Public Act 103-0081

SB1127 Enrolled LRB103 05566 BMS 50585 b

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois,

represented in the General Assembly:

Section 5. The Counties Code is amended by changing

Section 5-12020 as follows:

(55 ILCS 5/5-12020)

Sec. 5-12020. Commercial wind energy facilities and

commercial solar energy facilities.

(a) As used in this Section:

"Commercial solar energy facility" means a "commercial

solar energy system" as defined in Section 10-720 of the

Property Tax Code. "Commercial solar energy facility" does not

mean a utility-scale solar energy facility being constructed

at a site that was eligible to participate in a procurement

event conducted by the Illinois Power Agency pursuant to

subsection (c-5) of Section 1-75 of the Illinois Power Agency

Act.

"Commercial wind energy facility" means a wind energy

conversion facility of equal or greater than 500 kilowatts in

total nameplate generating capacity. "Commercial wind energy

facility" includes a wind energy conversion facility seeking

an extension of a permit to construct granted by a county or

municipality before the effective date of this amendatory Act

of the 102nd General Assembly.

"Facility owner" means (i) a person with a direct

ownership interest in a commercial wind energy facility or a

commercial solar energy facility, or both, regardless of

whether the person is involved in acquiring the necessary

rights, permits, and approvals or otherwise planning for the

construction and operation of the facility, and (ii) at the

time the facility is being developed, a person who is acting as

a developer of the facility by acquiring the necessary rights,

permits, and approvals or by planning for the construction and

operation of the facility, regardless of whether the person

will own or operate the facility.

"Nonparticipating property" means real property that is

not a participating property.

"Nonparticipating residence" means a residence that is

located on nonparticipating property and that is existing and

occupied on the date that an application for a permit to

develop the commercial wind energy facility or the commercial

solar energy facility is filed with the county.

"Occupied community building" means any one or more of the

following buildings that is existing and occupied on the date

that the application for a permit to develop the commercial

wind energy facility or the commercial solar energy facility

is filed with the county: a school, place of worship, day care

facility, public library, or community center.

"Participating property" means real property that is the

subject of a written agreement between a facility owner and

the owner of the real property that provides the facility

owner an easement, option, lease, or license to use the real

property for the purpose of constructing a commercial wind

energy facility, a commercial solar energy facility, or

supporting facilities. "Participating property" also includes

real property that is owned by a facility owner for the purpose

of constructing a commercial wind energy facility, a

commercial solar energy facility, or supporting facilities.

"Participating residence" means a residence that is

located on participating property and that is existing and

occupied on the date that an application for a permit to

develop the commercial wind energy facility or the commercial

solar energy facility is filed with the county.

"Protected lands" means real property that is:

(1) subject to a permanent conservation right

consistent with the Real Property Conservation Rights Act;

or

(2) registered or designated as a nature preserve,

buffer, or land and water reserve under the Illinois

Natural Areas Preservation Act.

"Supporting facilities" means the transmission lines,

substations, access roads, meteorological towers, storage

containers, and equipment associated with the generation and

storage of electricity by the commercial wind energy facility

or commercial solar energy facility.

"Wind tower" includes the wind turbine tower, nacelle, and

blades.

(b) Notwithstanding any other provision of law or whether

the county has formed a zoning commission and adopted formal

zoning under Section 5-12007, a county may establish standards

for commercial wind energy facilities, commercial solar energy

facilities, or both. The standards may include all of the

requirements specified in this Section but may not include

requirements for commercial wind energy facilities or

commercial solar energy facilities that are more restrictive

than specified in this Section. A county may also regulate the

siting of commercial wind energy facilities with standards

that are not more restrictive than the requirements specified

in this Section in unincorporated areas of the county that are

outside the zoning jurisdiction of a municipality and that are

outside the 1.5-mile radius surrounding the zoning

jurisdiction of a municipality.

(c) If a county has elected to establish standards under

subsection (b), before the county grants siting approval or a

special use permit for a commercial wind energy facility or a

commercial solar energy facility, or modification of an

approved siting or special use permit, the county board of the

county in which the facility is to be sited or the zoning board

of appeals for the county shall hold at least one public

hearing. The public hearing shall be conducted in accordance

with the Open Meetings Act and shall be held not more than 45

days after the filing of the application for the facility. The

county shall allow interested parties to a special use permit

an opportunity to present evidence and to cross-examine

witnesses at the hearing, but the county may impose reasonable

restrictions on the public hearing, including reasonable time

limitations on the presentation of evidence and the

cross-examination of witnesses. The county shall also allow

public comment at the public hearing in accordance with the

Open Meetings Act. The county shall make its siting and

permitting decisions not more than 30 days after the

conclusion of the public hearing. Notice of the hearing shall

be published in a newspaper of general circulation in the

county. A facility owner must enter into an agricultural

impact mitigation agreement with the Department of Agriculture

prior to the date of the required public hearing. A commercial

wind energy facility owner seeking an extension of a permit

granted by a county prior to July 24, 2015 (the effective date

of Public Act 99-132) must enter into an agricultural impact

mitigation agreement with the Department of Agriculture prior

to a decision by the county to grant the permit extension.

Counties may allow test wind towers or test solar energy

systems to be sited without formal approval by the county

board.

(d) A county with an existing zoning ordinance in conflict

with this Section shall amend that zoning ordinance to be in

compliance with this Section within 120 days after the

effective date of this amendatory Act of the 102nd General

Assembly.

(e) A county may require:

(1) a wind tower of a commercial wind energy facility

to be sited as follows, with setback distances measured

from the center of the base of the wind tower:

Setback Description Setback Distance

Occupied Community 2.1 times the maximum blade tip

Buildings height of the wind tower to the

nearest point on the outside

wall of the structure

Participating Residences 1.1 times the maximum blade tip

height of the wind tower to the

nearest point on the outside

wall of the structure

Nonparticipating Residences 2.1 times the maximum blade tip

height of the wind tower to the

nearest point on the outside

wall of the structure

Boundary Lines of None

Participating Property

Boundary Lines of 1.1 times the maximum blade tip

Nonparticipating Property height of the wind tower to the

nearest point on the property

line of the nonparticipating

property

Public Road Rights-of-Way 1.1 times the maximum blade tip

height of the wind tower

to the center point of the

public road right-of-way

Overhead Communication and 1.1 times the maximum blade tip

Electric Transmission height of the wind tower to the

and Distribution Facilities nearest edge of the property

(Not Including Overhead line, easement, or right of way

Utility Service Lines to containing the overhead line

Individual Houses or

Outbuildings)

Overhead Utility Service None

Lines to Individual

Houses or Outbuildings

Fish and Wildlife Areas 2.1 times the maximum blade

and Illinois Nature tip height of the wind tower

Preserve Commission to the nearest point on the

Protected Lands property line of the fish and

wildlife area or protected

land

This Section does not exempt or excuse compliance with

electric facility clearances approved or required by the

National Electrical Code, The National Electrical Safety

Code, Illinois Commerce Commission, Federal Energy

Regulatory Commission, and their designees or successors.

(2) a wind tower of a commercial wind energy facility

to be sited so that industry standard computer modeling

indicates that any occupied community building or

nonparticipating residence will not experience more than

30 hours per year of shadow flicker under planned

operating conditions;

(3) a commercial solar energy facility to be sited as

follows, with setback distances measured from the nearest

edge of any component of the facility:

Setback Description Setback Distance

Occupied Community 150 feet from the nearest

Buildings and Dwellings on point on the outside wall

Nonparticipating Properties of the structure

Boundary Lines of None

Participating Property

Public Road Rights-of-Way 50 feet from the nearest

edge

Boundary Lines of 50 feet to the nearest

Nonparticipating Property point on the property

line of the nonparticipating

property

(4) a commercial solar energy facility to be sited so

that the facility's perimeter is enclosed by fencing

having a height of at least 6 feet and no more than 25

feet; and

(5) a commercial solar energy facility to be sited so

that no component of a solar panel has a height of more

than 20 feet above ground when the solar energy facility's

arrays are at full tilt.

The requirements set forth in this subsection (e) may be

waived subject to the written consent of the owner of each

affected nonparticipating property.

(f) A county may not set a sound limitation for wind towers

in commercial wind energy facilities or any components in

commercial solar energy facility that is more restrictive than

the sound limitations established by the Illinois Pollution

Control Board under 35 Ill. Adm. Code Parts 900, 901, and 910.

(g) A county may not place any restriction on the

installation or use of a commercial wind energy facility or a

commercial solar energy facility unless it adopts an ordinance

that complies with this Section. A county may not establish

siting standards for supporting facilities that preclude

development of commercial wind energy facilities or commercial

solar energy facilities.

A request for siting approval or a special use permit for a

commercial wind energy facility or a commercial solar energy

facility, or modification of an approved siting or special use

permit, shall be approved if the request is in compliance with

the standards and conditions imposed in this Act, the zoning

ordinance adopted consistent with this Code, and the

conditions imposed under State and federal statutes and

regulations.

(h) A county may not adopt zoning regulations that

disallow, permanently or temporarily, commercial wind energy

facilities or commercial solar energy facilities from being

developed or operated in any district zoned to allow

agricultural or industrial uses.

(i) A county may not require permit application fees for a

commercial wind energy facility or commercial solar energy

facility that are unreasonable. All application fees imposed

by the county shall be consistent with fees for projects in the

county with similar capital value and cost.

(j) Except as otherwise provided in this Section, a county

shall not require standards for construction, decommissioning,

or deconstruction of a commercial wind energy facility or

commercial solar energy facility or related financial

assurances that are more restrictive than those included in

the Department of Agriculture's standard wind farm

agricultural impact mitigation agreement, template 81818, or

standard solar agricultural impact mitigation agreement,

version 8.19.19, as applicable and in effect on December 31,

2022. The amount of any decommissioning payment shall be

limited to the cost identified in the decommissioning or

deconstruction plan, as required by those agricultural impact

mitigation agreements, minus the salvage value of the project.

(k) A county may not condition approval of a commercial

wind energy facility or commercial solar energy facility on a

property value guarantee and may not require a facility owner

to pay into a neighboring property devaluation escrow account.

(l) A county may require certain vegetative screening

surrounding a commercial wind energy facility or commercial

solar energy facility but may not require earthen berms or

similar structures.

(m) A county may set blade tip height limitations for wind

towers in commercial wind energy facilities but may not set a

blade tip height limitation that is more restrictive than the

height allowed under a Determination of No Hazard to Air

Navigation by the Federal Aviation Administration under 14 CFR

Part 77.

(n) A county may require that a commercial wind energy

facility owner or commercial solar energy facility owner

provide:

(1) the results and recommendations from consultation

with the Illinois Department of Natural Resources that are

obtained through the Ecological Compliance Assessment Tool

(EcoCAT) or a comparable successor tool; and

(2) the results of the United States Fish and Wildlife

Service's Information for Planning and Consulting

environmental review or a comparable successor tool that

is consistent with (i) the "U.S. Fish and Wildlife

Service's Land-Based Wind Energy Guidelines" and (ii) any

applicable United States Fish and Wildlife Service solar

wildlife guidelines that have been subject to public

review.

(o) A county may require a commercial wind energy facility

or commercial solar energy facility to adhere to the

recommendations provided by the Illinois Department of Natural

Resources in an EcoCAT natural resource review report under 17

Ill. Admin. Code Part 1075.

(p) A county may require a facility owner to:

(1) demonstrate avoidance of protected lands as

identified by the Illinois Department of Natural Resources

and the Illinois Nature Preserve Commission; or

(2) consider the recommendations of the Illinois

Department of Natural Resources for setbacks from

protected lands, including areas identified by the

Illinois Nature Preserve Commission.

(q) A county may require that a facility owner provide

evidence of consultation with the Illinois State Historic

Preservation Office to assess potential impacts on

State-registered historic sites under the Illinois State

Agency Historic Resources Preservation Act.

(r) To maximize community benefits, including, but not

limited to, reduced stormwater runoff, flooding, and erosion

at the ground mounted solar energy system, improved soil

health, and increased foraging habitat for game birds,

songbirds, and pollinators, a county may (1) require a

commercial solar energy facility owner to plant, establish,

and maintain for the life of the facility vegetative ground

cover, consistent with the goals of the Pollinator-Friendly

Solar Site Act and (2) require the submittal of a vegetation

management plan in the application to construct and operate a

commercial solar energy facility in the county.

No later than 90 days after the effective date of this

amendatory Act of the 102nd General Assembly, the Illinois

Department of Natural Resources shall develop guidelines for

vegetation management plans that may be required under this

subsection for commercial solar energy facilities. The

guidelines must include guidance for short-term and long-term

property management practices that provide and maintain native

and non-invasive naturalized perennial vegetation to protect

the health and well-being of pollinators.

(s) If a facility owner enters into a road use agreement

with the Illinois Department of Transportation, a road

district, or other unit of local government relating to a

commercial wind energy facility or a commercial solar energy

facility, the road use agreement shall require the facility

owner to be responsible for (i) the reasonable cost of

improving roads used by the facility owner to construct the

commercial wind energy facility or the commercial solar energy

facility and (ii) the reasonable cost of repairing roads used

by the facility owner during construction of the commercial

wind energy facility or the commercial solar energy facility

so that those roads are in a condition that is safe for the

driving public after the completion of the facility's

construction. Roadways improved in preparation for and during

the construction of the commercial wind energy facility or

commercial solar energy facility shall be repaired and

restored to the improved condition at the reasonable cost of

the developer if the roadways have degraded or were damaged as

a result of construction-related activities.

The road use agreement shall not require the facility

owner to pay costs, fees, or charges for road work that is not

specifically and uniquely attributable to the construction of

the commercial wind energy facility or the commercial solar

energy facility. Road-related fees, permit fees, or other

charges imposed by the Illinois Department of Transportation,

a road district, or other unit of local government under a road

use agreement with the facility owner shall be reasonably

related to the cost of administration of the road use

agreement.

(t) Notwithstanding any other provision of law, a facility

owner with siting approval from a county to construct a

commercial wind energy facility or a commercial solar energy

facility is authorized to cross or impact a drainage system,

including, but not limited to, drainage tiles, open drainage

districts, culverts, and water gathering vaults, owned or

under the control of a drainage district under the Illinois

Drainage Code without obtaining prior agreement or approval

from the drainage district, except that the facility owner

shall repair or pay for the repair of all damage to the

drainage system caused by the construction of the commercial

wind energy facility or the commercial solar energy facility

within a reasonable time after construction of the commercial

wind energy facility or the commercial solar energy facility

is complete.

(u) The amendments to this Section adopted in Public Act

102-1123 this amendatory Act of the 102nd General Assembly do

not apply to: (1) an application for siting approval or for a

special use permit for a commercial wind energy facility or

commercial solar energy facility if the application was

submitted to a unit of local government before the effective

date of this amendatory Act of the 102nd General Assembly; or

(2) a commercial wind energy facility or a commercial solar

energy facility if the facility owner has submitted an

agricultural impact mitigation agreement to the Department of

Agriculture before the effective date of this amendatory Act

of the 102nd General Assembly; or (3) a commercial wind energy

or commercial solar energy development on property that is

located within an enterprise zone certified under the Illinois

Enterprise Zone Act, that was classified as industrial by the

appropriate zoning authority on or before January 27, 2023,

and that is located within 4 miles of the intersection of

Interstate 88 and Interstate 39.

(Source: P.A. 101-4, eff. 4-19-19; 102-1123, eff. 1-27-23.)