Muscarello v. Ogle County Bd. Of Comm'rs

Citation610 F.3d 416
Decision Date24 June 2010
Docket Number09-1381.,No. 08-2464,08-2464
PartiesPatricia A. MUSCARELLO, Plaintiff-Appellant, Cross-Appellee,v.OGLE COUNTY BOARD OF COMMISSIONERS, et al., Defendants-Appellees,andBaileyville Wind Farms, LLC, et al., Defendants-Appellees, Cross-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

610 F.3d 416

Patricia A. MUSCARELLO, Plaintiff-Appellant, Cross-Appellee,
v.
OGLE COUNTY BOARD OF COMMISSIONERS, et al., Defendants-Appellees,
and
Baileyville Wind Farms, LLC, et al., Defendants-Appellees, Cross-Appellants.

Nos. 08-2464, 09-1381.

United States Court of Appeals,
Seventh Circuit.

Argued Oct. 6, 2009.
Decided June 24, 2010.


610 F.3d 417

COPYRIGHT MATERIAL OMITTED

610 F.3d 418
Charles V. Muscarello (argued), Denker & Muscarello, St. Charles, IL, for Plaintiff-Appellant, Cross-Appellee.

Timothy F. Horning (argued), Thomas O. Meyer, Meyer & Horning, Clayton L. Lindsey (argued), Williams & McCarthy, Jason H. Rock, Barrick, Switzer, Long, Balsley & Van Evera, Rockford, IL, for Defendants-Appellees.

Before BAUER, WOOD, and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge.

Ogle County joined the alternative energy bandwagon in 2003 when it adopted an amendment to its zoning ordinances to allow special use permits for the construction of windmills used to generate power. In 2005, Baileyville Wind Farms, LLC (“Baileyville”) took the county up on its offer by applying for and receiving a special use permit to construct 40 windmills.

Patricia Muscarello evidently did not share the county's enthusiasm for wind energy. Muscarello owns land adjacent to the proposed site of the Baileyville wind farm. She voiced her opposition through the political process and, when that failed, she repaired to federal court. At that point, this garden variety zoning dispute morphed into a federal case against 42 defendants, including Baileyville, its corporate parents, and the various Ogle County political actors involved in the decision to grant the permit. Muscarello's complaint invoked twelve theories of recovery, based on the U.S. Constitution, the Illinois Constitution, Illinois statutes, and the common law. In addition to objecting to the process that the county had followed, she attacked everything in the outcome (or anticipated outcome) from the loss of kinetic energy, to what she calls “shadow flicker,” to the risk of a blade being hurled onto her property.

The district court concluded that it could not reach the merits of her suit. Instead, it held that the federal court was not the proper forum in which her claims could be resolved. We agree. Baileyville and its corporate parents have cross-appealed from the district court's refusal to impose a stay of administrative proceedings (that might or might not have been commenced at the time the court ruled) in Ogle County. Finding no abuse of discretion in that ruling, we affirm it also.

I

We rely primarily on Muscarello's first and second amended complaints for this account of the pertinent facts, although we have added some undisputed material from the remainder of the record where necessary.

In late 2003, after a public hearing held by the Zoning Board of Appeals (the “ZBA”), the Ogle County Board of Commissioners (the “Board”) adopted an amendment to the county zoning ordinances providing that special use permits would be available for systems that use wind energy and thereby reduce dependence on fossil fuels (the “Windmill Text Amendment”).

In September 2005, Baileyville applied for a special use permit to build a wind-energy system on land in Ogle County adjacent to Patricia Muscarello's property.

610 F.3d 419
(Two other Muscarellos are involved in this case: Patricia Muscarello was represented by her son, Charles Muscarello, and she sued, among others, her husband, Marco Muscarello. For simplicity we refer to Patricia Muscarello as “Muscarello” and, where necessary, we refer to her husband as “Marco Muscarello.”) Baileyville intended to construct 40 windmills, each of which was to be approximately 400 feet in height to the tip of the blade and 285 feet in diameter. The application specified the locations of the windmills on the property.

Some time between November 7 and December 13, 2005, the ZBA held public hearings on Baileyville's application. On December 13, the ZBA issued its Findings of Fact in support of the application. On December 20, the Board issued the special use permit and adopted a Home Sellers Property Value Protection Plan (the “Protection Plan”) to provide a mechanism for residential property owners to recover any diminution of value that resulted from the windmills if and when they decided to sell their homes. Nonresidential property owners were not eligible to take advantage of this procedure.

Muscarello objects to every stage of the process. On January 19, 2006, she filed her original complaint, in which she objected to the findings of fact for the Windmill Text Amendment, the Baileyville permit application, the notice for the public hearing, the public hearing itself, Baileyville's evidence at the hearing, the findings of fact for the special use permit, the decision to issue the permit, and the authorization of the Protection Plan. At the core of her substantive allegations is an assertion that the county has condoned an impermissible taking of her property. Muscarello presented a laundry list of charges in her first amended complaint; as she describes it, the issuance alone of the permit will harm her in numerous ways:

(i) she will be deprived of the full extent of the kinetic energy of the wind and air as it enters her property.
(ii) she will be deprived of the full extent of the Accessory Use under Division 5, Section 5.01(N) of the Zoning Ordinance.
(iii) her property will be subject to “shadow flicker” and reduction of light caused by the Wind Energy Conservation System.
(iv) she will have to endure severe noise caused by the Wind Energy Conservation System.
(v) ice may be physically thrown onto her property by the rotating blades.
[vi] there is risk of what she calls “blade throw,” meaning that she fears that the rotor blades may come loose and be thrown onto her property.
[vii] the windmills will cause radar interference on her property.
[viii] the windmills will interfere with the reception on her cell phone network.
[ix] the windmills will disturb her GPS service.
[x] her property will be subject to wireless communication interference.
[xi] the system will interfere with her television signals.
[xii] the existence of the windmills will enhance her risk of sustaining damage from lightening.
[xiii] she will be exposed to higher levels of electromagnetic radiation.
[xiv] she will suffer injury from stray voltage; and
[xv] the windmills will prevent her from conducting crop-dusting operations on her fields.

We glean from all this, taking it in the light most favorable to Muscarello, that
610 F.3d 420
she believes that the prescribed process was not followed and that the construction of windmills will have uncompensated adverse consequences for her and her fellow nonresidential property owners. Muscarello sued to stop the construction of the windmills and to require the Board to revoke the permit. To date, as far as the record before us reflects, no windmills have been constructed.
II

Muscarello's complaint includes 12 counts based on the U.S. Constitution, the Illinois Constitution, Illinois statutes, and Illinois common-law rights; as we noted earlier, it names 42 defendants. For purposes of this appeal, we can group the defendants as follows: various entities and individuals acting on behalf of Ogle County (“Ogle County”); the parties of record in the administrative proceeding, including Marco Muscarello, plaintiff's husband; Baileyville, the permit-holder; Navitas Energy, Inc., sole shareholder, member, and owner of Baileyville; and Gamesa Corporacion Tecnologia, S.A., the corporate parent of Navitas. Baileyville, Navitas, and Gamesa have cross-appealed.

We divide our analysis of Muscarello's claims into three categories based on the type of jurisdiction pleaded: (1) section 1331 claims; (2) section 1332 claims; and (3) section 1367 claims. We discuss the applicable jurisdictional bases for each theory of recovery along with our discussion of the merits below. Here, we briefly summarize Muscarello's claims and the district court's disposition of them.

1. Section 1331 Claims. Muscarello alleges three violations of the Fourteenth Amendment of the U.S. Constitution: Count IV alleges a taking without just compensation; Count VI alleges a denial of due process; and Count VIII alleges a denial of equal protection. These counts stem from Ogle County's grant of the special use permit to Baileyville and the adoption of the Protection Plan that provides compensation only to residential property owners. Although the permit does not directly affect Muscarello's land, she asserts that it represents an unreasonable and illegal taking of her property, that the process by which it was awarded was defective, and that the Protection Plan unlawfully discriminates against nonresidential property owners. The district court dismissed her takings and equal protection claims as unripe, and it rejected her due process claim for failure to state a claim upon which relief could be granted.

2. Section 1332 Claims. Two more of Muscarello's claims are based on state common law (trespass, in Count X, and nuisance, in Count XI); for them, she has invoked diversity jurisdiction under 28 U.S.C. § 1332. In fact, she appears to be relying on alienage jurisdiction rather than diversity of citizenship, as one of the parties (Gamesa) is a Spanish corporation. We discuss the jurisdictional basis for these claims in greater detail below. On the merits, although Muscarello concedes that the windmills have yet to be constructed, she takes the position that she can recover under trespass and nuisance theories based solely on the county's decision to grant the permit for the future windmills. The district court twice dismissed these claims because Muscarello did not properly plead citizenship. On the third try, without finding jurisdiction, the district court rejected these speculative theories of trespass and nuisance as unripe.

3. Section 1367 Claims. Finally, Muscarello included seven...

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