April 25, 2012
Ontario

We can’t pass a bylaw we can’t enforce: Merritt

Amanda Moore, Staff, www.niagarathisweek.com 24 April 2012

While residents are urging council to do what it can to protect them from industrial wind turbines, members of council say their hands are tied.

Speaking at the end of Monday’s council meeting, Ald. Sue-Ellen Merritt said the decision-making power was taken away from municipalities when the Green Energy Act was passed.

“I still feel there exists confusion as to what we can and cannot do,” Merritt said in addressing the concerns of six residents who came forward Monday to urge council to take all steps in protecting the township and its residents. “I’m pretty sure we can’t pass a bylaw we knowingly can’t enforce,” she said in addressing comments from St. Anns residents John Dykstra and Catherine Mitchell who urged council to follow on the heels of Wainfleet, which passed new bylaws referencing industrial wind turbines at its April 10 council meeting.

“Does (Wainfleet) Mayor April Jeffs and her council care more about the health and welfare of the citizens of Wainfleet than Mayor Doug Joyner and this council care about the health and welfare of the citizens of West Lincoln? We think not,” said Dykstra, following that up with legal advice from a law firm in Guelph specializing in environmental, municipal and planning. According to Garrod & Pickfield, municipalities have some control in regulation the industrial wind industry such as setbacks and noise bylaws.

But according to township staff, that is not the case. In a February report to the planning/building/environment committee, township planner Brian Treble said passing a setback bylaw would hold no power as the province established setback and noise guidelines through the Act. The Act states minimum setback distances of 550 metres from a dwelling and sets the noise limit based on 40 decibels. Staff could not recommend approving the bylaw, which would have changed the minimum setbacks to two kilometres. Instead, staff suggested council lobby the province to change the regulations.

Wainfleet council, despite the same warnings from its own staff, passed a new setback bylaw at its April 10 meeting. The bylaw sets setback distances of two kilometres and a maximum noise level of 32 decibels. The bylaw also requires builders to reimburse residents who suffer adverse health effects of property devaluation as a result of the turbines being erected.

Legal counsel for Rankin Construction, which has partnered with Wainfleet Wind Energy Inc. to erect five turbines in Wainfleet, has suggested enacting the setback bylaw could result in legal action.

“It is our position to suggest to you that passing such a bylaw is not lawful,” said Edward P. Lustig, solicitor for Rankin Construction, at a March 27 council meeting adding it could result in consequences and expenses that council wouldn’t want for the township. “It’s just not appropriate to pass a bylaw that’s illegal.”

What would be appropriate for the township to do, said Merritt, is make it known to the province that West Lincoln does not want wind turbines. Following a two-year review of the feed-in-tariff program, which was set up through the Green Energy Act and guarantees green energy developers a set rate per kilowatt for a 20-year period, the province developed a point system which would put municipalities who do not oppose wind energy at the front of the line when it comes to approving green energy projects. Two projects in the West Lincoln area have been approved under the FIT program, IPC Energy has applied to erect five turbines in the Caistor Centre area while Niagara Region Wind Corp. is proposing to erect 77 turbines in total, with more than half going in West Lincoln.

“Please tell Premier McGuinty clearly and firmly that West Lincoln wants to be at the back of the line,” Carole Barker, a Wellandport resident, told council Monday.

Barker’s message struck a chord with Merritt.

“An opportunity has presented itself for council to protect the township in the future,” Merritt said. “We have an opportunity now to take a stand. We can make an impact on what comes down the pipes after IPC and NRWC.”

URL to article:  https://www.wind-watch.org/news/2012/04/25/we-cant-pass-a-bylaw-we-cant-enforce-merritt/