myKawartha.com , September 9, 2015
City to appeal decision in Sumac Ridge wind farm legal action
Council directs City solicitor to appeal an Aug. 13 court decision in favour of wind energy company wpd Sumac Ridge
Kawartha Lakes City Hall [Photo Lance Anderson]
Kawartha Lakes This Week
By Mary Riley
KAWARTHA LAKES – Kawartha Lakes council has directed the City’s solicitor to appeal a recent court decision in favour of a wind energy company planning to build a mega-wind farm in Manvers Township.
Council discussed the matter in closed session on Tuesday (Sept. 8) and later announced the decision, but there was no disclosure of the potential cost.
The appeal is moving forward after a Superior Court judge decided on Aug. 13 in favour of wpd Sumac Ridge Wind Incorporated in a case involving an access road.
The Court ruled the City had acted in bad faith when council passed “an unwilling host bylaw” in 2014 denying the wind energy company the use of Wild Turkey Road in Manvers Township to access its provincially-approved wind turbine project. The case was heard in April.
The City was ordered to pay $55,000 to wpd, an amount fixed upon and agreed to by both sides prior to the hearing.
The company received provincial approval (called a Renewable Energy Approval or REA) for Sumac Ridge in 2013, and several groups, including Manvers Wind Concerns, launched an appeal through the Environmental Review Tribunal. They lost that appeal earlier this year and are currently awaiting a ministerial decision.
In its application for judicial review, wpd claimed that the City “deliberately frustrated the REA and acted in bad faith in denying wpd the use of a roadway, Wild Turkey Road, which wpd characterizes as the ‘spine’ of the project approved by the Province,” the court document states.
The judge also ruled that the City passed the resolution in a deliberate attempt to keep the Sumac Ridge project from moving forward and that council used its municipal power in bad faith.
On Wednesday (Sept. 9) Ward 16 Coun. Heather Stauble told This Week wpd wants access to Wild Turkey Road, a rough road east of Highway 35 between Ballyduff and Gray roads that leads “right into the Fleetwood Conservation area.”
“It is mainly used for snowmobiling, hiking, riding; it’s very rough and there’s a heavy tree canopy,” she explained. “There is no way you could get an industrial wind turbine down there; you can barely get a pickup truck through.”
She said the road would have to be widened and realigned, including cutting all the trees and brush.
Coun. Stauble said she could not discuss financial details of the appeal as that information remained in closed session, but said it is important because “we can’t have companies coming in here and doing whatever they want to our roads…we spend a lot of money on them.”
She said the City has “municipal money allocated to protect the City’s assets.”
Solicitor Robyn Carlson clarified where the money for the appeal comes from. In an email, she said the City’s operating budget provides for legal expenses, as do other municipalities. If that legal budget is exceeded, council must approve additional funding from another source.
“To fund the appeal in question, Council approved additional funding from the Contingency Reserve. Ultimately this reserve (Contingency Reserve) is funded by surpluses in the operating budget; this could be sourced from property tax but it could be increased user fee money, increased interest income, etc.; there are a variety of sources.”
Several councillors This Week spoke with on Wednesday said they were not at liberty to discuss the potential costs of the appeal, as the discussion was in closed session.
In an email, Mayor Andy Letham said, “The exact cost of an appeal is very hard to nail down. We certainly will not comment when the legal action is ongoing. However, the operating budget, including legal, is public information.”
Council discussed the matter in closed session on Tuesday (Sept. 8) and later announced the decision, but there was no disclosure of the potential cost.
The appeal is moving forward after a Superior Court judge decided on Aug. 13 in favour of wpd Sumac Ridge Wind Incorporated in a case involving an access road.
The Court ruled the City had acted in bad faith when council passed “an unwilling host bylaw” in 2014 denying the wind energy company the use of Wild Turkey Road in Manvers Township to access its provincially-approved wind turbine project. The case was heard in April.
The City was ordered to pay $55,000 to wpd, an amount fixed upon and agreed to by both sides prior to the hearing.
The company received provincial approval (called a Renewable Energy Approval or REA) for Sumac Ridge in 2013, and several groups, including Manvers Wind Concerns, launched an appeal through the Environmental Review Tribunal. They lost that appeal earlier this year and are currently awaiting a ministerial decision.
In its application for judicial review, wpd claimed that the City “deliberately frustrated the REA and acted in bad faith in denying wpd the use of a roadway, Wild Turkey Road, which wpd characterizes as the ‘spine’ of the project approved by the Province,” the court document states.
The judge also ruled that the City passed the resolution in a deliberate attempt to keep the Sumac Ridge project from moving forward and that council used its municipal power in bad faith.
On Wednesday (Sept. 9) Ward 16 Coun. Heather Stauble told This Week wpd wants access to Wild Turkey Road, a rough road east of Highway 35 between Ballyduff and Gray roads that leads “right into the Fleetwood Conservation area.”
“It is mainly used for snowmobiling, hiking, riding; it’s very rough and there’s a heavy tree canopy,” she explained. “There is no way you could get an industrial wind turbine down there; you can barely get a pickup truck through.”
She said the road would have to be widened and realigned, including cutting all the trees and brush.
Coun. Stauble said she could not discuss financial details of the appeal as that information remained in closed session, but said it is important because “we can’t have companies coming in here and doing whatever they want to our roads…we spend a lot of money on them.”
She said the City has “municipal money allocated to protect the City’s assets.”
Solicitor Robyn Carlson clarified where the money for the appeal comes from. In an email, she said the City’s operating budget provides for legal expenses, as do other municipalities. If that legal budget is exceeded, council must approve additional funding from another source.
“To fund the appeal in question, Council approved additional funding from the Contingency Reserve. Ultimately this reserve (Contingency Reserve) is funded by surpluses in the operating budget; this could be sourced from property tax but it could be increased user fee money, increased interest income, etc.; there are a variety of sources.”
Several councillors This Week spoke with on Wednesday said they were not at liberty to discuss the potential costs of the appeal, as the discussion was in closed session.
In an email, Mayor Andy Letham said, “The exact cost of an appeal is very hard to nail down. We certainly will not comment when the legal action is ongoing. However, the operating budget, including legal, is public information.”