SB3920 103RD GENERAL ASSEMBLY

LRB103 40071 AWJ 71566 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB3920

Introduced 4/9/2024, by Sen. Dan McConchie

SYNOPSIS AS INTRODUCED:

55 ILCS 5/5-12020

Amends the Counties Code. Provides that a commercial wind energy facility owner or a commercial solar energy facility owner who has submitted an application for a permit to develop a commercial wind energy facility or a commercial solar energy facility must provide notice to all municipalities and townships that are within 1.5 miles of the proposed facility and all property owners whose properties are on the boundary line of the proposed facility. Includes requirements of the notice. Provides that a county may require that a commercial solar energy facility be sited at least 500 feet to the nearest point on the property line of occupied community buildings and dwellings on nonparticipating properties. Requires a commercial wind energy facility or a commercial solar energy facility to be sited only on property zoned for agricultural use or on a brownfields site, and provides that the facilities may not be sited on property zoned exclusively for residential use or zoned exclusively for estate use. Excludes counties with a population of more than 500,000 from the changes made by Public Act 102-1123. Effective immediately.

A BILL FOR

AN ACT concerning local government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Counties Code is amended by changing Section 5-12020 as follows:

(55 ILCS 5/5-12020)

Sec. 5-12020. Commercial wind energy facilities and commercial solar energy facilities.

(a) As used in this Section:

"Commercial solar energy facility" means a "commercial solar energy system" as defined in Section 10-720 of the Property Tax Code. "Commercial solar energy facility" does not mean a utility-scale solar energy facility being constructed at a site that was eligible to participate in a procurement event conducted by the Illinois Power Agency pursuant to subsection (c-5) of Section 1-75 of the Illinois Power Agency Act.

"Commercial wind energy facility" means a wind energy conversion facility of equal or greater than 500 kilowatts in total nameplate generating capacity. "Commercial wind energy facility" includes a wind energy conversion facility seeking an extension of a permit to construct granted by a county or municipality before January 27, 2023 (the effective date of Public Act 102-1123).

"Facility owner" means (i) a person with a direct ownership interest in a commercial wind energy facility or a commercial solar energy facility, or both, regardless of whether the person is involved in acquiring the necessary rights, permits, and approvals or otherwise planning for the construction and operation of the facility, and (ii) at the time the facility is being developed, a person who is acting as a developer of the facility by acquiring the necessary rights, permits, and approvals or by planning for the construction and operation of the facility, regardless of whether the person will own or operate the facility.

"Nonparticipating property" means real property that is not a participating property.

"Nonparticipating residence" means a residence that is located on nonparticipating property and that is existing and occupied on the date that an application for a permit to develop the commercial wind energy facility or the commercial solar energy facility is filed with the county.

"Occupied community building" means any one or more of the following buildings that is existing and occupied on the date that the application for a permit to develop the commercial wind energy facility or the commercial solar energy facility is filed with the county: a school, place of worship, day care facility, public library, or community center.

"Participating property" means real property that is the subject of a written agreement between a facility owner and the owner of the real property that provides the facility owner an easement, option, lease, or license to use the real property for the purpose of constructing a commercial wind energy facility, a commercial solar energy facility, or supporting facilities. "Participating property" also includes real property that is owned by a facility owner for the purpose of constructing a commercial wind energy facility, a commercial solar energy facility, or supporting facilities.

"Participating residence" means a residence that is located on participating property and that is existing and occupied on the date that an application for a permit to develop the commercial wind energy facility or the commercial solar energy facility is filed with the county.

"Protected lands" means real property that is:

(1) subject to a permanent conservation right consistent with the Real Property Conservation Rights Act; or

(2) registered or designated as a nature preserve, buffer, or land and water reserve under the Illinois Natural Areas Preservation Act.

"Supporting facilities" means the transmission lines, substations, access roads, meteorological towers, storage containers, and equipment associated with the generation and storage of electricity by the commercial wind energy facility or commercial solar energy facility.

"Wind tower" includes the wind turbine tower, nacelle, and blades.

(b) Notwithstanding any other provision of law or whether the county has formed a zoning commission and adopted formal zoning under Section 5-12007, a county may establish standards for commercial wind energy facilities, commercial solar energy facilities, or both. The standards may include all of the requirements specified in this Section but may not include requirements for commercial wind energy facilities or commercial solar energy facilities that are more restrictive than specified in this Section. A county may also regulate the siting of commercial wind energy facilities with standards that are not more restrictive than the requirements specified in this Section in unincorporated areas of the county that are outside the zoning jurisdiction of a municipality and that are outside the 1.5-mile radius surrounding the zoning jurisdiction of a municipality.

(c) If a county has elected to establish standards under subsection (b), before the county grants siting approval or a special use permit for a commercial wind energy facility or a commercial solar energy facility, or modification of an approved siting or special use permit, the county board of the county in which the facility is to be sited or the zoning board of appeals for the county shall hold at least one public hearing. The public hearing shall be conducted in accordance with the Open Meetings Act and shall be held not more than 60 days after the filing of the application for the facility. The county shall allow interested parties to a special use permit an opportunity to present evidence and to cross-examine witnesses at the hearing, but the county may impose reasonable restrictions on the public hearing, including reasonable time limitations on the presentation of evidence and the cross-examination of witnesses. The county shall also allow public comment at the public hearing in accordance with the Open Meetings Act. The county shall make its siting and permitting decisions not more than 30 days after the conclusion of the public hearing. Notice of the hearing shall be published in a newspaper of general circulation in the county. A facility owner must enter into an agricultural impact mitigation agreement with the Department of Agriculture prior to the date of the required public hearing. A commercial wind energy facility owner seeking an extension of a permit granted by a county prior to July 24, 2015 (the effective date of Public Act 99-132) must enter into an agricultural impact mitigation agreement with the Department of Agriculture prior to a decision by the county to grant the permit extension. Counties may allow test wind towers or test solar energy systems to be sited without formal approval by the county board.

In addition to the notice of hearing required under this subsection, a commercial wind energy facility owner or a commercial solar energy facility owner who has submitted an application for a permit to develop a commercial wind energy facility or a commercial solar energy facility must provide notice to all municipalities and townships that are within 1.5 miles of the proposed commercial wind energy facility or commercial solar energy facility and all property owners whose properties are on the boundary line of the proposed commercial wind energy facility or commercial solar energy facility. The notice must be given no later than 30 days after the commercial wind energy facility owner or commercial solar energy facility owner submits the application. The notice shall be provided in person, by overnight private courier, or by certified mail. If, after a bona fide effort by the commercial wind energy facility owner or the commercial solar energy facility owner to determine the owner of property and the owner's address, the owner of the property on whom the notice must be served cannot be found at the owner's last known address or if the mailed notice is returned because the owner cannot be found at the last known address, then the notice requirement of this paragraph is deemed satisfied.

(d) A county with an existing zoning ordinance in conflict with this Section shall amend that zoning ordinance to be in compliance with this Section within 120 days after January 27, 2023 (the effective date of Public Act 102-1123).

(e) A county may require:

(1) a wind tower of a commercial wind energy facility to be sited as follows, with setback distances measured from the center of the base of the wind tower:

Setback Description Setback Distance

Occupied Community 2.1 times the maximum blade tip Buildings height of the wind tower to the nearest point on the outside wall of the structure

Participating Residences 1.1 times the maximum blade tip height of the wind tower to the nearest point on the outside wall of the structure

Nonparticipating Residences 2.1 times the maximum blade tip height of the wind tower to the nearest point on the outside wall of the structure

Boundary Lines of None Participating Property

Boundary Lines of 1.1 times the maximum blade tip Nonparticipating Property height of the wind tower to the nearest point on the property line of the nonparticipating property

Public Road Rights-of-Way 1.1 times the maximum blade tip height of the wind tower to the center point of the public road right-of-way

Overhead Communication and 1.1 times the maximum blade tip Electric Transmission height of the wind tower to the and Distribution Facilities nearest edge of the property (Not Including Overhead line, easement, or Utility Service Lines to right-of-way Individual Houses or containing the overhead line Outbuildings)

Overhead Utility Service None Lines to Individual Houses or Outbuildings

Fish and Wildlife Areas 2.1 times the maximum blade and Illinois Nature tip height of the wind tower Preserve Commission to the nearest point on the Protected Lands property line of the fish and wildlife area or protected land

This Section does not exempt or excuse compliance with electric facility clearances approved or required by the National Electrical Code, the The National Electrical Safety Code, the Illinois Commerce Commission, and the Federal Energy Regulatory Commission, and their designees or successors.

(2) a wind tower of a commercial wind energy facility to be sited so that industry standard computer modeling indicates that any occupied community building or nonparticipating residence will not experience more than 30 hours per year of shadow flicker under planned operating conditions;

(3) a commercial solar energy facility to be sited as follows, with setback distances measured from the nearest edge of any component of the facility:

Setback Description Setback Distance

Occupied Community 500 150 feet from the Buildings and Dwellings nearest point on the on Nonparticipating property line outside wall Properties of the structure Boundary Lines of None Participating Property

Public Road Rights-of-Way 50 feet from the nearest edge

Boundary Lines of 50 feet to the nearest Nonparticipating Property point on the property line of the nonparticipating property

(4) a commercial solar energy facility to be sited so that the facility's perimeter is enclosed by fencing having a height of at least 6 feet and no more than 25 feet; and

(5) a commercial solar energy facility to be sited so that no component of a solar panel has a height of more than 20 feet above ground when the solar energy facility's arrays are at full tilt.

The requirements set forth in this subsection (e) may be waived subject to the written consent of the owner of each affected nonparticipating property.

(f) A county may not set a sound limitation for wind towers in commercial wind energy facilities or any components in commercial solar energy facilities that is more restrictive than the sound limitations established by the Illinois Pollution Control Board under 35 Ill. Adm. Code Parts 900, 901, and 910.

(g) A county may not place any restriction on the installation or use of a commercial wind energy facility or a commercial solar energy facility unless it adopts an ordinance that complies with this Section. A county may not establish siting standards for supporting facilities that preclude development of commercial wind energy facilities or commercial solar energy facilities.

A request for siting approval or a special use permit for a commercial wind energy facility or a commercial solar energy facility, or modification of an approved siting or special use permit, shall be approved if the request is in compliance with the standards and conditions imposed in this Act, the zoning ordinance adopted consistent with this Code, and the conditions imposed under State and federal statutes and regulations.

(h) A county may not adopt zoning regulations that allow disallow, permanently or temporarily, commercial wind energy facilities or commercial solar energy facilities from being developed or operated in any district other than a district zoned for agricultural use or on a brownfields site and may not allow such facilities to be sited on property zoned exclusively for residential use or zoned exclusively for estate use. As used in this subsection, "brownfields site" site has the meaning given to that term in Section 58.2 of the Environmental Protection Act zoned to allow agricultural or industrial uses.

(i) A county may not require permit application fees for a commercial wind energy facility or commercial solar energy facility that are unreasonable. All application fees imposed by the county shall be consistent with fees for projects in the county with similar capital value and cost.

(j) Except as otherwise provided in this Section, a county shall not require standards for construction, decommissioning, or deconstruction of a commercial wind energy facility or commercial solar energy facility or related financial assurances that are more restrictive than those included in the Department of Agriculture's standard wind farm agricultural impact mitigation agreement, template 81818, or standard solar agricultural impact mitigation agreement, version 8.19.19, as applicable and in effect on December 31, 2022. The amount of any decommissioning payment shall be in accordance with the financial assurance required by those agricultural impact mitigation agreements.

(j-5) A commercial wind energy facility or a commercial solar energy facility shall file a farmland drainage plan with the county and impacted drainage districts outlining how surface and subsurface drainage of farmland will be restored during and following construction or deconstruction of the facility. The plan is to be created independently by the facility developer and shall include the location of any potentially impacted drainage district facilities to the extent this information is publicly available from the county or the drainage district, plans to repair any subsurface drainage affected during construction or deconstruction using procedures outlined in the agricultural impact mitigation agreement entered into by the commercial wind energy facility owner or commercial solar energy facility owner, and procedures for the repair and restoration of surface drainage affected during construction or deconstruction. All surface and subsurface damage shall be repaired as soon as reasonably practicable.

(k) A county may not condition approval of a commercial wind energy facility or commercial solar energy facility on a property value guarantee and may not require a facility owner to pay into a neighboring property devaluation escrow account.

(l) A county may require certain vegetative screening surrounding a commercial wind energy facility or commercial solar energy facility but may not require earthen berms or similar structures.

(m) A county may set blade tip height limitations for wind towers in commercial wind energy facilities but may not set a blade tip height limitation that is more restrictive than the height allowed under a Determination of No Hazard to Air Navigation by the Federal Aviation Administration under 14 CFR Part 77.

(n) A county may require that a commercial wind energy facility owner or commercial solar energy facility owner provide:

(1) the results and recommendations from consultation with the Illinois Department of Natural Resources that are obtained through the Ecological Compliance Assessment Tool (EcoCAT) or a comparable successor tool; and

(2) the results of the United States Fish and Wildlife Service's Information for Planning and Consulting environmental review or a comparable successor tool that is consistent with (i) the "U.S. Fish and Wildlife Service's Land-Based Wind Energy Guidelines" and (ii) any applicable United States Fish and Wildlife Service solar wildlife guidelines that have been subject to public review.

(o) A county may require a commercial wind energy facility or commercial solar energy facility to adhere to the recommendations provided by the Illinois Department of Natural Resources in an EcoCAT natural resource review report under 17 Ill. Adm. Code Part 1075.

(p) A county may require a facility owner to:

(1) demonstrate avoidance of protected lands as identified by the Illinois Department of Natural Resources and the Illinois Nature Preserve Commission; or

(2) consider the recommendations of the Illinois Department of Natural Resources for setbacks from protected lands, including areas identified by the Illinois Nature Preserve Commission.

(q) A county may 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.

(r) To maximize community benefits, including, but not limited to, reduced stormwater runoff, flooding, and erosion at the ground mounted solar energy system, improved soil health, and increased foraging habitat for game birds, songbirds, and pollinators, a county may (1) require a commercial solar energy facility owner 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 (2) require the submittal of a vegetation management plan that is in compliance with the agricultural impact mitigation agreement in the application to construct and operate a commercial solar energy facility in the county if the vegetative ground cover and vegetation management plan comply with the requirements of the underlying agreement with the landowner or landowners where the facility will be constructed.

No later than 90 days after January 27, 2023 (the effective date of Public Act 102-1123), the Illinois Department of Natural Resources shall develop guidelines for vegetation management plans that may be required under this subsection for commercial solar energy facilities. The 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.

(s) If a facility owner enters into a road use agreement with the Illinois Department of Transportation, a road district, or other unit of local government relating to a commercial wind energy facility or a commercial solar energy facility, the road use agreement shall require the facility owner to be responsible for (i) the reasonable cost of improving roads used by the facility owner to construct the commercial wind energy facility or the commercial solar energy facility and (ii) the reasonable cost of repairing roads used by the facility owner during construction of the commercial wind energy facility or the commercial solar energy facility so that those roads are in a condition that is safe for the driving public after the completion of the facility's construction. Roadways improved in preparation for and during the construction of the commercial wind energy facility or commercial solar energy facility shall be repaired and restored to the improved condition at the reasonable cost of the developer if the roadways have degraded or were damaged as a result of construction-related activities.

The road use agreement shall not require the facility owner to pay costs, fees, or charges for road work that is not specifically and uniquely attributable to the construction of the commercial wind energy facility or the commercial solar energy facility. Road-related fees, permit fees, or other charges imposed by the Illinois Department of Transportation, a road district, or other unit of local government under a road use agreement with the facility owner shall be reasonably related to the cost of administration of the road use agreement.

(s-5) The facility owner shall also compensate landowners for crop losses or other agricultural damages resulting from damage to the drainage system caused by the construction of the commercial wind energy facility or the commercial solar energy facility. The commercial wind energy facility owner or commercial solar energy facility owner shall repair or pay for the repair of all damage to the subsurface drainage system caused by the construction of the commercial wind energy facility or the commercial solar energy facility in accordance with the agriculture impact mitigation agreement requirements for repair of drainage. The commercial wind energy facility owner or commercial solar energy facility owner shall repair or pay for the repair and restoration of surface drainage caused by the construction or deconstruction of the commercial wind energy facility or the commercial solar energy facility as soon as reasonably practicable.

(t) Notwithstanding any other provision of law, a facility owner with siting approval from a county to construct a commercial wind energy facility or a commercial solar energy facility is authorized to cross or impact a drainage system, including, but not limited to, drainage tiles, open drainage ditches, culverts, and water gathering vaults, owned or under the control of a drainage district under the Illinois Drainage Code without obtaining prior agreement or approval from the drainage district in accordance with the farmland drainage plan required by subsection (j-5).

(u) The amendments to this Section adopted in Public Act 102-1123 do not apply to: (1) an application for siting approval or for a special use permit for a commercial wind energy facility or commercial solar energy facility if the application was submitted to a unit of local government before January 27, 2023 (the effective date of Public Act 102-1123); (2) a commercial wind energy facility or a commercial solar energy facility if the facility owner has submitted an agricultural impact mitigation agreement to the Department of Agriculture before January 27, 2023 (the effective date of Public Act 102-1123); or (3) a commercial wind energy or commercial solar energy development on property that is located within an enterprise zone certified under the Illinois Enterprise Zone Act, that was classified as industrial by the appropriate zoning authority on or before January 27, 2023, and that is located within 4 miles of the intersection of Interstate 88 and Interstate 39; or (4) counties with a population of more than 500,000.

(Source: P.A. 102-1123, eff. 1-27-23; 103-81, eff. 6-9-23; 103-580, eff. 12-8-23.)

Section 99. Effective date. This Act takes effect upon becoming law.