Full Text of SB1400 95th General Assembly
SB1400sam003 95TH GENERAL ASSEMBLY
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Sen. Mike Jacobs
Filed: 5/10/2007
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| AMENDMENT TO SENATE BILL 1400
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| AMENDMENT NO. ______. Amend Senate Bill 1400, AS AMENDED, | 3 |
| as follows: | 4 |
| immediately before the enacting clause, by inserting the | 5 |
| following: | 6 |
| "WHEREAS, A wind energy Act that provides for a restoration | 7 |
| indemnity fund, and mechanic's lien clarification will provide | 8 |
| a favorable environmental and economic climate for development | 9 |
| of wind energy; and | 10 |
| WHEREAS, It is desirable to develop both renewable and | 11 |
| alternative energy resources to obtain environmental quality | 12 |
| and public health benefit; and | 13 |
| WHEREAS, The benefits of electricity from renewable and | 14 |
| alternative energy resources accrue to the public at large, | 15 |
| thus consumers and electric utilities and alternative retail | 16 |
| electric suppliers share an interest in developing and using a | 17 |
| significant level of these environmentally preferable |
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| resources in the State's electricity supply portfolio and | 2 |
| stability of taxes for extended periods of time; and | 3 |
| WHEREAS, Encouraging energy efficiency will improve the | 4 |
| environmental quality and public health in the State of | 5 |
| Illinois; and | 6 |
| WHEREAS, Wind energy is one alternative energy source that | 7 |
| can be used to provide electricity to utility consumers; and | 8 |
| WHEREAS, Some regions in the State are ideal locations for | 9 |
| wind energy system development; and | 10 |
| WHEREAS, As the facilities are typically constructed on | 11 |
| property owned by others, it is desirable to create an | 12 |
| indemnity fund to pay for deconstruction in the event that the | 13 |
| wind energy company fails to do so in a timely manner; and | 14 |
| WHEREAS, It is appropriate to protect the owners of the | 15 |
| underlying lands from mechanics liens imposed on those lands in | 16 |
| the event must the entities constructing the wind energy | 17 |
| facilities fail to pay suppliers of labor and materials; | 18 |
| therefore, be it"; and
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| by replacing everything after the enacting clause with the | 20 |
| following:
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| "Section 1. Short title. This Act may be cited as the Wind | 22 |
| Energy Indemnity Fund Act. | 23 |
| Section 5. Definitions. As used in this Act: |
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| "Abandonment" means (a) in the case of a landowner: (i) failure | 2 |
| by the wind energy company to operate a wind turbine or wind | 3 |
| turbines for the purpose for which they were designed and | 4 |
| installed, for a period of 12 consecutive months, and (ii) | 5 |
| failure to pay the landowner moneys owed to him or her in | 6 |
| accordance with the underlying agreement, for a period of 6 | 7 |
| consecutive months; (b) in the case of a county board: (i) | 8 |
| failure by the wind energy company to operate a wind turbine or | 9 |
| wind turbines for the purposes for which they were designed and | 10 |
| installed, for a period of 12 consecutive months, and (ii) | 11 |
| failure to adhere to any or all of the restrictions and | 12 |
| conditions that were part of the approval process of the | 13 |
| appropriate county authority for the granting of the special | 14 |
| use permit, conditional use permit, zoning change, or zoning or | 15 |
| permitting ordinance of any kind given in order to allow the | 16 |
| installation and operation of the wind turbine or wind | 17 |
| turbines. | 18 |
| "Board" means the governing body of the Wind Energy | 19 |
| Indemnity Fund Corporation. | 20 |
| "Claimant" means either a landowner or a county board | 21 |
| seeking to have a deconstruction paid for from the Fund and | 22 |
| carried out by the Department. | 23 |
| "Corporation" means the Wind Energy Indemnity Fund | 24 |
| Corporation, as established in this Act. | 25 |
| "County board" has the meaning set forth in Section 1.07 of | 26 |
| the Statute on Statutes. |
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| "Deconstruction" means removal of all property comprising | 2 |
| a wind energy generation facility from the property of a | 3 |
| landowner and restoration of the property to the condition in | 4 |
| which it existed immediately prior to the construction of the | 5 |
| facility, including, but not limited to, soil type and | 6 |
| topography; provided, however, that foundations, pads, | 7 |
| electrical lines, and any other underground facilities must be | 8 |
| removed to a depth of 4 feet below the surface of the ground. | 9 |
| "Department" means the Department of Commerce and Economic | 10 |
| Opportunity. | 11 |
| "Director", unless otherwise provided, means the Director | 12 |
| of Commerce and Economic Opportunity, or the Director's | 13 |
| designee. | 14 |
| "Fund" means the Wind Energy Indemnity Fund. | 15 |
| "Landowner" means any person with an ownership interest in | 16 |
| property subject to an underlying agreement. | 17 |
| "Person" means any individual or entity, including, but not | 18 |
| limited to, a sole proprietorship, a partnership, a | 19 |
| corporation, a cooperative, an association, a limited | 20 |
| liability company, an estate, a trust, or a governmental | 21 |
| agency. | 22 |
| "Underlying agreement" means a written arrangement with a | 23 |
| landowner, including, but not limited to, an easement, under | 24 |
| the terms of which a person constructs or intends to construct | 25 |
| a wind energy generation facility on the property of the | 26 |
| landowner. |
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| "Wind energy generation facility" means all property of any | 2 |
| nature whatsoever comprising an operation designed to harness | 3 |
| wind energy and create electricity therefrom, including, but | 4 |
| not limited to, turbines, towers, roadways, concrete | 5 |
| foundations, transmission lines, and poles, all situated on, | 6 |
| under, or over the property of a landowner. | 7 |
| "Wind energy indemnity trust account" means a trust account | 8 |
| established by the Director that is used for the receipt and | 9 |
| disbursement of moneys paid from the Fund. | 10 |
| "Wind turbine" means each tower, blade, and propeller | 11 |
| housing designed for wind energy generation. | 12 |
| Section 10. Powers and duties of the Director. The Director | 13 |
| has all powers necessary and proper to fully and effectively | 14 |
| execute the provisions of this Act and has the general duty to | 15 |
| implement this Act. The Director's powers and duties include, | 16 |
| but are not limited to, the following: | 17 |
| 1. The Director shall personally serve as president of | 18 |
| the Corporation. | 19 |
| 2. The Director may take any action that may be | 20 |
| reasonable or appropriate to enforce this Act and its | 21 |
| rules. | 22 |
| Section 15. Administrative procedure. The Illinois | 23 |
| Administrative Procedure Act applies to this Act. |
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| Section 20. Administrative review and venue. Final | 2 |
| administrative decisions of the Department are subject to | 3 |
| judicial review under Article III of the Code of Civil | 4 |
| Procedure and its rules. The term "administrative decision" is | 5 |
| defined as in Section 3-101 of the Code of Civil Procedure. An | 6 |
| action to review a final administrative decision under this Act | 7 |
| may be commenced in the circuit court of any county in which | 8 |
| any part of the transaction occurred that gave rise to the | 9 |
| claim that was the subject of the proceedings before the | 10 |
| Department. | 11 |
| Section 25. Rules. The Department may promulgate rules that | 12 |
| are necessary for the implementation and administration of this | 13 |
| Act. | 14 |
| Section 30. Fund assessments. There is an assessment of | 15 |
| $10,000 for each wind turbine constructed or under construction | 16 |
| as of the effective date of this Act and for each turbine | 17 |
| constructed thereafter, under the provisions of an underlying | 18 |
| agreement. The assessment is an obligation of the owner of each | 19 |
| wind turbine and is payable in equal annual installments of | 20 |
| $1,000 over a period of 10 years; provided, however, that the | 21 |
| subsequent annual installments must be adjusted based on | 22 |
| inflation, as reflected in the Consumer Price Index, on an | 23 |
| annual basis. The initial payment is payable within 90 days | 24 |
| after the effective date of this Act for wind turbines already |
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| constructed or under construction, and, in all other cases, | 2 |
| prior to the commencement of construction. | 3 |
| All installments under this Section must be sent to the | 4 |
| Department and made payable to the Corporation. | 5 |
| It is the responsibility of all parties to an underlying | 6 |
| agreement to report the existence and specific provisions of | 7 |
| the underlying agreement to the Department. | 8 |
| The Department shall mail all assessment notices to owners | 9 |
| of wind energy generation facilities at least 30 days before | 10 |
| the assessment installment is due. | 11 |
| All wind turbines already constructed, under construction, | 12 |
| or issued a building permit before the effective date of this | 13 |
| Act are to provide proof to the county of payment to the Fund | 14 |
| within 95 days of the effective date of this Act. If such proof | 15 |
| of payment is not provided, then the county must order the wind | 16 |
| energy company to stop all operation and construction | 17 |
| activities until the county receives proof of payment to the | 18 |
| Fund. For all other wind turbines, no county may issue a | 19 |
| building permit without being provided proof that the above | 20 |
| assessment has been paid to the Fund. | 21 |
| Section 35. Abandonment. Upon an administrative finding in | 22 |
| a hearing held by the Department that a deconstruction has been | 23 |
| validly determined and ordered by either a court of competent | 24 |
| jurisdiction or an arbitrator in binding arbitration, and | 25 |
| deconstruction, after a period of at least 8 months, has not |
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| been completed satisfactorily, the Director has all the powers | 2 |
| for the benefit of claimants as established under this Act, | 3 |
| including, but not limited to, the power to do the following: | 4 |
| 1. request the transfer of moneys from the Fund to the | 5 |
| Trust Account for the purpose of paying the cost of | 6 |
| deconstruction in accordance with this Act; | 7 |
| 2. disburse the funds in the Trust Account for the | 8 |
| deconstruction in accordance with this Act; | 9 |
| 3. cause the sale of the deconstructed assets; | 10 |
| 4. retain from the sale of the deconstructed assets | 11 |
| moneys adequate to cover the costs to the Department of the | 12 |
| deconstruction, and pay those amounts to the Fund; | 13 |
| 5. return all moneys over and above the costs to the | 14 |
| Department for the deconstruction to the owner or owners of | 15 |
| the deconstructed assets, or to the holders of valid liens | 16 |
| on those assets. | 17 |
| Section 40. Statutory lien. The Department has a lien prior | 18 |
| and paramount to all other liens of any sort on the assets of | 19 |
| the wind energy system to the extent of the costs incurred by | 20 |
| the Department to accomplish the deconstruction of the | 21 |
| abandoned wind energy system, which arises and attach upon | 22 |
| construction of said wind energy system; provided, however, | 23 |
| that the lien herein granted to the Department is not prior and | 24 |
| paramount to the statutory lien in favor of real property | 25 |
| taxes. |
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| Section 45. Claims. | 2 |
| (a) A claimant shall file a complaint, on forms supplied by | 3 |
| the Department, that contains at least the following: | 4 |
| (1) the name and address of the claimant; | 5 |
| (2) the name and address of the owner of the wind | 6 |
| energy generation facility in question; | 7 |
| (3) the location of the wind energy generation facility | 8 |
| in question; | 9 |
| (4) a copy of either a court decision, or the finding | 10 |
| of an arbitrator in a binding arbitration proceeding, that | 11 |
| indicates a finding of abandonment of the wind energy | 12 |
| generation facility in question; a determination that the | 13 |
| underlying agreement is null, void, and of no further force | 14 |
| and effect; and an order for deconstruction of same. The | 15 |
| court order or arbitration decision must have been rendered | 16 |
| at least 8 months previously, and the time for all appeals | 17 |
| and related proceedings must have lapsed. | 18 |
| (5) evidence showing that the deconstruction ordered | 19 |
| by a court, or by an arbitrator in a proceeding for binding | 20 |
| arbitration, has not been carried to a satisfactory | 21 |
| conclusion, as defined in this Act; and | 22 |
| (6) a request that the funds necessary to perform the | 23 |
| deconstruction be paid to the Department from the Fund and | 24 |
| that the Department carry out the deconstruction in | 25 |
| accordance with the order of the court or the arbitrator |
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| and in accordance with the definition of deconstruction as | 2 |
| contained in this Act. | 3 |
| (b) A hearing shall be held by the Department and a | 4 |
| decision rendered as to the validity of the claimant's | 5 |
| complaint. In the event of a finding that the complaint is | 6 |
| valid, then, within 90 days after the date, the Department | 7 |
| shall obtain at least 2 bids from contractors to carry out the | 8 |
| specific deconstruction. One bidder must be chosen by the | 9 |
| Department within the following 60 days, and the Department, | 10 |
| within 60 days thereafter, shall enter into a written agreement | 11 |
| with the successful bidder for the deconstruction, which must | 12 |
| be accomplished with 6 months thereafter. | 13 |
| (c) It is the responsibility of the Department to monitor | 14 |
| the progress of the deconstruction and provide the necessary | 15 |
| supervisory oversight to ensure that it is accomplished in | 16 |
| accordance with the deconstruction agreement and the | 17 |
| provisions of this Act. | 18 |
| Section 50. Illinois Wind Energy Indemnity Fund | 19 |
| Corporation; creation; powers. | 20 |
| (a) There is hereby created the Illinois Wind Energy | 21 |
| Indemnity Fund Corporation, a political subdivision, body | 22 |
| politic, and public corporation. The governing powers of the | 23 |
| Corporation are vested in the Board of Directors composed of | 24 |
| the Director, who shall personally serve as President; the | 25 |
| Attorney General or his or her designee, who shall serve as |
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| Secretary; the State Treasurer or his or her designee, who | 2 |
| shall serve as Treasurer; and the Chairman of the Illinois | 3 |
| Commerce Commission, or his or her designee. Three members of | 4 |
| the Board constitute a quorum at any meeting of the Board, and | 5 |
| the affirmative vote of 3 members is necessary for any action | 6 |
| taken by the Board at a meeting, except that a lesser number | 7 |
| may adjourn a meeting from time to time. A vacancy in the | 8 |
| membership of the Board does not impair the right of a quorum | 9 |
| to exercise all the rights and perform all the duties of the | 10 |
| Board and Corporation. | 11 |
| (b) The Corporation has the following powers, together with | 12 |
| all powers incidental or necessary to the discharge of those | 13 |
| powers in corporate form: | 14 |
| (1) To have perpetual succession by its corporate name | 15 |
| as a corporate body. | 16 |
| (2) To adopt, alter, and repeal by-laws, not | 17 |
| inconsistent with the provisions of this Act, for the | 18 |
| regulation and conduct of its affairs and business. | 19 |
| (3) To adopt and make use of a corporate seal and to | 20 |
| alter the seal at pleasure. | 21 |
| (4) To avail itself of the use of information, | 22 |
| services, facilities, and employees of the State of | 23 |
| Illinois in carrying out the provisions of this Act. | 24 |
| (5) To receive funds assessed by the Department under | 25 |
| this Act. | 26 |
| (6) To administer the Fund by investing funds of the |
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| Corporation that the Board may determine are not presently | 2 |
| needed for its corporate purposes. | 3 |
| (7) Upon the request of the Director, to make payment | 4 |
| from the Fund to the Trust Account when payment is | 5 |
| necessary to pay costs of deconstruction in accordance with | 6 |
| the provisions of this Act. | 7 |
| (8) To authorize, receive, and disburse funds by | 8 |
| electronic means. | 9 |
| (9) To have those powers that are necessary or | 10 |
| appropriate for the exercise of the powers specifically | 11 |
| conferred upon the Corporation and all incidental powers | 12 |
| that are customary in corporations. | 13 |
| (c) All assessments by the Department must be held by the | 14 |
| Corporation in the Fund. | 15 |
| (d) Subject to applicable law, the assets of the Fund may | 16 |
| be invested and reinvested at the discretion of the | 17 |
| Corporation, and the income from these investments must be | 18 |
| deposited into the Fund and must be available for the same | 19 |
| purposes as all other assets of the Fund. | 20 |
| (e) The assets of the Fund may not be available for any | 21 |
| purposes other than the payment of deconstruction costs under | 22 |
| this Act and the payment of refunds of amounts that the Board | 23 |
| determines have been inappropriately paid into the Fund, and | 24 |
| may not be transferred to any other fund, other than the Trust | 25 |
| Account when necessary to pay deconstruction costs under this | 26 |
| Act or to pay refunds authorized by the Board. |
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| Section 55. No waiver. The provisions of this Act, | 2 |
| including the definitions, may not be altered, varied, or | 3 |
| revised by agreement. | 4 |
| Section 900. The Property Tax Code is amended by adding | 5 |
| Division 5 to Article 11 as follows: | 6 |
| (35 ILCS 200/Art. 11 Div. 5 heading new) | 7 |
| DIVISION 5. WIND ENERGY PRODUCTION | 8 |
| (35 ILCS 200/11-185 new) | 9 |
| Sec. 11-185. Definitions. For purposes of this Division 5: | 10 |
| "Wind energy conversion device" means any device | 11 |
| including, but not limited to, a wind charger, windmill, or | 12 |
| wind turbine that coverts wind energy to a form of usable | 13 |
| energy. | 14 |
| "Wind Energy Conversion Parcel" means all property rights | 15 |
| obtained by the Wind Energy System owner to the platted parcel | 16 |
| including the wind energy conversion devices, associated | 17 |
| equipment, easements, contracts, and leases. | 18 |
| "Wind energy conversion system" is all wind energy | 19 |
| conversion devices owned by a person who has executed a lease, | 20 |
| contract, or other written agreement or who has purchased or | 21 |
| acquired property so that one or more wind energy conversion | 22 |
| devices can be erected, built, or otherwise installed on that |
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| property. These devices do not need to be on contiguous parcels | 2 |
| of property to be considered a part of a total wind energy | 3 |
| conversion system. | 4 |
| (35 ILCS 200/11-190 new)
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| Sec. 11-190. Applicability. The provisions of this | 6 |
| Division 5 do not apply to wind energy conversion systems that | 7 |
| are owned by a person strictly for personal use or to any | 8 |
| person that is otherwise exempt from taxation under the | 9 |
| Property Tax Code. For the purposes of this Section, "personal | 10 |
| use" means the use of any wind energy conversion system with a | 11 |
| nameplate capacity of less than 2 megawatts. | 12 |
| (35 ILCS 200/11-195 new) | 13 |
| Sec. 11-195. Platting requirements. Upon the completion of | 14 |
| construction, the owner of a wind energy conversion system, at | 15 |
| his or her own expense, shall cause the wind turbine facilities | 16 |
| to be platted by an Illinois registered land surveyor. The plat | 17 |
| must include access routes, together with a metes and bounds | 18 |
| description of the area surrounding each wind turbine. The | 19 |
| system owner must record the plat and deliver a copy of it to | 20 |
| the property owner and to the chief county assessment officer | 21 |
| within 60 days after the completion of the construction. Upon | 22 |
| receiving a copy of the plat, the chief county assessment | 23 |
| officer must issue a separate parcel identification number, or | 24 |
| numbers for the wind energy conversion system to apportion the |
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| value to each taxing district in which the system is physically | 2 |
| located. | 3 |
| (35 ILCS 200/11-200 new) | 4 |
| Sec. 11-200. Limitation of liability for landowner. No | 5 |
| landowner shall be liable for Wind Energy Conversion Parcel | 6 |
| taxes except through ownership of the wind energy system. | 7 |
| (35 ILCS 200/11-203 new)
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| Sec. 11-203. Recourse against Wind Energy Conversion | 9 |
| Parcels. If the Wind Energy Conversion Parcel real estate taxes | 10 |
| are not paid, the county may proceed against the wind energy | 11 |
| conversion parcels with collection as provided Article 20 of | 12 |
| this Code. | 13 |
| (35 ILCS 200/11-205 new) | 14 |
| Sec. 11-205. Wind energy conversion system size and | 15 |
| capacity. The Department must determine the total size of the | 16 |
| device. Unless the systems are interconnected with different | 17 |
| distribution systems, the nameplate capacity of one wind energy | 18 |
| conversion device must be combined with the nameplate capacity | 19 |
| of any other wind energy conversion device that is under common | 20 |
| ownership. In case of a dispute, the Department must draw all | 21 |
| reasonable inferences in favor of combining the devices into | 22 |
| one system. In making a determination, the Department may | 23 |
| decide that 2 wind energy conversion devices or systems are |
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| under common ownership when the underlying ownership structure | 2 |
| contains similar persons or entities, even if the ownership | 3 |
| shares differ. Wind energy conversion devices or systems are | 4 |
| not under common ownership solely because the same person or | 5 |
| entity provided equity financing for the systems.
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| (35 ILCS 200/11-207 new)
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| Sec. 11-207. Method of valuation for wind energy conversion | 8 |
| systems.
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| (a) It is the policy of this State that, beginning on and | 10 |
| after January 1, 2007, a wind energy conversion system that is | 11 |
| used as an electric power source must be valued on cost | 12 |
| allocated on real property supplemented by the sales comparison | 13 |
| approach to the extent relevant and sufficient data are | 14 |
| available. If, however, a wind energy conversion system ceases | 15 |
| to operate for any reason, the minimum assessed value of the | 16 |
| system is 10% of the cost of replacing the system with a new | 17 |
| wind energy conversion system. | 18 |
| (b) The 2007 base certified value per megawatt capacity | 19 |
| shall be $300,000. | 20 |
| (c) The Department shall develop regulations for | 21 |
| depreciation factoring functional obsolescence. | 22 |
| (35 ILCS 200/11-210 new) | 23 |
| Sec. 11-210. Valuation during 5 year valuation period. In | 24 |
| furtherance of the policy of encouraging renewable and |
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| alternative energy resources to obtain environmental quality | 2 |
| and public health benefit, the valuation shall not exceed the | 3 |
| base year valuation for a period of 5 years. | 4 |
| (35 ILCS 200/11-215 new) | 5 |
| Sec. 11-215. Assessments of wind energy conversion | 6 |
| systems. | 7 |
| (a) A wind energy conversion system must be assessed at 33 | 8 |
| 1/3% of the valuation. The chief county assessment officer | 9 |
| shall apportion the value to each wind energy conversion parcel | 10 |
| in which the wind energy system is physically located. | 11 |
| (b) A wind energy conversion system is not subject to | 12 |
| equalization by the Department, the county, or the board of | 13 |
| review. | 14 |
| Section 905. The Mechanics Lien Act is amended by adding | 15 |
| Section 1.01 as follows: | 16 |
| (770 ILCS 60/1.01 new) | 17 |
| Sec. 1.01. Definitions; platting requirements for wind | 18 |
| energy systems; extent of lien on wind energy parcel. | 19 |
| (a) Definitions. | 20 |
| "Wind energy conversion device" means any device | 21 |
| including, but not limited to, a wind charger, windmill, or | 22 |
| wind turbine that coverts wind energy to a form of usable | 23 |
| energy. |
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| "Wind energy conversion parcel" means all property rights | 2 |
| obtained by the wind energy system owner to a platted parcel | 3 |
| including the wind energy conversion devices, associated | 4 |
| equipment, easements, contracts, and leases. | 5 |
| (b) Upon the completion of construction, the owner of a | 6 |
| wind energy conversion system, at his or her own expense, shall | 7 |
| cause the wind turbine facilities to be platted by an Illinois | 8 |
| registered land surveyor. The plat must include access routes, | 9 |
| together with a metes and bounds description of the area | 10 |
| surrounding each wind turbine. The system owner must record the | 11 |
| plat and deliver a copy of it to the property owner and to the | 12 |
| chief county assessment officer within 60 days after the | 13 |
| completion of the construction. Upon receiving a copy of the | 14 |
| plat, the chief county assessment officer must issue a separate | 15 |
| parcel identification number, or numbers, for the wind energy | 16 |
| conversion system to apportion the value to each taxing | 17 |
| district in which the system is physically located.
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| (c) A lien for work or materials on wind energy conversion | 19 |
| parcels is limited to the platted parcel, including all | 20 |
| property rights obtained by the wind energy system owner to the | 21 |
| platted parcel including the wind energy conversion devices, | 22 |
| associated equipment, easements, contracts, and leases.
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| Section 999. Effective date. This Act takes effect upon | 24 |
| becoming law.".
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