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Legal challenge prompts West Grey to rewrite fee bylaw
Credit: Legal challenge prompts West Grey to rewrite bylaw | By Don Crosby, For The Sun Times | Monday, July 8, 2013 | www.thepost.on.ca ~~
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West Grey is going to rewrite its fees and charges bylaw relating to wind energy projects to better withstand a legal challenge.
Upon the advice of its lawyer, council last week agreed to rescind the bylaw past earlier this year and draft a new one.
“Council received a legal opinion . . . indicating reservations respecting the validity (of bylaw 26-2013) to withstand the court challenge and therefore has recommended West Grey council rescind the bylaw,” said clerk and acting chief administrative officer Mark Turner following the July 3 council meeting.
NextEra Energy Canada notified West Grey last month of its intent to ask an Ontario court to quash additions made to the fees and charges bylaw passed March 18 that relate specifically to wind energy projects. The company contends the municipality is unfairly targeting NextEra with unusually high fees.
“We’ve compared it to other fees that we’ve seen in other jurisdictions and there is not much clarity in the West Grey bylaw for backup for the fees,” company spokesperson Adam Rickel said on June 11.
NextEra is planning to build up to 14 wind turbines in the Priceville area with a generating capacity of 23 megawatts of electricity at an estimated cost of $67 million.
Under the March 18 changes to the fees and charges bylaw, industrial wind developers would be subject to a number of fees and security deposits. The fees range from posting $100,000 performance bond for each turbine during the 20 year projected life of the machines, to $50,000 deposit for a peer review of reports generated in the renewable energy application process.
Other security deposits include $50,000 for use of a municipal roadway by heavy equipment during installation and maintenance of the turbines. For municipal roads with a box culvert, the security deposit increases to $125,000 and it jumps to $200,000 for a municipal road with a bridge.
West Grey Mayor Kevin Eccles said council isn’t backing down in the face of the court challenge. It was easier create a new bylaw rather than try to amend the current one. He said the new bylaw will be clearer and leave fewer details unexplained.
“The theory of the bylaw is just great. On the advice of legal counsel we don’t have enough meat on the bones. The bylaw is fully defendable but . . . we just didn’t have enough background information,” said Eccles who gave the example of the requirement to post $200,000 security for heavy equipment crossing a municipal bridge. Implied in the bylaw was the understanding that if no damage was done, the deposit would be refunded, but that wasn’t clearly stated.
“That was always the expectation, but we didn’t have it in there as to how it was going to be returned. It’s the way we do it with subdivision agreements and gravel pit applications . . . the lawyer said put it in black and white.”
A motion to rescind with the bylaw will come up for approval at the council meeting later this month. A new bylaw will be drafted by municipal officials and West Grey’s lawyer later this summer.
Representatives of NextEra did not return several phone calls.
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