103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB2595

 

Introduced 10/18/2023, by Sen. Sue Rezin

 

SYNOPSIS AS INTRODUCED:
 
55 ILCS 5/5-12020

    Amends the Counties Code. Provides that a commercial wind energy facility, a commercial solar energy facility, or both may not be approved by a county within an unincorporated area of the county that is within a 3-mile radius surrounding a municipality unless both the county board and the city council of the municipality approve the facility, regardless of whether or not the municipality has adopted zoning ordinances or is regulating wind farms and electric-generating wind devices. Effective immediately.


LRB103 32942 AWJ 62746 b

 

 

A BILL FOR

 

SB2595LRB103 32942 AWJ 62746 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. A commercial wind energy
19facility, a commercial solar energy facility, or both may not
20be approved by a county within an unincorporated area of the
21county that is within a 3-mile radius surrounding a
22municipality unless both the county board and the city council
23of the municipality approve the facility, regardless of
24whether or not the municipality has adopted zoning ordinances
25under Division 13 of Article 11 of the Illinois Municipal Code
26or is regulating wind farms and electric-generating wind

 

 

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1devices under Section 11-13-26 of the Illinois Municipal Code.
2    (c) If a county has elected to establish standards under
3subsection (b), before the county grants siting approval or a
4special use permit for a commercial wind energy facility or a
5commercial solar energy facility, or modification of an
6approved siting or special use permit, the county board of the
7county in which the facility is to be sited or the zoning board
8of appeals for the county shall hold at least one public
9hearing. The public hearing shall be conducted in accordance
10with the Open Meetings Act and shall be held not more than 45
11days after the filing of the application for the facility. The
12county shall allow interested parties to a special use permit
13an opportunity to present evidence and to cross-examine
14witnesses at the hearing, but the county may impose reasonable
15restrictions on the public hearing, including reasonable time
16limitations on the presentation of evidence and the
17cross-examination of witnesses. The county shall also allow
18public comment at the public hearing in accordance with the
19Open Meetings Act. The county shall make its siting and
20permitting decisions not more than 30 days after the
21conclusion of the public hearing. Notice of the hearing shall
22be published in a newspaper of general circulation in the
23county. A facility owner must enter into an agricultural
24impact mitigation agreement with the Department of Agriculture
25prior to the date of the required public hearing. A commercial
26wind energy facility owner seeking an extension of a permit

 

 

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1granted by a county prior to July 24, 2015 (the effective date
2of Public Act 99-132) must enter into an agricultural impact
3mitigation agreement with the Department of Agriculture prior
4to a decision by the county to grant the permit extension.
5Counties may allow test wind towers or test solar energy
6systems to be sited without formal approval by the county
7board.
8    (d) A county with an existing zoning ordinance in conflict
9with this Section shall amend that zoning ordinance to be in
10compliance with this Section within 120 days after January 27,
112023 (the effective date of Public Act 102-1123) this
12amendatory Act of the 102nd General Assembly.
13    (e) A county may require:
14        (1) a wind tower of a commercial wind energy facility
15    to be sited as follows, with setback distances measured
16    from the center of the base of the wind tower:
 
17Setback Description           Setback Distance
 
18Occupied Community            2.1 times the maximum blade tip
19Buildings                     height of the wind tower to the
20                              nearest point on the outside
21                              wall of the structure
 
22Participating Residences      1.1 times the maximum blade tip
23                              height of the wind tower to the

 

 

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

 

 

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1Utility Service Lines to      containing the overhead line
2Individual Houses or
3Outbuildings)
 
4Overhead Utility Service      None
5Lines to Individual
6Houses or Outbuildings
 
7Fish and Wildlife Areas       2.1 times the maximum blade
8and Illinois Nature           tip height of the wind tower
9Preserve Commission           to the nearest point on the
10Protected Lands               property line of the fish and
11                              wildlife area or protected
12                              land
13    This Section does not exempt or excuse compliance with
14    electric facility clearances approved or required by the
15    National Electrical Code, The National Electrical Safety
16    Code, Illinois Commerce Commission, Federal Energy
17    Regulatory Commission, and their designees or successors.
 
18        (2) a wind tower of a commercial wind energy facility
19    to be sited so that industry standard computer modeling
20    indicates that any occupied community building or
21    nonparticipating residence will not experience more than
22    30 hours per year of shadow flicker under planned
23    operating conditions;

 

 

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1        (3) a commercial solar energy facility to be sited as
2    follows, with setback distances measured from the nearest
3    edge of any component of the facility:
 
4Setback Description           Setback Distance
 
5Occupied Community            150 feet from the nearest
6Buildings and Dwellings on    point on the outside wall 
7Nonparticipating Properties   of the structure
 
8Boundary Lines of             None
9Participating Property    
 
10Public Road Rights-of-Way     50 feet from the nearest
11                              edge
 
12Boundary Lines of             50 feet to the nearest
13Nonparticipating Property     point on the property
14                              line of the nonparticipating
15                              property
 
16        (4) a commercial solar energy facility to be sited so
17    that the facility's perimeter is enclosed by fencing
18    having a height of at least 6 feet and no more than 25
19    feet; and
20        (5) a commercial solar energy facility to be sited so

 

 

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1    that no component of a solar panel has a height of more
2    than 20 feet above ground when the solar energy facility's
3    arrays are at full tilt.
4    The requirements set forth in this subsection (e) may be
5waived subject to the written consent of the owner of each
6affected nonparticipating property.
7    (f) A county may not set a sound limitation for wind towers
8in commercial wind energy facilities or any components in
9commercial solar energy facilities facility that is more
10restrictive than the sound limitations established by the
11Illinois Pollution Control Board under 35 Ill. Adm. Code Parts
12900, 901, and 910.
13    (g) A county may not place any restriction on the
14installation or use of a commercial wind energy facility or a
15commercial solar energy facility unless it adopts an ordinance
16that complies with this Section. A county may not establish
17siting standards for supporting facilities that preclude
18development of commercial wind energy facilities or commercial
19solar energy facilities.
20    A request for siting approval or a special use permit for a
21commercial wind energy facility or a commercial solar energy
22facility, or modification of an approved siting or special use
23permit, shall be approved if the request is in compliance with
24the standards and conditions imposed in this Act, the zoning
25ordinance adopted consistent with this Code, and the
26conditions imposed under State and federal statutes and

 

 

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1regulations.
2    (h) A county may not adopt zoning regulations that
3disallow, permanently or temporarily, commercial wind energy
4facilities or commercial solar energy facilities from being
5developed or operated in any district zoned to allow
6agricultural or industrial uses.
7    (i) A county may not require permit application fees for a
8commercial wind energy facility or commercial solar energy
9facility that are unreasonable. All application fees imposed
10by the county shall be consistent with fees for projects in the
11county with similar capital value and cost.
12    (j) Except as otherwise provided in this Section, a county
13shall not require standards for construction, decommissioning,
14or deconstruction of a commercial wind energy facility or
15commercial solar energy facility or related financial
16assurances that are more restrictive than those included in
17the Department of Agriculture's standard wind farm
18agricultural impact mitigation agreement, template 81818, or
19standard solar agricultural impact mitigation agreement,
20version 8.19.19, as applicable and in effect on December 31,
212022. The amount of any decommissioning payment shall be
22limited to the cost identified in the decommissioning or
23deconstruction plan, as required by those agricultural impact
24mitigation agreements, minus the salvage value of the project.
25    (k) A county may not condition approval of a commercial
26wind energy facility or commercial solar energy facility on a

 

 

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1property value guarantee and may not require a facility owner
2to pay into a neighboring property devaluation escrow account.
3    (l) A county may require certain vegetative screening
4surrounding a commercial wind energy facility or commercial
5solar energy facility but may not require earthen berms or
6similar structures.
7    (m) A county may set blade tip height limitations for wind
8towers in commercial wind energy facilities but may not set a
9blade tip height limitation that is more restrictive than the
10height allowed under a Determination of No Hazard to Air
11Navigation by the Federal Aviation Administration under 14 CFR
12Part 77.
13    (n) A county may require that a commercial wind energy
14facility owner or commercial solar energy facility owner
15provide:
16        (1) the results and recommendations from consultation
17    with the Illinois Department of Natural Resources that are
18    obtained through the Ecological Compliance Assessment Tool
19    (EcoCAT) or a comparable successor tool; and
20        (2) the results of the United States Fish and Wildlife
21    Service's Information for Planning and Consulting
22    environmental review or a comparable successor tool that
23    is consistent with (i) the "U.S. Fish and Wildlife
24    Service's Land-Based Wind Energy Guidelines" and (ii) any
25    applicable United States Fish and Wildlife Service solar
26    wildlife guidelines that have been subject to public

 

 

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

 

 

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

 

 

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

 

 

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1shall repair or pay for the repair of all damage to the
2drainage system caused by the construction of the commercial
3wind energy facility or the commercial solar energy facility
4within a reasonable time after construction of the commercial
5wind energy facility or the commercial solar energy facility
6is complete.
7    (u) The amendments to this Section adopted in Public Act
8102-1123 do not apply to: (1) an application for siting
9approval or for a special use permit for a commercial wind
10energy facility or commercial solar energy facility if the
11application was submitted to a unit of local government before
12January 27, 2023 (the effective date of Public Act 102-1123)
13this amendatory Act of the 102nd General Assembly; (2) a
14commercial wind energy facility or a commercial solar energy
15facility if the facility owner has submitted an agricultural
16impact mitigation agreement to the Department of Agriculture
17before January 27, 2023 (the effective date of Public Act
18102-1123) this amendatory Act of the 102nd General Assembly;
19or (3) a commercial wind energy or commercial solar energy
20development on property that is located within an enterprise
21zone certified under the Illinois Enterprise Zone Act, that
22was classified as industrial by the appropriate zoning
23authority on or before January 27, 2023, and that is located
24within 4 miles of the intersection of Interstate 88 and
25Interstate 39.
26(Source: P.A. 102-1123, eff. 1-27-23; 103-81, eff. 6-9-23.)
 

 

 

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1    Section 99. Effective date. This Act takes effect upon
2becoming law.