Save Picton Bay court case held over until February

The Whitefish Bay docked at Picton Terminals in November, 2016. (Jason Parks/Gazette Staff)

Picton Terminals applies for status as ruling could impact operations





The civil court case launched by Save Picton Bay to force the County to adhere to the environmental group’s understanding of historic County bylaws and zoning regulations has been held over until Feb. 28, 2018.

County solicitor Samantha Foster appeared before Justice Graeme Mew at Picton’s Superior Courthouse on Friday and, in consultation with Save Picton Bay lawyer Eric Gillespie, the matter was set aside until early in the new year.

The crux of the argument being put forth by Save Picton Bay is that Picton Terminals is operating a shipyard and quarry despite the fact the lands south of White Chapel Road are not zoned for such an activity.

County council sought legal opinion on the matter and solicitor Wayne Fairbrother told councillors in February that operations at Picton Terminals represented a legal non-conforming use.

Council later approved a motion based on information provided that “transshipment operations at Picton Terminals constitute continuing legal non-conforming use and as such are legally permitted to continue in accordance with and subject to the provisions of Section 34 (9) of the Planning Act,” the motion says.

Section 34 (9) says no zoning bylaw can be used by the municipality “to prevent the use of any land, building or structure for any purpose prohibited by the bylaw if such land, building or structure was lawfully used for such purpose on the day of passing of the bylaw.”

In March, Save Picton Bay director Brian Etherington made a deputation to council, imploring the municipal body to heed the opinion of Gillespie who countered Fairbrother’s opinion that use of the land and dock to be illegal and contrary to the existing Zoning By-law.

Failing that, Save Picton Bay offered the County an alternative to a proposed civil court case by allowing a sitting Superior Court Judge to interpret the zoning by-law in question which allows Picton Terminals to remain in operationIn essence, the parties would be asking which opinion is correct.

“So, in effect, council could ask for a binding interpretation of the zoning bylaw without asking for an injunction,” Etherington said. “Respectfully, everyone needs to know if, in fact, Picton Terminals is contravening the existing zoning bylaw or if they are legal non-conforming. If we are right, then the bylaw needs to be enforced as extractive industrial and if a rezoning is needed, then let (Picton Terminals) re-apply and let the community at large express their desire as to what uses can operate on this land in in our waters.”

County council chose to adhere to Fairbrother’s understanding on the matter and Gillespie filed a legal application on behalf of Save Picton Bay in August.
Even prior to Friday’s proceedings, it was believed that Picton Terminals would seek to be granted status in the case and owner/operator of the port operation Ben Doornekamp confirmed to the Gazette via e-mail Wednesday that was accurate.

“If someone is trying to take our rights away from us we’d like to be able to defend ourselves,” Doornekamp wrote. “Inherently, nobody cares about what we do more than (Picton Terminals does).”

Doornekamp added that an operational port existed at the location for a number of years and there were two options facing whoever took control of the site — clean it up and fix it or let it rot.

“We didn’t notice anyone stepping up to clean it up and resurrect it, so we did. It’s been a huge success on both the clean up front and the business front,” he added.
Doornekamp pointed to the rehabilitated docks and tunnels that were rotting away prior to the operation ramp up and the thousands of kilometres that have been taken off Ontario’s roadways thanks to shipping transport activity.