Solar series, part IV: Hands off, municipalities

The advent of solar energy development across Ontario has raised its share of debate and controversy, attracting both supporters and naysayers alike and forcing the creation of province-wide guidelines for renewable energy projects. However, with the provincial parliament's backing of the Green Energy Act and the Ontario Power Authority in charge of the Feed-In Tariff (FIT) pricing schedule, these new rules dictate that one player has little input in the process: a municipality.

When the Ontario government passed the Green Energy and Green Economy Act (GEGEA) last May 14 and enacted its guiding regulations on September 24 - including the pricing schedule of the Green Energy Act - it did so in the name of "greening" its economic development and streamlining the process by which to achieve that goal.

One of the provisions of the new act, therefore, was to reduce the municipal planning powers surrounding renewable energy developments in towns and cities across Ontario.

Scenario: Reducing a municipality's control of the Planning Act

As specified in an article in the January 2010 edition of Municipal World, "Prior to the GEGEA, municipalities were considered 'the key review and approval body for the construction' of a renewable energy generation project. Under the Planning Act, municipalities have the power to enact official plans and zoning by-laws to determine local planning policy and to restrict the use of land respectively."

The roadblock here - from the province's standpoint - was that municipalities could reject a renewable energy project on the grounds of being inconsistent with its concept of good planning. Such refusals could lead to a costly and lengthy Ontario Municipal Board hearing, a situation that might be considered a deterrent to energy developers.

Thus, as of September 24, renewable energy projects are considered exempt from a municipality's control regarding certain land use planning instruments - including the temporary use and interim control by-laws, the latter of which was used by the East Hawkesbury Township in early 2009 in an attempt to delay a solar project by Ottawa-based Solaris Energy Partners.

Exemptions for renewable energy projects from the Planning Act, as well as from the usual Ontario environmental assessment regulations, would allow the province to open the tender process for the FIT program and allow wind, solar, and biogas development to continue post-haste.

Indeed, 482 solar project applications were approved on Wednesday, March 10, including six in Glengarry-Prescott-Russell: three in Hawkesbury, one in Casselman, one in Orleans, and one in St-Eugene.

Scenario: Provincial restrictions on a municipality's behalf?

On the other hand, in light of prior municipal concerns and board hearings like the East Hawkesbury case, the GEGEA also made the development guidelines somewhat stricter.

As the third part of The Review's solar series highlighted, the FIT program differed from the initial Renewable Energy Standard Offer Program (RESOP) in the guidelines for solar projects: ground-mounted developments above 100 kilowatts were to be prohibited on class 1 and 2 lands and speciality crop areas, while small projects (up to 500 megawatts) would be permitted on class 3 designations. (The East Hawkesbury project was approved under the RESOP.)

Secondly, in an effort to continue the streamlining of applications, the GEGEA also created the Renewable Energy Approval approvals process, which sets the following rules for a developer for all ground-mounted solar projects greater than 10 kilowatts, including: written notice to all adjacent land owners and public notice within a 120-metre radius of the proposed facility at a preliminary stage of the project planning; consultation with local municipalities on specific matters related to municipal land, infrastructure, services and information, and the required notice in a local newspaper; and holding at least two community consultation meetings to discuss the project and its potential local impact, before submitting the application for Ministry of the Environment review.

Scenario: The Nation municipality and EDF EN Canada

EDF EN Canada, the Canadian branch of a French renewable energy company, signed a contract with a Fournier landowner last year, for a 20-year lease on 160 acres of land in The Nation municipality, on Concession Roads 14 and 19. On two plots of land, the company will install a solar project capable of generating about 20 megawatts of energy.

As the agreement was established under RESOP, however, EDF EN Canada had little obligation to follow the Renewable Energy Approval guidelines with the municipality.

Yet the company began by hosting a public consultation meeting on September 23, to inform the public of the upcoming project and answer related questions. Later, when visual pollution concerns from a neighbour on Concession 14 came to the municipal council, EDF EN Canada presented a site plan agreement to council members - outlining a greater setback for their project than required by law and offering $50,000 towards the erection of landscaping barriers.

Council approved the site plan agreement on January 18.

"The St-Isidore (Fournier) site plan application submitted by EDF EN Canada enhances setback requirements from residential property owners near the 14th Sideroad, and will facilitate a consensus view by affected property owners on how landscaping funds will be spent," Jon Kieran, the company's director of solar projects, wrote in an e-mail. "The leadership of local councillors played a key role in achieving these enhancements."

The Nation CAO Mary McCuaig explained, following the approval of the site plan agreement, that EDF EN Canada provided a 30-metre setback as opposed to a lesser requirement established under RESOP.

The concerned Concession 14 neighbour, Pierre Desforges, said both he and other neighbours were nevertheless "taken by surprise" by the lack of a greater setback requirement: "There is no law for the setback except for 10 metres - because [regular] farmland is set at 10 metres - but imagine the next day you have 165,000 panels behind your house? It's a bit frustrating.

"These companies arrive and take advantage of the 'agricultural' zoning of the land," he continued. "I'm not against solar panels but I think there should be some more space. [...] We are a bit frustrated, maybe we couldn't have negotiated but we would have liked a chance - but we were never given one. And why is the municipality against the taxpayers? We thought the municipality would help us."

However, when Nation municipal councillor François St. Amour visited The Review office on February 5, he stressed the fact that municipalities have very little control in such a decision. The councillor also showed minutes from a conference call with provincial authorities, who explained to Nation council that the "agreement is between the landowners and EDF EN [and that] the site plan from EDF EN is totally voluntary from their part."

St. Amour expressed his frustration with the lack of municipal power in renewable energy developments, saying he understood the concerns of constituents like Desforges but noted, "The Green Energy Act is very clear. The municipality has no power."

"EDF EN gave us a choice," he continued. "They wanted to sign a site plan agreement and that was when the decision came: either 30 metres with landscaping or 10 metres with nothing. [...] We (the councillors) don't pick fights that we will lose."

Following criticism from Desforges, regarding a perceived lack of inaction on St. Amour's part, the councillor responded: "I certainly feel like I've been steamrolled. I'm tired of being criticized for something I have no power over."

"The neighbours have a point that they weren't notified [about the site plan agreement vote], but neither was I... not that it would have changed anything."

Certainly, the municipality does not earn very much in tax revenue from the development, as it is considered to be agricultural land. "There are some tax revenues, but not a whole lot," noted McCuaig. "Solar panels are not considered buildings so they are not taxable. [...] The taxes paid on the acreage are 25 per cent of the assessed value."

When asked about comments made by The Nation Mayor Denis Pommainville in September, which indicated a positive reception to the upcoming solar development in his municipality, McCuaig added: "I know that these council members are definitely forward thinkers, they're not afraid to take a chance, to see things through. Sometimes, it doesn't work, but in most cases they've seen it through and the results have been good.

"They're innovators, that's for sure."

Read The Review's complete solar energy series:

- February 3: the case for solar energy

- February 17: the case for Eastern Ontario and heavily subsidized tariffs

- March 3: the debate over the use of agricultural land and its resulting restrictions

- March 17: the role of municipalities in local project development