The Siting Bill sets the following setbacks for a Solar Farm:


The Siting Bill Casts a Wide Net on Other Regulatory Issues

Some other highlights from the Siting Bill include the following:

1. A commercial wind energy facility may not cause more than 30 hours annually of shadow flicker on any community building or nonparticipating residents unless a waiver is obtained from the impacted landowner.
2. The developer must enclose a commercial solar energy facility with a perimeter fence between six and 25 feet tall, and the solar panels at full tilt must be no more than 20 feet tall. These provisions and the setback provisions can be waived by written consent of the owner of each affected nonparticipating property owner.
3. A county may not set sound limitations for wind towers that are more restrictive than the sound limitations established by the Illinois Pollution Control Board regulations.
4. A county may not place any restrictions on the installation or use of a commercial wind or solar farm unless it adopts an ordinance that complies with the Siting Bill.
5. A county may not establish siting standards for supporting facilities that preclude the development of commercial wind and solar farms.
6. Counties must approve a request for siting, a special use permit for a commercial wind and solar facility, or a modification of an approved permit if the request complies with the standards and conditions imposed in the Siting Bill and other laws.
7. A county may not adopt regulations that permanently or temporarily disallow commercial wind or solar energy facilities from being developed or operated in any district zoned to allow agricultural or industrial uses. This provision would appear to preclude counties from implementing moratoria on wind and solar development in agricultural and industrial areas.
8. Counties may not implement standards for construction, decommissioning and deconstruction that are more restrictive than the standards in the Department of Agriculture’s standard Agricultural Impact Mitigation Agreement (as it existed on December 31, 2022).
9. Counties may not condition approval of a commercial wind or solar facility on a property value guarantee or payment into a neighboring property devaluation escrow account.
10. Counties may require certain vegetative screening, but may not require earthen berms or “similar structures.”
11. Counties may not set a tip height restriction on a wind turbine that is more restrictive than the height allowed under a Determination of No Hazard to Air Navigation by the Federal Aviation Administration.
12. Counties may require developers to obtain a consultation with the Illinois Department of Natural Resources (IDNR) through the EcoCAT tool and a review by the U.S. Fish and Wildlife Service, and adhere to those recommendations. Counties may require developers to demonstrate avoidance of protected lands identified by the IDNR and the Illinois Nature Preserve Commission or consider recommended setbacks from protected lands. Counties may also require that a facility owner provide evidence of consultation with the Illinois State Historic Preservation Office to assess potential impacts on State-registered historic sites under the Illinois State Agency Historic Resources Preservation Act.
13. Counties may require a commercial solar energy facility to plant, establish and maintain for the life of the facility vegetative ground cover, consistent with the goals of the Pollinator-Friendly Solar Site Act and a vegetation management plan. The Siting Bill requires IDNR to develop guidelines for vegetation management plans that may be required under the Siting Bill. Those guidelines must include guidance for short-term and long-term property management practices that provide and maintain native and non-invasive naturalized perennial vegetation to protect the health and well-being of pollinators.
14. The Siting Bill contains various terms for road use agreements, including repairs to damaged roadways and limits to costs that the road use agreement can impose.
15. The Siting Bill authorizes a facility owner with siting approval to cross or impact a drainage system, subject to the facility owner repairing damage within a reasonable time after construction.
16. This Siting Bill, including its siting regulations, does not apply to applications for siting approval or for a special use permit for a commercial wind or solar energy facility that was submitted to a local unit of government before January 27, 2023, or to facilities where the facility owner submitted an agricultural impact mitigation agreement to the Illinois Department of Agriculture prior to January 27, 2023.

Conclusion

Going forward, once the counties’ local ordinances have been updated to conform to the mandates in the Siting Bill, developers should have a more balanced, fair and uniform environment across the State. While its actual impacts have yet to be seen, the Siting Bill opens renewable energy development in every Illinois county outside Cook County. The Siting Bill also ends the debate over whether unzoned counties can enact stand-alone solar ordinances; if they could not before, they can now. Additionally, the Siting Bill significantly reins in road and drainage district authorities and provides a tool for developers to push back on the fees charged by such districts that have been increasing lately with little to no justification.

Notably, the Siting Bill is silent on battery storage. Accordingly, siting standards for battery storage will likely remain locally regulated. We see momentum in other states for passing legislation to benefit siting flexibility for battery storage projects and suspect that such legislation is on the horizon in Illinois.

The Siting Bill has not been met with open arms by some local jurisdictions. Some county boards have considered moratoria (which the Siting Bill appears to preclude), and smaller unincorporated towns and villages are considering incorporation to implement a 1.5-mile exclusionary zone around their corporate boundaries. Legal challenges could be coming, and the impacts of any challenge will need to be carefully considered. Other states, like Minnesota and Michigan, are setting similar carbon-free goals and may look to Illinois as an example.

This alert broadly reviews some of the highlights of the Siting Bill.