Farm Bureau: Know your rights when considering a wind or solar farm agreement

VERMILION COUNTY, Ill.  — If wind or solar farm developers want to build on your property, the Illinois Farm Bureau says don’t rush into signing a contract.

The Vermilion County Farm Bureau hosted a virtual meeting Monday on how landowners can protect their rights when considering a developer’s proposal.

Tri-Global Energy announced in September plans to install the county’s third-largest wind farm near Georgetown.

Laura Harmon, Associate Counsel for the Illinois Farm Bureau, spoke at Monday’s meeting. She says the Bureau routinely provides educational presentations to landowners throughout the state.

Discussion topics include county zoning, protections under state law, lease terms, suggestions for what landowners should look out for in the contract, and how property owners can be adequately compensated for rights they are giving away.

Harmon says the Bureau can’t represent landowners individually, but it can refer people to experienced lawyers. She adds property owners often group together when seeking legal representation.

“These are very complex agreements drafted by the wind or solar farm companies, and as I would expect, they are one-sided,” Harmon says. “The goal of any landowner is to negotiate changes to the agreement so that they’re protected.

“For example, companies routinely, in nearly every lease that I’ve seen, will have the unilateral right to decide where facilities are going to be located. This can be problematic for landowners that have a home, especially an occupied home on their property.”

She says one of their suggestions is to include an authority on how the company has to be in mutual agreement on where their facilities will be located.

“I’m not just talking about in the case of a wind farm, a turbine,” Harmon says. “These projects require roads to be built, transmission lines. The company may want to put a substation on your property — in that situation I’d recommend that you negotiate a separate agreement for the sale of the property as opposed to a lease.

“These agreements give companies several easements. You’d be giving a company easement to access your property at any time to construct the project and maintain the project.”

These are just some of the complicated issues Harmon says a landowner and their attorney needs to address when considering a contract.

Another one is whether a turbine will actually end up being constructed as part of your contract.

“No one is guaranteed a wind turbine,” she says, “and in many cases, the majority of compensation is tied to the construction of a wind turbine on the property. So there are ways to deal with that to make sure you are getting compensated for all the other rights you are giving up — even though you are not getting a wind turbine on your property.”

Harmon says experienced lawyers can help you benchmark whether your offer is a fair one.

She also says that she always cautions property owners to include terms of an agricultural mitigation agreement — she says this ensures farmland and its soil tiles are restored after construction.

“It doesn’t replace the agreement that you sign, it’s really supplemental terms, which should be included in any agreement that a farmer signs or you have this type of construction on your property,” she says.

“Part of the reason it was developed is because none of these agreements contain protections — robust protections — that require companies to, for example, repair tile lines in the manner that they should be repaired and to actually de-compact the soil so that you can continue to farm after the project is constructed or decommissioned.”

Additionally, she advises that you include terms that require the company to decommission the farm once it reaches the end of its usable life.

“When you sign an agreement that allows a company to put a wind or solar farm on your property, you’re agreeing that you won’t do anything that will interfere with their operations,” Harmon says. “But on the same token, you want to make sure that you can continue to farm.

“Hunting is fairly common, so you want to include hunting and basically any other activities that you want to be able to continue to do on your property. We always tell farmers to make sure you put that in an agreement.”

She says farmers should also look out for limitations on building additional structures on their land — in the case of wind farms, you may not be able to interfere with the flow, speed, or direction of winds.

Harmon says if you plan on adding a grain bin to a farming operation, you’d want to include that in your contract.

“I just caution: don’t sign any agreement without reading it,” she says. “Especially when you’re considering a wind or solar farm agreement, please go to counsel that has experience and understands the impact of these types of operations and agreements have on farmland so that they understand what needs to be changed.”