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Wainfleet’s wind turbine setback bylaw in court  

Credit:  By Dave Johnson, The Tribune | October 31, 2012 | www.wellandtribune.ca ~~

Wainfleet Wind Energy Inc. is suing Wainfleet over a wind turbine setback bylaw the township enacted in April of this year.

“Yes, we are being sued,” said Mayor April Jeffs, on Tuesday, adding the case was before Ontario Superior Court of Justice last Thursday in St. Catharines for a first appearance.

The lawsuit was filed by the law firm of Aird and Berlis LLP this past July on behalf of Wainfleet Wind Energy, which is looking to install a number of wind turbines in the township. The company is owned by the Loeffen family and earlier this year Tom Rankin, CEO of Rankin Construction, bought into it.

In April, the township passed a bylaw that called for a two-kilometre setback of wind turbines from residences, instead of the 550-metre setback allowed by the province under the Green Energy Act. Township staff told council it had no authority to pass the bylaw because the Green Energy Act supersedes local decision-making. Wainfleet had also previously passed a moratorium on the construction of wind turbines.

Rankin’s lawyers appeared before council to tell alderman they couldn’t pass the setback bylaw and that it would not stand up, but council passed it.

Jeffs said Tuesday that township council met twice in-camera to discuss the lawsuit, and as far as she knows, she may be the only one called to court when the case comes back.

“I had to give a sworn affidavit and will be representing the township.”

The mayor said lawyer Donald C. DeLorenzo, of the firm of Daniel and Partners LLP, will be representing the township and lawyer Eric Gillespie, of Eric K. Gillespie Professional Corp., will be collaborating on the case. Gillespie is known for his work in the class-action lawsuit against Vale (formerly Inco) and is an environmental lawyer.

Jeffs said the lawsuit is about having the bylaw quashed by the courts, not for damages, other than costs associated with the lawsuit application and any relief the court decides on. Though there are no funds in the budget for the case, it could be dealt with in the 2013 budget.

“We could debenture it, but that’s not something that’s been discussed by council,” she said, adding she had just thought of the idea.

Jeffs said the setback passed by Wainfleet council was the right thing to do and stands behind the decision. She said council feels there need to be more health studies around the effects of wind turbines.

“Other countries around the world are implementing farther setbacks.”

Jeffs said council also felt it was worth standing up for the setback issue because “somebody needs to stand up.”

The bylaw passed by Wainfleet council, the mayor added, has been circulated across the province and several municipalities have expressed their support for it.

With Wainfleet being the first municipality to pass such a large setback bylaw and taken to court over it, Jeffs said other municipalities that are facing wind turbines are watching to see what happens.

Lawsuit facts

• A declaration that By-law 013-2012 enacted by the Council of the Corporation of the Township of Wainfleet (the “Township”) does not apply and is without effect to the Wainfleet project as described below.

• In the alternative, that Township By-law 013-2012 is quashed on the basis that it is ultra vires (beyond the powers) the Township.

• Its costs of the application.

• Such further and other relief as counsel may advise and this Honourable Court permit.

• A copy of the lawsuit shows the grounds for the application and a background of the case.

Source:  By Dave Johnson, The Tribune | October 31, 2012 | www.wellandtribune.ca

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

The copyright of this article resides with the author or publisher indicated. As part of its noncommercial effort to present the environmental, social, scientific, and economic issues of large-scale wind power development to a global audience seeking such information, National Wind Watch endeavors to observe “fair use” as provided for in section 107 of U.S. Copyright Law and similar “fair dealing” provisions of the copyright laws of other nations. Send requests to excerpt, general inquiries, and comments via e-mail.

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