103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB3920

 

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

 

SYNOPSIS AS INTRODUCED:
 
55 ILCS 5/5-12020

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


LRB103 40071 AWJ 71566 b

 

 

A BILL FOR

 

SB3920LRB103 40071 AWJ 71566 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).
2    "Facility owner" means (i) a person with a direct
3ownership interest in a commercial wind energy facility or a
4commercial solar energy facility, or both, regardless of
5whether the person is involved in acquiring the necessary
6rights, permits, and approvals or otherwise planning for the
7construction and operation of the facility, and (ii) at the
8time the facility is being developed, a person who is acting as
9a developer of the facility by acquiring the necessary rights,
10permits, and approvals or by planning for the construction and
11operation of the facility, regardless of whether the person
12will own or operate the facility.
13    "Nonparticipating property" means real property that is
14not a participating property.
15    "Nonparticipating residence" means a residence that is
16located on nonparticipating property and that is existing and
17occupied on the date that an application for a permit to
18develop the commercial wind energy facility or the commercial
19solar energy facility is filed with the county.
20    "Occupied community building" means any one or more of the
21following buildings that is existing and occupied on the date
22that the application for a permit to develop the commercial
23wind energy facility or the commercial solar energy facility
24is filed with the county: a school, place of worship, day care
25facility, public library, or community center.
26    "Participating property" means real property that is the

 

 

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

 

 

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1    "Wind tower" includes the wind turbine tower, nacelle, and
2blades.
3    (b) Notwithstanding any other provision of law or whether
4the county has formed a zoning commission and adopted formal
5zoning under Section 5-12007, a county may establish standards
6for commercial wind energy facilities, commercial solar energy
7facilities, or both. The standards may include all of the
8requirements specified in this Section but may not include
9requirements for commercial wind energy facilities or
10commercial solar energy facilities that are more restrictive
11than specified in this Section. A county may also regulate the
12siting of commercial wind energy facilities with standards
13that are not more restrictive than the requirements specified
14in this Section in unincorporated areas of the county that are
15outside the zoning jurisdiction of a municipality and that are
16outside the 1.5-mile radius surrounding the zoning
17jurisdiction of a municipality.
18    (c) If a county has elected to establish standards under
19subsection (b), before the county grants siting approval or a
20special use permit for a commercial wind energy facility or a
21commercial solar energy facility, or modification of an
22approved siting or special use permit, the county board of the
23county in which the facility is to be sited or the zoning board
24of appeals for the county shall hold at least one public
25hearing. The public hearing shall be conducted in accordance
26with the Open Meetings Act and shall be held not more than 60

 

 

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

 

 

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1application for a permit to develop a commercial wind energy
2facility or a commercial solar energy facility must provide
3notice to all municipalities and townships that are within 1.5
4miles of the proposed commercial wind energy facility or
5commercial solar energy facility and all property owners whose
6properties are on the boundary line of the proposed commercial
7wind energy facility or commercial solar energy facility. The
8notice must be given no later than 30 days after the commercial
9wind energy facility owner or commercial solar energy facility
10owner submits the application. The notice shall be provided in
11person, by overnight private courier, or by certified mail.
12If, after a bona fide effort by the commercial wind energy
13facility owner or the commercial solar energy facility owner
14to determine the owner of property and the owner's address,
15the owner of the property on whom the notice must be served
16cannot be found at the owner's last known address or if the
17mailed notice is returned because the owner cannot be found at
18the last known address, then the notice requirement of this
19paragraph is deemed satisfied.
20    (d) A county with an existing zoning ordinance in conflict
21with this Section shall amend that zoning ordinance to be in
22compliance with this Section within 120 days after January 27,
232023 (the effective date of Public Act 102-1123).
24    (e) A county may require:
25        (1) a wind tower of a commercial wind energy facility
26    to be sited as follows, with setback distances measured

 

 

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1    from the center of the base of the wind tower:
 
2Setback Description           Setback Distance
 
3Occupied Community            2.1 times the maximum blade tip
4Buildings                     height of the wind tower to the
5                              nearest point on the outside
6                              wall of the structure
 
7Participating Residences      1.1 times the maximum blade tip
8                              height of the wind tower to the
9                              nearest point on the outside
10                              wall of the structure
 
11Nonparticipating Residences   2.1 times the maximum blade tip
12                              height of the wind tower to the
13                              nearest point on the outside
14                              wall of the structure
 
15Boundary Lines of             None
16Participating Property 
 
17Boundary Lines of             1.1 times the maximum blade tip
18Nonparticipating Property     height of the wind tower to the
19                              nearest point on the property
20                              line of the nonparticipating

 

 

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1                              property
 
2Public Road Rights-of-Way     1.1 times the maximum blade tip
3                              height of the wind tower
4                              to the center point of the
5                              public road right-of-way
 
6Overhead Communication and    1.1 times the maximum blade tip
7Electric Transmission         height of the wind tower to the
8and Distribution Facilities   nearest edge of the property
9(Not Including Overhead       line, easement, or 
10Utility Service Lines to      right-of-way 
11Individual Houses or          containing the overhead line
12Outbuildings)
 
13Overhead Utility Service      None
14Lines to Individual
15Houses or Outbuildings
 
16Fish and Wildlife Areas       2.1 times the maximum blade
17and Illinois Nature           tip height of the wind tower
18Preserve Commission           to the nearest point on the
19Protected Lands               property line of the fish and
20                              wildlife area or protected
21                              land
22    This Section does not exempt or excuse compliance with

 

 

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1    electric facility clearances approved or required by the
2    National Electrical Code, the The National Electrical
3    Safety Code, the Illinois Commerce Commission, and the
4    Federal Energy Regulatory Commission, and their designees
5    or successors.
6        (2) a wind tower of a commercial wind energy facility
7    to be sited so that industry standard computer modeling
8    indicates that any occupied community building or
9    nonparticipating residence will not experience more than
10    30 hours per year of shadow flicker under planned
11    operating conditions;
12        (3) a commercial solar energy facility to be sited as
13    follows, with setback distances measured from the nearest
14    edge of any component of the facility:
 
15Setback Description           Setback Distance
 
16Occupied Community            500 150 feet from the
17Buildings and Dwellings       nearest point on the
18on Nonparticipating           property line outside wall
19Properties                    of the structure
 
20Boundary Lines of             None
21Participating Property    
 
22Public Road Rights-of-Way     50 feet from the nearest

 

 

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1                              edge
 
2Boundary Lines of             50 feet to the nearest
3Nonparticipating Property     point on the property
4                              line of the nonparticipating
5                              property
 
6        (4) a commercial solar energy facility to be sited so
7    that the facility's perimeter is enclosed by fencing
8    having a height of at least 6 feet and no more than 25
9    feet; and
10        (5) a commercial solar energy facility to be sited so
11    that no component of a solar panel has a height of more
12    than 20 feet above ground when the solar energy facility's
13    arrays are at full tilt.
14    The requirements set forth in this subsection (e) may be
15waived subject to the written consent of the owner of each
16affected nonparticipating property.
17    (f) A county may not set a sound limitation for wind towers
18in commercial wind energy facilities or any components in
19commercial solar energy facilities that is more restrictive
20than the sound limitations established by the Illinois
21Pollution Control Board under 35 Ill. Adm. Code Parts 900,
22901, and 910.
23    (g) A county may not place any restriction on the
24installation or use of a commercial wind energy facility or a

 

 

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1commercial solar energy facility unless it adopts an ordinance
2that complies with this Section. A county may not establish
3siting standards for supporting facilities that preclude
4development of commercial wind energy facilities or commercial
5solar energy facilities.
6    A request for siting approval or a special use permit for a
7commercial wind energy facility or a commercial solar energy
8facility, or modification of an approved siting or special use
9permit, shall be approved if the request is in compliance with
10the standards and conditions imposed in this Act, the zoning
11ordinance adopted consistent with this Code, and the
12conditions imposed under State and federal statutes and
13regulations.
14    (h) A county may not adopt zoning regulations that allow
15disallow, permanently or temporarily, commercial wind energy
16facilities or commercial solar energy facilities from being
17developed or operated in any district other than a district
18zoned for agricultural use or on a brownfields site and may not
19allow such facilities to be sited on property zoned
20exclusively for residential use or zoned exclusively for
21estate use. As used in this subsection, "brownfields site"
22site has the meaning given to that term in Section 58.2 of the
23Environmental Protection Act zoned to allow agricultural or
24industrial uses.
25    (i) A county may not require permit application fees for a
26commercial wind energy facility or commercial solar energy

 

 

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1facility that are unreasonable. All application fees imposed
2by the county shall be consistent with fees for projects in the
3county with similar capital value and cost.
4    (j) Except as otherwise provided in this Section, a county
5shall not require standards for construction, decommissioning,
6or deconstruction of a commercial wind energy facility or
7commercial solar energy facility or related financial
8assurances that are more restrictive than those included in
9the Department of Agriculture's standard wind farm
10agricultural impact mitigation agreement, template 81818, or
11standard solar agricultural impact mitigation agreement,
12version 8.19.19, as applicable and in effect on December 31,
132022. The amount of any decommissioning payment shall be in
14accordance with the financial assurance required by those
15agricultural impact mitigation agreements.
16    (j-5) A commercial wind energy facility or a commercial
17solar energy facility shall file a farmland drainage plan with
18the county and impacted drainage districts outlining how
19surface and subsurface drainage of farmland will be restored
20during and following construction or deconstruction of the
21facility. The plan is to be created independently by the
22facility developer and shall include the location of any
23potentially impacted drainage district facilities to the
24extent this information is publicly available from the county
25or the drainage district, plans to repair any subsurface
26drainage affected during construction or deconstruction using

 

 

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1procedures outlined in the agricultural impact mitigation
2agreement entered into by the commercial wind energy facility
3owner or commercial solar energy facility owner, and
4procedures for the repair and restoration of surface drainage
5affected during construction or deconstruction. All surface
6and subsurface damage shall be repaired as soon as reasonably
7practicable.
8    (k) A county may not condition approval of a commercial
9wind energy facility or commercial solar energy facility on a
10property value guarantee and may not require a facility owner
11to pay into a neighboring property devaluation escrow account.
12    (l) A county may require certain vegetative screening
13surrounding a commercial wind energy facility or commercial
14solar energy facility but may not require earthen berms or
15similar structures.
16    (m) A county may set blade tip height limitations for wind
17towers in commercial wind energy facilities but may not set a
18blade tip height limitation that is more restrictive than the
19height allowed under a Determination of No Hazard to Air
20Navigation by the Federal Aviation Administration under 14 CFR
21Part 77.
22    (n) A county may require that a commercial wind energy
23facility owner or commercial solar energy facility owner
24provide:
25        (1) the results and recommendations from consultation
26    with the Illinois Department of Natural Resources that are

 

 

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1    obtained through the Ecological Compliance Assessment Tool
2    (EcoCAT) or a comparable successor tool; and
3        (2) the results of the United States Fish and Wildlife
4    Service's Information for Planning and Consulting
5    environmental review or a comparable successor tool that
6    is consistent with (i) the "U.S. Fish and Wildlife
7    Service's Land-Based Wind Energy Guidelines" and (ii) any
8    applicable United States Fish and Wildlife Service solar
9    wildlife guidelines that have been subject to public
10    review.
11    (o) A county may require a commercial wind energy facility
12or commercial solar energy facility to adhere to the
13recommendations provided by the Illinois Department of Natural
14Resources in an EcoCAT natural resource review report under 17
15Ill. Adm. Code Part 1075.
16    (p) A county may require a facility owner to:
17        (1) demonstrate avoidance of protected lands as
18    identified by the Illinois Department of Natural Resources
19    and the Illinois Nature Preserve Commission; or
20        (2) consider the recommendations of the Illinois
21    Department of Natural Resources for setbacks from
22    protected lands, including areas identified by the
23    Illinois Nature Preserve Commission.
24    (q) A county may require that a facility owner provide
25evidence of consultation with the Illinois State Historic
26Preservation Office to assess potential impacts on

 

 

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1State-registered historic sites under the Illinois State
2Agency Historic Resources Preservation Act.
3    (r) To maximize community benefits, including, but not
4limited to, reduced stormwater runoff, flooding, and erosion
5at the ground mounted solar energy system, improved soil
6health, and increased foraging habitat for game birds,
7songbirds, and pollinators, a county may (1) require a
8commercial solar energy facility owner to plant, establish,
9and maintain for the life of the facility vegetative ground
10cover, consistent with the goals of the Pollinator-Friendly
11Solar Site Act and (2) require the submittal of a vegetation
12management plan that is in compliance with the agricultural
13impact mitigation agreement in the application to construct
14and operate a commercial solar energy facility in the county
15if the vegetative ground cover and vegetation management plan
16comply with the requirements of the underlying agreement with
17the landowner or landowners where the facility will be
18constructed.
19    No later than 90 days after January 27, 2023 (the
20effective date of Public Act 102-1123), the Illinois
21Department of Natural Resources shall develop guidelines for
22vegetation management plans that may be required under this
23subsection for commercial solar energy facilities. The
24guidelines must include guidance for short-term and long-term
25property management practices that provide and maintain native
26and non-invasive naturalized perennial vegetation to protect

 

 

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1the health and well-being of pollinators.
2    (s) If a facility owner enters into a road use agreement
3with the Illinois Department of Transportation, a road
4district, or other unit of local government relating to a
5commercial wind energy facility or a commercial solar energy
6facility, the road use agreement shall require the facility
7owner to be responsible for (i) the reasonable cost of
8improving roads used by the facility owner to construct the
9commercial wind energy facility or the commercial solar energy
10facility and (ii) the reasonable cost of repairing roads used
11by the facility owner during construction of the commercial
12wind energy facility or the commercial solar energy facility
13so that those roads are in a condition that is safe for the
14driving public after the completion of the facility's
15construction. Roadways improved in preparation for and during
16the construction of the commercial wind energy facility or
17commercial solar energy facility shall be repaired and
18restored to the improved condition at the reasonable cost of
19the developer if the roadways have degraded or were damaged as
20a result of construction-related activities.
21    The road use agreement shall not require the facility
22owner to pay costs, fees, or charges for road work that is not
23specifically and uniquely attributable to the construction of
24the commercial wind energy facility or the commercial solar
25energy facility. Road-related fees, permit fees, or other
26charges imposed by the Illinois Department of Transportation,

 

 

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1a road district, or other unit of local government under a road
2use agreement with the facility owner shall be reasonably
3related to the cost of administration of the road use
4agreement.
5    (s-5) The facility owner shall also compensate landowners
6for crop losses or other agricultural damages resulting from
7damage to the drainage system caused by the construction of
8the commercial wind energy facility or the commercial solar
9energy facility. The commercial wind energy facility owner or
10commercial solar energy facility owner shall repair or pay for
11the repair of all damage to the subsurface drainage system
12caused by the construction of the commercial wind energy
13facility or the commercial solar energy facility in accordance
14with the agriculture impact mitigation agreement requirements
15for repair of drainage. The commercial wind energy facility
16owner or commercial solar energy facility owner shall repair
17or pay for the repair and restoration of surface drainage
18caused by the construction or deconstruction of the commercial
19wind energy facility or the commercial solar energy facility
20as soon as reasonably practicable.
21    (t) Notwithstanding any other provision of law, a facility
22owner with siting approval from a county to construct a
23commercial wind energy facility or a commercial solar energy
24facility is authorized to cross or impact a drainage system,
25including, but not limited to, drainage tiles, open drainage
26ditches, culverts, and water gathering vaults, owned or under

 

 

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1the control of a drainage district under the Illinois Drainage
2Code without obtaining prior agreement or approval from the
3drainage district in accordance with the farmland drainage
4plan required by subsection (j-5).
5    (u) The amendments to this Section adopted in Public Act
6102-1123 do not apply to: (1) an application for siting
7approval or for a special use permit for a commercial wind
8energy facility or commercial solar energy facility if the
9application was submitted to a unit of local government before
10January 27, 2023 (the effective date of Public Act 102-1123);
11(2) a commercial wind energy facility or a commercial solar
12energy facility if the facility owner has submitted an
13agricultural impact mitigation agreement to the Department of
14Agriculture before January 27, 2023 (the effective date of
15Public Act 102-1123); or (3) a commercial wind energy or
16commercial solar energy development on property that is
17located within an enterprise zone certified under the Illinois
18Enterprise Zone Act, that was classified as industrial by the
19appropriate zoning authority on or before January 27, 2023,
20and that is located within 4 miles of the intersection of
21Interstate 88 and Interstate 39; or (4)
counties with a
22population of more than 500,000.
23(Source: P.A. 102-1123, eff. 1-27-23; 103-81, eff. 6-9-23;
24103-580, eff. 12-8-23.)
 
25    Section 99. Effective date. This Act takes effect upon
26becoming law.