Never Another Como Bog!

Como Bog was frozen solid, glittering in the bright sun under a thick coating of ice this past Saturday — ideal conditions for a walkabout on the site of Hudson’s controversial housing development on Como Gardens.

A clay berm surrounding the project appears complete, one of the provincial environment ministry’s conditions for a certificate of authorization. The theory behind the impermeable berm is that it will block the flow of water between the 13-bungalow project and the surrounding bog.

As housing projects go, this is tiny, but it has taken a decade to reach this point. It never would have gotten this far if Quebec’s current wetland protection regulations had been in force when Sebastien Weiner, the original developer of what was then known as UK2, had set out to make it happen.

Some 10 years back, Weiner took possession of 8.5 hectares of the 9.73-hectare Como Bog, then came to an agreement with Quebec’s transport and environment ministries which would allow him to deforest roughly 3.4 hectares, strip-mine the peat and backfill to a level 18 inches above Como Gardens before starting construction of a dozen or so single-family units. (How that and similar wetland-trade deals were possible back then is another story, which I’ll get to.)

In return, Weiner agreed to donate five hectares of the bog to the Transport Ministry, which would then sign it over it to the town or recognized conservation organization for a dollar. To compensate for the part of the bog he proposed to develop, Weiner paid an undisclosed sum to protect 7.45 hectares of wetland in Rigaud.

Details of Weiner’s UK2 development were first presented at the September 2012 town planning advisory committee (TPAC) meeting. Although there only two items on the agenda, it would be a busy evening for councillors Robert Spencer (chairman), Madeleine Hodgson and Tim Snow plus committee members Susie Aird, David Croydon, Joyce Galliker, Andrée Bourassa, Brian Grubert, Marcus Owen, Dianne Laheurte and Phillip Avis. Besides UK2, TPAC would be presented with the latest version of George Ellerbeck’s Como subdivision – the Willowbrook development. According to the minutes, mayor Michael Elliott, urban planning manager Nathalie Lavoie and town engineer Trail Grubert were also in attendance.

Weiner presented his case for UK2. He pointed out the land was already zoned for single-family residences. There would be an easy connection to the new sewer system via the pumping station across the street. He maintained that the wetland trade allowing development was none of the town’s business, seeing as how he already had the required authorization certificates from the environment ministry.

Long before the meeting, public opinion was running against the project even though the town stood to take ownership of 80% of the bog. Residents pointed out that Weiner’s land was identified in the June, 2008 Teknika greenspace audit as part of MH-25, a 9.73-hectare peat bog characterized as the most environmentally sensitive wetland in Hudson. How, they demanded, could the town allow development of part of the bog to save the rest if development threatened the entire ecosystem?

Mayor Elliott and council maintained their fallback position — that Hudson had no jurisdiction over the provincial shell game that allowed Weiner to develop the bog. At one point, council asked Weiner to sell them all 8.5 hectares at 14 cents a square foot. Weiner’s counteroffer: I’ll sell the town the proposed building lots, but at fair market value. [Uninformed guesstimates ranged between $1 and $2.5 million.]

••••

To understand the Como Bog file, we need to go back to April 2012, when Liberal environment minister Pierre Arcand tabled Bill 71 permitting the development of a wetland in exchange for the protection of a wetland of equal or superior value in the same watershed. The act was in direct response to a Quebec Superior Court ruling earlier that year in the case of a cranberry producer denied the right to expand his operations.

Bill 71 gives the environment ministry the power to require compensation measures to restore, protect or enhance a wetland, a body of water or a piece of land as the price of the right to develop. Once the law came into effect, anyone looking to develop a wetland MAY be required to include compensation measures when applying for a certificate of authorization.

Because the ministry customarily required developers to implement compensation measures on projects affecting wetlands, the government made Bill 71 retroactive. This means that any compensation measure imposed in an authorization or a certificate of authorization issued prior to March 12, 2012 remains valid despite subsequent changes to Quebec’s environmental protection, municipal jurisdiction and land use legislation.

Fasken Martineau’s analysis of Bill 71 observes: “Interestingly, the Bill contains no clause allowing for derogation from Section 6 of the Charter of Human Rights and Freedoms concerning fundamental property rights.” In other words, the right to develop trumps a municipality’s right to impose restrictions on development — but only for wetland trades with certificates of authorization issued prior to March 12/12.

All over Quebec, developers with wetland to trade and legalists who saw money to be made — legally, with Quebec’s blessing — rushed to take advantage of the wetland-flip loophole before it slammed shut. [Residential developments in several of St. Lazare’s most sensitive wetlands and critical aquifer replenishment zones were authorized during this bleak period of state-sanctioned environmental despoilation.] In the case of UK2, it was the government itself doing the rushing. In its haste to complete the westernmost Highway 30 section between Chateauguay and Vaudreuil-Dorion, the transport ministry was forced to backfill several wetlands. It was at this point that Quebec’s transport and environment ministries entered into the agreement that resulted in certificates of authorization permitting the development of part of the Como Bog.

••••

Fast forward to the Hudson council meeting of March 5, 2018. Item 3.4 on the agenda was a resolution regarding the subdivision of the Como Gardens project, more specifically whether the Town should take the mandatory 10% park/playground tax in land, money, or a mix of greenspace and cash. The developer offers council three options: 14 lots (13 residential lots and one lot representing 6.1% of the total land area for park purposes); 13 residential lots but no park and a third option comprising 6.1% of the total land area in parkland, with another perpetual conservation covenants of non-construction at the promoter’s expense.

Deeply divided over the options, council voted to refer the file to the natural infrastructure committee for further study and recommendations. The vote to defer bought time, but no clarity.  At the April 3, 2018 council meeting, confusion over what constituted parkland vs. land under conservation led to a serious misunderstanding which prevails to the present. The environment ministry’s certificate of authorization requires a conservation servitude totalling 1,385 square metres between the building lots and the bog. This is NOT part of the 1,171- square-metre (13%) parkland allotment, which includes a 700-square-metre corridor running between the conservation zone and the bog, plus a 471-square-metre triangular greenspace at the southwest corner of the project. The conservation area includes a major spring which feeds the bog year-round.

Together, the conservation servitude and the parkland ceded to the town exceed 28%, with 13% of that total ceded to the town. But that wasn’t the resolution council voted to approve. At that meeting, the former director-general left the hall to have a brief discussion with the developer, then returned to announce that the town would be getting what amounted to a 25% greenspace allowance. The minutes of the April 3, 2018 meeting reflect this confusion:

WHEREAS the promotor is offering a land transfer representing about 25% of the surface area;
CONSIDERING a clay wall will have to be erected by the promotor;
WHEREAS the promotor will have to establish the validity of his certificate of authorization;

It is moved by the Councillor for district 2 (Eastern Hudson) Austin Rikley-Krindle
Seconded by the Councillor for district 5 (Eastern Heights) Jim Duff

TO APPROVE, in satisfaction of article 304 c) of By-Law 529 concerning permits and certificates, a land transfer representing 10% or more of the surface area of the land on the condition that the promotor meets the requirements of Section 46.0.9 of the Environment Quality Act.

Subsequently, both sides have struggled to correct the impression that council and residents were deliberately induced in error in order to get the project approved. Since then, agreements concerning infrastructure hookup and remediation have been successfully concluded.

Never Another Como Bog! has become the rallying cry for those who push for wider wetland buffers and tighter restrictions on deforestation, excavating and backfilling in Hudson. They’re not wrong, but their fixation on the Como Gardens development as an example is misplaced and misleading.

Begin with Bill 71, An Act Respecting Compensation Measures for the Carrying Out of Projects Affecting Wetlands or Bodies of Water. After its adoption, municipalities saw firsthand the folly of wetland flips. A series of hearings in 2012 resulted in major changes outlawing same-watershed trades. In 2017, adoption of the Act regarding the conservation of wetlands and watercourses imposed a new framework of analysis based on the ‘no net loss’ concept.  Under these changes, Como Gardens would not have been permitted.

Municipalities are also having to deal with the blowback from uncontrolled wetland and shoreline development. As our climate gets warmer, it gets wetter. The more we develop, the greater and faster the runoff, necessitating increasing investment in degraded, inadequate infrastructure.

In Hudson’s case, we should be worrying about the velocity and volume of runoff from upstream, beginning with the Viviry. Within a decade, we’ll see an additional 500 doors built on the Viviry watershed. We saw what happened when a midwinter thaw destroyed the Pine Lake dam. We have no choice but to replace it and re-engineer Pine Lake into a retention/detention basin if we don’t want to see Cameron washed away — and that’s just the beginning.

Some people I talk to believe Hudson is just fine with fewer than 6,000 residents. They may be right, but as someone who believes in budgeting for reality and spending within our means, I warn that Hudson’s current level of expenditure and priorities are not sustainable with the current population level. One can’t oppose development while continuing to burn money dreaming of grandiose projects.

Yes, Como Gardens is a lesson to this and future councils — a lesson in the need to make the hard decisions quickly, decisively and without second-guessing. It may be right, it may be wrong, but at least it’s a decision. Move forward and stop agonizing over the blowback.

The following stories ran in the Hudson/St. Lazare Gazette in October 2010:

Hudson, developer clash over peat bog

By Jim Duff

HUDSON — The Town of Hudson and developer Sebastien Weiner are crossing swords over a proposed housing development on Como Gardens opposite the new Palliative Care Centre, on land classified in a 2008 wetland audit as the most ecologically sensitive peat bog in the municipality.

Weiner has reached an agreement with Quebec’s transport and environment ministries that will let him deforest roughly 3.4 hectares, strip-mine the peat and backfill to a level 18 inches above Como Gardens before starting construction of 10 or 11 homes. 

In return, he’s agreed to give five hectares of the bog to the Transport Ministry, which would then donate it to the town or recognized conservation organization for a dollar.

As a further gesture of good faith, Weiner has offered the Ministère du développement durable, de l’environnement et des parcs (MDDEP) 7.45 hectares of land in Rigaud.

Details of Weiner’s UK2 development were presented at the September town planning advisory committee (TPAC) meeting. He pointed out the land is already zoned for single-family residences, with easy connection to the new sewer system via a pumping station across the street.

The town is dead set against the deal even though it would mean getting roughly five hectares of Weiner’s 8.5-hectare total, including the deepest part of the bog contiguous with two town-owned lots. They want him to sell them all 8.5 hectares at $0.14 a square foot.

Weiner has offered to sell the town the proposed building lots, but at fair market value.

“I’ve turned the world around to make everybody happy on this. Now they want all of it for free? 

“An unscrupulous developer could mine the whole bog, put in new roads, put 30-40 houses, he added. “I’m protecting it, free to the town because of the transport deal, only using existing infrastructure….It’s really a win-win deal for everybody.”

Weiner said he doesn’t need the town’s permission to cut trees, mine the peat, backfill and build. Peat, he explained, is considered a mineral resource, like gold or oil; “Peat bogs fall under the provincial mining law, putting them beyond municipal jurisdiction…Legally, it is a mine.”

“Saying that peat bogs are in danger is false. They’re not,” he added. Peat bogs — either carex or sphagnum moss — make up 17 percent of Canada’s total land area — 117 million hectares — and nine percent of Quebec. Ninety percent is untouched. Of Quebec’s 12 million hectares, 174,000 hectares are exploited — 1.45 percent. Hydro-Quebec accounts for 120,000 hectares of that total. 

He recognizes that the town may try to block the deal by refusing to allow him to connect to the sewer system even though there’s a pumping station across the street.

“Are you going to put a septic system 50 feet away from a sewer line? It’s just common sense here.”

He says he’s ready to discuss details of the peat-removal operations with his one neighbour, the Palliative Care Centre. “I’ll go talk to them…obviously it is not going to be done at midnight, it’s going to be done during normal regular hours. If there was a house being built across the street, there would be the same shovel, the same noise, the same everything.

“The land was zoned residential, from way before [the Centre] was there. The point is to be a good neighbour. I live across the street from it…I did recognize there was a compromise to be had.”

Weiner notes he was born here, grew up here and decided to live here, so he’s aware of Hudson’s desire to preserve things the way they are. 

“I spent two years of my life negotiating a compromise whereby more than 80 percent of the peat bog would be protected for free for the town of Hudson. I structured a deal between the Ministère des Transports, MDDEP and myself whereby Transport would create a conservation zone — and give it to the town for free.”

Why the Ministry of Transport? Weiner said it appeared that it was “some kind of old IOU for an old project between the two ministries and this fit the bill.  It has nothing to do with the Town of Hudson…the Town of Hudson just ends up being the beneficiary.”

MH-25 tops 2008 Teknika list

Sebastien Weiner’s land was identified in the June, 2008 Teknika greenspace audit as part of MH-25, a 9.73-hectare peat bog characterized as the most environmentally sensitive wetland in Hudson. 

That characterization was reached on the basis of points assigned for size, diversity and rarity of flora and fauna and the nature of the peat subsoil, which reaches depths of approximately 11 to 12  feet in the centre of the bog. The audit identified four plant species as well as four wildfowl species characterized as vulnerable. There are approximately 12 million hectares of peat bogs in Québec (9% of the province) of which 98.55% are virgin. Peat is a mineral substance as defined in the Provincial Mining Law. As such, extracting peat is considered a mining operation which benefits from special privileges and is governed at a provincial not municipal level. 

Weiner’s six-sided lot is bounded by Como Gardens, Hodgson, Main Road, the Canadian Pacific right of way and a town-owned lot stretching from Mullan to the Canadian Pacific track. 

His agreement with both the Ministère du Développement Durable, de l’Environnement et des Parcs (MDDEP) and the Ministère des Transports (MTQ) allows him to extract the peat from a band of land, approx. 100 feet wide, along Como-Gardens and Hodgson roads.. After backfilling to the same level as the Palliative Care Residence across the street, he can then subdivide the 100-foot strip into roughly a dozen 30,000-square-foot lots. 

Because the area is already zoned residential, Weiner needs no zoning change.

Under the terms of the deal he’s proposing, the town would get roughly 5.8 hectares at no cost — 5.4 hectares from the MTQ, including the area of mature trees and the four identified plant species as well as the deepest part of the bog and another 0.4 hectares as part of the 10-percent greenspace allowance the town is entitled to when a property is subdivided. 

The town has the choice of where it will take the 10 percent, or whether it will take it in cash.

Also part of the deal, Weiner has worked out an agreement with the environment ministry to acquire and transfer to the an area of equal size in Rigaud.— Jim Duff