“Alea iacta est” Wainfleet Town Council Passes Setback By-law

Wainfleet Wind Action Group
“Alea iacta est”: the words spoken to Julius Caesar are translated as, “The die is cast”.  Wainfleet Town Council last night passed the Setback by-law on third reading, after a forceful commentary by Mayor April Jeffs on the need to protect the citizens of Wainfleet Township. At the same meeting the Wind Developer IPC was denied permission to bury cable under an unused road allowance in the Township.

The words said to Julius Caesar are therefore most appropriate: the die IS cast. And the future will tell.

The Developer will likely challenge the issue of the cable across the road allowance before the appropriate tribunal. The issue of the Setback By-law 13-2012, however, may present a problem for the Developer who has always claimed the by-law was “illegal” under the GEA. The by-law does not prohibit anything mandated in the GEA and therefore is not illegal.

It does, however, relate to the Environmental Protection Act and Reg.359/09 thereto which specifies that setbacks shall be “at least” 550 meters; it does not say, “shall be no more than 550 meters”. But the relevant government ministries and tribunals overseeing green energy development in Ontario tend to have a heavy rubber stamp.

By-law 13-2012 of the Township of Wainfleet, specifying a setback distance of 2km and a maximum noise level of 32dB, with 100% indemnification by the developer for any party who suffers adverse health effects or property devaluation as a result of an IWT over 90 meters in Wainfleet, is a legal by-law and is not in contravention of the GEA.

THE CORPORATION OF THE
TOWNSHIP OF WAINFLEET
BY-LAW NO. 000-2012

Being a By-law for prescribing the minimum Setback distance for the Construction of all Industrial Wind Turbines, also known as Wind Turbine Generators, to be erected within the borders of the Township of Wainfleet, AND to require that any such Construction, in compliance with this By-law or not, shall also provide indemnification for any loss of Property value or adverse health effect therefrom to the extent of 100%.

WHEREAS government Ministers, Ministries, Agencies and Municipalities have an ethical duty and legal obligation to protect the health, safety, quality of life and well being of citizens and their properties;

AND WHEREAS the Supreme Court of Canada, in 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40. File No.: 26937, held that Municipalities, in addition to specific powers conferred by statute, also have included in that authority “general welfare” powers, upon which Municipalities can draw to enact by-laws genuinely aimed at furthering goals such as public health and safety, protection of Property and the like;

AND WHEREAS s.9 of the Municipal Act, 2001, SO 2001, c 25, grants Municipalities
Powers of a natural person;

AND WHEREAS the Canadian Charter of Rights and Freedoms, being Part 1 of the
Constitution Act, 1982, confers specific rights and freedoms on all Canadians, including that of Due Process, which rights and freedoms are to be protected by all levels of government, including the Municipal;

AND WHEREAS s.130 of the Municipal Act, 2001, SO 2001, c 25, in force until July 1, 2012, still states “A municipality may regulate matters not specifically provided for by this Act or any other Act for purposes related to the health, safety and well-being of the inhabitants of the municipality”;

AND WHEREAS ss.128 – 129 of the Municipal Act, 2001 confer powers to regulate Public Nuisances, Noise, Odour, Dust, etc.; and

AND WHEREAS s.128 (2) also states “The opinion of council under this section, if arrived at in good faith, is not subject to review by any court”;

AND WHEREAS s. 11 of the Municipal Act, 2001 confers broad authority on the Municipality, including the passing of By-laws, inter alia, for the “Economic, social and environmental well-being of the municipality” and for the “Health, safety and well-being of persons”

AND WHEREAS s.1(1) of the Environmental Protection Act, R.S.O. 1990, c. E-19 states that:
“adverse effect” means one or more of,
(a) impairment of the quality of the natural environment for any use that
can be made of it, 1
(b) injury or damage to property or to plant or animal life,
(c) harm or material discomfort to any person,
(d) an adverse effect on the health of any person,
(e) impairment of the safety of any person,
(f) rendering any property or plant or animal life unfit for human use,
(g) loss of enjoyment of normal use of property, and
(h) interference with the normal conduct of business; (“conséquence
préjudiciable”),
and further states,
“contaminant” means any solid, liquid, gas, odour, heat, sound, vibration, radiation or
combination of any of them resulting directly or indirectly from human activities that
causes or may cause an adverse effect; (“contaminant”);

AND WHEREAS s.3 of the Environmental Protection Act, R.S.O. 1990, c. E-19 also states “The purpose of this Act is to provide for the protection and conservation of the natural environment”; and

AND WHEREAS there is mounting documented evidence of the adverse impact of IWT technology on humans, wildlife and livestock;

AND WHEREAS the World Health Organisation recommends ambient noise levels be less than 30dB(a) inside a Property dwelling;

AND WHEREAS several jurisdictions world wide have enacted or recommended laws or Bylaws to regulate Setback distances of 2 to 10km for Industrial Wind Turbines;

AND WHEREAS more than 70 Ontario Municipalities, including Wainfleet, as well as the Ontario Federation of Agriculture and the Christian Farmers Federation of Ontario, have asked for a Moratorium on wind power development and for more and better studies on the impact of wind power;

AND WHEREAS some Ontario realtors have asserted that Properties within sight and sound of IWT’s are available at prices 20 to 40% lower than those Properties without IWT interference;

AND WHEREAS restrictions in the laws of Ontario governing Municipalities and the
Environment variously contradict one another and restrictions in the laws governing Alternative Energy generation do the same;

AND WHEREAS nothing in this By-law frustrates the purpose of the laws governing
alternative energy generation, it being the Municipality’s concern to promote the responsible use of alternative energy in a manner that does no harm to persons, wildlife and livestock;

AND WHEREAS s.92 of the Constitution Act, 1982 provides further that the “Exclusive Powers of Provincial Legislatures” includes upholding Canadian Charter of Rights and Freedoms, being Part 1 of said Act;

AND WHEREAS the fundamental rights of Canadian persons cannot be extinguished or modified except by s.33 (“Notwithstanding”, clause) of the Canadian Charter of Rights and Freedoms, The Constitution Act, 1982;2

AND WHEREAS it is reasonable and prudent for the protection of the Municipality’s citizens,

NOW THEREFORE the Council of the Corporation of the Township of Wainfleet
HEREBY ENACTS AS FOLLOWS:

Definitions:
1. In this By-law, the listed words have the following meanings:
(a) “Setback” means a horizontal radial distance;
(b) “Industrial Wind Turbine” (IWT), means a wind turbine power generator using blade technology with a hub height exceeding 30 metres;
(c) “Property” means property line, vacant land, dwelling or structure and their inhabitants of all species used for private or business or public purposes;
(d) “Municipality” means the Corporation of the Township of Wainfleet;
(e) “Construction” includes placement, erection, alteration, repair, dismantling, demolition, structural maintenance, painting, moving, land clearing and cleaning, earth moving, grading, excavating, the laying of pipe and conduit whether above or below ground level, street and highway building, concreting, equipment installation and alteration and the structural installation of construction components and materials in any form or for any purpose and includes any work in connection therewith.
(f) “Noise” means unwanted sound, vibration, or both, emitted by or related to an  Industrial Wind Turbine or Turbines;
(g) “Developer” means any person or business or company involved in the development, Construction and operation of an Industrial Wind Turbine, including the legal owner of said Turbine; AND, person, business, company, Turbine and owner can be construed in the singular and in the plural;

Application:

1. This By-law applies to all Property within the territory of the Municipality.
2. This By-law applies to all Property owned by the Municipality.

Prohibition:

1. For the Construction, erection or operation of any IWT inside the Municipality, there shall be a minimum Setback of a distance of 2km from any Property measured from the tip of the rotor blade in horizontal position;

2. In any case, Noise emitted by the IWT shall not exceed 32dB at the nearest Property;

3. The Developer shall provide an indemnification of 100% for any loss of Property
value or adverse health effect directly or indirectly caused by an IWT.

Severability:

If a portion of this By-law is held invalid by a court of competent jurisdiction then the
invalid portion must be severed and the remainder of this By-law is deemed to have been adopted without the severed section.

Force and Effect :

This By-law shall come into force and take effect on the day of its Final passing.3

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13 Responses to “Alea iacta est” Wainfleet Town Council Passes Setback By-law

  1. Mike says:

    Well written and meaningful Bylaw !

  2. Susan says:

    I think this is a wonderful step. Congradulations to the Wainfleet council. Lets hope other councils follow suit. But, I want to bring attention to Bill 55 in the new budget brought forward by the Liberals. It has a number of clauses that will strip what is left of the enviromental protection that we have left in regards to the Industrial Wind Farms and Solar Farms. It is granting that utilites can kill, harm and harrass and even remove habitat if needed without having an enviormental review. Very Scarry!!! Talk to your MPP. This budget needs to be voted down!!

  3. Free Thinker says:

    Congratulations Wainfleet!
    Special thanks to Mayor April Jeffs – brilliant lady!

    As noted – time is running out.
    Pressure must be applied @ the local level – now!

    ‘[excerpt] AND WHEREAS s.130 of the Municipal Act, 2001, SO 2001, c 25, in force until July 1, 2012, still states “A municipality may regulate matters not specifically provided for by this Act or any other Act for purposes related to the health, safety and well-being of the inhabitants of the municipality”;

    AND WHEREAS ss.128 – 129 of the Municipal Act, 2001 confer powers to regulate Public Nuisances, Noise, Odour, Dust, etc.; and

    AND WHEREAS s.128 (2) also states “The opinion of council under this section, if arrived at in good faith, is not subject to review by any court”;

    AND WHEREAS s. 11 of the Municipal Act, 2001 confers broad authority on the Municipality, including the passing of By-laws, inter alia, for the “Economic, social and environmental well-being of the municipality” and for the “Health, safety and well-being of persons”

    Pass it on – and make it quick!

  4. Renee says:

    This is fantastic! Every council with a moratorium should follow suit to protect it’s citizens.

  5. Kasey says:

    Does Wainfleet have any proposed projects…refresh my memory. In other words, is there likely to be a challenge.

  6. Andrew Watts says:

    Kasey! Oh Yes! There will be a challenge! Lawyers for the wind energy companies have already publicly warned Wainfleet Council twice and Mr.Rankin himself, for a third time, of there being ‘consequences’ if they should adopt the setback Bylaw. They all hastened to assure Council that they weren’t actually ‘threatening’ them…!!!
    Wainfleet is threatened with two projects, one IPC/Rankin Renewables and one Niagara Region Wind Corporation.
    My Council is fantastic! Now thy need encouragement, help and support from anyone and everyone out there!
    As a legitimate and elected body they have put themselves in direct conflict with the Green Energy Act and the Ontario Wind Energy Industry hiding behind that flawed legislation.
    They actually do believe they were elected to protect the best(public health & economic)interests of their community.

    • barbara says:

      But if Wainfleet has found loopholes in the law then what can the IWT lawyers do about this? Get the laws changed again in their favour?

  7. p says:

    I’m so glad that Wainfleet has the support of their council. It must feel good to be a united force. What a great mayor and council you have. ARE YOU LISTENING HEWITT! he could care less about us rural people.

  8. country gal says:

    Truly a courageous council putting themselves out in the line of fire and not accepting the status quo .The support would be to have All other municipalities follow suit in passing similar By-Laws.Wainfleet stepped outside the box and picked up the torch for all other municipalities .I’m so supremely proud of them .

  9. Sick Turbines says:

    Wow! Municipal policitians at their best. McGuinty will have to work hard to muzzle Wainfleet!

  10. Andrew Watts says:

    For Barbara: I don’t think it has been challenged in a court of law on purely negative public health and economic impacts.
    I don’t think, so far, an elected Council has actually taken the McGuinty government or wind energy companies to court. It has been private individuals or groups who have been able to raise cash to bring a case against them.
    I don’t think any case so far has heard anything from the wind energy companies in their defence apart from that they are complying with the Green Energy Act.
    And in every case the ruling against those opposing has almost always including comments in the summing up to the effect that further studies into the effects of IWTs are recommended…!!!
    It’s the courts and the lawyers who are letting us all down.
    And however much I support and am so proud of my Council for what they did the other night, without continued and growing support from ALL of rural Ontario I’m not sure if we can even expect them to stand alone when so many elected Councils though ‘talking a good talk’ are actually leaving their local Wind Action Groups to do all of the real work!
    We need a case, we need a lawyer and we need a court where the wind energy companies are not allowed the freedom to hide behind the Green Energy Act but are required to show proof that the siting of their IWTs will not negatively effect a single person living in close proximity.
    There is legislation that gives local municipalities extensive powers to take action to protect their communities best interests, regardless of upper tier governments, in fact I think they have a legal obligation to do so.
    The trick is to find a court and a lawyer who can actually make this happen!
    If Wainfleet Council’s courage can make this more likely then we do need to support them.
    Google a ‘legal dictionary’ and type in ‘negligence’.
    It won’t be done by just challenging the Green Energy Act!
    I wish I was a lawyer as I really cannot understand how Ontario and Canada can just sit back whilst such an appalling travesty of justice is continued each time in favour of the wind energy industry!

  11. Andrew Watts says:

    And a final note! A neighbouring Council, who considered a similar 2km Setback Bylaw not long before Wainfleet rejected it because they were threatened by wind energy companies.
    Whilst Wainfleet were adopting theirs, their neighbouring Council were approving a proposal to see how much the wind energy companies were prepared to pay them for approving their projects!
    It’s some of our own supposed elected representatives who are our worst enemies.
    They need letters, e-mails and ‘phone calls of disgust 24/7.
    The ones who do get it are pure gold and need to hear encouragement from all of us.

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