Whiteside County will settle solar farm application lawsuit accusing County Board of overriding state law

MORRISON – The Whiteside County Board, on the advice of counsel, voted Tuesday night to settle a lawsuit filed by a California solar development company that sued the county last fall for twice denying its special-use permit application to build a solar farm near Morrison.

The lawsuit, filed in October, alleged that the Whiteside County Board applied rules more restrictive than the state allows when twice denying Prataria Solar LLC’s application to build a 5-megawatt solar farm on 40 acres of a 70-acre land parcel it leases on Prairie Center Road near Hillside Road in Morrison. The settlement will specifically grant a special-use permit to allow Prataria to build the solar farm, according to a copy of a court order.

The crux of the lawsuit hinged on legislation Gov. JB Pritzker signed into law in January 2023 to amend a section of the Illinois Counties Code that governs counties’ sitings of commercial solar-energy facilities.

That section established a set of mandatory criteria and procedures that counties must use when siting and permitting commercial solar-energy facilities. According to the lawsuit, counties can establish standards for commercial solar-energy facilities, but they cannot be more restrictive than what the state allows.

Under Illinois law, a county with an existing zoning ordinance in conflict with the amended law was to amend its zoning ordinance to be in compliance with the state within 120 days of the law going into effect, which the county did in May 2023, according to the lawsuit.

Under the amended section of the law, a county may not place any restriction on the installation or use of 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 solar-energy facilities.

“The county finds itself in a difficult position in this matter,” attorney Don Craven, who was hired last fall to defend the county in the case, told the County Board on Tuesday night.

Craven said county staff members' reviews of the permit applications and Craven’s own review led him to recommend that the county settle with Prataria.

“We’ve all come to the conclusion that the application as submitted, and then as amended, meets the standards set forth in the statute. It’s my recommendation to you that you authorize me to execute the consent decree and you adopt the ordinance as presented. Given the limited standards that the county can apply to these applications, this application meets the standard,” he told the board when recommending to settle. “The faster we dig, the deeper the hole.”

Exactly how much control counties have in determining whether a special-use permit application should be granted or denied was a concern brought up Tuesday night by the county board.

“Very little,” Craven said of local control.

If the county had decided not to settle, it could have been forced to not only approve the permit but also face paying damages to the solar company.

The lawsuit

According to the lawsuit, Prataria said that Whiteside County has a list of hearing factors that must be met before a special-use permit will be granted for a solar farm. That list includes items such as

• making sure the special use is consistent with the purposes, goals, objectives and standards of Whiteside County’s adopted county comprehensive land-use plan and regulations.
• a written narrative describing how the requested special use meets the required standards.
• that the special use is not detrimental or would endanger public health, safety, morals, comfort or general welfare of the neighboring vicinity.
• that the special use would be not injurious to the use and enjoyment of other property in the immediate vicinity; would not hurt nearby properties' value; that adequate measures have been taken to provide ingress and egress to minimize traffic congestion and hazards; and that adequate utilities, access roads, draining and other necessary infrastructure have been or are being provided.
• the special use will not impede the normal and orderly development and improvement of surrounding property for uses permitted in the district.
• consideration will be given to any special facilities such as churches, schools or hospitals located near the proposed special use.

Prataria maintained that those hearing factors, which it had met, are not included in state law and, as such, Whiteside County could not establish those standards because they are more restrictive than any set by the state.

According to Prataria’s lawsuit, the solar company first applied for a special-use permit for the Prairie Center/Hillside project in fall 2023, and it later updated the application to include more information at the request of the county’s building and zoning administrator.

According to the lawsuit, the application was resubmitted Jan. 11, 2024. One neighbor objected to that first application, according to court documents. His land is 700 feet from the proposed fence line of the project, and he was claiming that the solar panels were harmful to his family. He also complained about the location of the access road. Another man asked that the access road be more to the west side of the property and that the location of utility poles be moved as well.

After that hearing, the county zoning officer recommended that the application be granted. She also made that recommendation to the County Board with conditions that any outdoor lighting must not disturb neighboring property owners, no employees could be permanently located on the property, maintenance could only take place during regular business hours, access to the property would be permitted to the jurisdiction with authority over the road, all setback and access would remain intact for the duration of the solar farm, a surety bond would be required, and an indemnification cause would be put in the resolution.

The County Board denied the application April 16, 2024, even though Terry Costello, the Whiteside County state’s attorney at that time, advised the board about the risk of a lawsuit from a denial of that application, since state law requires an application “shall be approved” if it is in compliance with state statute.

According to the lawsuit, Costello also told the County Board that its “chances of winning such a lawsuit are probably not going to be good.”

The County Board also denied a motion to table the vote on the application to see whether the parties could resolve their differences over where the access road would be located, according to the lawsuit.

Prataria went on to submit a second application, which reflected plans to move the access road and utility poles. That application was filed May 17, 2024, and, according to the lawsuit, the building and zoning administrator recommended the application be forwarded on toward approval. After a June 20 hearing, the zoning hearing officer also recommended the special-use permit be granted.

The County Board on July 16 again considered whether to approve it, with one member asking the building and zoning administrator what changes had been made. Those changes included moving the driveway from the east to the west side, moving the interconnecting poles and moving the turnaround back into the solar area.

According to the lawsuit, the County Board did not deliberate or make any findings of facts its meeting. It did not discuss hearing factors, solar requirements of the ordinance or the application requirements, and the board did not express any additional concerns or issues with the second application before voting 18-4 to deny it.

The lawsuit filed in October sought to compel the Whiteside County Board to approve the application and, because the company had expended considerable time and resources to develop the project, said it was prejudiced by the denial of the second application.

According to court records, a case management conference in Whiteside County Circuit Court set for Jan. 31 was stricken after both parties confirmed that they were in the process of settling the case and needed more time to “effectuate that settlement amongst them.”

The consent order to which the County Board agreed Tuesday now will move on to be signed by a Whiteside County judge. The courts will retain jurisdiction to enforce the order. A status hearing is set for 9 a.m. April 25, according to court records.