Saugeen Shores council needs to seek legal advice. That was the recommendation made by Daniel Santoro, a Toronto based lawyer who spoke at Monday night’s committee-of-the-whole meeting.
Council chambers overflowed with residents concerned with the 75-metre wind turbine the Canadian Auto Workers are planning to construct at the CAW Family Education Centre in Port Elgin. Santoro gave hist deputation on behalf of Saugeen Shores resident and lawyer John Mann.
“The question is whether, and how, the municipality can and should enact a bylaw to regulate wind turbines,” opened Santoro.
He suggested the municipality listen to its constituents, and form an investigation into their concerns to determine the problem, and if there is one, find out whether it is legitimate.
He said the potential problems include health and safety, particularly within noise and vibration.
“All of this comes squarely within the powers that this municipality has to regulate conduct under the Municipal Act,” he explained. “The municipality can pass bylaws respecting the social and environmental well-being of the municipality, health, safety and well-being of persons and protection of persons and property.”
Santoro stressed that those areas of concern need to be investigated properly if a bylaw is to be passed.
“If passed in haste, it will struck down in court, (as is) if it is made without jurisdiction or in bad faith,” he said.
Santoro recommended council, perhaps in conjunction with other municipalities who have concerns, seek legal council and find out what kind of investigation should be done, on behalf of the concerned residents
“Even the province acknowledges the 550 meter set back required for any new wind projects,” he continued.
Although there were grandfather clauses enabling old projects that had received approval prior to the Green Energy Act to carry forward, if council were to draft the same concern that the province had to that led them to have this boundary, it could work in their favour.
Under the mandates of the Municipal Act, Santoro said there are ways to regulate wind turbines within the municipality.
Within the legislation, it is clear that the municipality can control noise and regulation, Santoro continued.
“What you can deduce from that is whether wind turbines can be operated in town, at what time, an so on,” he said.
While Santoro appeared before council to make them aware of some of their options, he could not commit to giving a full legal opinion.
One thing he was certain of though is the CAW is not in the right by refusing to consider at least a delay or further consultation on the project. He said the simple answer of “no” that has been given so far is wrong.
“I’m not so sure about that at all,” he said. “I think it is an over simplification, and I think they need to think about it very carefully.
He said council’s goal has to be that a bylaw will be created that will withstand the scrutiny of lawyers in a court at a later date.
That said, council has the backing of the public. A petition was submitted Monday night from concerned residents urging council to revoke the building permit.
A new motion was added to the council agenda, where councillors unanimously voted in favour of the resolution to request the Ontario Ministry of Environment (MOE) review the public’s concerns, and provide them the opportunity to be heard. Further, that the MOE and the director of approvals exercise their authority to review, suspend or revoke the certificate of approval for the wind turbine at the education centre.
Saugeen Shores mayor Mike Smith said he hopes the CAW will reconsider.
“We’re not opposed to the wind turbines,” he said. “But this is not the proper location. There are a lot of places it could go within the municipality that could beat the 550 meter setback present in the Green Energy Act, and we don’t think (the turbine) should be there with houses which are going to be 150 meters away.”
Smith said one of the things that really bothers him about the certificate of approval is that it was issued in March of 2009, and that the Green Energy Act had its first reading in the house in February of the same year.
“I wonder where (the ministry was) headed before this; it so grossly violates their setback,” he said. “It’s kind of disappointing they wouldn’t have known at the time and then at least have tried to confine with what was before the house.”
Vice-deputy mayor Doug Gowanlock said he believes council’s position on this particular turbine and others is pretty clear.
“We rebutted a number of years ago and lost in front of the Ontario Municipal Board because at that time maybe we didn’t have quite the community support we have now,” he said. “That being the case… CAW had the ability to back away from this in the better community, and I think they still may do that.”
Gowanlock added the CAW has always been a good partner in the community, and both the union and the municipality have benefited from one another.
Further, Gowanlock said the MOE is listening whether we believe it or not.
“When these things are discussed by a whole lot of concerned citizens… and councils who universally say ‘this isn’t right, this doesn’t make any sense,’ (Doris Dumais of the MOE) has to take a position, certainly within her cabinet that says ‘okay I am dealing with this,'” he explained. “I think we have to believe that”
Councillor Diane Huber agreed that the CAW needs to take the concerns to heart.
“I would like to think the CAW would react to what’s going on in the community, however this is absolutely the right thing to be do,” she said. “We need to once again make comments that this is our community and we have a stake in this and our interests are not being met.”
In the time being, Smith said what council needs to do now is put pressure on the province.
“If they can reconsider, we can reconsider,” he said.
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