Brian Etherington, director of Save Picton Bay group speaks to Prince Edward County council on April 11, 2017. (Photo: Nicole Kleinsteuber / Quinte News)
In a complete turn of events, Prince Edward County council has voted to continue its support in part, for potential expansion at Picton Terminals.
Less than 12 hours before Tuesday night’s council meeting, the municipality lifted a state of water emergency after water sampling results received Monday confirmed that contamination in Picton Bay no longer poses a significant threat to drinking water. The state of emergency was put in place after a barge partially sank while docked at Picton Terminals leaking two five-gallon containers of diesel and hydraulic oil in the Picton Bay within the vicinity of the water intake. Picton and Bloomfield residents had to boil water for a week following the shut down of the Picton water plant.
Following the March 24 incident, Picton Councillor Lenny Epstein tabled a motion that was carried by the committee of the whole. It included withdrawing support shown at a May 2016 meeting for the revitalization and for the terminal’s request for federal and provincial funding to the tune of $10 million for an acquisition of two port cranes. The motion also asked for a staff report on available municipal options as they relate to the activities of Picton Terminals in order to ensure that the intent of municipal land use regulations and municipal and public interest including the County’s obligations to the drinking water system are protected to the full extent of the law.
On Tuesday night, in a recorded vote of 10 to 5, council decided to continue its support for the revitalization. Councillors Lenny Epstein, Steve Ferguson, Steve Graham, Jim Dunlop and Robert Quaiff voted in favour of withdrawing support for future revitalization. Councillors Jamie Forrester, Gordon Fox, Kevin Gale, David Harrison, Treat Hull, Brad Neiman, Dianne O’Brien, Roy Pennell, Bill Roberts and Barry Turpin were opposed to withdrawing support. In a separate and unanimous decision council pulled out of backing Picton Terminals in its request for government funding for the expansion. The request for a staff report relating to future activities at the port was also approved.
Showing support for Picton Terminals, Councillor Brad Neiman said it doesn’t matter who is there, he supports a business being there. He said Picton Terminals recently hired six local employees. Neiman said it’s important the County continue to attract young families as they fight to keep schools open.
Epstein said he plans to re-introduce the motion for the next meeting requesting council’s support be conditional upon Picton Terminals re-applying for rezoning.
At the time of owner Ben Doornekamp’s May 2016 deputation, Picton Terminals had submitted a rezoning application requesting a portion of its property be reverted from a mixed use/quarry to a port. Soon after the re-zoning and funding requests were pulled by Picton Terminals, with Doornekamp telling Quinte News the company planned to focus its attention on solving Ministry of Environment orders to clean up operations at the site. He said the port was operating under a legal non-conforming use, something both the County’s solicitor Wayne Fairbrother and Save Picton Bay lawyer Eric Gillespie have differing legal opinions on.
Fairbrother is of the opinion that ‘transshipment operations’ at Picton Terminals constitute a continuing legal nonconforming use and as such are legally permitted to continue in accordance with and subject to the provisions of the Planning Act. Gillespie on the other hand said “the previous zoning which (if a legal nonconforming use did exist) would apply is the former MX-1 zoning, which restricted the subject lands to be used for no purpose other than an existing ore storage and transshipment operation.”
Brian Etherington, director of Save Picton Bay told council Tuesday night a well-known and retired Prince Edward County Superior Court judge is weighing in on the ongoing debate over land use at Picton Terminals.
Etherington said retired judge Richard Byers has reviewed the two competing opinions and has stated that the Picton Terminals use of land, in his opinion, is illegal.
In Etherington’s deputation he quoted Byers as saying, “if council encouraged Picton Terminals by motion or otherwise to operate in breach of its own bylaw, its liability insurer might take the view that was an intentional act and decline to defend a catastrophic claim. The issue would turn on whether or not council knew or should have known the obvious meaning of the bylaws.”
Fellow member Victor Lind said he thinks the only way to clear up the land use issue is for the County to have a third party look at the bylaw.
Etherington said they believe every effort should be made to overcome the legal differences to avoid potentially costly and time consuming legal disputes.
