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Landowner objected to granting of permit for construction of wind farm with forty 400-foot tall windmills on property adjacent to her land in Illinois; Seventh Circuit affirmed dismissal of all claims without prejudice.
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Dairy farmers brought stray voltage claims against utility alleging decreased milk production and eventual destruction of dairy herd; Minnesota Court of Appeals affirmed dismissal of claims-farmers failed to timely comply with expert-disclosure requirements under Minnesota statutes.
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Property owners sue electric utility and tree service alleging trespass claim when they return from vacation and find property clear cut; Following seven-day trial, jury awarded $11,828 in damages; Michigan Court of Appeals affirmed in part, reversed in part, and remanded.
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Regulations - RBS, RUS.
Cynthia M. Currin is an attorney in private practice in Raleigh, NC. She has served as counsel for electric utilities for over 30 years. She is past President of the North Carolina Electric Membership Cooperative Counsel Association. She is a former member of the Board of Governors of the North Carolina Academy of Trial Lawyers ("NCATL"), a member of the NCATL Editorial Board, and past editor of NRECA’s Legal Reporting Service. She is a certified arbitrator and mediator in the state of North Carolina.
In our lead case, we report a challenge by an Illinois landowner, Patricia Muscarello, to the future construction of forty 400-foot windmills (with 285 foot diameter blades) on adjacent property.
Muscarello challenged the 2003 County ordinance allowing special use permits for the construction of windmills used to generate power and reduce dependency on fossil fuels. Muscarello also challenged the special use permit issued to Baileyville Wind Farms, LLC, for the 400 unit wind energy system. She objected at every stage of the process and filed suit in 2006.
Muscarello alleged a "taking" without just compensation, a denial of due process, and a denial of equal protection-all violations of the Fourteenth Amendment to the U.S. Constitution.
Although the windmills would be constructed on adjacent property, Muscarello asserted she would be harmed by (1) deprivation of full extent of kinetic energy of the wind and air as it enters her property; (2) property would be subject to "shadow flicker" and reduction of light; (3) exposure to severe noise; (4) radar interference; (5) interference with cell phone reception, GPS service, wireless communications and telephone signals; (6) r4isk of damage by lightning; (8) injury from stray voltage; and (9) prevention of crop dusting operations.
The Seventh Circuit affirmed the dismissal of all Muscarello's federal claims, stating Muscarello had not alleged any physical invasion of her property. Rather, she had alleged a more elusive concept, like a regulatory taking. However, a regulatory taking occurs when all economically beneficial or productive use of the land is denied. The Seventh Circuit explained a regulatory taking requires such onerous restrictions on land as to render it useless. Further, Muscarello was not able to describe loss of a property interest that was not speculative.
Finally, the Seventh Circuit affirmed the dismissal of Muscarello's claims for trespass and nuisance, since Muscarello challenged only the permit-and no windmills had yet been constructed.
The Seventh Circuit stated Muscarello could still bring her Illinois state claims in state court.
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