Erickson v. Knox Cnty. Wind Farm

1

2024 IL App (4th) 230726

DAVID ERICKSON, NANCY ERICKSON, GARY PETERSON, PENNY PETERSON, BRETT SWANSON, KRISTA SWANSON, MIKE LUNDEEN, CHERI LUNDEEN, MARK COMPTON, PATTY COMPTON, DEAN NELSON, SHAWN CISNA, LISA CISNA, BOB HROZIENCIK, NANCY HROZIENCIK, JASON LIBBY and HEIDI LIBBY, Plaintiffs-Appellants and Cross-Appellees, v. KNOX COUNTY WIND FARM LLC, an Illinois Limited Liability Company; KNOX COUNTY, ILLINOIS; and THE KNOX COUNTY ZONING BOARD OF APPEALS, Defendants-Appellees and Cross- Appellants.

No. 4-23-0726

Court of Appeals of Illinois, Fourth District

May 29, 2024

Appeal from the Circuit Court of Knox County No. 20MR55 Honorable William A. Rasmussen, Judge Presiding.

Attorneys for Appellant: Phillip A. Luetkehans, Brian J Armstrong, and Giovanni Padilla, of Leutkehans, Brady, Garner & Armstrong, LLC, of Itasca, for appellants.

Attorneys for Appellee: Dmitry Shifrin and Benjamin Jacobi of Polsinelli PC, of Chicago, for appellee Knox County Wind Farm, LLC. Lance Neyland, of IFMK Law, Ltd., of Northbrook, for other appellees.

JUSTICE TURNER delivered the judgment of the court, with opinion. Presiding Justice Cavanagh and Justice DeArmond concurred in the judgment and opinion.

OPINION

TURNER, JUSTICE

¶ 1 In March 2020, defendant, Knox County Wind Farm, LLC, an Illinois Limited Liability Company (KCWF), filed an application with defendant Knox County Zoning Board of Appeals (Zoning Board) for a conditional use permit and a height variation over the 500 feet limit for wind turbines under the Knox County Wind Energy Ordinance (Wind Energy Ordinance) (Knox County Wind Energy Ordinance § 1.10) in order to construct and operate a wind energy farm (the project) in defendant Knox County. After a hearing, the Zoning Board approved the variation and recommended approval of the conditional use permit. The Knox County Board (County Board) ultimately approved the conditional use permit. Plaintiffs-David Erickson, Nancy Erickson, Gary Peterson, Penny Peterson, Brett Swanson, Kristin Swanson, Mike Lundeen, Cheri Lundeen, Mark Compton, Patty Compton, Dean Nelson, Shawn Cisna, Lisa Cisna, Bob Hroziencik, Nancy Hroziencik, Jason Libby, and Heidi Libby, who all resided in the area affected by the project-filed a complaint seeking review of the conditional use permit and variation, a declaratory judgment, and injunctive relief.

¶ 2 In their operative complaint, plaintiffs alleged the following counts. Count I alleged the County's approval of the conditional use permit violated procedural due process when plaintiffs had little time to prepare for the hearing and the Zoning Board limited their ability to call expert witnesses. Count II alleged the conditional use permit violated plaintiffs' substantive due process rights when it was based on models for wind turbines and locations that might differ from the final plan and the approval of a preliminary site plan violated plaintiffs' procedural due process rights because it allowed for unknown permit officers to approve the final plan. Count III alleged the County's approval of the variation violated section 5-12009 of the Counties Code (55 ILCS 5/5-12009 (West 2020)) and section 10.5 of the Knox County Zoning Resolution (Knox County Zoning Resolution § 10.5 (eff. Sept 29, 2010)) because the Zoning Board did not issue findings of fact when the variation was approved. Count IV alleged the variation was against the manifest weight of the evidence under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2020)) because KCWF failed to sufficiently show practical difficulties or a particular hardship to justify granting the variation as required by section 512009 of the Counties Code. Count V alleged the trial court should enjoin the issuance of building permits. Defendants moved to dismiss.

¶ 3 The trial court initially dismissed count I with prejudice, finding plaintiffs were provided with timely notice, a meaningful opportunity to cross-examine witnesses, and a meaningful opportunity to be heard. The court also dismissed count III with prejudice, finding plaintiffs failed to show written findings of fact were required prior to or simultaneous with the variation decision and failed to show any specific harm as a result of written findings of fact being issued after the variation was approved. The court further dismissed count V without prejudice because it was not ripe for adjudication when the project was not yet at the building-permit stage.

¶ 4 Defendants filed motions for summary judgment on the remaining counts. As to count IV, defendants initially alleged the trial court lacked jurisdiction because plaintiffs failed to provide notice of the action to all of the people who testified or provided written comments at the administrative hearing, as required by section 3-107(c) of the Administrative Review Law (735 ILCS 5/3-107(c) (West 2020)). The court denied the motion, finding the notice requirement in section 3-107(c) was mandatory but not jurisdictional. The court required defendants to provide notice as required by section 3-107(c) and allow those individuals 30 days to intervene in the action if they wished to do so.

¶ 5 During discovery, plaintiffs filed a motion to compel production of pdf files of data contained in studies KCWF prepared for the project, arguing some data provided was in a format plaintiffs could not read. Plaintiffs also took issue with defendants' answers to interrogatories. KCWF replied it had provided all materials and was unable to convert specialized files to pdf format. KCWF also stated the answers to interrogatories were already included in the administrative record. The trial court denied the motion. Following discovery, the court granted defendants' motion for summary judgment on the merits and dismissed counts II and IV, stating the order was final and appealable on all remaining counts and the case was closed. The court did not expressly find there was no just reason for delaying either enforcement or appeal or both, as required by Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016).

¶ 6 On appeal, plaintiffs contend the trial court erred in (1) denying their motion to compel, (2) dismissing counts I and III, and (3) granting summary judgment on counts II and IV. Plaintiffs do not challenge the court's dismissal of Count V without prejudice. On cross-appeal, defendants contend the court lacked jurisdiction over count IV.

¶ 7 We determine we have jurisdiction over the appeal and count IV. We further conclude the trial court properly denied plaintiffs' motion to compel, properly dismissed counts I and III, and properly granted summary judgment on counts II and IV. Accordingly, we deny defendants' cross-appeal and affirm.

¶ 8 I. BACKGROUND

¶ 9 On March 2, 2020, KCWF filed an application for a conditional use permit and height variation to build a wind energy farm in a primarily agricultural area of Knox County. Plaintiffs contend they did not receive notice of the scheduled hearing on the matter until April 16, 2020, and did not receive a copy of the application until April 17 and 22 2020. The record indicates the Knox County Zoning Office was closed between April 16 and April 22, 2020, due to COVID-19 restrictions. On April 28 and 29, 2020, and May 6, 2020, the Zoning Board held a hearing on the application.

¶ 10 On April 28, 2020, at the beginning of the hearing, the administrative hearing officer noted plaintiffs' counsel had submitted exhibits and a memorandum of law concerning due process. Plaintiffs' counsel also sought a continuation of the hearing. The hearing officer noted many of the exhibits had been submitted that afternoon and stated, "I don't believe there's been a due process violation at this point, and I think that frankly submitting documents at the 11th hour can't be used to make such a claim." When asked if counsel would be ready to present exhibits and witnesses the next day, plaintiffs' counsel stated, "Tomorrow we will be ready to present some witnesses, we will do our best to cross examine but we will not be able to present all our witnesses tomorrow." Plaintiffs' counsel noted he would continue to file exhibits as the matter proceeded forward, stating plaintiffs received notice in just the past 10 days. The hearing officer stated 15-days' notice was required by statute and noted the matter had "been on file for quite some time." When plaintiffs' counsel asked about the timeframe for the hearing the next day, the hearing officer stated, "[T]here is necessarily no restriction on how long that lasts. I think here what we'll do is we'll be reasonable, if another day is needed it will be continued again."

¶ 11 Michael Cressner, the director of development for Orion Renewable Energy Group LLC (Orion), testified KCWF was a subsidiary of Orion. Using a Power Point demonstration, Cressner testified about Orion, the history of its renewable energy projects, and the project's anticipated benefits to the county, state, and landowners. Cressner also described milestones achieved up to that date, such as obtaining landowner agreements, installing meteorological towers, and executing various agreements, including executing an agricultural impact mitigation agreement (AIMA) with the Illinois Department of Agriculture.

¶ 12 Cressner testified about the project's design, which would include approximately 60 wind turbines; its compliance with the Wind Energy Ordinance; and the location of project facilities. Cressner stated, in addition to requirements of the Wind Energy Ordinance, that wind turbines would be located no closer than a half mile away from any municipal boundary and no closer than a quarter mile away from all residences. The project was also designed to minimize shadow flicker caused by the turbines to...