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Council pursues case against wind developer's use of rights of way  

Credit:  By DON CROSBY, SPECIAL TO QMI AGENCY, www.theenterprisebulletin.com 27 May 2011 ~~

Grey Highlands council has narrowly voted to seek a judicial review after the Ontario Energy Board upheld a decision to allow wind power developer International Power Corporation to run transmission lines along road allowances.

In a 4-3 recorded vote on May 18, council decided to take the next step in its bid to get a clarification of a question it put to the OEB last year.

Mayor Wayne Fitzgerald, one of three council members who voted against going to the Divisional Court, said he was satisfied with the ruling by the OEB and doesn’t see the need to spend more money going to court.

He noted that this year council in a bid to trim its spending didn’t put aside $100,000 for the proposed new hospital in Markdale.

Councillors Dave Kell and Dave Clarke also voted against the proposal to go to court.

Fitzgerald said in a telephone interview on Sunday that the decision by council to go to court is not about whether wind energy is coming to Grey Highlands or not. He describes it as the appeal of an appeal that the municipality has already lost twice.

“I don’t think the electorate or the citizens at large want their tax dollars going down this path. We’ve lost (twice) and we’re appealing a loss and we’ll probably lose again in my opinion,” Fitzgerald said.

Last year IPC sought an agreement with the municipality to locate transmission lines along municipal and county road allowances. It offered Grey Highlands $50,000 a year for 20 years to sweeten the deal. Council refused the offer.

IPC appealed council’s refusal to sign an agreement to the Ontario Energy Board. The board ruled in early January that the company had the right to build the line, since it is not only a generator of electricity but also a distributor just like Hydro One.

The municipality appealed the OEB ruling. Earlier this spring the board dismissed the appeal, said it was without merit and gave no further explanation. It noted that because of the frivolous nature of the appeal Grey Highlands came very close to having to pay IPC costs.

“I decided that by OEB dismissing the appeal being without merit, and being vexatious . . . we were very lucky in my opinion that we did not get stuck with the other side’s costs, which believe me could be considerable,” Fitzgerald said.

Fitzgerald said councillors had discussed their options behind closed doors before Wednesday’s meeting, but Wednesday’s decision to go to court was made in open council.

“We are making an important decision with far-reaching consequences. It’s going to cost a lot of money to go to Divisional Court and there is always the risk you could have to pay the other side’s costs,” Fitzgerald said, adding, “again I repeat this is not about wind energy; this is about appealing decisions that have gone against us.”

Coun. Lynn Silverton said she doesn’t think it’s time to give up.

“We’ve been working on this for seven and half years and using taxpayers money to get the bylaw that was carefully studied and created to make intelligent decisions (before the advent of the Green Energy Act). Then the Green Energy Act took that away from us. In my opinion it would be a waste of taxpayers money if we didn’t take the final step,” said Silverton.

Coun. Stewart Halliday was one of four councillors who voted to go to Divisional Court, saying the OEB made an error in law by refusing to review its original ruling and dismissing the municipality’s appeal out of hand without an explanation.

Halliday says the four councillors who supported the appeal –himself, Silverton, Paul Allen and Deputy-mayor Paul McQueen –want a clarification of whether IPC is a distributor of electricity, something that remains unclear.

He says it’s not enough for the OEB to simply say that its original ruling was right and dismiss the municipality’s appeal as frivolous.

“We feel that International Power Corporation is a generator of electricity and not a distributor. If they were a generator they would have a licence for that. Going to court is the way to go to seek clarification . . . we think municipalities should have authority over their right of ways and the (OEB) says we don’t,” Halliday said.

Halliday said Grey Highlands is the first municipality to have to deal with a wind energy development project under the terms of the Green Energy Act.

“All the other wind turbines have been built prior to the Green Energy Act. All these other municipalities allowed these wind turbine companies to come in because they had the power to do that. No one has ever challenged this before because it was done under the (Provincial) Planning Act.” Halliday said.

He drew a comparison between this case and one several years ago when residents of the former Artemesia Township sought a judicial review by the Divisional Court of a ruling by the Ontario Municipal Board related to an appeal by water bottler Artemesia Waters.

The OMB had ruled that water taking wasn’t a land use. Residents challenged the OMB ruling in Divisional Court. They funded their legal challenge with a loan from the council of the day and they won their appeal.

In this case Halliday said residents don’t have the opportunity and it’s up to council to act on their behalf.

“Unfortunately (in this case) the people can’t really challenge. We as a municipality have to challenge it,” he said.

Wind energy opponent Lorrie Gillis supports council’s move to go to court.

“I encourage anything council can do to protect the citizens of this municipality,” said Gillis who says that the cost of going to court and stopping the wind development would be far less than the tax revenue that would be lost by reduced property values once the 11 turbines are up and running.

Source:  By DON CROSBY, SPECIAL TO QMI AGENCY, www.theenterprisebulletin.com 27 May 2011

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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