103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB4612

 

Introduced 1/31/2024, by Rep. Bradley Fritts

 

SYNOPSIS AS INTRODUCED:
 
55 ILCS 5/5-12020

    Amends the Counties Code. Provides that a county may set blade tip height limitations for wind towers in commercial wind energy facilities near a restricted landing area to ensure compliance with specified provisions of the Illinois Administrative Code.


LRB103 35784 AWJ 65866 b

 

 

A BILL FOR

 

HB4612LRB103 35784 AWJ 65866 b

1    AN ACT concerning local government.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Counties Code is amended by changing
5Section 5-12020 as follows:
 
6    (55 ILCS 5/5-12020)
7    Sec. 5-12020. Commercial wind energy facilities and
8commercial solar energy facilities.
9    (a) As used in this Section:
10    "Commercial solar energy facility" means a "commercial
11solar energy system" as defined in Section 10-720 of the
12Property Tax Code. "Commercial solar energy facility" does not
13mean a utility-scale solar energy facility being constructed
14at a site that was eligible to participate in a procurement
15event conducted by the Illinois Power Agency pursuant to
16subsection (c-5) of Section 1-75 of the Illinois Power Agency
17Act.
18    "Commercial wind energy facility" means a wind energy
19conversion facility of equal or greater than 500 kilowatts in
20total nameplate generating capacity. "Commercial wind energy
21facility" includes a wind energy conversion facility seeking
22an extension of a permit to construct granted by a county or
23municipality before January 27, 2023 (the effective date of

 

 

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1Public Act 102-1123) this amendatory Act of the 102nd General
2Assembly.
3    "Facility owner" means (i) a person with a direct
4ownership interest in a commercial wind energy facility or a
5commercial solar energy facility, or both, regardless of
6whether the person is involved in acquiring the necessary
7rights, permits, and approvals or otherwise planning for the
8construction and operation of the facility, and (ii) at the
9time the facility is being developed, a person who is acting as
10a developer of the facility by acquiring the necessary rights,
11permits, and approvals or by planning for the construction and
12operation of the facility, regardless of whether the person
13will own or operate the facility.
14    "Nonparticipating property" means real property that is
15not a participating property.
16    "Nonparticipating residence" means a residence that is
17located on nonparticipating property and that is existing and
18occupied on the date that an application for a permit to
19develop the commercial wind energy facility or the commercial
20solar energy facility is filed with the county.
21    "Occupied community building" means any one or more of the
22following buildings that is existing and occupied on the date
23that the application for a permit to develop the commercial
24wind energy facility or the commercial solar energy facility
25is filed with the county: a school, place of worship, day care
26facility, public library, or community center.

 

 

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1    "Participating property" means real property that is the
2subject of a written agreement between a facility owner and
3the owner of the real property that provides the facility
4owner an easement, option, lease, or license to use the real
5property for the purpose of constructing a commercial wind
6energy facility, a commercial solar energy facility, or
7supporting facilities. "Participating property" also includes
8real property that is owned by a facility owner for the purpose
9of constructing a commercial wind energy facility, a
10commercial solar energy facility, or supporting facilities.
11    "Participating residence" means a residence that is
12located on participating property and that is existing and
13occupied on the date that an application for a permit to
14develop the commercial wind energy facility or the commercial
15solar energy facility is filed with the county.
16    "Protected lands" means real property that is:
17        (1) subject to a permanent conservation right
18    consistent with the Real Property Conservation Rights Act;
19    or
20        (2) registered or designated as a nature preserve,
21    buffer, or land and water reserve under the Illinois
22    Natural Areas Preservation Act.
23    "Supporting facilities" means the transmission lines,
24substations, access roads, meteorological towers, storage
25containers, and equipment associated with the generation and
26storage of electricity by the commercial wind energy facility

 

 

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1or commercial solar energy facility.
2    "Wind tower" includes the wind turbine tower, nacelle, and
3blades.
4    (b) Notwithstanding any other provision of law or whether
5the county has formed a zoning commission and adopted formal
6zoning under Section 5-12007, a county may establish standards
7for commercial wind energy facilities, commercial solar energy
8facilities, or both. The standards may include all of the
9requirements specified in this Section but may not include
10requirements for commercial wind energy facilities or
11commercial solar energy facilities that are more restrictive
12than specified in this Section. A county may also regulate the
13siting of commercial wind energy facilities with standards
14that are not more restrictive than the requirements specified
15in this Section in unincorporated areas of the county that are
16outside the zoning jurisdiction of a municipality and that are
17outside the 1.5-mile radius surrounding the zoning
18jurisdiction of a municipality.
19    (c) If a county has elected to establish standards under
20subsection (b), before the county grants siting approval or a
21special use permit for a commercial wind energy facility or a
22commercial solar energy facility, or modification of an
23approved siting or special use permit, the county board of the
24county in which the facility is to be sited or the zoning board
25of appeals for the county shall hold at least one public
26hearing. The public hearing shall be conducted in accordance

 

 

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1with the Open Meetings Act and shall be held not more than 45
2days after the filing of the application for the facility. The
3county shall allow interested parties to a special use permit
4an opportunity to present evidence and to cross-examine
5witnesses at the hearing, but the county may impose reasonable
6restrictions on the public hearing, including reasonable time
7limitations on the presentation of evidence and the
8cross-examination of witnesses. The county shall also allow
9public comment at the public hearing in accordance with the
10Open Meetings Act. The county shall make its siting and
11permitting decisions not more than 30 days after the
12conclusion of the public hearing. Notice of the hearing shall
13be published in a newspaper of general circulation in the
14county. A facility owner must enter into an agricultural
15impact mitigation agreement with the Department of Agriculture
16prior to the date of the required public hearing. A commercial
17wind energy facility owner seeking an extension of a permit
18granted by a county prior to July 24, 2015 (the effective date
19of Public Act 99-132) must enter into an agricultural impact
20mitigation agreement with the Department of Agriculture prior
21to a decision by the county to grant the permit extension.
22Counties may allow test wind towers or test solar energy
23systems to be sited without formal approval by the county
24board.
25    (d) A county with an existing zoning ordinance in conflict
26with this Section shall amend that zoning ordinance to be in

 

 

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1compliance with this Section within 120 days after January 27,
22023 (the effective date of Public Act 102-1123) this
3amendatory Act of the 102nd General Assembly.
4    (e) A county may require:
5        (1) a wind tower of a commercial wind energy facility
6    to be sited as follows, with setback distances measured
7    from the center of the base of the wind tower:
 
8Setback Description           Setback Distance
 
9Occupied Community            2.1 times the maximum blade tip
10Buildings                     height of the wind tower to the
11                              nearest point on the outside
12                              wall of the structure
 
13Participating Residences      1.1 times the maximum blade tip
14                              height of the wind tower to the
15                              nearest point on the outside
16                              wall of the structure
 
17Nonparticipating Residences   2.1 times the maximum blade tip
18                              height of the wind tower to the
19                              nearest point on the outside
20                              wall of the structure
 
21Boundary Lines of             None

 

 

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1Participating Property 
 
2Boundary Lines of             1.1 times the maximum blade tip
3Nonparticipating Property     height of the wind tower to the
4                              nearest point on the property
5                              line of the nonparticipating
6                              property
 
7Public Road Rights-of-Way     1.1 times the maximum blade tip
8                              height of the wind tower
9                              to the center point of the
10                              public road right-of-way
 
11Overhead Communication and    1.1 times the maximum blade tip
12Electric Transmission         height of the wind tower to the
13and Distribution Facilities   nearest edge of the property
14(Not Including Overhead       line, easement, or 
15Utility Service Lines to      right-of-way right of way
16Individual Houses or          containing the overhead line
17Outbuildings)
 
18Overhead Utility Service      None
19Lines to Individual
20Houses or Outbuildings
 
21Fish and Wildlife Areas       2.1 times the maximum blade

 

 

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1and Illinois Nature           tip height of the wind tower
2Preserve Commission           to the nearest point on the
3Protected Lands               property line of the fish and
4                              wildlife area or protected
5                              land
6    This Section does not exempt or excuse compliance with
7    electric facility clearances approved or required by the
8    National Electrical Code, The National Electrical Safety
9    Code, Illinois Commerce Commission, Federal Energy
10    Regulatory Commission, and their designees or successors.
 
11        (2) a wind tower of a commercial wind energy facility
12    to be sited so that industry standard computer modeling
13    indicates that any occupied community building or
14    nonparticipating residence will not experience more than
15    30 hours per year of shadow flicker under planned
16    operating conditions;
17        (3) a commercial solar energy facility to be sited as
18    follows, with setback distances measured from the nearest
19    edge of any component of the facility:
 
20Setback Description           Setback Distance
 
21Occupied Community            150 feet from the nearest
22Buildings and Dwellings on    point on the outside wall 
23Nonparticipating Properties   of the structure
 

 

 

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1Boundary Lines of             None
2Participating Property    
 
3Public Road Rights-of-Way     50 feet from the nearest
4                              edge
 
5Boundary Lines of             50 feet to the nearest
6Nonparticipating Property     point on the property
7                              line of the nonparticipating
8                              property
 
9        (4) a commercial solar energy facility to be sited so
10    that the facility's perimeter is enclosed by fencing
11    having a height of at least 6 feet and no more than 25
12    feet; and
13        (5) a commercial solar energy facility to be sited so
14    that no component of a solar panel has a height of more
15    than 20 feet above ground when the solar energy facility's
16    arrays are at full tilt.
17    The requirements set forth in this subsection (e) may be
18waived subject to the written consent of the owner of each
19affected nonparticipating property.
20    (f) A county may not set a sound limitation for wind towers
21in commercial wind energy facilities or any components in
22commercial solar energy facilities facility that is more

 

 

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1restrictive than the sound limitations established by the
2Illinois Pollution Control Board under 35 Ill. Adm. Code Parts
3900, 901, and 910.
4    (g) A county may not place any restriction on the
5installation or use of a commercial wind energy facility or a
6commercial solar energy facility unless it adopts an ordinance
7that complies with this Section. A county may not establish
8siting standards for supporting facilities that preclude
9development of commercial wind energy facilities or commercial
10solar energy facilities.
11    A request for siting approval or a special use permit for a
12commercial wind energy facility or a commercial solar energy
13facility, or modification of an approved siting or special use
14permit, shall be approved if the request is in compliance with
15the standards and conditions imposed in this Act, the zoning
16ordinance adopted consistent with this Code, and the
17conditions imposed under State and federal statutes and
18regulations.
19    (h) A county may not adopt zoning regulations that
20disallow, permanently or temporarily, commercial wind energy
21facilities or commercial solar energy facilities from being
22developed or operated in any district zoned to allow
23agricultural or industrial uses.
24    (i) A county may not require permit application fees for a
25commercial wind energy facility or commercial solar energy
26facility that are unreasonable. All application fees imposed

 

 

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1by the county shall be consistent with fees for projects in the
2county with similar capital value and cost.
3    (j) Except as otherwise provided in this Section, a county
4shall not require standards for construction, decommissioning,
5or deconstruction of a commercial wind energy facility or
6commercial solar energy facility or related financial
7assurances that are more restrictive than those included in
8the Department of Agriculture's standard wind farm
9agricultural impact mitigation agreement, template 81818, or
10standard solar agricultural impact mitigation agreement,
11version 8.19.19, as applicable and in effect on December 31,
122022. The amount of any decommissioning payment shall be
13limited to the cost identified in the decommissioning or
14deconstruction plan, as required by those agricultural impact
15mitigation agreements, minus the salvage value of the project.
16    (k) A county may not condition approval of a commercial
17wind energy facility or commercial solar energy facility on a
18property value guarantee and may not require a facility owner
19to pay into a neighboring property devaluation escrow account.
20    (l) A county may require certain vegetative screening
21surrounding a commercial wind energy facility or commercial
22solar energy facility but may not require earthen berms or
23similar structures.
24    (m) A county may set blade tip height limitations for wind
25towers in commercial wind energy facilities but may not set a
26blade tip height limitation that is more restrictive than the

 

 

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1height allowed under a Determination of No Hazard to Air
2Navigation by the Federal Aviation Administration under 14 CFR
3Part 77.
4    (m-5) Notwithstanding subsection (m), a county may set
5blade tip height limitations for wind towers in commercial
6wind energy facilities near a restricted landing area, as that
7term is defined in Section 8 of the Illinois Aeronautics Act,
8to ensure compliance with 92 Ill. Adm. Code 14.730, including
9those referenced illustrations and appendix.
10    (n) A county may require that a commercial wind energy
11facility owner or commercial solar energy facility owner
12provide:
13        (1) the results and recommendations from consultation
14    with the Illinois Department of Natural Resources that are
15    obtained through the Ecological Compliance Assessment Tool
16    (EcoCAT) or a comparable successor tool; and
17        (2) the results of the United States Fish and Wildlife
18    Service's Information for Planning and Consulting
19    environmental review or a comparable successor tool that
20    is consistent with (i) the "U.S. Fish and Wildlife
21    Service's Land-Based Wind Energy Guidelines" and (ii) any
22    applicable United States Fish and Wildlife Service solar
23    wildlife guidelines that have been subject to public
24    review.
25    (o) A county may require a commercial wind energy facility
26or commercial solar energy facility to adhere to the

 

 

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1recommendations provided by the Illinois Department of Natural
2Resources in an EcoCAT natural resource review report under 17
3Ill. Adm. Admin. Code Part 1075.
4    (p) A county may require a facility owner to:
5        (1) demonstrate avoidance of protected lands as
6    identified by the Illinois Department of Natural Resources
7    and the Illinois Nature Preserve Commission; or
8        (2) consider the recommendations of the Illinois
9    Department of Natural Resources for setbacks from
10    protected lands, including areas identified by the
11    Illinois Nature Preserve Commission.
12    (q) A county may require that a facility owner provide
13evidence of consultation with the Illinois State Historic
14Preservation Office to assess potential impacts on
15State-registered historic sites under the Illinois State
16Agency Historic Resources Preservation Act.
17    (r) To maximize community benefits, including, but not
18limited to, reduced stormwater runoff, flooding, and erosion
19at the ground mounted solar energy system, improved soil
20health, and increased foraging habitat for game birds,
21songbirds, and pollinators, a county may (1) require a
22commercial solar energy facility owner to plant, establish,
23and maintain for the life of the facility vegetative ground
24cover, consistent with the goals of the Pollinator-Friendly
25Solar Site Act and (2) require the submittal of a vegetation
26management plan in the application to construct and operate a

 

 

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1commercial solar energy facility in the county.
2    No later than 90 days after January 27, 2023 (the
3effective date of Public Act 102-1123) this amendatory Act of
4the 102nd General Assembly, the Illinois Department of Natural
5Resources shall develop guidelines for vegetation management
6plans that may be required under this subsection for
7commercial solar energy facilities. The guidelines must
8include guidance for short-term and long-term property
9management practices that provide and maintain native and
10non-invasive naturalized perennial vegetation to protect the
11health and well-being of pollinators.
12    (s) If a facility owner enters into a road use agreement
13with the Illinois Department of Transportation, a road
14district, or other unit of local government relating to a
15commercial wind energy facility or a commercial solar energy
16facility, the road use agreement shall require the facility
17owner to be responsible for (i) the reasonable cost of
18improving roads used by the facility owner to construct the
19commercial wind energy facility or the commercial solar energy
20facility and (ii) the reasonable cost of repairing roads used
21by the facility owner during construction of the commercial
22wind energy facility or the commercial solar energy facility
23so that those roads are in a condition that is safe for the
24driving public after the completion of the facility's
25construction. Roadways improved in preparation for and during
26the construction of the commercial wind energy facility or

 

 

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1commercial solar energy facility shall be repaired and
2restored to the improved condition at the reasonable cost of
3the developer if the roadways have degraded or were damaged as
4a result of construction-related activities.
5    The road use agreement shall not require the facility
6owner to pay costs, fees, or charges for road work that is not
7specifically and uniquely attributable to the construction of
8the commercial wind energy facility or the commercial solar
9energy facility. Road-related fees, permit fees, or other
10charges imposed by the Illinois Department of Transportation,
11a road district, or other unit of local government under a road
12use agreement with the facility owner shall be reasonably
13related to the cost of administration of the road use
14agreement.
15    (t) Notwithstanding any other provision of law, a facility
16owner with siting approval from a county to construct a
17commercial wind energy facility or a commercial solar energy
18facility is authorized to cross or impact a drainage system,
19including, but not limited to, drainage tiles, open drainage
20districts, culverts, and water gathering vaults, owned or
21under the control of a drainage district under the Illinois
22Drainage Code without obtaining prior agreement or approval
23from the drainage district, except that the facility owner
24shall repair or pay for the repair of all damage to the
25drainage system caused by the construction of the commercial
26wind energy facility or the commercial solar energy facility

 

 

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1within a reasonable time after construction of the commercial
2wind energy facility or the commercial solar energy facility
3is complete.
4    (u) The amendments to this Section adopted in Public Act
5102-1123 do not apply to: (1) an application for siting
6approval or for a special use permit for a commercial wind
7energy facility or commercial solar energy facility if the
8application was submitted to a unit of local government before
9January 27, 2023 (the effective date of Public Act 102-1123)
10this amendatory Act of the 102nd General Assembly; (2) a
11commercial wind energy facility or a commercial solar energy
12facility if the facility owner has submitted an agricultural
13impact mitigation agreement to the Department of Agriculture
14before January 27, 2023 (the effective date of Public Act
15102-1123) this amendatory Act of the 102nd General Assembly;
16or (3) a commercial wind energy or commercial solar energy
17development on property that is located within an enterprise
18zone certified under the Illinois Enterprise Zone Act, that
19was classified as industrial by the appropriate zoning
20authority on or before January 27, 2023, and that is located
21within 4 miles of the intersection of Interstate 88 and
22Interstate 39.
23(Source: P.A. 102-1123, eff. 1-27-23; 103-81, eff. 6-9-23;
24revised 9-25-23.)