MANVERS TWP – City of Kawartha Lakes Ward 16 Councillor Heather Stauble is defending the City’s efforts to challenge a wind energy company’s industrial wind turbine project in Manvers Township.
She says residents opposed to wind turbines have put up “hundreds of thousands of dollars” of their own money in the fight to keep the mega-turbines out of their backyards, and the City has supported them in that battle.
wpd Canada won an appeal last month to use Wild Turkey Road to access Turbine 5 of its Sumac Ridge industrial wind turbine project. The Court of Appeal ruled in favour of the company and the City must pay a total of $369,000 in legal costs for both parties.
Coun. Stauble told This Week via email that wpd was not entirely forthcoming about using Wild Turkey Road.
“It is an unopened road allowance on the Oak Ridges Moraine, environmentally protected under Provincial legislation, the Oak Ridges Moraine Act and Oak Ridges Moraine Conservation Plan,” she wrote.
Wild Turkey Road, she continued, is at the headwaters of Fleetwood Creek. Provincial leglislation for the Moraine permits a trail system, but prohibits the opening of unopened roads.
Coun. Stauble said wpd was “well aware of the concerns” about wind turbines on the Moraine in a letter to former mayor Ric McGee in January of 2011.
In that letter, provided to This Week wpd stated, “After checking the mapping database of the City of Kawartha Lakes Oak Ridges Moraine Conservation Plan, it is clear that the ORM actually runs through our project…
“We should note however, that we have always planned on using the Renewable Energy Approval (REA) criteria for the Oak Ridges Moraine in all our assessments, regardless of the particular part if the project is in or out of the Moraine, and we will continue to do so.”
Coun. Stauble listed several points:
– Wild Turkey Rd was not the “artery” or “spine of project”;
– wpd did not even mention Wild Turkey Rd in its initial Draft Project Description;
– wpd described the project as “entirely on private land” and “internal roads”;
– there was no traffic management plan, maps are unclear – do not show the roads clearly (Fig. 1 in all Project Description and Construction Reports and attached to wpd letter to Mayor in 2011);
– later reports make only passing references to Wild Turkey Road and Ballyduff Road and describe it as a one metre widening;
– wpd continues to state that it is entirely on “private land.”
wpd reports did not provide:
– plans for alteration of grade to road and turbines sites, access roads, significant slopes, alignment
– plans for the transition and swing area for access roads (endangered species identified in these areas by wpd)
– stormwater management plans – important since both the Green Energy Act regulations and ORMCP prohibit rapid infiltration basin and columns – ie. stormwater management ponds or columns
– sediment and erosion plan
– plan for protecting the two Fleetwood Creek headwaters from alteration and run-off which would affect cold water fish habitat (brook trout)
– spills management plan.
Kevin Surrette of wpd responded to This Week via email about the above points, saying, “These issues have been raised at the Environmental Review Tribunal (ERT) and the most recent legal proceedings. The information was reviewed by competent jurists, and the appeals have been dismissed. We believe the decisions and the reasoning behind them speak for themselves.”
Coun. Stauble said the Ministry of the Environment and Climate Change (MOECC) also sent multiple letters providing assurances, including to MPP Laurie Scott by then-Minister Jim Bradley in 2012.
“Any renewable energy project proposed to be located in the Oak Ridges Moraine Conservation Area is subject to the provisions of the Oak Ridges Moraine Conservation Plan.”
She said further reassurances were sent in letters to City staff and herself.
The City had advised wpd and the MOECC of the location of the Wild Turkey Road. There had been multiple meetings between wpd and the City where staff advised wpd of the opposition to using the road, she said.
“The City provided comments to wpd and the MOECC through meetings, comments, planning reports…and a box full of letters and emails objecting to the location on the Oak Ridges Moraine and the use of Wild Turkey Road.”
She noted the Environmental Tribunal Decision on the Sumac Ridge Appeal did find a “risk of serious and irreversible harm” at Turbine 5 and on Wild Turkey Road, and that the City had jurisdiction over the road, and setbacks had to be maintained.
“The City was adhering to provincial legislation in banning access to Wild Turkey Road, because that is what the [Moraine] provincial legislation requires it to do.”
When the City declined to allow wpd Canada access to the road, the matter went to court, and the Divisonal Court ruled against the City, saying it had acted in “bad faith” by preventing wpd access.
Costs awarded by the court ($55,000) were agreed to beforehand and wpd would have been under the same obligation to pay had the decision worked out differently, Coun. Stauble noted. “Staff were very careful to protect the City’s interests and handled it well. These are not punitive costs – they are standard in all civil legal matters.”
The City further had to pay $30,000 after the matter went to the Court of Appeal, and the City’s legal fees (over two years) totalled $284,000.
Coun. Stauble said the City managed “managed to obtain $196,000 for replacement of vegetation on the Oak Ridges Moraine after the Court ordered the Road Use Agreement.”
The councillor defended the City’s actions throughout the process, noting that over the years, “wpd was fully aware of issues with Wild Turkey Road and Oak Ridges Moraine.”
“The City has an obligation to defend their jurisdiction over roads – one of our major assets and one of major liabilities,” she said. “One of the central issues of the appeal was the use City’s assets by a private company. Giving a private company the authority to do whatever it wants on our roads or road allowances sets a very dangerous precedent which could potentially undermine the standards that the City must maintain in many other contexts.
“The City was also required to pass bylaws, the Oak Ridges Moraine bylaw and comply with other provincial legislation, the Oak Ridges Moraine Act and Oak Ridges Moarine Conservation Plan, which prohibits opening unopened roads and protection of this area.
The municipality also has a responsibility under the Municipal Act (Part 11, Section 8, 5) and 6) and can pass bylaws/resolutions to protect the ‘economic, social and environmental well-being of the municipality’ and the ‘health, safety and well-being of persons’.”
Coun. Stauble said legal fees are “a regular cost of doing business” and the same costs are incurred with Ontario Municipal Board (OMB) hearings, zoning violations, bylaw offences etc.
She applauded the City’s actions on an issue that is huge in Manvers Township.
“Residents in this area paid hundreds of thousands of dollars out of their own pockets and put in thousands of volunteer hours to mount three legal appeals. The City has defended interests in a number of circumstances – not just in this instance. Good for council.”
She also commented on the court’s finding that the City acted in bad faith.
“The City joins a growing number of municipalities – including which have been found to have acted in bad faith when it comes to the Green Energy Act – because the council passed resolutions or bylaws that the Court found to have acted outside of their jurisdiction or frustrated the Green Energy Act,” (such as a bylaw that no turbines could be placed in the municipality, she said.
The Court of Appeal Decision undermines municipal jurisdiction over roads and unopened road allowances – particularly when it comes to renewable energy projects. The Decision stated that the City did not need to “open” the road – but the impact of widening, realigning, leveling, building it up and removing all vegetation is the same as opening – whether you call it open or not,”
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