In the zone

Dispute over Terminals zoning leads to court

On October 27, a group of County residents known as Save Picton Bay will be taking the County to court over a dispute about zoning. Their concern is the use Picton Terminals makes of its property.

It’s part of a long dispute between the company and residents concerned about traffic in Picton Bay, environmental contaminants and safe drinking water.

“We made several deputations to council. And they were very respectful—I’m not sure we got the kind of mutual respect back from council, because they didn’t even ask us a question or give a comment. But we’d said to them, look, we’ve got these two legal opinions from two very seasoned lawyers, that are diametrically opposite,” says Victor Lind, who represents the group, and lives near the Terminals.

They argue that the company is twisting bylaws created before amalgamation, with the complicity of the County.

“It all comes down to this one phrase in the old Hallowell bylaw that says that this [property] can be used for things other than an ore stage and transshipment facility, “ says Lind. “Now what you’ve got is a County solicitor and County staff who are saying it doesn’t matter that they stopped bringing the ore in in the 1970s, it’s a transshipment facility. You can transship anything. That’s what Robert McAuley told us, and we were gobsmacked.”

Save Picton Bay members requested that council ask a court to rule on the disputed opinion on the zoning bylaw, but that request was not addressed. Instead, council directed staff to work with the company on a new site plan agreement.

So instead, the group filed a dispute, and are asking a judge to rule on the legal uses of the property.

County council held a closed session in August to discuss the court date with the County’s lawyer. The County would not respond to a request for comments about the issue, but in an email, County CAO James Hepburn wrote, “A closed session was held on Aug. 24 to update council on Save Picton Bay’s application to the Ontario Superior Court of Justice. We are currently waiting for additional information from our solicitors, and we will respond in due course.”

“If the Doornekamps want to run a proper business as they say they want to do, then let’s sort out some of these issues. Well, the problem is that you can’t start tweaking a site plan agreement…until you know that the underlying zoning use is permitted. And we don’t believe that they’ve got proper zoning,” says Lind. “They’ve got the cart before the horse. They’re acting like cowboys, and County staff seems to have given them a blank cheque to do what they want. And so we’re going to court to ask a judge to rule on what exactly they are permitted to do.”

Ben Doornekamp, who owns Picton Terminals, says that although the legal challenge is against the municipality, it does directly affect his company, which has prepared itself with legal opinions and by looking at other options.

“It is a lawsuit against Picton Terminals, because it’s a lawsuit over our legal rights. I’m not sure why they’re not suing us, rather suing the County,” says Doornekamp. “Whether they’re right or they’re wrong, if they want to spend the money they’re allowed to. We’ve got three legal opinions from very well-respected property lawyers, all saying the same thing, and I know the County has two legal opinions, so overall there’s five opinions on our legal non-conforming [status].”

Doornekamp says he’s unclear why the status, which has been in place since 2006, should be challenged now.

“Why does everybody care suddenly 10, 12 years later? I don’t know,” he says. “Are we worried? We’re preparing ourselves, but we’re not worried.”

Lind says Save Picton Bay is also concerned about salt leaching into the Bay from large repositories on the Terminals’ property. The Ministry of Environment and Climate Change has been working with Picton Terminals to mitigate these issues, but in July, the company was found to be non-compliant with an order given by the ministry.

“We’ve seen salt totally opened to the rain,” says Lind. “And MOE has confirmed that they’ve contaminated the groundwater.”

In an email correspondence with Save Picton Bay member Gary Whitfield, Belleville area supervisor for the MOECC, Catherine Chisolm, confirmed that “on July 26 an environmental officer attended the Picton Terminals site and observed that the salt piles were not covered within 15 working days from the date it was received by the terminal. The non-compliance with the order will be referred to the ministry’s Environmental Compliance and Enforcement Office… for follow up.”

Doornekamp explains that the incident occurred because a second shipment for the same client was coming 16 days later, and since there was no rain forecasted, the company chose to be non-compliant rather than waste the amount of plastic needed to tarp that salt, most of which would end up in the dump.

He also says that Picton Terminals is waiting on a permit from the MOECC to build a permanent dry salt storage facility, one that would completely prevent salt spillage.

“Picton Terminals would be the first people to ever do something about it,” says Doornekamp.

At the moment, Doornekamp could not confirm how much salt was being lost from the un-tarped piles close to the bluffs, salt that has been found in catchment ponds on neighbouring properties and in the Picton Bay. Salt that has caused visible streaking on the rocks leading into the Bay.

He did say that the onus was on the clients who own the salt. In that contract, no more than 0.7 per cent of the salt may be lost to the environment. That amount has never been lost.

Salt stored at the terminals can reach upwards of 120,000 metric tonnes. Point seven per cent of that is 840 metric tonnes. That’s a lot of salt.