Illinois Appellate Courts Split on County Authority on Solar Siting

The decision held that, in the solar siting context, mandamus — a request that a court compel a government to perform an action, like issuing a permit — is inappropriate because counties have discretion in reviewing solar siting applications. That holding conflicts with the Third Appellate District’s opinion in Equity Solar Illinois v. County of Grundy, which we covered here. In that case, the court affirmed an order mandating issuance of a siting permit where the project applicants met statewide standards.

This split increases uncertainty for solar energy developers and local governments in Illinois.

Illinois’ 2023 Siting Law

The Illinois legislature established a statewide framework for commercial wind and solar energy developers to obtain local siting permits (Solar Amendments). The Solar Amendments authorize counties to establish requirements for solar siting that are not more restrictive than state standards. 

The Solar Amendments mandate that a solar siting application “shall be approved” if it meets the standards established under the state law. Despite this directive, counties across Illinois have rejected solar siting permit applications meeting state standards, resulting in litigation across the state.

Case Background

In Tate Road Solar, two developers sued Winnebago County after the county denied their permit applications. Winnebago County’s solar ordinance allows the county board to consider subjective factors in siting solar projects. The trial court dismissed the cases, holding that mandamus was not available to the plaintiffs.

The appellate court considered the scope of county discretion under the Solar Amendments and if mandamus is an available remedy following a county’s denial of a solar permit.

The Appellate Court’s Decision

The court based its holding that the Solar Amendments created no duty to approve projects meeting statewide requirements on a finding that the Solar Amendments afforded discretion to local governments.

The court held that the Solar Amendments limit how strictly counties can regulate certain aspects of a project but allow counties to consider other, unlisted factors, including subjective factors. The court further suggested that because the Solar Amendments allow counties to site solar projects via “special use permits” and require public hearings, the law gives counties inherent discretion.

As a result, the court held that the Solar Amendments’ provision that a fully compliant solar project “shall be approved” only applied where a project met state requirements and any subjective standards imposed by the county. Based on this finding of discretion, the court held that mandamus was not an appropriate remedy.

The Appellate Split

The Tate Road Solar decision is at odds with Equity Solar, where the Third Appellate District held that counties’ discretion is tightly limited. The Equity Solar court held that mandamus was appropriate because counties may choose to have fewer or less restrictive requirements than the state standards but are mandated to issue permits to projects meeting statewide standards. Grundy County’s petition for leave to appeal the Equity Solar decision to the Illinois Supreme Court is currently pending.

Key Takeaways

• Equity Solar is binding in the Third Appellate District. In the Third District (Chicago’s south suburbs and neighboring counties), Equity Solar controls, and counties must permit solar projects that meet state standards.

• Increased uncertainty for solar developers. Given the conflicting decisions, projects across the state may face more litigation.

• Larger projects may use the Illinois Commerce Commission (ICC) siting process. As we covered here, the Clean and Reliable Grid Affordability Act empowers developers with projects larger than 50 megawatts to obtain a siting certificate from the ICC under certain circumstances.