Muscarello v. Ogle County Board of Commissioner

In 2003, Ogle County, Illinois (defendant) amended its zoning ordinance to allow the issuance of special-use permits for the construction of power-generating windmills. Two years later, Baileyville Wind Farms, LLC (defendant) applied for a permit to construct 40 windmills on its property. The Zoning Board of Appeals (board) (defendant) held public hearings on the application and issued the permit after adopting a plan to allow residential-property owners to recover any reduction in value resulting from the windfarm when they sold their homes. Patricia Muscarello (plaintiff) owned land adjacent to the proposed windfarm. She sued the county, Baileyville, the board, and other persons (county actors) involved in granting the special-use permit. Muscarello’s lawsuit included claims for violations of the U.S. Constitution’s Takings Clause, as well as violations of the state common-law doctrines of trespass and nuisance. More specifically, Muscarello claimed that construction of the windmills would create a shadow flicker and reduction of light on her property, generate noise, throw ice onto her property from the rotating blades, and interfere with her cellphone and television reception. The county actors claimed that Muscarello’s lawsuit was not ripe for review because the windfarm had yet to be constructed and because Muscarello had not presented her arguments to the board first. Muscarello responded that she need not bring her claims to the board first, because she was asserting a facial challenge to the 2003 zoning ordinance. The district court agreed with the county actors and dismissed Muscarello’s lawsuit. She appealed.