June 19, 2018 – Picton, Ontario
In a decision released yesterday by the Ontario Superior Court of Justice, Picton Terminals has been ordered to remove portable industrial equipment and aggregate stockpiles stored on the northeast portion of its Picton Bay site.
“We are pleased with this decision,” said Dave Sutherland of Save Picton Bay, the applicant. “It reflects the fact that both Picton Terminals and the County have been allowing the site to be used in ways that contravene the current zoning. We hope the company and the County will work to ensure prompt compliance as directed by the Court.”
Other aspects of the decision appear to raise questions regarding certain legal findings. “We are reviewing the decision and hope to meet with our client for discussion in the near future,” said Eric Gillespie, counsel for Save Picton Bay.
Full text of the judge’s decision is here: Save Picton Bay, court decision, June 2018
To all Save Picton Bay Supporters,
The ice, snow and sleet did not stop the Court Hearing in Belleville two days ago, and approx. 30 SPB supporters made the trip in to show the Judge how important this is to our Community, and the Judge noted that he is well aware of this in his closing remarks.
As many know, this case centers around the rights that Picton Terminals (PT) may or may not have legally to use their site to run a maritime dock and transship industrial material in / out by ship and truck. PT has stated that they would like to ship all manner of goods from rock (which they do currently to Amherst Island for the wind turbine project) to petro-chemicals, salt, garbage, steel etc. They have also previously stated that they want this to be one of the largest shipping docks on the Great Lakes! So it is essentially a land use issue with wider implications for the Community at large and the environment.
The current 2006 Zoning limits the site to a quarry excavation operation. No mention of a dock, no mention of shipping bulk goods.
PT argues that they are ‘grandfathered’ by virtue that when the 2006 Zoning was changed to limit this property’s use to a Quarry, they (or their predecessors) had already been using the site to transship salt. In addition, they argue, that because they are not a quarry (even though they have been blasting, excavating and creating dust and noise) they are exempt from being regulated under pits and quarry regulations because they are improving a ‘dock’.
So, with your ongoing financial help, we have been forced to take the County to Court to ask a Judge to interpret this Zoning By-law since the County Council refused to enforce their Zoning and has stood steadfastly behind PT.
SPB has argued that the transshipment language in the old Zoning before amalgamation was meant to apply to the previous Iron Ore development ; and that PT is using the site illegally. Even if transshipment is considered a standalone use, the very nature and intensity they are putting this site to now is vastly magnified from that contemplated decades ago.
There appears to be three main issues to be decided here. The first is whether or not PT can use this site as a shipping port and if so, for what material. PT has on their website that they want to ship all manner of things including Biomass (read garbage!). The Judge will now grapple with the implied intent of Council decades ago and if he agrees to this, it is possible it will be limited to the grandfathered shipping of Road Salt.
The second issue is the size of the Industrial Use and the fact that PT expanded the previous operation to a neighbouring parcel they own which until recently had an old farmhouse on it and is zoned Rural Residential. It is hoped that the Judge will rule in our favour that this is totally offside; notwithstanding that they have stripped and excavated most of the property as if it were a quarry.
The third, and perhaps most important issue is the impact that PT has had on the neighbours, the community at large and the environment both in terms of the contamination to the water table and to the fishery and drinking water reservoir of Picton Bay. The Supreme Court of Canada has ruled in a similar case that if you have a ‘grandfathered’ land use (ie. you are allowed to continue a use even if the Zoning changes) you lose that permission if the scale and impact on the Community changes to a point where it no longer resembles the original use. Our lawyer did an admirable job trying to convince the Judge that with 3 Provincial/Federal Environment Orders to clean up their act in the last 2 years; strong evidence of ground water contamination of sodium chloride and of lethal impact to the fish habitat and obvious threats to Picton’s drinking water with the barge sinking and shut down of the water system a year ago, this would meet the test that their expansion plans should not be allowed.
We expect his ruling within the next several weeks.
Save Picton Bay interview on NewsTalk 1010