HomeMy WebLinkAboutLakeshore Advance, 2013-03-13, Page 11Bluewater passes IW
Vote was unanimous,
but not without
opposition
Melissa Murray
Ina unanimous vote, Mummer
councillors passed the indust) ins wind
turbine building permit fee for $14,000
plus $420,000 in securities to cover
decommissioning, potential health
affects and legal fees at their March 4
regular council sleeting.
Eric Gillespie, a 'Toronto lawyer
4. hired by the municipality to draft they
bylaw, was 011 hand to explain the fees
and the specifics of the bylaw.
The building permit fee bylaw
amends council's current bylaw to
include a fee schedule for industrial
wind turbines, explained Gillespie,
after being given the floor by Council-
lor -at -large 'Tyler Hesse!. Mayor Bill
1)owson, Deputy Mayor Paul Klopp
and Councillor John Becker declared
conflicts for this portion of last Mon-
day's meeting.
(Gillespie's draft suggested the use of
the municipality's Chief Building
Officer to collect and reimburse secu-
rities if the conditions of the building
permit fee Were Ille't. The bylaw state's
the (;110 is responsible for using his or
her discretion on releasing the
$100,000 security for health effects,
$1(10,000 for legal fees and $220,000
for decommissioning costs.
"The proposal is designed to give
discretion to the (:130 to decide when
those amounts should be refunded or
drawn upon," sttitl Gillespie.
"The bylaw recognizes we don't
know how all maters will play out in
the municipality. But certainly, in our
view, it protects the municipal interest
and the public interest here, when it
conies to these types of installations."
ia "It makes sure there are sufficient
fa/ funds available not only for the initial
review process, but for platters that
could he of concern to council and to
staff," he added.
While at previous meetings council
wished to include a $25,000 economic
development fee per turbine in their
building permit fee bylaw, Gillespie
advised council that would be more
appropriate to include as a
development charge.
After being introduced to the draft
bylaw at council's last meeting, what
councillors wanted to hear Gillespie
talk about was whether the bylaw and
the fees set out in it were within the
municipality's powers. Councillor Kay
Wise specifically wanted to know if the
bylaw contradicted the Green Energy
Act.
"1 have no doubt, based on the cor-
respondence you (have received) if
council sees fit to hear from the appli-
cant, you'll hear a point of view that
says there may be issues around
whether this bylaw conflicts in any
way with legislation," he said referring
the Next lira and other wind project
proponents.
"It is our respectful view that it does
not and that there is a proper basis for
moving forward. 'Hutt is why we have
come this evening to present on this
issue and to answer any questions you
may have," Gillespie explained.
Councillor Janisse Zimmerman had
similar concerns.
"1 would just like you to reiterate
that you have looked at (the securities'
and have considered theist from our
point of view, as a protection, and that
you feel that comes into all the regula-
tions you ate dealing with," she said.
Gillespie again defended the draft
saying they considered several
interpretations.
"Essentially what we have done in
putting together this package is try to
give our hest assessment of how this
will be interpreted both in the practi-
cal sense, in applying the bylaw in the
real world, and in the legal sense, of
wluat would happen if someone came
along and said ' No, No. We disagree,'"
he said.
"Yes, thought has gone into how
these amounts should he applied and
what seems to he reasonable and what
the municipality can stand behind,"
he said, ,adding other municipalities
are in the process or have passed simi-
lar bylaws across Ontario.
After the discussion, Councillor
John Gillespie moved the motion,
which was seconded by Councillor
George Irvin before the bylaw was
passed unanimously.
Before laic Gillespie's delegation,
131uewater's Chief Administrative
Officer, Steve McAuley, explained staff
received a request by Next Era to he a
delegation at the meeting after the
deadline. Ile advised council to pro-
ceed as they wished to determine
whether to allow the delegation.
With Next Era's delegation request
denied by council, and Councillor
Irvin saying he's "heard enough from
the corporation,' environmental law-
yer 'Tyson Dyck, from 'Tory's law firm
in 'Toronto, used the comments and
questions section of the agenda to
stake a comment on Iiluewater's pass-
ing of the building permit fees.
With the passing of the bylaw, he
told council "Our client is left with no
other 01)11011 than to go holm' tonight
and take a deep thought about all of
the available legal options it has in
front of them."
"As you may know there are, under
Ontario law, allowances to bring
applications to quash bylaws that are
invalid or go beyond the applicable
municipal authority. You may also
know, under Ontario municipal law,
there is potential liability not only for
the municipality, but also for individ-
ual municipal officials where there are
actions taken that result in damages
based on unlawful legal actions, such
as the passage of a bylaw," said Dyck.
Wednesday, March 13, 2013 • Lakeshore Advance 11
T building permit fee
Our client is left with
no other option than
to go home tonight
and take a deep
thought about all of
the available legal
options it has in front
of them
— Environmental lawyer
'I yron Dyes.
Ile also explained the munic-
ipality had gone outside their
powers in passing the bylaw as
dictated by the Green Energy
Act and indicated the bylaw
gives powers to the (:130, which
are not outlined in the Ontario
Building (:ode Act.
"There is not a role for munic-
ipalities under the applicable
legislation to direct (:BOs to go
beyond the roles set out in the
provincial legislation or to devi-
ate from those role's. It's our cli-
ent's view, and it is supported
by a body of case law, any direc-
tion on the (:B0 to first of all
take in decommissioning secu-
rity and then assess at the end
of the day whether deconlnais
stoning was performed to his or
her satisfaction, not only runs
into conflict with the provincial
regime ... but also directs the
(:130(0(11) something the
municipality doesn't have the
legislative authority to direct
hint or her to do."
"'These are some of the
limitations we thought were
important to bring to your
attention because it Just high-
lights a fundamental concern
that our client has with the
bylaw (in the municipality's]
attempt to step into what is
clearly reserved for the prov-
ince:. he Said.
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