Another legal twist in Sandy Beach saga

The Superior Court decision posted here may alter the exclusive right of Quebec’s environment ministry to regulate wetland protection. Appeals to this and another ruling will determine whether municipalities can still maintain some control of wetlands by way of the trees growing in them.

The 20-year Sandy Beach development saga has taken yet another twist.

A Quebec Superior Court ruling posted last week has restored the right of developer Nicanco Holdings Inc. to backfill a wetland on the 24-hectare (60-acre) Sandy Beach site, thus removing the basis for a November 2021 resolution withdrawing the Town of Hudson’s support for the project. 

This latest twist has its roots in a certificate of authorization (CA) from the provincial environment ministry at a time when a developer could obtain permission to backfill a wetland in exchange for the donation of a wetland of equal or superior environmental value in the same watershed. 

Nicanco applied for, and was granted a CA allowing the backfilling of one hectare in exchange for the conservation of 3.5 hectares of greenspace, which was transferred to the town in March 2014. 

Four years later, the environment ministry — bowing to pressure from the municipalities and the public — adopted changes to Quebec’s cornerstone environmental protection act (EPA). The change at issue here was Clause 46.0.9, which gives the ministry the right to annul a CA if the developer hasn’t begun work within two years of it being issued. 

On that basis, the environment ministry annulled Nicanco’s CA on March 23, 2020 — two years after the adoption of the EPA changes.

Nicanco was one of three developers to file a joint challenge to Clause 46.0.9. Representing the ministry was the office of Quebec’s procureur-general. Arguments were presented before Judge David Collier on June 15. 

In his Sept. 7 decision, Judge Collier agreed with the plaintiffs that Article 46.0.9 of the revised EPA does not apply to CAs issued prior to April 7 2017 because the changes to the EPA didn’t specify that they could be applied retroactively. Collier reinforced his decision by awarding costs to the three plaintiffs.

Could Collier’s ruling be appealed? The province has 30 days from the receipt of notification letters to file a notice of appeal, leaving the outcome in limbo until mid-October.  However a source familiar with the file thinks an appeal is doubtful. 

“The court has confirmed that it takes clear instructions in the legislation to create retroactivity,” they told me. “Else the state of law would be permanently in flux (all it takes to apply retroactivity is for the thought to pop into an apparatchik’s head, à la Trump? Certainly not)  Pretty much what is taught in first-year law school.”

Even if the judgment goes to appeal, the Town of Hudson’s current opposition to Nicanco’s 214-door project is on soggy legal ground. 

The developer’s lawyers will certainly invoke the 20-year history of incremental approval by a succession of administrations, beginning with the original rezoning — from 49 single-family dwellings to a mixed multi-unit project — approved by referendum in September 2001. 

Next in the chain of approvals was the March 2014 CA allowing Nicanco to backfill one hectare in exchange for the conservation of 3.5 hectares of greenspace. (The CA authorizes 15,800 square metres of backfill, but it turns out the project will use 4,128 square metres (26%) because backfilling isn’t authorized in the ZIS, the special intervention zone decreed in the aftermath of the 2017 and 2019 floods.)

Another key approval was the resolution approving a development agreement between Nicanco and the Town, adopted in October 2017. (Although neither side is particularly happy with the agreement, nobody wants to risk reopening it.)

Then there are the urban planning approvals.  At its June, 2020 meeting, Hudson’s town planning advisory committee (TPAC) voted unanimously to recommend that council approve the Pine Beach subdivision plan, with two conditions — that the six townhouse units closest to the beach be relocated to minimize friction between residents and beachgoers, and that the developer agree to a  perpetual servitude in favour of the town to existing and future pedestrian paths. 

That same evening, TPAC also voted unanimously to reject the developer’s proposed design portfolio because the mix of townhouses and condo blocks didn’t satisfy Hudson’s architectural requirements for an integrated project. 

At its July 2020 meeting, a council majority approved adoption of the subdivision plan with TPAC’s recommendations — plus council’s insistence that the sewer system be routed outside the floodplain as specified in the 2017 development agreement. 

On TPAC’s recommendation, council also voted to reject Nicanco’s proposed architectural mix.

Finally, a resolution was adopted at the September 2020 council meeting authorizing the town clerk to issue a certificate of conformity with municipal bylaws to Nicanco, allowing the developer to apply for permission to begin infrastructure work on the condition that the developer submit revised architectural plans.

The outgoing council discussed acquiring all or parts of the 24-hectare Sandy Beach site. One proposal would have paid Nicanco market price for three environmentally sensitive wetlands characterized in the 2008 Teknika greenspace audit. There were never any talks between owner Nicanco Holdings Inc. and the town.

Prior to the November 2021 municipal election, the outgoing council discussed the possibility of acquiring all or part of Nicanco’s holdings. It quickly became clear that there would be no consensus. One councillor supported the Save Sandy Beach demand that council adopt a resolution petitioning the Montreal Metropolitan Community to acquire the entire site. Some proposed using the town’s accumulated surplus to acquire three wetlands characterized in the 2008 Teknika greenspace audit. The only point on which there was general agreement was that there was no appetite among Hudson residents for a tax hike to buy the site. The discussion died as soon as it was revealed that the environment ministry had annulled Nicanco’s 2014 CA. 

Any further discussions of acquiring all or part of Sandy Beach ceased with the incoming council’s repeal of the previous council’s 2020 resolution authorizing the issuance of a certificate of conformity green-lighting Nicanco’s infrastructure operations. Despite the presence of two Save Sandy Beach activists on the current council, it has yet to adopt a resolution tapping the CMM for acquisition funding.

In theory, the restoration of Nicanco’s CA means the Pine Beach project is back on the books. But so far, there’s no indication of that from the key players. The development’s longtime spokesman, Empero’s Marc Perreault, did not respond to my inquiries. Calls to Nicanco’s Pointe Claire offices go unanswered following the death in July of CEO Hans-K. Muhlegg. 

Meanwhile, similar challenges are working their way through the courts. One currently under appeal is the September 2021 decision rendered by Superior Court judge Florence Lucas involving a multi-unit development project in Saint-Bruno-de-Montarville.  Her ruling, compared by one legalist to the pound-of-flesh-but-no-blood decision in Shakespeare’s Merchant of Venice, allowed the development as long as it preserves a forest of interest. 

The logic behind this approach? While the environment ministry jealously guards its power to regulate wetland protection, municipalities have jurisdiction over the trees. Depending on this appeal, Hudson may be in a position to exercise some control over the Sandy Beach project.

Whatever the outcome, the only sure thing for Hudson’s taxpayers in the foreseeable future are lawyers’ and consultants’ bills. Hardly their gainful use. 

Those who wish to read the Collier decision can find it at:

The Locas decision is likewise publicly available on the SOQUIJ site. 


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