## Facts

- Ogle County, Illinois amended its zoning ordinance to allow wind farms as a special use in agricultural districts.
- A neighboring landowner applied for and received a special use permit to build 40 wind turbines on land adjacent to Paulette Muscarello’s residence.
- The county adopted a “protection plan” permitting nearby owner-occupants to seek compensation for turbine-caused diminution in property value when they later sold.
- Muscarello alleged anticipated harms from the planned turbines, including shadow flicker, noise, visual impacts, risk of ice or blade throw, reduced wind, diminished property value, and interference with use and enjoyment.
- No turbines had been constructed at the time suit was filed.
- Muscarello brought federal constitutional claims (takings, due process, equal protection) and multiple state-law claims (including trespass, nuisance, Illinois constitutional and statutory theories, and challenges to local procedures).

## Issues

1. Whether Muscarello stated a ripe Fifth Amendment takings claim based on a permitted but unbuilt wind project and without pursuing available compensation remedies.
2. Whether Muscarello alleged a protected property interest and constitutionally deficient deprivation sufficient for federal due process (procedural or substantive) liability in a zoning dispute.
3. Whether Muscarello plausibly pleaded an equal protection violation, including differential treatment of similarly situated comparators without a rational basis.
4. Whether state-law trespass and nuisance claims were ripe where the alleged invasions and interferences were entirely prospective.
5. Whether, after dismissal of the federal claims, the federal court could retain the remaining state-law claims through supplemental jurisdiction absent an independent jurisdictional basis.

## Decision

- The Seventh Circuit affirmed dismissal of all claims.
- The federal takings claim was dismissed because no present taking was shown and, in addition, the claim was unripe for failure to pursue available state compensation procedures.
- The due process claims were dismissed for failure to allege a cognizable property interest or conduct meeting the narrow federal standard for land-use due process violations.
- The equal protection claim was dismissed for failure to plausibly allege differential treatment of similarly situated persons and because the asserted injury was contingent on future construction and operation.
- Trespass and nuisance claims were dismissed as unripe because the turbines had not been built and no physical invasion or actual interference had occurred.
- With no surviving federal claim and no supported independent basis for federal jurisdiction, the court approved declining supplemental jurisdiction over the remaining state and local law claims.

## Legal Principles

- A federal takings claim is not ripe if the alleged injury is contingent and the plaintiff has not sought compensation through available state procedures.
- Permitting a neighboring development, without completed invasion or deprivation, ordinarily does not constitute a present taking.
- Federal due process liability in zoning disputes requires deprivation of a recognized property interest and, for substantive due process, governmental action that is extreme rather than routine policy choice within zoning discretion.
- Equal protection in land-use cases requires plausible allegations of differential treatment of similarly situated comparators without a rational basis; generalized objections to policy outcomes are insufficient.
- Trespass and nuisance claims premised solely on predicted future harms are premature absent actual invasion or interference.
- When federal claims are dismissed at the pleading stage, federal courts generally may decline supplemental jurisdiction over remaining state-law land-use and administrative claims, particularly where no independent federal jurisdiction exists.

## Conclusion

The court held that challenges to a permitted but unbuilt wind project—framed as federal takings, due process, equal protection, and state-law tort claims—were either unripe or inadequately pleaded, and that the federal court properly declined to proceed on remaining state-law disputes after the federal claims were dismissed.


Muscarello v. Ogle Cnty. Bd. of Comm’rs, 610 F.3d 416 (7th Cir. 2010)