Quebec’s highest court has given the province permission to appeal a lower court ruling upholding Nicanco’s right to backfill wetland in the proposed Sandy Beach development, Hudson mayor Chloe Hutchison told Monday’s council meeting.
Appellate Court Judge Robert Mainville’s Nov. 3 decision suspends indefinitely further progress on Sandy Beach and two other residential developments covered by a Sept. 7 ruling by Superior Court Judge David Collier.
Judge Collier had been asked by the trio of Greater Montreal developers whether a 2017 change to Quebec’s Environmental Protection Act (EPA) could be applied retroactively. Article 46.0.9 stipulates that the holder of a certificate of authorization (CA) for work to be carried out in wetlands has to start work within two years, failing which the CA expires.
Nicanco’s CA, dated March 23, 2014, allowed the backfilling of approximately one hectare of wetland characterized as such in the 2006 Teknika inventory. In return, the ‘no net loss’ orientation in the 2017 EPA revisions transferred roughly 3.5 hectares of Viviry wetland to the town. Nowhere in the original C.A. was a start date mentioned.
BCF’s Simon Pelletier, representing the three plaintiffs, successfully argued that nowhere in the law or in jurisprudence is there anything in 46.0.9 that would allow the law to be applied to CAs issued prior to its April 7/17 adoption. Judge Collier agreed.
In granting leave to appeal, Judge Mainville takes pains to emphasize it’s not as much about the substance of his colleague’s decision as it is about Quebec’s wetland conservation legislation.
“The parties agree that the trial judgment is a decision of the trial court, the appeal of which is governed by Article 31 C.C.P. The parties also agree that this judgment decides in part the dispute.
“That being the case, the respondents challenge leave to appeal sought by the solicitor-general on the basis that the proposed appeal would not be in the interests of justice because it would not raise a matter worthy of the Court’s attention, It would have no reasonable chance of success and would not meet the guiding principles of the procedure, including proportionality.
“While the [solicitor-general’s] appeal presents challenges, particularly in light of sections 59, 63 and 65 of the Loi concernant la conservation des milieux humides et hydriques, it does not appear to me to be contrary to the interests of justice to allow it, since the issues it raises are complex and, in my opinion, merit consideration by the Court.
Judge Mainville’s ruling gives the province until Nov. 30 to file documentation supporting its case to the Court of Appeal. Legal counsel for the three developers has until Dec. 29 to do the same.
Analysis
Rare is the monthly Hudson council meeting without at least one question about Sandy Beach. Monday’s session didn’t disappoint, beginning with Adrian Burke’s query about why the town isn’t pushing for status in legal proceedings. It’s not our role, replied the mayor.
Two more questioners wanted to know whether the town was proposing to buy the entire 60-acre site, already zoned and subdivided for 214 semi-detached and multifamily units. Mayor Hutchison’s response: there’s an equilibrium between conservation and protection. Interim director-general Martin Houde jumped to her defence. “We’re working to present council with alternatives […] this isn’t the place to comment.”
The takeaway? This council, like its predecessors, is in the process of realizing what can and can’t be done at the municipal level. The last council — with one unnamed exception — grasped the ultimate truth — buy it or negotiate the best compromise, because expropriation isn’t an affordable option and the longer a project is delayed, the worse the municipal bargaining position.
Given the added delay over the C.A. appeal, this is the time to approach Nicanco with a reasonable offer — sign over the hectare you wanted to backfill, agree on a price for not building the easternmost condo block and let’s find compromises on architecture and forest conservation — the only stages in the approval process where the town has jurisdiction.
Once those hurdles are off the table, Nicanco doesn’t require ministry approval to begin work. This project has taken 20 years and five councils to reach the stage it’s at; the pressure for housing and the tax revenues it generates will only increase. My advice to this administration: now’s your best shot at cutting a deal.
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