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Picton Terminals can continue operations under non-conforming use: Judge

From Picton Terminals in 2016: The Federal Caribou journey originated in Korea early February and is coming to Picton Terminals (about 50 days sailing) with 5000 MT of steel beams and steel pipe for local steel distributor Kimco Steel. With the arrival of this cargo at PT, we will remove 54,000 KMs from Ontario Highways and 153.9 KGs of volatile greenhouse gases which otherwise would have transpired from heavy trucks by using previous shipping practices.

In a decision released Monday by the Ontario Superior Court of Justice, Picton Terminals can continue to operate as it has been.

The Save Picton Bay citizens’ ground challenged the municipality’s old zoning bylaw to examine if the Picton Terminals shipping port can continue operating under the County’s current bylaw. Hearing were held in Picton in February, and Belleville, in April. Picton Bay Terminals and the municipality stated the zoning is correct as legal, non-conforming use.

Justice Wolf Tausendfreund stated the general historic use of Picton Terminals has not changed from the 1950s to present; and the existing ore storage and trans-shipment operation became, and remains, a legal non-conforming use for trans-shipment of bulk commodities.

“Initially it was iron ore, then salt, and now includes aggregates, farming and steel products, biomass, scrap steel and barrels. The common denominator remains bulk products,” he said.

“While the trans-shipment infrastructure from the 1950s remains, it has been upgraded and enlarged. Although the post 2006 trans-shipment operation appears to be an intensification of the pre-existing activity, in my view the change of scale or intensity of that activity is not a fundamental change in the nature of the use, but a reasonable expansion of the earlier activities and which, for that reason, will remain entitled to protection under the non-conforming use.”

The impact the trans-shipment operation might have on neighbouring properties and the water of Picton Bay, states Tausendfreund, is an issue in the domain of the Ministry of Environment and Climate Change, which has, and continues to monitor. He notes neighbourhood effects based on the increase in the variety of bulk materials should not be assumed, but be established, if they are to be relied upon.

“The resulting characterization of the acquired right (or legal non-conforming use) should not be so general as to liberate the owner from the constraints of what he actually did, and not be so narrow as to rob him of some flexibility in the reasonable evolution of prior activities.”

While zoning is the legal topic, Save Picton Bay counsel Eric Gillespie said use of the land at 62 White Chapel Road was the focus. The 61.7 acre land has 1,200 metres of shoreline.

Other aspects of the decision appear to raise questions regarding certain legal findings, said Eric Gillespie, counsel for Save Picton Bay. “We are reviewing the decision and hope to meet with our client for discussion in the near future.”

Save Picton Bay’s Dave Sutherland is pleased with an order to remove equipment and aggregate stockpiles stored on the northeast portion, noting it reflects contravention of the current bylaw.

Picton Terminals owner and operator Ben Doornekamp, said that there were a couple of portable conveyors stored but they were moved easily months ago, taking just 20 minutes each.

“There are no aggregate stockpiles in this area and (we) don’t have any plans to,” said Doornekamp, adding there are only berm building materials in that area.

Picton Terminals’ plans are under way to construct two covered storage structures for bulk salt trans-shipped to the site by 2021 to prevent salt stored from mixing with storm or ground water.

Background:
In the early 1950s, the Marmoraton Mining Co., Limited, a subsidiary of Bethlehem Steel Corporation, puchased land in the Marmora area and established an open-pit mine for extraction of iron ore. Bethlehem Steel then maintained a railway from Marmora, to the property and in addition, contructed a port facility with docks and conveyor equipment to tranfer the ore to lake freighters. Shipment to the United States continued until 1978 when the mine site closed.

Several shipping companies noted servicing Picton Terminals in the following years, carrying most notably, salt, coal and gypsum until at least 1989.

From 1993 to present, salt was shipped to the port then distributed to local users at an approximate rate of between 80,000 to 120,000 metric tonnes each year.

Between 2006 and 2017, trans-shipment of salt, coal, farm and steel products, biomass and wine barrels were shipped through the port facilities.

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  1. Chuck says:

    Save Picton Bay Facebook page has no announcement on the Terminals winning the case and having their zoning approved by the court. They just mention some small scale win while the business continues full bore.

  2. wevil says:

    keep up the good work PT

  3. robert sandfield says:

    No way that 54000kms of freight only creates 154kg of CO2, way higher than that. So of the 100,000 tons of salt that is shipped into the port, I wonder how much gets spread in Picton, where the storm water with dissolved salt will eventually end up in Picton Bay? I would bet it is way, way more than what is dissolved on site and gets to the Bay. If this is truly a problem, stop using salt in any town that discharges its storm water into a waterway. Oh wait, that is almost every town. Never mind.

  4. hockeynan says:

    Great news.Gratis to have a shipping port here.

  5. Dennis Fox says:

    It doesn’t matter if it is legal nonconforming, it is still an eye sore and a polluter of our lake. There is nothing good about this decision for the people of this community.

  6. Paul Cole says:

    Good for Picton Terminals and Prince Edward County….

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