by David Meyer Wellington Advertiser
GUELPH -County council has sent a legal opinion it obtained to fight wind turbines to its planning committee for comment.
Council had a report from lawyer Peter Pickfield at its Aug. 12 council meeting. Warden Joanne Ross-Zuj said after the closed meeting the legal opinion will also be sent to all municipal staff in the county. County council is taking the lead on ways to oppose wind turbine projects where it can in the county, and is working with its lower tier municipalities to do that.
“We have now prepared ourselves,” said Ross-Zuj, who noted that in the closed meeting council discussed what chances of success it might have opposing wind farms. She would not say more than that about the closed session, but added staff and the planning department are now working on it.
Ross-Zuj said the issue came up at the Association of Municipalities of Ontario conference last week, and right after much preparation and talking to Minister of Environment John Gerretsen, Premier Dalton McGuinty the next day moved Gerretsen and put Perth Wellington MPP John Wilkinson in that portfolio.
Ross-Zuj called that “A big kick to us.”
The AMO conference occurred the week after the county council meeting.
She also had some discouraging news. “We know from AMO that the government is bound and determined this is going to happen. As municipalities, we really have our hands tied.”
Ross-Zuj said it is particularly unfortunate that while the provincial government has taken away the responsibility from the municipalities, it has left only the industry to answer people’s questions, and that is not a credible source for opponents of wind turbines.
She said the provincial attitude is if municipalities try to pass any laws to block the turbines “We will repeal your laws.”
She urged residents to “get in the face” of local MPPs Ted Arnott and Wilkinson.
Pickfield said in his report that the Green Energy and Green Economies Act (GEGEA) of 2009 stripped municipalities of their powers to regulate wind turbines. “Municipalities have been left with virtually no power to control the approval of wind farmers within their boundaries,” he wrote. They are left with three areas of opportunity to try to influence the planning and operation of thee projects under the current laws. Those include:
– on a case by case basis, launch appeals of wind energy projects approvals under the Environmental Assessment Act;
– use traditional municipal law making and regulatory powers other than official plans, zoning, and site plan approvals now forbidden by provincial legislation to affect approval decisions or regulate ongoing operations of wind projects; and
– co-ordinate research, and law and policy development and other initiatives with other Ontario municipalities, aimed at lobbying the provincial government to develop a set of planning rules and processes for wind energy projects that better serve and protect municipalities and their residents.
Pickfield said the 2009 GEGEA “Effectively strips municipalities of their power to exercise land use planning control over renewable energy projects, including wind projects.”
That includes superseding provincial policy statements and provincial plans, official plans, demolition control bylaws, any bylaw or order passed under the Planning Act, including all zoning bylaws and site plan controls, and development permit systems under that act.
Pickfield told council plainly that his comments are only his legal opinion.
He said in the report, “Any municipal restriction imposed under existing laws is effectively rendered inoperative to the extent that it would prevent or restrict the activity.”
To date, only solar and ground source energy are completely exempt, but he said if the province wants to exempt wind energy from all of the rules, it can do that. Since it has not, “This puts wind energy projects in a different, less protected class than solar and ground source energy projects … ”
Pickfield added even if the province decides to give wind energy the same protections, there are certain exceptions to the general exemptions that apply to solar and ground mounted energy projects.
– prevention of injury to or destruction of trees;
– designation and protection, including interim protection, of properties of cultural heritage value or interests, heritage conservation study areas, and heritage conservation districts and the designation of properties or archeological or historic significance pursuant to part of the Ontario Heritage Act; and
– any activity or matter that is the subject of a regulation made by a conservation authority pursuant to the Conservation Authorities Act.
Pickfield told council there are other powers available to municipalities.
While they cannot use land use planning powers, they can use the Municipal Act.
That provides powers in a number of areas, and municipalities could enact bylaws that could be useful in regulating wind projects.
– economic, social, and environmental well being of the municipalities;
– health, safety, and well being of persons;
– protection of persons and property, including consumer protection;
– business licensing;
– public nuisances;
– noise, vibration, odour, dust; and
– prohibiting destruction of trees and woodlands.
But, Pickfield warned, “Such powers do not enable the county or a municipality to prohibit wind farms either directly or indirectly by amending or administering bylaws in a way that makes it impossible for wind energy projects to operate within its boundaries.”
A municipality could not, for example, pass bylaws that prohibit such projects simply to stop them, and, “Neither could it arbitrarily withhold a required permit under a municipal bylaw for a wind energy project arbitrarily withhold a required permit, or treat permits required for wind turbines differently from those required for other projects.”
But, he said, some bylaws could be useful.
“For example, a municipality could pass a noise control bylaw or amend its existing bylaw to better protect residential receptors from the nuisance (and possible health) impacts of wind turbines.”
He added even though the province has taken on the power to determine setbacks for wind turbines “the municipality could indirectly impose a greater distance requirement, by establishing rigorous standards under a noise bylaw.”
He said a similar result could be achieved by passing a nuisance bylaw with restrictions and corresponding penalties.
“These regulatory tools could thereby provide municipalities with some control over where wind turbines are situated with respect to residential properties.”
He said a similar result could be obtained by passing a bylaw regulating public nuisances that could, for example, outlaw shadow flicker from turbines. That can happen if a municipality determines shadow flicker is a public nuisance.
Pickfield said that might help give municipalities some control over where turbines are placed.
Other legislation could provide some control, to protect trees, properties of cultural heritage value or interest, heritage conservation study areas, and heritage conservation districts, and the designation of archaeological significance under the Heritage Act, or protection of groundwater sources under the clean Water Act.
Pickfield said municipalities could, on a case by case basis, launch appeals of projects approvals. “Appeals must be based on specific grounds: appellants are required to demonstrate that the approval of the project will cause either (1) serious harm to human health; or (2) serious and irreversible harm to plant life, animal life, or the natural environment.”
That would require each new application be evaluated to see if it can be opposed on one of those grounds.
“The appeal of an early case, with strong evidentiary support, could provide a test case to support the notion that wind farm projects are not necessarily benign activities from a human health or environmental perspective”
But he warned, “Caution should be applied to any decision to mount an appeal” because part of the law “sets a very difficult test for a successful appeal. The case should be evaluated by the county on its merits to assess the likelihood of success before any appeal is launched.”
When it comes to changing or passing bylaws, Pickfield said the strategy would involve having each municipality do an inventory of its bylaws to determine which might be useful to regulate wind farms; then decide what might be required to address the range of new impacts; draw on the work done by other municipalities, and pass and enforce the new bylaws.
He warned there are challenges and risks, as well as costs associated “with the aggressive implementation of the above strategy.”
He cited noise controls and the effects they might have on other businesses in the community. Plus, if the standards are set above what Minister of the Environment has already determined, a noise bylaw, for example, could be challenged in court.
Plus, municipalities will need obtain outside technical support, and those costs need to be assessed.
He said four points have to be considered:
– changes to bylaws must be scientific, defensible, practical, fair, and relatively simple to administer.
– any bylaw with the effect of prohibiting an otherwise legal business activity is vulnerable to a successful court challenge, and such bylaws need to be tailored to the specific, verifiable “mischief” that the bylaw is intended to prevent;
– bylaws must be aimed at regulating wind energy operations and cannot generally be used as a basis to refuse building permits. Chief Building Officials are constrained in their ability to refuse permits; and
– bylaws that set rigorous standards to address wind turbine impacts, such as noise bylaws, have broader applications and may create unintended compliance problems for other land users, and attention must be paid to broad implications of bylaw changes.
The final strategy for fighting the turbines involves research and lobbying with other municipalities, something that is already well underway.
Pickfield warned it may not be possible to get all municipalities involved because some have no stake in the fight. He said that why the Association of Municipalities of Ontario has not become directly involved to date.