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Justice reviewing Picton Terminals zoning case

The decision on whether Picton Terminals is operating under “legal non-conforming” status is in the hands of Justice Wolf Tausenfreund.

The Save Picton Bay group continued its challenge of the an old zoning bylaw in Belleville court Monday, led by environmental lawyer Eric Gillespie. (Background story here)

Picton Terminals lawyer Tony Fleming argued permitted use in the zoning and site improvements to continue shipping and storing salt, petroleum coke, rock, stell, etc.

About 30 members and supporters of the Save Picton Bay group attended the hearing.

A recap from the hearing below, from Save Picton Bay:

The ice, snow and sleet did not stop the court hearing in Belleville two days ago, and approximagely 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.

Recap

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’.

Court Case

So, with ongoing financial help from Save Picton Bay supporters, we have been forced to take the County to court to ask a Judge to interpret this zoning bylaw since the 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 stand-alone 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 its 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 three Provincial/Federal Environment Orders to clean up their act in the last two 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.

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  1. hockeynan says:

    I am with you on this one Paul

  2. Paul says:

    Lets just hope The County is successful in this challenge by SPB and that The County does the responsible thing and ask for court costs….

  3. Dennis Fox says:

    This situation is similar to others we see taxpayers pushing for answers from government or for action to protect them from whatever they are concerned about. Instead of a clearly established a zoning by-law, the municipality’s lawyer admits that it “slipped between the cracks” back in 2006 – 12 years ago! Don’t blame the residents for that situation, caused by lackadaisical politicians. The residents also have to insist that the demands of the MOE on PT are enforced, only to discover they are not. This PT operation has also received accolades from all levels of government during this time of highly questionable actions on their part- so how serious will the courts take it? Just who is running that show and at what cost? The only ones making money here are the lawyers.

    The really sad part in all of this is that people pay and elect people to take care of things like this and yet have to pay again huge dollars out of their own pocket just to be heard. The system is not working well for anyone – and look at the price of water for Picton residents – all caused by government bungling. It is the system and process that I am opposed to – not the business necessarily, nor the individual. And as someone earlier has pointed out – look at the cost – always paid for by the same taxpayers!

  4. Paul says:

    I think it important to remember here that this case is Save Picton Bay Group vs Prince Edward County. Picton Terminals obviously has standing in the case . Tax payers are paying to defend Prince Edward Counties zoning if PEC fails its very likely they will be sued by Picton Terminals who will believe they were improperly zoned by PEC. Either way its likely your Tax’s will go up because of this. Think about that for a minute folks…

  5. hockeynan says:

    Why don’t you check the water from the storm sewers running into the harbour.Why did you not complain years ago before PT opened?If you complained then the people who own PT would never have bought it.And don’t come back and say the previous owner didn’t let this happen because it was worse then.

  6. Dennis Fox says:

    I think some are forgetting that the MOE, in the past have issued clean-up orders to PT and have charged them prior for breaking the regs. I believe we all just have to wait to see what the courts decide – but the fact that this issue got to court is an obvious sign that their is substance to the charges brought against PT.

  7. Paul says:

    Picton Terminals previously known as Bethlehem Steel Docks has never ceased to operate as a port there by retaining its original zoning. Town Council knows this because that’s where the county has had their road salt shipped to for the last 50 or years or so. They did not need to request rezoning in 2006 because of legal nonconforming yet you say Dennis “Bethlehem Steel had and DID NOT request an extension to during the 2006 re-zoning process.” BUT the county did rezone them as Quarry use ?

  8. Susan says:

    Anyone with a water softener will typically have elevated sodium levels. Salt is widespread beyond PT.

  9. hockeynan says:

    You all seem upset about cloride in the water but if any of you have water softeners they use sodium cloride and you drink it.

  10. hockeynan says:

    Glad to see you know everything about this too.LOL

  11. Dennis Fox says:

    The problem here is not understanding the zoning use that Bethlehem Steel had and DID NOT request an extension to during the 2006 re-zoning process. At no time was the port used for multi-use unloading, and receiving loads from around the world – it was strictly a one company use. Nor were the surrounding properties (now bought by the current owner) used for quarry use as they are now – because they were and still are zoned rural residential. There is nothing about this current use that resembles the original use, nor are the safety standards in place to accommodate it. Even worse whatever safety standards the current owner has been asked to fulfill have basically gone ignored, with very little attempt by our Council or the MOE to enforce them. Given the recent reports of the huge amount of salt leaching into the bay and no doubt other contaminants too, I can only say that I am glad to be on well water. But we all should care about our neighbours and about their health – I wish government did.

    We often hear about not wanting to burden our children and grandchildren with financial debt – I think we now have to start thinking about burdening them with huge expenses for environmental clean-ups and the resulting healthcare expenses from our generation’s dirty habits. Dirty habits that all levels of government are ignoring. Makes me wonder why we have them elected at all?

  12. Paul says:

    Check your history there Dennis Bethlehem Steel Dock is a legal nonconforming operation now called Picton Terminals. And council supported the expansion until the devastating barge spill of 2017 ;)(yes that last part was a joke). Kind of sad in this county no support for farmers chicken barns are frowned upon and established business like Picton Terminals which has operated since the 50s is having its zoning challenged. NO It Should Not Be put Out Of Business.

  13. Chuck says:

    Judges are very reluctant to take such a drastic action as that. And there would be financial loss penalties to the municipality for approving in error the business moving forward.

  14. wevil says:

    tests on the water show that levels of contamination are way below acceptable levels it sounds like more nimbyism to me

  15. Dennis Fox says:

    Maybe PT should be put out of business??

  16. Chuck says:

    Tough one for the Judge as rightly or wrongly, SPB is virtually attempting to put PT out of business.

  17. Dennis Fox says:

    If what our municipality’s lawyer states is true, then there is no doubt that PT is operating illegally. On the Quinte News site, he was quoted as saying that the re-zoning of this site during the 2006 comprehensive zoning bylaw process, “slipped through the cracks” – meaning the current use was not approved. Frankly, I believe our Council has been negligent by not trying to protect this community more from what this site could become. In one news report, it explained that the PT wanted to become the largest docking port on the Great Lakes! Really- and has our community ever been told this or made part of the discussion to decide if this is what we wanted? I wish SPB all the best!

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