Focus: Both sides see hope in decision on wind bylaw

Both sides are seeing hopeful signs in an April Ontario Superior Court ruling that considered the validity of a municipal bylaw that enacted greater restrictions on wind turbines than those outlined in the provincial Green Energy and Green Economy Act.

“I think this is the first judicial decision on municipal authority,” says Don DeLorenzo, counsel for the Corp. of the Township of Wainfleet in Wainfleet Wind Energy Inc. v. Township of Wainfleet.

“Obviously, we were disappointed in the loss, but I think there were a lot of beneficial findings by Justice [Robert] Reid,” adds DeLorenzo of Daniel & Partners LLP in St. Catharines, Ont.

The case dealt with the township’s 2012 bylaw applying to industrial wind turbines. It provided for a minimum setback of two kilometres from any property measured from the tip of the rotor blade in horizontal position; a maximum noise level of 32 decibels at the nearest property; and indemnification for any loss of property value or adverse health effects cause by a turbine. Wainfleet Wind Energy, which is in the process of developing a five-turbine facility in Wainfleet, Ont., took the township to court in a bid to have the bylaw declared invalid or to seek a finding that it didn’t apply to its project. It cited the conflict with provincial legislation that establishes a 550-metre setback and a noise restriction of 40 decibels. The project, according to DeLorenzo, was the first application for turbines in Wainfleet, a municipality in the Niagara Region.

“It’s a significant issue around the Great Lakes area,” says DeLorenzo, noting the opposition from local communities to wind turbines.

The township passed the bylaw following a presentation from the Wainfleet Ratepayers Association requesting action on its part. In defending the rules, the township argued that if the bylaw was ultra vires, certain provisions under the environmental protection and planning acts were invalid as they were contrary to s. 7 of the Charter of Rights and Freedoms protecting the right to life, liberty, and security of the person. “We thought we had a very innovative argument there,” says DeLorenzo. The idea, he notes, was to seek constitutional recognition of the precautionary principle that, in general, requires the person or entity proposing some action to prove it poses no harm to the public or the environment.

The province intervened in Wainfleet Wind Energy because of the constitutional question. But ultimately, Reid found he didn’t have to rule on that matter because he had already found the bylaw to be invalid due to vagueness. The bylaw, he noted, set the minimum setback from any property, a term defined as a “property line, vacant land, dwelling or structure, and their inhabitants of all species used for private or business or public purposes.”

Reid found trouble with that definition. “Based on this definition, property could be a property line,” he wrote in the April 12 decision.

“Property lines are known, and described in municipal surveys. However, the balance of the definition is not at all clear. How is vacant land defined? Who is an inhabitant? Can the inhabitants live on the vacant land or only in a dwelling or structure? If the inhabitants are ‘all species,’ does that include animals, birds, insects, and plants? Can inhabitants be regular but transitory, such as migratory birds? What is the object of the phrase ‘used for private or business or public purposes?’ Could it be the land or dwellings or structures, the inhabitants or both?”

He continued: “The uncertainties arising from the definition of property are beyond those that could provide a basis for legal debate and reasoned analysis. The definition is unintelligible. No developer could reasonably measure its risk in building an IWT [industrial wind turbine] on any particular site. There is simply no logical and reasoned way that a court can grasp the definition sufficiently to perform its required interpretive function.”

As such, Reid declared the bylaw invalid, but DeLorenzo sees hope in other aspects of the ruling. In particular, he was happy to see Reid reiterate municipalities’ right to pass bylaws related to their economic, social, and environmental well-being as well as in relation to health and safety. On that score, Reid was referring to s. 11(2) of the Municipal Act. But as he noted, the Green Energy and Green Economy Act amended the Planning Act, for example, to exclude renewable energy facilities from municipal zoning powers. Renewable energy approvals, he continued, are subject to Environmental Protection Act regulations providing for public consultation prior to a decision by the director. The director’s decision is then subject to appeal at the Environmental Review Tribunal as well as a further challenge at the Divisional Court.

While Wainfleet Wind Energy argued there was a conflict with provincial legislation, Reid said he was “not prepared to go that far. The Municipal Act, 2001, clearly contains provisions to allow control of nuisance and noise as well as health and safety matters, as I have already noted. The Planning Act was specifically amended to prevent any zoning bylaw from applying to renewable energy undertakings but no similar amendment was made to the Municipal Act, 2001. I am not satisfied that the fact that both the EPA (as amended by the GEA) and the bylaw relate to IWTs and apply different standards means that the latter frustrates the purpose of the former, despite the fact that the preamble of the GEA refers to, among other purposes, the removal of barriers to renewable energy projects.”

Reid later added: “The enactment of the bylaw was not outside the township’s municipal authority.”

It was this aspect of the decision that provided some hope to municipalities. The proponents of the turbines, according to DeLorenzo, wanted to exclude municipalities from involvement in such matters, something he says Reid didn’t agree with. “The municipality’s not excluded,” he says, nevertheless acknowledging that the various laws “have to work together.”

In the end, however, the hope Reid offered municipalities only went so far. “I would have had no difficulty in finding that the bylaw frustrated the purpose of the GEA if there had been evidence to establish that the effect of the bylaw was actually to prevent entirely the construction of IWTs anywhere in the township,” he wrote.

For John De Vellis, a Shibley Righton LLP lawyer who often acts for renewable-energy developers, Wainfleet Wind Energy likely offers turbine opponents a narrow window of hope. “If you read it carefully . . . it’s hard to imagine what narrow band a municipality could slide in,” he says, noting that while a town might initially get away with passing a clearer bylaw with a more stringent setback than the provincial law provides for, it would be invalid once a project got renewable-energy approval. “It’s an interesting decision,” he says, noting it’s not the first time opponents of a wind-energy project have attempted to raise the precautionary principle in their legal arguments.

“I think that these kinds of things generally have been litigated,” he says.

For his part, DeLorenzo notes there has been no decision on an appeal but he suggests it would be difficult for the township given the cost. In fact, in a followup ruling in May, Reid ordered the township to pay $74,000 in costs to Wainfleet Wind Energy.

The decision, however, comes as the provincial government has been looking to soften opposition to wind turbines by providing for greater local involvement in renewable-energy projects. According to the Ministry of Energy, the revisions to the feed-in tariff program will “require energy planners and developers to work directly with municipalities to identify appropriate locations and site requirements for any future large renewable energy project.”

In a June 12 directive outlining the changes to the Ontario Power Authority, Energy Minister Bob Chiarelli detailed contract capacity set-asides for smaller projects with significant equity participation by municipalities or other public-sector entities, communities, and aboriginal groups. In addition, the changes establish a new prioritization points system for renewable-energy applications. For example, a project in which a municipality has a 15-per-cent equity interest gets three points. The OPA shall not offer a contract if the project doesn’t have at least one prioritization point, Chiarelli wrote in his letter.

For De Vellis, the changes are generally positive. “You really do need local buy-in to make green energy successful,” he says, adding he’s not in favour of a municipal veto over wind turbines.

DeLorenzo also sees hope in the province’s moves. “It’s clear to me that the province is now aware of the fact that municipalities are being trodden upon by these regulations,” he says.

The moves come, in fact, as at least one municipality has offered its approval of a wind-turbine project in exchange for money. According to the Toronto Star, Haldimand County recently signed a deal with wind-turbine companies that would provide it with $2 million. The companies are looking to develop 200 turbines, and the county says that’s all it’s willing to accept. According to Haldimand chief administrative officer Don Boyle, the county was in a difficult position given the provincial approvals. “What we had to do was make the best of the situation we had,” he told the Star.

For De Vellis, the changes herald a future where municipalities will be less resistant to projects as a new equilibrium emerges in the relationship between wind developers and local communities.

“I think it’s sort of a delicate balance,” he says, adding he believes renewable-energy projects will remain viable despite the added burden.

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