A local environmental group has taken to the courts in an effort to halt the proposed Energy-From-Waste facility from setting up shop in Clarington.

DurhamCLEAR has filed a Notice of Application to challenge the zoning of the property, they say.

The current zoning of the property says it, “excludes a recycling facility, material sorting or dismantling, a waste management or processing facility, or a waste incineration facility,” the group says.

“Basically, we want the Region to obey its own laws and those of Clarington. And since they are proceeding without the proper zoning on the property, we are asking the court to restrain them until they bring themselves into compliance through the site-specific rezoning that is required in the Clarington Official Plan,” says DurhamCLEAR President Doug Anderson, adding a copy of the Notice of Application has been sent to the three respondents – the Region of Durham, Covanta, the company slated to build the facility, and the Municipality of Clarington.

But Regional Chair Roger Anderson says no wrongdoing has been done.

And as of Monday afternoon, the Region had not yet been served with any papers related to the lawsuit, Chair Anderson says, adding he only became aware of the lawsuit through media inquires.

“We’re fully convinced that the zoning, specifically when it comes to compliance…is appropriate,” he says. “We feel there is absolutely no merit to it (legal action) whatsoever.”

Chair Anderson says if the Region does receive legal papers, legal staff will file the necessary documents and applications to ensure the costs incurred for the battle are recovered.

DurhamCLEAR, on the other hand, says the Region knows it’s in the wrong.

“The Region is well aware that a rezoning application would open a huge can of worms and so they have tried to circumvent this with the Host Community Agreement (HCA),” adds Doug Anderson. “In the HCA the Region and Clarington agreed that the facility ‘will be considered a ‘public use’ for the purposes of the Zoning By-law and that it is not necessary to amend the Clarington Official Plan or Zoning By-law’ would be regarded as a public work which would exempt the facility.”

The president says, “Just because two parties agree to something does not make it so.”

In its application DurhamCLEAR is disputing that the incinerator can be regarded as a public use as defined in the Planning Act, and is challenging the HCA itself as \\\”an illegal restraint on, and divestiture of, the legislative powers and decision making authority of the council of the Municipality of Clarington.”

DurhamCLEAR is not looking for any type of financial compensation from the legal action, Doug Anderson says, adding the group is hopeful that if they do win, while the Region has the option to apply for re-zoning, because it’s a lengthy process, it won’t do so.

“Our hope is that Regional council would realize that this project is probably not a good idea,” he explains.

Chair Anderson says the project is still pushing forward.

“Or staff will fight it as best they can,” the Chair says of the lawsuit, adding the Region will do all it can to rightfully protect the Region and the taxpayers of Durham.

A representative for Covanta, Jill Stueck, says the company is still reviewing the legal documents as of The Oshawa Express’ deadline, but is aware of the upcoming hearing.

A hearing date has been set for Friday, August 12, 2011, at 9:30 a.m. in Oshawa, states Doug Anderson. The Notice of Application’s court file number is 73935/11.