Hudson’s Cancel Conspiracy

Hopes rose Tuesday with the appearance of an Excavations Ali excavator at the Willowbrook site the day after a council caucus meeting was to discuss easing the freeze on the project’s first phase. Habitations Robert said Wednesday work would be limited to altering drainage and installing a temporary power grid. The project remains frozen for the indefinite future.

There’s no better example of the growing influence of environment and preservation activists on Hudson’s future than the uncertainty hanging over those who bought lots in Willowbrook.

At the Dec. 6 council meeting, councillors voted unanimously for two resolutions freezing all new development projects for the time it takes to overhaul the town’s master plan. The freeze — ostensibly for 90 days— applies to the issuance of building permits, tree felling and the backfilling of wetlands on 37% of Hudson’s 36.5 square kilometres. 

Willowbrook, the 114-door Habitations Robert development in Hudson’s Como sector, is the first casualty of the freeze even though the project had worked its way through an approval process going back to 2007. Those approvals concluded with a modified certificate of authorization from the environment ministry issued in March of this year and resolutions from the previous council giving the developer the green light for the 30-unit first phase. 

That was the basis on which Habitations Robert began selling lots over the spring and summer. 

This administration frames the freeze and bylaw rewrite as an opportunity to incorporate environmental protection in future development. In reality, the Willowbrook project underwent 15 years of study by an army of biologists specializing in flora and fauna, soil experts, hydrologists and environment ministry technicians. The studies analyzed, counted and measured everything from tree and plant species to the presence or absence of birds, vertebrates, even fish (mudminnows, sticklebacks and dace live in the wetlands and streams).

Those studies, combined with wetland and woodland data contained in the 2008 Teknika greenspace audit and 2017 CIMA+ conservation plan, formed the basis for Quebec’s approval of Habitation Robert’s application for permission to cut roads and install infrastructure for the project’s 30-door first phase.

What I find even more perplexing: the draft rewrite of Bylaw 525 pulls heavily from a 2020 report by Eco2Urb, the environmental consulting group hired by the previous council to confirm and update Teknika and CIMA+. Eco2Urb’s findings, including the existence of an unclassified wetland adjacent to rue Leger, were applied to Willowbrook’s Phase 1. In other words, Willowbrook is the first residential development to be subjected to the level of environmental scrutiny proposed by Eco2Urb — long before the interim control resolution and proposed bylaw changes.

So the question becomes why this council would ignore the science, dismiss 15 years of negotiations and refuse to address the immediate concerns of those who don’t know when —or even if — they will be able to move into the homes they contracted to buy.  

This analysis will attempt to answer that question.

Prior to the Dec. 6 council meeting, mayor Chloe Hutchison met with with Willowbrook’s developer, likely to inform them their project would be shut down by the RCI. The developer conveyed the news to their clients, setting off a Facebook firestorm in the absence of clear information of whether the impact would be temporary or permanent.

  A week after the freeze was adopted, Hudson’s new council met for a Monday-night caucus meeting to discuss the communications component of the freeze and according to one councillor, “sort through some of the misinformation.”  Buyers and their supporters were optimistic the mayor and council would reach out to those affected, ideally by allowing completion of the infrastucture already approved. At the least, they said, the mayor and/or council members should be up front with their plans for the project.

So far that hasn’t happened. Why the silence? 

Long before the freeze, the town’s relationship with Habitations Robert and its subcontractors was strained by violations of the Environmental Quality Act, including a drainage culvert discharging into a wetland. On top of that, the provincial heritage ministry intervened after conservation activists demanded protection for a 19th-century glassworks on the property. 

Work on the project was halted prior to the Nov. 7 municipal election because Hydro-Quebec had yet to install the poles required to supply power to the twin sewage pumping stations. 

The sewage pumping station opposite l’Auberge Willow won’t be connected to the power grid until Hydro Quebec deals with the aftermath of this week’s major power outages.

Early Wednesday (Dec. 15) Habitations Robert personnel and Hydro-Quebec subcontractors were on the site to replace condemned hydro poles on Main and build a temporary power grid to supply the project. As for the sewage pumping station, a Habitations Robert supervisor told me Wednesday that Hydro is prioritizing repairs to weather-damaged infrastructure, thus delaying non-essential work. He was optimistic that work on Phase 1 could resume next spring, but didn’t think the hookup to the municipal sanitary sewer system would be completed until the fall. His comments made it clear that Habitations Robert is not seeking to defy the freeze. 

Even the buyers most impacted have said a 90-day halt isn’t the problem, except that there’s no guarantee it will be lifted in 90 days. Lawyers have told the town an RCI can remain in place for whatever time it takes to draft and adopt stricter bylaws. At what point do young families who incurred serious debt to be able to afford a $750,000 home in Hudson and people stuck in rented apartments with storage units filled with new furniture and appliances they’re paying for but unable to to use, call it quits? 

This past Tuesday, one purchaser asked for the return of their deposit and prepared to move to another development outside Hudson. The longer the wait, the greater is the likelihood that others will follow. Their collective anger and frustration are reflected on social media. 

Phase 1 buyer Melanie Matte posted this to Facebook: 

“We were very excited for our first family home and to be part of Hudson. The project had already received approval from previous councils. Roads and infrastructure were underway. However last Monday the council adopted a 90-day freeze with no guarantee that this won’t be extended. This means all construction would be halted.”

Matte fears council’s intent is to cancel the entire project, beginning with Phase 1.  

“The town also started the process of changing bylaws which could affect the lots we purchased. This news has caused significant stress for our family. We are worried that we may have purchased a lot that we may not be able to build on. We have contacted the town several times but have not been able to obtain any concrete answers or information about the future of this project. 

“The mayor was interviewed last evening but only spoke about the fact that the building permits had not yet been approved. Building permits have no bearing on the issue. We are asking: will Phase 1 of the Willowbrook project be able to move forward or has council stopped it from doing the work needed to continue? Is council planning to rewrite the new land use bylaw in a manner which will make our fully owned lots unbuildable? We are hoping to get some answers and clarity on our situation.”

With a like-minded caucus majority, the mayor faces little internal opposition in her campaign to rewrite Hudson’s environmental bylaws. Nevertheless, the ruckus on social media was enough to force a meeting of the caucus exactly a week after the RCI was adopted.

“Please note that our intent is not in any way meant to cause undue consequences,”  a councillor wrote in an email to one of those affected.”It is a process we are permitted by law to activate on behalf of the protection and planning of our town. More information will follow in a timely manner.”

The RCI is a first in Hudson, although this won’t have been the first time a development freeze was discussed in caucus. Following the departure of the previous DG in August 2018, the sitting council twice considered an RCI for environmental protection purposes but was advised that it was late in the mandate (Fall 2019) to be claiming changed orientations and rushing to redraft the master plan. In both cases, it wasn’t clear what outcome council wanted once the freeze was lifted. Did they expect taxpayers to buy the property? Or were they hoping to negotiate a better outcome once the landowner had been brought to their knees? Jurisprudence has established that a municipality can’t block a project in perpetuity.

One of the legal arguments in favour of RCIs is that they offer some protection to an incoming council looking to enact or repeal bylaws, cancel contracts or lay off staff. The flip side of that is the town must have begun the process of amending the master plan when it adopts an interim control resolution for legitimate reasons, such as lowering density and reducing building footprints.The catch is that the owner retains the right to sue because they are deprived of the use of their land. Nobody has succeeded in getting an RCI quashed in court, but gambling on a favourable court outcome with tax dollars calls for a robust communications strategy so that taxpayers are braced for the fiscal hit. (Estimates of the legal cost of defending an RCI were in the $200,000 range in 2019.)

Whatever the outcome, taxpayers will be on the hook at a time when inflation is growing Hudson’s operating expenses while lowering Hudson’s welcome-tax windfall. This isn’t a good time to be incurring six-digit legal costs. Enviro activists scoff at fiscal arguments, but experience has shown that residents tend to vote down loan bylaws when they can’t see any personal benefit. 

***

Willowbrook has taken its current and former owners on a 12-year rollercoaster ride through four councils whose orientations ranged from strongly pro-development (Prévost), to divided (Elliott and Nicholls), to current mayor Chloe Hutchison’s election vow to slam the door on future development and cap Hudson’s population at the current level.

Opposition to development of the 17-hectare parcel began the day former owners George and Janet Ellerbeck applied for a rezoning permit in November 2006, mostly from neighbours who used Ellerbeck’s land for recreation. The property was zoned for 30,000-square-foot lots; the Ellerbecks wanted to raise the density once the sewer system had been extended to the east end. In return, they offered 60 acres of agriculturally zoned old-growth forest between the railway tracks and Harwood Blvd. — the largest single piece of Hudson land ever offered for conservation.

In July 2011, Hudson’s town planning advisory committee voted 5-3 to recommend approval of a zoning change that would clear the way for 33 single-family units on 10,000-square-foot lots. The project already had the blessing of the town environment committee, which included McGill University biology prof Martin Lechowicz. 

After inspecting the site, Lechowicz wrote: “a large part of the land slated for housing consists of tree plantations with low diversity and little value as wildlife habitat.” He welcomed the proposed expansion of the buffer zone on the north side of the floodplain, now incorporated in the project, calling it “an important greenspace for the development and for the town.”

A month later, the Ellerbecks sought permission for a revised project on 11.5 hectares. The proposal would see 37 single-family homes and 36-semi-detached units on lots ranging from 16,000 to 30,000 square feet, with an average size of 10,000 square feet.  Average density would be 16 units per hectare (the density of the current project was lowered to 12.5 units per hectare in 2017.) Both TPAC and the environment committee supported the request. 

In September 2012, the Ellerbecks withdrew their request for the zoning change after council backed a TPAC recommendation setting a maximum 12% floorspace footprint per lot. In between his rants aimed at certain TPAC members, Ellerbeck said he would wait for a regime change at town hall, but the real reason for his retreat may have been the realization that his project would be defeated in a referendum. (Revisions to the master plan in 2009 gave roughly 100 Como addresses the final word on the proposed rezoning.) Mayor Mike Elliott sided with TPAC, noting the proliferation of huge houses on tiny lots elsewhere in the Montreal Metropolitan Community. Those 60 acres of old-growth forest dropped off the table and have never returned.

Ellerbeck’s prayers for regime change were answered with the 2013 election of Ed Prévost. Under Prévost and director-general Jean-Pierre Roy, a council majority took advantage of changes to municipal competences to enact a series of concordance bylaws that would allow the rezoning of Ellerbeck’s property without the need to put it to the people. 

By bringing Hudson’s master plan into harmony with the Montreal Metropolitan Community’s master plan, the Prévost administration opened the door to multi-unit shoeboxes in the core as well as more units in the Sandy Beach and Willowbrook developments. These changes weren’t subject to approval by referendum; one of the last acts of the outgoing council was the adoption of a development agreement with Sandy Beach owner Nicanco permitting up to 256 doors. 

Ex-mayor Jamie Nicholls and council inherited Prévost’s concordance bylaws as well as department heads who persisted in pushing ahead with the late mayor’s orientations. It wasn’t until Roy’s resignation and a caucus revolt midway through the mandate that the previous council’s orientations were rejected — long after an RCI was legally supportable. After that, the mayor and the caucus majority voted to approve the Willowbrook subdivision with conditions recommended by TPAC.

This administration infers that voters handed them carte blanche to do what is required to save the environment. I see it differently. This mayor and council were elected by a quarter of Hudson’s eligible voters — hardly the strong plurality one would need to enact radical change. As we saw with the furore over the previous council’s efforts to enact a 30-metre wetland buffer, Hudsonites can get really angry, really fast when they have skin in the game and no say in what is being done to them.

Don’t think for a moment the Eco-Inquisition will stop with this. I predict that Bylaw 526, the bylaw setting ground rules for zoning and construction, will be next.  The mayor has never made a secret of her quest for tighter limits on building height, volume and architecture in the town core as well as strict enforcement of development on classified wetlands and forests of interest throughout the municipality. 

Perhaps it was inevitable the pendulum of public opinion would swing this way. In the 30 months Chloe and I shared on council, we agreed the existing urban planning framework served developers better than it did the town’s natural and architectural heritage. We also agreed on the need for change but we were worlds apart on how the town should get there. I’m sure she got fed up hearing me say it’s morally and ethically wrong to move the goalposts in the middle of the game. I know I got tired of being told I didn’t understand why routine decisions needed to turn into policy discussions. Chloe believes radical change requires radical measures. I believe change should be incremental, deliberate and based on informed analysis of the various options and outcomes.

April Save Sandy Beach rally: different projects, same organizers

I find myself wondering whether Willowbrook is being deliberately targeted to prove to this council’s voter base that they’re true-blue environmentalists and to send the message to property owners, developers (and potential residents) they’re not welcome — or irrelevant. I have documentation to support this concern, beginning with an August 2019 letter to the mayor and councillors from a group of rue Leger residents, demanding that the town change the zoning and density requirements for the project. 

“The Town has the power and jurisdiction, if it so desires, to change the zoning or set aside in a land reserve the wetlands and wooded areas of interest within the Willowbrook project so that it better reflects its surroundings,” read the letter. The author dismisses the threat of legal action, noting that Beaconsfield’s Angell Wood decision established that “the city has the power and jurisdiction  to change its bylaws at any time before a building permit has been given.”  

The letter concludes with a demand that building permits be refused until the developer agrees to a complete redesign, with changes to architecture, density, road and park layout and conservation areas.  

That was the start of the pressure campaign. A second letter to the mayor and councillors dated Jan. 8/21, contains a mise en demeure from lawyers for the group, by now formalized as Nature Hudson, “a not-for-profit corporation representing the interests of Hudson residents affected by the Willowbrook development project.”  

The cover email reads: “3.7 and 3.8 in the published agenda refer to modifications and approvals for Willowbrook. We respectfully demand these items be removed from the agenda for tonight’s meeting.” 

The mise-en-demeure contained a threat of legal action if council didn’t respond.

“Our Client hereby puts the Town on notice that any authorization or permit issued, and any agreement entered into by the Town in respect of the Project while the latter is in breach of the legal protections attaching to wetland Bi-11 (or on the basis of prior MELCC authorizations in relation thereto), should also be revoked immediately. This also requires that the Project be suspended pending a final determination on the relevant environmental concerns. 

“The City of Hudson is hereby on notice to take position (in writing) on the aforementioned measures by Tuesday, January 12, 2021, at 4:00 PM, failing which my Client will consider launching all judicial or administrative proceedings needed to protect the wetland and species at issue.”

Opponents of the project threatened council and an environment ministry engineer with legal action on the premise that a forest of interest (Bi-11) and a wetland of high ecological value (MH-12) were part of the same eco-corridor, when both were already under protection.

To reinforce their point, the email included a similar mise en demeure to Marc Leroux, the engineering head of the environment ministry’s regional municipal inspection team. It alleges “serious irregularities,” harsh words for any member of a professional order. “If they prove to be founded, these irregularities would appear to justify the revocation of the March 20/20 authorization.”

Irregularity #1 was the claim that Bi-11, a forest of interest characterized in the Teknika report, was in fact a forested wetland contiguous with MH-12, a bog of high ecological value. (The inference is that the ministry’s authorization failed to protect an eco-corridor)

Irregularity #2 was the possibility the area was home to brown bats, an endangered species. Interestingly for this account, the demand was based on an assessment by TerraHumana, the author of the flora and fauna study being cited by Save Sandy Beach and Nature Hudson in their campaign to halt Nicanco’s Sandy Beach development. None of the other studies — Eco2Urb, CIMA+, Enviro-Guide A.L., G.R.E.B.E. — confirmed the presence of the species.

Here again, the demand was to suspend the project’s authorization immediately pending revocation of the CA by Feb. 5/21 — and order the developer and the Town of Hudson to halt the project. 

Quebec’s Registre des entreprises listing for Nature Hudson identifies the president and treasurer as rue Leger residents, while the secretary is the same individual who filed the glassworks complaint with the provincial heritage ministry. The organization’s designated representative is a lawyer with the law firm Colby Monet and a director of the Legacy Fund for the Environment, the non-profit organization which contributed to the TerraHumana Solutions study of Sandy Beach. It appears to be a cozy conclave.

Taken together, these factors suggest the current Hudson council remains silent because it has nothing to say to the hapless buyers of those Willowbrook lots. If they were honest, they would tell those folks to ask for their money back and prepare residents for the first of many lawsuits.

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