August 27, 2010
Ontario

County hears of difficulties and methods to fight wind turbines

by David Meyer, The Wellington Advertiser, www.wellingtonadvertiser.com

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.

They include:

– 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.

Those include:

– 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.

Strategic options

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.

URL to article:  https://www.wind-watch.org/news/2010/08/27/county-hears-of-difficulties-and-methods-to-fight-wind-turbines/

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