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Sen. Mike Jacobs
Filed: 5/10/2007
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| AMENDMENT TO SENATE BILL 1400
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| AMENDMENT NO. ______. Amend Senate Bill 1400, AS AMENDED, |
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| as follows: |
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| immediately before the enacting clause, by inserting the |
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| following: |
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| "WHEREAS, A wind energy Act that provides for a restoration |
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| indemnity fund, and mechanic's lien clarification will provide |
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| a favorable environmental and economic climate for development |
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| of wind energy; and |
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| WHEREAS, It is desirable to develop both renewable and |
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| alternative energy resources to obtain environmental quality |
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| and public health benefit; and |
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| WHEREAS, The benefits of electricity from renewable and |
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| alternative energy resources accrue to the public at large, |
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| thus consumers and electric utilities and alternative retail |
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| electric suppliers share an interest in developing and using a |
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| significant level of these environmentally preferable |
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| resources in the State's electricity supply portfolio and |
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| stability of taxes for extended periods of time; and |
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| WHEREAS, Encouraging energy efficiency will improve the |
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| environmental quality and public health in the State of |
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| Illinois; and |
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| WHEREAS, Wind energy is one alternative energy source that |
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| can be used to provide electricity to utility consumers; and |
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| WHEREAS, Some regions in the State are ideal locations for |
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| wind energy system development; and |
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| WHEREAS, As the facilities are typically constructed on |
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| property owned by others, it is desirable to create an |
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| indemnity fund to pay for deconstruction in the event that the |
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| wind energy company fails to do so in a timely manner; and |
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| WHEREAS, It is appropriate to protect the owners of the |
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| underlying lands from mechanics liens imposed on those lands in |
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| the event must the entities constructing the wind energy |
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| facilities fail to pay suppliers of labor and materials; |
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| therefore, be it"; and
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| by replacing everything after the enacting clause with the |
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| following:
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| "Section 1. Short title. This Act may be cited as the Wind |
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| Energy Indemnity Fund Act. |
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| Section 5. Definitions. As used in this Act: |
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| "Abandonment" means (a) in the case of a landowner: (i) failure |
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| by the wind energy company to operate a wind turbine or wind |
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| turbines for the purpose for which they were designed and |
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| installed, for a period of 12 consecutive months, and (ii) |
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| failure to pay the landowner moneys owed to him or her in |
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| accordance with the underlying agreement, for a period of 6 |
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| consecutive months; (b) in the case of a county board: (i) |
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| failure by the wind energy company to operate a wind turbine or |
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| wind turbines for the purposes for which they were designed and |
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| installed, for a period of 12 consecutive months, and (ii) |
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| failure to adhere to any or all of the restrictions and |
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| conditions that were part of the approval process of the |
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| appropriate county authority for the granting of the special |
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| use permit, conditional use permit, zoning change, or zoning or |
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| permitting ordinance of any kind given in order to allow the |
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| installation and operation of the wind turbine or wind |
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| turbines. |
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| "Board" means the governing body of the Wind Energy |
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| Indemnity Fund Corporation. |
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| "Claimant" means either a landowner or a county board |
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| seeking to have a deconstruction paid for from the Fund and |
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| carried out by the Department. |
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| "Corporation" means the Wind Energy Indemnity Fund |
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| Corporation, as established in this Act. |
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| "County board" has the meaning set forth in Section 1.07 of |
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| the Statute on Statutes. |
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| "Deconstruction" means removal of all property comprising |
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| a wind energy generation facility from the property of a |
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| landowner and restoration of the property to the condition in |
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| which it existed immediately prior to the construction of the |
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| facility, including, but not limited to, soil type and |
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| topography; provided, however, that foundations, pads, |
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| electrical lines, and any other underground facilities must be |
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| removed to a depth of 4 feet below the surface of the ground. |
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| "Department" means the Department of Commerce and Economic |
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| Opportunity. |
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| "Director", unless otherwise provided, means the Director |
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| of Commerce and Economic Opportunity, or the Director's |
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| designee. |
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| "Fund" means the Wind Energy Indemnity Fund. |
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| "Landowner" means any person with an ownership interest in |
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| property subject to an underlying agreement. |
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| "Person" means any individual or entity, including, but not |
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| limited to, a sole proprietorship, a partnership, a |
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| corporation, a cooperative, an association, a limited |
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| liability company, an estate, a trust, or a governmental |
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| agency. |
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| "Underlying agreement" means a written arrangement with a |
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| landowner, including, but not limited to, an easement, under |
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| the terms of which a person constructs or intends to construct |
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| a wind energy generation facility on the property of the |
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| landowner. |
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| "Wind energy generation facility" means all property of any |
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| nature whatsoever comprising an operation designed to harness |
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| wind energy and create electricity therefrom, including, but |
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| not limited to, turbines, towers, roadways, concrete |
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| foundations, transmission lines, and poles, all situated on, |
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| under, or over the property of a landowner. |
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| "Wind energy indemnity trust account" means a trust account |
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| established by the Director that is used for the receipt and |
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| disbursement of moneys paid from the Fund. |
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| "Wind turbine" means each tower, blade, and propeller |
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| housing designed for wind energy generation. |
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| Section 10. Powers and duties of the Director. The Director |
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| has all powers necessary and proper to fully and effectively |
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| execute the provisions of this Act and has the general duty to |
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| implement this Act. The Director's powers and duties include, |
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| but are not limited to, the following: |
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| 1. The Director shall personally serve as president of |
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| the Corporation. |
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| 2. The Director may take any action that may be |
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| reasonable or appropriate to enforce this Act and its |
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| rules. |
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| Section 15. Administrative procedure. The Illinois |
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| Administrative Procedure Act applies to this Act. |
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| Section 20. Administrative review and venue. Final |
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| administrative decisions of the Department are subject to |
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| judicial review under Article III of the Code of Civil |
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| Procedure and its rules. The term "administrative decision" is |
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| defined as in Section 3-101 of the Code of Civil Procedure. An |
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| action to review a final administrative decision under this Act |
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| may be commenced in the circuit court of any county in which |
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| any part of the transaction occurred that gave rise to the |
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| claim that was the subject of the proceedings before the |
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| Department. |
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| Section 25. Rules. The Department may promulgate rules that |
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| are necessary for the implementation and administration of this |
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| Act. |
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| Section 30. Fund assessments. There is an assessment of |
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| $10,000 for each wind turbine constructed or under construction |
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| as of the effective date of this Act and for each turbine |
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| constructed thereafter, under the provisions of an underlying |
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| agreement. The assessment is an obligation of the owner of each |
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| wind turbine and is payable in equal annual installments of |
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| $1,000 over a period of 10 years; provided, however, that the |
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| subsequent annual installments must be adjusted based on |
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| inflation, as reflected in the Consumer Price Index, on an |
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| annual basis. The initial payment is payable within 90 days |
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| after the effective date of this Act for wind turbines already |
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| constructed or under construction, and, in all other cases, |
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| prior to the commencement of construction. |
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| All installments under this Section must be sent to the |
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| Department and made payable to the Corporation. |
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| It is the responsibility of all parties to an underlying |
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| agreement to report the existence and specific provisions of |
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| the underlying agreement to the Department. |
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| The Department shall mail all assessment notices to owners |
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| of wind energy generation facilities at least 30 days before |
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| the assessment installment is due. |
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| All wind turbines already constructed, under construction, |
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| or issued a building permit before the effective date of this |
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| Act are to provide proof to the county of payment to the Fund |
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| within 95 days of the effective date of this Act. If such proof |
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| of payment is not provided, then the county must order the wind |
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| energy company to stop all operation and construction |
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| activities until the county receives proof of payment to the |
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| Fund. For all other wind turbines, no county may issue a |
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| building permit without being provided proof that the above |
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| assessment has been paid to the Fund. |
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| Section 35. Abandonment. Upon an administrative finding in |
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| a hearing held by the Department that a deconstruction has been |
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| validly determined and ordered by either a court of competent |
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| jurisdiction or an arbitrator in binding arbitration, and |
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| deconstruction, after a period of at least 8 months, has not |
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| been completed satisfactorily, the Director has all the powers |
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| for the benefit of claimants as established under this Act, |
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| including, but not limited to, the power to do the following: |
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| 1. request the transfer of moneys from the Fund to the |
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| Trust Account for the purpose of paying the cost of |
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| deconstruction in accordance with this Act; |
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| 2. disburse the funds in the Trust Account for the |
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| deconstruction in accordance with this Act; |
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| 3. cause the sale of the deconstructed assets; |
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| 4. retain from the sale of the deconstructed assets |
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| moneys adequate to cover the costs to the Department of the |
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| deconstruction, and pay those amounts to the Fund; |
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| 5. return all moneys over and above the costs to the |
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| Department for the deconstruction to the owner or owners of |
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| the deconstructed assets, or to the holders of valid liens |
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| on those assets. |
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| Section 40. Statutory lien. The Department has a lien prior |
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| and paramount to all other liens of any sort on the assets of |
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| the wind energy system to the extent of the costs incurred by |
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| the Department to accomplish the deconstruction of the |
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| abandoned wind energy system, which arises and attach upon |
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| construction of said wind energy system; provided, however, |
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| that the lien herein granted to the Department is not prior and |
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| paramount to the statutory lien in favor of real property |
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| taxes. |
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| Section 45. Claims. |
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| (a) A claimant shall file a complaint, on forms supplied by |
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| the Department, that contains at least the following: |
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| (1) the name and address of the claimant; |
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| (2) the name and address of the owner of the wind |
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| energy generation facility in question; |
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| (3) the location of the wind energy generation facility |
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| in question; |
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| (4) a copy of either a court decision, or the finding |
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| of an arbitrator in a binding arbitration proceeding, that |
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| indicates a finding of abandonment of the wind energy |
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| generation facility in question; a determination that the |
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| underlying agreement is null, void, and of no further force |
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| and effect; and an order for deconstruction of same. The |
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| court order or arbitration decision must have been rendered |
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| at least 8 months previously, and the time for all appeals |
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| and related proceedings must have lapsed. |
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| (5) evidence showing that the deconstruction ordered |
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| by a court, or by an arbitrator in a proceeding for binding |
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| arbitration, has not been carried to a satisfactory |
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| conclusion, as defined in this Act; and |
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| (6) a request that the funds necessary to perform the |
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| deconstruction be paid to the Department from the Fund and |
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| that the Department carry out the deconstruction in |
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| accordance with the order of the court or the arbitrator |
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| and in accordance with the definition of deconstruction as |
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| contained in this Act. |
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| (b) A hearing shall be held by the Department and a |
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| decision rendered as to the validity of the claimant's |
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| complaint. In the event of a finding that the complaint is |
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| valid, then, within 90 days after the date, the Department |
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| shall obtain at least 2 bids from contractors to carry out the |
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| specific deconstruction. One bidder must be chosen by the |
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| Department within the following 60 days, and the Department, |
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| within 60 days thereafter, shall enter into a written agreement |
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| with the successful bidder for the deconstruction, which must |
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| be accomplished with 6 months thereafter. |
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| (c) It is the responsibility of the Department to monitor |
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| the progress of the deconstruction and provide the necessary |
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| supervisory oversight to ensure that it is accomplished in |
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| accordance with the deconstruction agreement and the |
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| provisions of this Act. |
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| Section 50. Illinois Wind Energy Indemnity Fund |
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| Corporation; creation; powers. |
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| (a) There is hereby created the Illinois Wind Energy |
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| Indemnity Fund Corporation, a political subdivision, body |
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| politic, and public corporation. The governing powers of the |
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| Corporation are vested in the Board of Directors composed of |
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| the Director, who shall personally serve as President; the |
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| Attorney General or his or her designee, who shall serve as |
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| Secretary; the State Treasurer or his or her designee, who |
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| shall serve as Treasurer; and the Chairman of the Illinois |
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| Commerce Commission, or his or her designee. Three members of |
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| the Board constitute a quorum at any meeting of the Board, and |
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| the affirmative vote of 3 members is necessary for any action |
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| taken by the Board at a meeting, except that a lesser number |
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| may adjourn a meeting from time to time. A vacancy in the |
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| membership of the Board does not impair the right of a quorum |
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| to exercise all the rights and perform all the duties of the |
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| Board and Corporation. |
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| (b) The Corporation has the following powers, together with |
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| all powers incidental or necessary to the discharge of those |
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| powers in corporate form: |
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| (1) To have perpetual succession by its corporate name |
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| as a corporate body. |
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| (2) To adopt, alter, and repeal by-laws, not |
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| inconsistent with the provisions of this Act, for the |
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| regulation and conduct of its affairs and business. |
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| (3) To adopt and make use of a corporate seal and to |
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| alter the seal at pleasure. |
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| (4) To avail itself of the use of information, |
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| services, facilities, and employees of the State of |
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| Illinois in carrying out the provisions of this Act. |
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| (5) To receive funds assessed by the Department under |
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| this Act. |
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| (6) To administer the Fund by investing funds of the |
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| Corporation that the Board may determine are not presently |
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| needed for its corporate purposes. |
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| (7) Upon the request of the Director, to make payment |
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| from the Fund to the Trust Account when payment is |
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| necessary to pay costs of deconstruction in accordance with |
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| the provisions of this Act. |
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| (8) To authorize, receive, and disburse funds by |
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| electronic means. |
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| (9) To have those powers that are necessary or |
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| appropriate for the exercise of the powers specifically |
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| conferred upon the Corporation and all incidental powers |
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| that are customary in corporations. |
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| (c) All assessments by the Department must be held by the |
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| Corporation in the Fund. |
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| (d) Subject to applicable law, the assets of the Fund may |
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| be invested and reinvested at the discretion of the |
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| Corporation, and the income from these investments must be |
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| deposited into the Fund and must be available for the same |
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| purposes as all other assets of the Fund. |
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| (e) The assets of the Fund may not be available for any |
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| purposes other than the payment of deconstruction costs under |
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| this Act and the payment of refunds of amounts that the Board |
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| determines have been inappropriately paid into the Fund, and |
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| may not be transferred to any other fund, other than the Trust |
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| Account when necessary to pay deconstruction costs under this |
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| Act or to pay refunds authorized by the Board. |
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| Section 55. No waiver. The provisions of this Act, |
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| including the definitions, may not be altered, varied, or |
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| revised by agreement. |
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| Section 900. The Property Tax Code is amended by adding |
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| Division 5 to Article 11 as follows: |
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| (35 ILCS 200/Art. 11 Div. 5 heading new) |
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| DIVISION 5. WIND ENERGY PRODUCTION |
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| (35 ILCS 200/11-185 new) |
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| Sec. 11-185. Definitions. For purposes of this Division 5: |
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| "Wind energy conversion device" means any device |
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| including, but not limited to, a wind charger, windmill, or |
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| wind turbine that coverts wind energy to a form of usable |
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| energy. |
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| "Wind Energy Conversion Parcel" means all property rights |
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| obtained by the Wind Energy System owner to the platted parcel |
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| including the wind energy conversion devices, associated |
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| equipment, easements, contracts, and leases. |
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| "Wind energy conversion system" is all wind energy |
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| conversion devices owned by a person who has executed a lease, |
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| contract, or other written agreement or who has purchased or |
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| acquired property so that one or more wind energy conversion |
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| devices can be erected, built, or otherwise installed on that |
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| property. These devices do not need to be on contiguous parcels |
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| of property to be considered a part of a total wind energy |
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| conversion system. |
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| (35 ILCS 200/11-190 new)
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| Sec. 11-190. Applicability. The provisions of this |
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| Division 5 do not apply to wind energy conversion systems that |
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| are owned by a person strictly for personal use or to any |
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| person that is otherwise exempt from taxation under the |
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| Property Tax Code. For the purposes of this Section, "personal |
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| use" means the use of any wind energy conversion system with a |
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| nameplate capacity of less than 2 megawatts. |
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| (35 ILCS 200/11-195 new) |
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| Sec. 11-195. Platting requirements. Upon the completion of |
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| construction, the owner of a wind energy conversion system, at |
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| his or her own expense, shall cause the wind turbine facilities |
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| to be platted by an Illinois registered land surveyor. The plat |
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| must include access routes, together with a metes and bounds |
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| description of the area surrounding each wind turbine. The |
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| system owner must record the plat and deliver a copy of it to |
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| the property owner and to the chief county assessment officer |
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| within 60 days after the completion of the construction. Upon |
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| receiving a copy of the plat, the chief county assessment |
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| officer must issue a separate parcel identification number, or |
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| numbers for the wind energy conversion system to apportion the |
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| value to each taxing district in which the system is physically |
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| located. |
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| (35 ILCS 200/11-200 new) |
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| Sec. 11-200. Limitation of liability for landowner. No |
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| landowner shall be liable for Wind Energy Conversion Parcel |
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| taxes except through ownership of the wind energy system. |
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| (35 ILCS 200/11-203 new)
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| Sec. 11-203. Recourse against Wind Energy Conversion |
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| Parcels. If the Wind Energy Conversion Parcel real estate taxes |
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| are not paid, the county may proceed against the wind energy |
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| conversion parcels with collection as provided Article 20 of |
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| this Code. |
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| (35 ILCS 200/11-205 new) |
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| Sec. 11-205. Wind energy conversion system size and |
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| capacity. The Department must determine the total size of the |
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| device. Unless the systems are interconnected with different |
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| distribution systems, the nameplate capacity of one wind energy |
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| conversion device must be combined with the nameplate capacity |
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| of any other wind energy conversion device that is under common |
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| ownership. In case of a dispute, the Department must draw all |
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| reasonable inferences in favor of combining the devices into |
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| one system. In making a determination, the Department may |
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| decide that 2 wind energy conversion devices or systems are |
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| under common ownership when the underlying ownership structure |
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| contains similar persons or entities, even if the ownership |
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| shares differ. Wind energy conversion devices or systems are |
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| not under common ownership solely because the same person or |
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| entity provided equity financing for the systems.
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| (35 ILCS 200/11-207 new)
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| Sec. 11-207. Method of valuation for wind energy conversion |
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| systems.
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| (a) It is the policy of this State that, beginning on and |
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| after January 1, 2007, a wind energy conversion system that is |
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| used as an electric power source must be valued on cost |
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| allocated on real property supplemented by the sales comparison |
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| approach to the extent relevant and sufficient data are |
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| available. If, however, a wind energy conversion system ceases |
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| to operate for any reason, the minimum assessed value of the |
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| system is 10% of the cost of replacing the system with a new |
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| wind energy conversion system. |
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| (b) The 2007 base certified value per megawatt capacity |
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| shall be $300,000. |
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| (c) The Department shall develop regulations for |
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| depreciation factoring functional obsolescence. |
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| (35 ILCS 200/11-210 new) |
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| Sec. 11-210. Valuation during 5 year valuation period. In |
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| furtherance of the policy of encouraging renewable and |
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| alternative energy resources to obtain environmental quality |
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| and public health benefit, the valuation shall not exceed the |
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| base year valuation for a period of 5 years. |
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| (35 ILCS 200/11-215 new) |
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| Sec. 11-215. Assessments of wind energy conversion |
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| systems. |
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| (a) A wind energy conversion system must be assessed at 33 |
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| 1/3% of the valuation. The chief county assessment officer |
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| shall apportion the value to each wind energy conversion parcel |
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| in which the wind energy system is physically located. |
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| (b) A wind energy conversion system is not subject to |
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| equalization by the Department, the county, or the board of |
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| review. |
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| Section 905. The Mechanics Lien Act is amended by adding |
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| Section 1.01 as follows: |
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| (770 ILCS 60/1.01 new) |
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| Sec. 1.01. Definitions; platting requirements for wind |
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| energy systems; extent of lien on wind energy parcel. |
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| (a) Definitions. |
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| "Wind energy conversion device" means any device |
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| including, but not limited to, a wind charger, windmill, or |
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| wind turbine that coverts wind energy to a form of usable |
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| energy. |
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09500SB1400sam003 |
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LRB095 11080 BDD 36160 a |
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| "Wind energy conversion parcel" means all property rights |
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| obtained by the wind energy system owner to a platted parcel |
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| including the wind energy conversion devices, associated |
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| equipment, easements, contracts, and leases. |
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| (b) Upon the completion of construction, the owner of a |
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| wind energy conversion system, at his or her own expense, shall |
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| cause the wind turbine facilities to be platted by an Illinois |
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| registered land surveyor. The plat must include access routes, |
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| together with a metes and bounds description of the area |
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| surrounding each wind turbine. The system owner must record the |
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| plat and deliver a copy of it to the property owner and to the |
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| chief county assessment officer within 60 days after the |
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| completion of the construction. Upon receiving a copy of the |
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| plat, the chief county assessment officer must issue a separate |
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| parcel identification number, or numbers, for the wind energy |
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| conversion system to apportion the value to each taxing |
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| district in which the system is physically located.
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| (c) A lien for work or materials on wind energy conversion |
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| parcels is limited to the platted parcel, including all |
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| property rights obtained by the wind energy system owner to the |
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| platted parcel including the wind energy conversion devices, |
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| associated equipment, easements, contracts, and leases.
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| Section 999. Effective date. This Act takes effect upon |
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| becoming law.".
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