## Facts

- Patricia A. Muscarello owned three agriculturally zoned parcels in Winnebago County, Illinois.
- In 2009, the County amended its zoning ordinance to make it easier for property owners to obtain approval to build wind farms.
- Muscarello opposed wind farms and alleged that a wind farm on adjacent land would cause multiple harms to her property, including noise, shadow flicker, ice or blade throw, interference with communications and radar, increased lightning or stray voltage risks, impediments to crop dusting, drying of land, and bird deaths.
- She also alleged that the zoning amendment itself reduced her property’s market value.
- At the time she sued, no one had applied for wind-farm zoning clearance or a building permit in the County, and no wind farm had been built there.
- The amendment did not limit Muscarello’s permitted uses of her own land and did not authorize any physical occupation of it.

## Issues

1. Whether a zoning amendment that facilitates potential wind-farm development on neighboring land, without restricting the plaintiff’s use or authorizing any invasion, constitutes a taking under the federal or state Takings Clauses.
2. Whether the amendment deprives the plaintiff of property without due process by changing procedures that may make future neighboring wind-farm approvals more likely and allegedly reduce her property value.
3. Whether alleged harms from not-yet-permitted and not-yet-built wind farms are too contingent to support a present constitutional claim.

## Decision

- The Seventh Circuit affirmed the Rule 12(b)(6) dismissal for failure to state a claim.
- No taking was stated because the amendment neither transferred any interest in Muscarello’s land, nor restricted her use of it, nor caused any physical disturbance.
- No due process violation was stated because the challenged change was legislative and generally applicable, imposed no limits on Muscarello’s property, and any asserted injury depended on speculative future events.
- The court rejected the attempt to invalidate a countywide ordinance based on feared effects of hypothetical future projects.

## Legal Principles

- A taking generally requires government appropriation, physical invasion, or a regulatory restriction on the claimant’s own property; indirect market effects from permitted uses on nearby land, without more, are insufficient.
- A procedural change that makes it easier for others to obtain land-use approvals does not itself deprive a neighboring owner of property when it imposes no restriction on the neighbor’s land.
- Substantive due process does not provide relief for contingent, hypothetical future harms that have not materialized into a concrete deprivation.
- Courts treat generally applicable zoning amendments as legislative action and are reluctant to require individualized adjudicative procedures for pre-enactment or pre-project objections.

## Conclusion

The Seventh Circuit held that easing the approval path for wind farms did not effect a taking or violate due process where the ordinance did not restrict the plaintiff’s own land, no wind farm had been approved or built, and the alleged injuries were speculative and remote.


Muscarello v. Winnebago Cnty. Bd., 702 F.3d 909 (7th Cir. 2012)