A by-law to execute minutes of settlement between ABNA Investments, which owns Picton Terminals, and the County passed by one vote last week.

Councillors Braney, Engelsdorfer, Grosso, Harrison, Maynard, Nieman, and Pennell voted in favour.

Councillors Branderhorst, Hirsch, MacNaughton, Prinzen, St-Jean and Mayor Ferguson were opposed. Councillor Roberts was absent.

The settlement requires the municipality to submit a request for an MZO, a Ministerial Zoning Order, to the Ontario Minister of Municipal Affairs and Housing, Paul Callandra, by the end of the year.

Such Zoning Orders override municipal zoning and planning processes. The current provincial government’s escalated use of MZOs has attracted such criticism, an investigation has been opened by the office of the Auditor General. 

In response, Minister Callandra has initiated reforms designed to bring transparency and regularity to their use.

In this case, an MZO would re-zone all of the Terminals’ existing land as well as all the neighbouring properties it acquired by the settlement’s deadline of September 30. 

The vote on the by-law to execute the settlement had to be held in open session, so discussion on the agreement was public for the first time, although limited.

Councillor John Hirsch noted, “through the entire process of dealing with the settlement there has never been a conversation in open session to hear the for and against.” 

In the ensuing discussion, points against were aired, but the points in favour never came into view.

Councillor Hirsch took issue with the wording of the bylaw, in particular the phrase, “Council deems it necessary and desirable to direct the execution of the minutes of settlement.”

“I would argue it is not ‘desirable’ to direct the execution of the minutes of settlement,” he said. “By voting no to this bylaw we can still stop this process.” 

“New information has come to light we were not aware of as a Council on June 25.” On that date, Council voted, again 7-6, to negotiate a settlement with Picton Terminals.

Councillor Hirsch cited new knowledge about legal case precedents, and of the scope of activities at the private property, including the extent of Picton Terminals’ rock quarrying.

“I still have too many concerns. I have tremendous concerns with any expansion that involves rezoning without public process, the removal of aggregrate without proper constraints, and I do not understand what the protections for the cliff face would be.”

Councillor Kate MacNaughton

“Quarrying is a huge issue. Kudos are due to the Gazette for compiling the information on the extent of the profitable quarrying operation at Picton Terminals.”

“We have come to learn the much-extended permit from the Ministry of Natural Resources and Forestry was not supported by MNRF staff. That needs to be looked into and that permit terminated.”

The Councillor cited other objections, including a recent letter from Transport Canada “confirming what many of us believed all along: the Federal Government has no jurisdiction over the operation of the port facility, only a security concern that means Picton Terminals has a license as an occasional-use marine facility, able to bring in up to ten international ships per year.”

The Transport Canada letter refutes Picton Terminals’ longstanding claim, and the basis of the County’s court case against it, that as a port it is only subject to federal, rather than municipal or provincial, regulation.

Other objections concerned the heritage status of the historic White Chapel directly across from Picton Terminals, and “perhaps most importantly, approving the terms of settlement without the opportunity for public input is not democratic and not how this Council should be known,” said Councillor Hirsch. 

“There are significant objections from the public to a container shipping port and to Picton Terminals’ bid to significantly enlarge their operations through the incorporation of adjacent rural-zoned lands.”

Mr. Hirsch noted the proposed partnership with Parrish and Heimbecker for a grain shipping port on Picton Bay “is perfectly able to proceed without the proposed MZO; bulk cargo shipping is allowed under the current zoning.”

“We would be better served to continue with our Superior Court request for an injunction so the County can determine its own destiny and approve only those operations the County deems to be in the interest of the County on the Picton Terminals site,” he concluded.

In response to a question from Councillor Maynard about whether the County would still be able to exercise site plan control under an MZO, CAO Marcia Wallace confirmed the agreement “does not include site plan control. What it does is create a Development Agreement which provides many of the same powers.” 

That Agreement creates a committee  involving residents, requires residents to be alerted when ships are coming into port, and specifies times of loading and unloading. Otherwise, jursidiction over the Picton Terminals site would be through provincial ministries. 

“If you are required under the Aggregate Resources Act to be to be treated as an aggregate pit by the MNRF, it would be the province which would have to make a decision, should Picton Terminals do more quarrying, whether or not that triggers the Aggregate Resources Act and would require a number of things under that legislation, including payment to the municipality and site plan control,” said Ms. Wallace.

“The municipality can take a position but that’s not a decision for the municipality, that’s a decision for the province.”

“I am afraid I can’t support the bylaw,” said Councillor MacNaughton. “I still have too many concerns. I have tremendous concerns with any expansion that involves rezoning of agricultural lands without public process, the removal of aggregrate without proper constraints, and I do not understand what the protections for the cliff face would be.”