A legal battle is brewing between Loyalist Township and a landowner on Amherst Island who is upset that the plan to build a wind energy project includes burying a cable on his property.
Martin Hauschild owns more than 41 hectares (about 100 acres) of land along the South Shore Road.
As its name suggests, the narrow, gravel South Shore Road travels along the southern edge of the east half of the island.
The plan by Algonquin Power’s subsidiary Windlectic Inc. to build about 26 wind turbines on the island includes laying a transmission cable along that roadway to connect the turbines to an electrical substation.
The catch is South Shore Road is a forced road, that is, a public roadway built on private property.
Hauschild, who decided not to support the wind energy project, said that because the road was built on land he owns, neither the township nor the company can build part of the project on that land.
“Everybody has a perfect right to go over the road. The issue is one of who actually owns the road and what can you do with it,” Hauschild said in an interview Friday.
“Even if a right of way exists, that doesn’t give anybody the right to say: ‘OK, we’re going to put a transmission line through your property and we’re going to widen the road and we’re going to cut into your trees and go through your pond and cut into your well.’”
Hauschild said his lawyer filed papers to challenge in court the company’s plan to lay cable along the road on his land. Hauschild said the first court date will likely be in mid-July.
Robert Maddocks, Loyalist Township’s chief administrative officer, said Friday the municipality could not comment on the matter as it is before the courts.
The issue of forced roads on the island is not a new one for the township.
In a report to council earlier this week, Dave Thompson, the township’s director of infrastructure services, wrote that ownership of road allowances on the island evolved in a “radically different manner” from the rest of the municipality.
The forced roads on the island generally evolved from commonly travelled routes and were built without official Crown surveys and public ownership.
“The unique feature of forced roads is that the limit of public ownership is subject to that portion of land that is maintained for the purposes of the road and may include ditching or maintained boulevards, etc.,” Thompson wrote.
“It is important to consider that the township can only extend the rights for use of the road allowance for that portion of land that it is certain that the Ttownship controls.”
According to Thompson’s report, several island residents have put the township on notice that they will pursue legal action if the company uses their land for the project without permission.
“Our solicitor has advised that the township should exercise extreme caution with respect to its jurisdiction of forced roads beyond the limit of the travelled road without clear and cogent evidence,” Thompson wrote.
Hauschild is confident that no municipal road allowance exists along the portion of the road in front of his house.
“There is not and there never has been a defined road allowance, and adding a dimension of complexity, because there is erosion, the roadway kind of moves around a little bit,” Hauschild said.
“It’s not a case where one can say the road has been here for 100 years. And also, how they dump gravel changes the orientation of the road by, you know, a foot her and a foot there.”
Hauschild said according to the deed to his property, the land he owns extends to the edge of Lake Ontario.
“If the township claims a road allowance, that means I no longer have waterfront, and that dramatically decreases the value of my property,” he said.