OMB pre-hearing concludes at Laurel

Author(s): Jeffrey J. Wilker*

May 3, 2007

The Ontario Municipal Board pre-hearing into the Melancthon II wind farm ended after only two days, and with some procedural issues unresolved.

Lawyers for Amaranth Township, in its opposition to the 23 turbines proposed within its boundaries, had brought a list of 43 issues to the table. Yet to be decided, among others of those items, is the question of whether the proponent should be required to reveal confidential information to the parties.

Also to be decided prior to the actual hearings, scheduled for July 30 on the Melancthon issues and Sept. 11 on the Amaranth ones, is whether or not Amaranth resident Paul Thompson should have party status with respect to the second transformer at Canadian Hydro’s substation on 15 Sideroad.

This issue could not be decided at the two-day pre-hearing as the appeal of site-plan for the second transformer had yet to come before the board.

To outside observers, and perhaps to some degree to the prehearing parties, these hearings might be unusually confusing.

Although there is one over-all project at stake, it spans two municipalities – 88 wind turbines in all, with 23 of those proposed for 21 Amaranth properties and 65 for Melancthon.

Confusing it further, Amaranth is supporting opponents of the turbines, whereas Melancthon supports the project “in principle,” but is continuing to negotiate with the proponent, Canadian Hydro Developers Inc.

Also confusing, there is an Amaranth transformer substation site plan under appeal. It will figure prominently into the hearings, but technically it hasn’t come before the OMB as yet.

Because there are two municipalities involved, there were two separate but overlapping prehearing sessions and there will be two separate but overlapping “main event” hearings. Even if zoning is granted for the Melancthon portion, the power lines from there have to cross Amaranth to the substation where the electricity goes to the Hydro One grid.

Melancthon’s actual hearing is scheduled for the Horning’s Mills community hall July 30. On Monday, the location came as news to Hearing Officer Susan Schiller, who hadn’t been advised of the location and didn’t know whether or not the facility offered the necessary amenities.

Costs of the hearings might be inestimable. There were six lawyers at the table Monday and Tuesday – two for each municipality and two for Canadian Hydro, along with the CAOs of both Amaranth and Melancthon, other personnel, and assorted planners and experts.

It might be noteworthy that Melancthon’s lead lawyer is Andrew Osyany of Shelburne, whereas Jeff Wilker of Thomson Rogers represents Amaranth, and Tim Bermingham of Blake Cassels Graydon represents Canadian Hydro. All lead lawyers have an understudy with them. The Toronto firms are said to charge considerably more than the local ones, and are known to have research departments for backup.

The likely cost of the hearings has not escaped everyone’s notice. One unidentified Melancthon resident (a senior citizen), leaving the pre-hearing at a coffee break, commented in passing that the costs would be reflected on tax bills.

Much time Monday was spent on Amaranth zoning for eight properties where there never has been a plan to erect turbines, and no certainty that the properties require rezoning for such as access roads.

Mr. Wilker argued that the rezoning would be required, but Mr. Bermingham disagreed. Lacking agreement, Mr. Bermingham asked that the “portion of zoning as it applies to the eight” be adjourned sine die pending further reports, which Mr. Wilker said could be available no later than May 31.

Said Ms. Schiller: “I’m not imposing a date, but whatever date you pick (I will hold you to). So be careful of the date. If the matter is not resolved (by the parties), it would have to be folded back in (as an issue).”

Resident Paul Thompson, whose objection is to the installation of a second transformer at the substation near his home, is seeking party status.

However, Canadian Hydro has only recently taken the transformer issue to the Board, and the township had received notification only during the time of the pre-hearing.

For that reason, Ms. Schiller had not received any notice that it was before the Board.

“The Board can’t consolidate something that’s not before the Board,” she said. I can’t make a decision on party status on something that’s not before the Board.”

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