Bylaw "unlawful" says NextEra's lawyer

WEST GREY - An external lawyer working for NextEra Energy told West Grey council Monday evening during question period that imposing large fees for bonds associated with the construction of wind turbines is, in his opinion, unlawful.

West Grey was served a letter on Friday describing lawyer Justin Necpal's argument against a bylaw passed Monday evening outlining amendments to include fees associated with the construction of wind turbines.

Councillors John Eccles and Don Marshall were the only councillors that voted against the bylaw.

"This is, respectively, unlawful for three reasons," said Necpal.

He explained the bylaw conflicts with "provincial regulatory regimes for the development of green energy and renewable energy projects in Ontario."

Necpal said the Green Energy Act, passed by the province in 2009, has the "predominate purpose" of promoting renewable energy sources and green energy. He added that the Ministry of Environment is the sole authority for approving green energy projects in Ontario.

He said, in his opinion, one of the fundamental aspects of the act is that municipalities cannot pass bylaws that frustrate the provincial legislation. He called the amendments "unlawful interference" to the province's regulatory regime.

"As states in the letter, ... the municipality does not have the authority to pass this bylaw," Necpal stated. "It also violates the Municipality Act, under which the municipalities in Ontario are only permitted to pass fees that are reasonable and connected to the cost they incur in providing services. The consultation fees, the performance bond, and security requirements in bylaw 26 are unrelated and unconnected to the services this municipality will provide."

The third reason the bylaw is unlawful, in his opinion, is that it violates the Electricity Act.

He said NextEra is an electricity distributor, and therefore they have "An unquestionable right to locate distribution facilities within this community without the consent of the municipality, yet these proposed amendments eliminate that right."

He said NextEra is willing to work with the municipality, but added NextEra is also considering its legal option, a fact Necpal also mentioned in his letter to council.

Mayor Kevin Eccles opened the floor to questions from council. There were none.

"We look forward to continuing the development of the road-use agreement, there are other agreements that may come forward too," he said to Necpal. "As we do with all development, whether it be green energy approval and/or something slightly more familiar to us than yourself, aggregate proposals where we have requested... required, considerably more than what is in this on development and site specific agreements going forward.

"Everybody has the right to hire a lawyer and express their legal opinions," the mayor added.

Monday's bylaw, which amended a bylaw already in place regarding fees and charges for services provided by the municipality, made the following amendments to include wind turbines development:

• Industrial wind turbine performance bond of $100,000 per turbine

• Issuance of permit for location of works in the municipal right of way, including inspection of works and inspection of post construction re-mediation and preparation of right of way permit agreement (does not include entrance permit and/or agreements) of $6,500 plus security deposit of $20,000 per km

• Municipal consultation/peer review for renewable energy projects for industrial wind turbines of $50,000 deposit plus payment of actual expenses for outside consultants if greater than $50,000

• Entrance permit fees ranging from $5,000 to $200,000.

The bylaw amendments included that the fees associated with the amendment to the bylaw "shall not apply to those proponents who are generating energy less than or equal to 3 kw.