Surface Facilities – Loss of Use Compensation

AgriLaw: June 2010

With the current focus on development of green energy sources, there is a proliferation of wind farm projects across the province. While provincial and municipal planning policies have been amended to promote such development, wind farm proposals will often bring into conflict the development proponent and neighbouring residents. Where a wind farm project requires a zoning change, what should the municipality require to satisfy itself that the concerns of area residents will be satisfactorily addressed?

The Ontario Municipal Board has considered an appeal by a wind farm proponent of a municipality’s decision rejecting a proposal for 24 wind turbines and 4 transformers. Prior to the hearing of the OMB appeal, the proponent and municipality agreed on a reduced proposal of 15 turbines and 4 transformers. The OMB then considered whether the concerns of area residents should nevertheless preclude the re-zoning to permit the modified proposal to proceed.

In the project under consideration, required buffer zones, wind overlays and setbacks from public roads and non-participating residences were not entirely contained on participating properties but extended onto the properties of adjacent neighbours. The concerns of neighbouring property owners included resulting restrictions on their own property use, aesthetic diminishment and reduction of property value. These neighbours were concerned about noise pollution, flickering shadows, and vibro-acoustic disease. An airstrip in the vicinity of the proposed development also raised safety concerns.

The OMB summarized the evidence of one of these neighbours:

“The evidence of (the neighbouring landowner) is that peace and quiet is one of the qualities of life that her family enjoys. Her evidence is that more and more people are describing their lives as unbearable when they are directly exposed to the acoustical and optical effects of wind farms. She stated that a new industrial process should not be imposed on an unsuspecting public without having been thoroughly, publicly and independently studied beforehand. Until such work is done and accepted by independent reviewers, no wind turbine projects should be permitted without stringent rules for noise and other risk factors.”

However, the OMB allowed the appeal by the project proponent and authorized the re-zoning to permit the modified project to proceed. On the basis of evidence provided by the proponent, the OMB was satisfied that the modified project was consistent with provincial and municipal planning policies promoting development of alternative energy and distribution while minimizing the use of agricultural land. The OMB accepted the proponent’s evidence that:

“The modified proposals are consistent with the [provincial policy statement] in that the turbines, service roads and transformer locations will minimize impacts on agricultural operations. The turbines will be located a minimum of 440 metres from any off-site residence in the agricultural area. The service roads will be located at the edge of cultivated fields and will provide access to more than one turbine wherever possible to minimize impacts to agricultural operations. The lines required to convey electricity, will be located under the service roads to minimize impacts to agriculture. The turbine foundations and transformer foundations will take a small amount of land out of agricultural production.”

With respect to the concerns of neighbouring landowners, the OMB similarly accepted the proponent’s evidence that:

“Set backs for the proposed turbines to existing residences either meet or exceed the 440 metre setback for noise mitigation … The zoning setback from public roads of 120 metres (which equals the height of the tower and the blade radius) provides sufficient on-site safety setback for aspects such as falling ice or the very rare event of structure collapse …

“[T]he proposed wind farm presents no concerns with respect to aviation safety …

“[T]he analysis indicates that the operation of the proposed wind farm will for the most part comply with the requirements of MOE’s publication NPC-232 Sound Level Limits for Stationary Sources in Class 3 Areas (Rural). However, certain dwellings are predicted to experience sound levels, which are over the minimum criterion of 40 dB by a minor amount. All of these are on land belonging to lease holders leasing land to the wind farm.”

In allowing the appeal and permitting the re-zoning, the OMB concluded that:

“The evidence of (the proponent) is that it is impossible to screen wind turbines and the primary protection from visual impacts is the required setback … [The proponent’s] evidence is that the residence of (a neighbouring landowner) is 780 metres from the nearest wind turbine and, while a portion of the 440 metre setback does fall on some of her property, it will have no impact on existing permitted uses of agriculture and open space.

“Based on the evidence, the Board finds that the Official Plan encourages alternative wind energy while minimizing impacts on surrounding land uses. The Board finds the proposed wind farms are in conformity with the Official Plan and meet locational criteria to minimize impacts on surrounding land uses.”

Provincial and municipal planning policies promote the development of green energy generation. To successfully challenge such developments, or reduce their impact, neighbouring landowners must be in a position to demonstrate that proposed development fails to satisfy planning and environmental criteria.

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