Picton Terminals fits description in Tausendfreund decision

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



A decision has been reached in regard to a local group’s legal challenge to Prince Edward County’s interpretation of a set of bylaws.

Superior Court Justice Wolf Tausendfreund arrived at his position Monday and, in handing down his verdict, he ruled Picton Terminals can continue to operate as a legal, non-conforming entity.

Tausendfreund upheld the trans-shipment deep port operation and the municipality’s understanding that, at the time the County enacted its present comprehensive zoning bylaw in 2006, the portion of the property located in the former Township of Hallowell became and remains a legal non-conforming use for transshipment of bulk commodities.

Save Picton Bay, a non-profit ratepayers group concerned about the negative impacts — environmental and otherwise— of such an operation, challenged the municipality’s legal position of the zoning, saying the operation contravened the County’s own bylaw.

The group’s lawyer, Eric Gillespie, argued before Tausendfreund earlier this spring the word “and” in a bylaw passed by Hallowell Township in 1988 that saw the lands designated as MX-1 (extractive industrial) and shall be used for no purpose other than “existing ore storage and trans-shipment operation” made it impossible for Picton Terminals to operate as a non-conforming legal entity.

Gillespie’s position was that the two components cannot be grammatically separated as there is no such thing as “a ore storage” and therefore both ore storage and trans-shipment must both be taking place in order for there to be permitted non conforming use.

The applicant (Save Picton Bay) states that ‘and’ in this context should be read with a conjunctive interpretation,” Tausendfreund wrote.

However, the timing of the 1988 bylaw came into play in Tausendfreund’s ruling as in 1988, iron ore transportation from the Marmoraton Mine in Marmora had all but ceased and ore storage had not been undertaken at the port, originally built by Bethlehem Steel in the 1950’s, in nearly a decade.

If the council of the day had intended to eliminate trans-shipment use at the site, it could have simply removed the appropriate section of the bylaw according to Tausendfreund’s reasoning.

In my view, by continuing to permit transshipment in the zoning for the subject lands (in the 1988 bylaw), council intended to permit the continued use of the subject lands for transshipment purposes, even though the pre-existing storage had long since ceased,” Tausendfreund wrote.

As pointed out during the civil trial, transshipment of bulk commodities including bulk sodium chloride and other materials had been taking place through the 1980s.

Another issue in the case offered by the Save Picton Bay side was site activities were taking place in the eastern 25 per cent of the Picton Terminals parcel of land that was situated in the former Sophiasburgh township and was zoned by that former municipal as industrial (M2) but was rezoned Rural 1 (RU1) in 2006 by the County of Prince Edward.

In court, Save Picton Bay countered the owner of the property was constructing berms, undertaking site grading and landscaping activities and excavating pits all contrary to the RU1 zoning and that such activities would require a licence under the Aggregate Resources Act.

However, Michael Keene, a professional planner retained by Picton Terminals, stated in an affidavit to the court that the activity on that section of the property is permissible landscaping activities for the construction of storm water management ponds and Tausendfreund concurred with that position.

Tausendfreund did issue notice in his decision for any industrial equipment and stockpiles stored on the RU1 subject land to be removed as it was not permitted under the zoning.

Reached by e-mail, Picton Terminals Owner and Operator Ben Doornekamp declined to comment on Tausendfreund’s ruling and simply stated “(Picton Terminals) will continue to develop our world class property as we anticipated.”

Mayor Robert Quaiff told the Gazette via e-mail the municipality took the position that the current zoning bylaw permits the continued transshipment of goods and bulk commodities as an ongoing land use on the site “which Mr. Justice Tausendfreund upheld in his decision.”

While the municipality supports the operation from a land-use perspective, we expect the site’s operator to comply with all federal and provincial regulations and best management practices of handling the commodities in transit,” Quaiff added. “We are confident that the Ministry of Environment and Climate Change as well as Environment and Climate Change Canada will continue to enforce regulations and best practices around handling commodities in transit at Picton Terminals.”

In their response to the verdict, Save Picton Bay took the order to remove materials and equipment from the eastern portion of the property as a victory and reserved the right to examine other portions of Tausendfreund’s decision further.

“We are pleased with this decision” said Dave Sutherland of Save Picton Bay. “It reflects the fact both Picton Terminals and the County have been allowing the site to be used in ways that contravene the current zoning. We hope the company and the County will work to ensure prompt compliance as directed by the court.”

Other aspects of the decision appear to raise questions regarding certain legal findings according to Save Picton Bay.

“We are reviewing the decision and hope to meet with our client for discussion in the near future” said Gillespie.