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The twin bylaws comprising Hudson’s proposed urban planning program overhaul are seriously flawed — so much so that this council must take whatever time it takes to have them redrafted.

But that’s just my opinion, which I’ll explain below.

This week, residents are being asked to weigh the impact of bylaw changes that would impose a 10-20% surtax in land, cash or a combination of both on a subdivision, major renovation, expansion or change in usage of any residential or commercial property in Hudson.

As Hudsonites will learn at two open houses (7-9 this Thursday evening and 9-noon Saturday) as well as at a public consultation (7 p.m. Wednesday, Jan. 31), the administration’s intent is to finance acquisition of lands for future parks and recreation areas as well as to encourage landowners to sign over their properties.

Among other proposed changes are mandatory 15-metre no-touch zones on properties adjacent to wetlands or shorelines and the protection of close to 200 ‘remarkable’ trees throughout the urban core. (Demand to know whether your trees are on the list.)

Draft bylaws 767 and 768 were presented at the Jan. 10 council meeting with final adoption planned for the April 2 session. Bylaw 767 amends four existing bylaws — 526 (zoning); 527 (subdivision); 529 (permits and certificates) and 571 (site planning and architectural integration programs).

Bylaw 768 ordains a new set of rules for future development of four large non-agricultural blocs of land including Willowbrook, Sandy Beach, the site of a proposed continuing-care seniors’ campus off Côte St. Charles, and a woodlot between Main Road and the rail line east of Mount Pleasant.

Neither bylaw is subject to approval by referendum as long as citizens are given the opportunity to comment. Council is not obliged to withdraw or modify either bylaw regardless of public concerns, which can be submitted in writing until Feb. 14. Mayor Chloe Hutchison has said the target date for final adoption is the April 2 council meeting.

Depending on input from the Vaudreuil-Soulanges MRC, Hutchison hopes to lift the Dec. 2021 interim control measures by August. 

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Here’s why I think council should redraft these bylaws:

1) It’s a laudable goal, building a fund for parks and recreation. But on the backs of property owners? This change wasn’t thought through in light of higher mortgage interest rates and construction costs and Ottawa’s threat to penalize municipalities that refuse to densify their housing stock.

Residents should know that Hudson already has a parks fund containing monies collected in lieu of land for Quebec’s mandatory 10% subdivision levy in either land or cash. The municipality decides which.

Council must be brought to realize the draconian fiscal impact of an improvement surtax/land grab over and above the table d’hote of taxes Hudson property owners already pay.

It’s not because Hudson needs the revenue. The town is sitting on an $8 million accumulated surplus that can easily be accessed for parks and greenspaces, so let’s hear council’s justification for hammering anyone who wants to upgrade their residence or commercial property.

Draft bylaw 767 defines a major renovation as any project involving 33% and more of the volume of an existing construction, which currently requires a building permit — and in the case of a property located in one of Hudson’s SPAIPs, a yes vote from council on a recommendation from TPAC.

The addition of a garage, a kitchen/bathroom upgrade, family room, basement living quarters or intergenerational suite would likely trigger the 33% parks threshold.

The median price for a house in Hudson is close to $600k. Most buyers will want to upgrade to meet their requirements, so the question becomes whether the Hudson cachet is worth an additional 10% — over and above the transfer tax. So do sellers of unimproved properties compensate for the added charge by lowering their asking price?

If adopted, Bylaw 767 would give the town the power to dictate the combination of cash and greenspace in any subdivision, renovation or usage change. This has been abused in the past and I can understand why council would hang tough on this one. But Sections 401.1 through 401.5 create an obligation on the property owner to transfer land or pay a sum of money for parks, playgrounds or natural areas for the following:

— Any subdivision permit application for approval of a cadastral operation;

— Any building permit application related to construction of a new main building on a property whose registration as a separate lot has not been the subject of a subdivision permit resulting from Quebec’s 1994 cadastral reform;

— Any building permit application for a redevelopment project on a property (described above);

— Any building permit application for the intensification of existing activities on a property (defined in the bylaw as any construction project with the aim of adding two or more residential units in a building or enlarging a commercial building by more than 25% of its existing floor area);

— Any building permit application to allow new activities on a property. (Nowhere is this defined in the draft bylaw. Would the Chateau du Lac be obliged to sign over cash and greenspace for renting to healthcare professionals? Would any of Hudson’s commercial landlords be billed for a change in tenants? Clearly, this clause is both incoherent and beyond the town’s authority to enforce.  

2) Section 15 of draft bylaw 768 bestows on the Town Planning Advisory Committee the power to defer its recommendation on a developer’s comprehensive development program (CDP, or PAE in French) application on the basis that it needs further information. This has been a standard go-to excuse by TPAC to stall a council vote and has led to past turf wars, such as those over Willowbrook and condo projects at 426 Main and 98 Cameron. I see this as a rationalization for more stalling tactics on politically difficult files, like what happened to Villa Wyman.

Even more concerning are these clauses from Section 17 Approval by the town council:

— Once it votes to approve TPAC’s positive recommendation, “council may also require as the condition for approval of an application, that the owners of the buildings located in the area covered by the comprehensive development program […] bear the cost of certain elements of the CDP, including infrastructure or equipment.”  I’m not a lawyer, but surely requiring neighbours and residents of a new subdivision project to complete the project within a specified period and provide financial guarantees is beyond a town’s powers.

Even more baffling is the following weasel clause:

“The approval of a CDP/PAE in no way commits the town council to undertake a modification to urban planning regulations and issue corresponding permits, nor does it constitute an obligation for the town to accept the proposed roads appearing in the CDP, decree their opening, bear the construction and maintenance costs or assume civil responsibilities.”

In other words, even if council approves a subdivision development, it is under no obligation to municipalize the road network. Quebec already requires the developer to build, pave and pay for all CDP/PAE infrastructure, roads included, so why would this bylaw allow council to wriggle out of taking them over? So that the town can then ban winter snow plowing, waste collection, school bus service and other municipal services? Smells like another stalling tactic to make those pesky developers and their needy buyers go away.

I’ll be submitting these and other concerns, both orally during the Jan. 31 consult, and in writing for the two weeks following. I have no illusions that this council will heed my or anyone’s advice.

Please take the time to attend either of the two open houses, or failing that, the public consultation on Jan. 31. The only reason we live with bad laws is because we don’t demand better.

Hudson households will be getting a pamphlet in the mail from the town, advising them of the consultation process required for adoption of two bylaws imposing new constraints on future residential development.

But despite extensive lobbying by Save Sandy Beach activists and those opposed to Como’s Willowbrook, nothing in either bylaw blocks their development.

Bylaws 767 and 768 have been in the works since December 2021, when the current council adopted an interim control resolution, or RCI, imposing a 90-day subdivision and construction freeze on any lot falling within wetlands or woodlots characterized in a conservation plan adopted by the previous council. Residents were told at the time the 90-day freeze was required to buy time to revise Hudson’s planning program so that development could not proceed. 

The 90-day freeze stretched into more than two years, during which mayor Chloe Hutchison would regularly tell concerned residents the bylaw rewrite was delayed for a variety of reasons, most of them having to do with staffing issues. The delay froze almost all new multi-unit residential development, including projects approved by previous councils and triggered an undisclosed number of lawsuits. In adopting the freeze, Hutchison said hundreds of lots would be impacted, although construction on many has been approved following third-party analyses of their ecological value.

Replying to questions at Wednesday’s first council meeting of 2024, Hutchison predicted that the interim control measure, or RCI, won’t likely be lifted until August because of delays built into the approval process. Although neither proposed bylaw adopted this week is subject to approval by referendum, both make public consultation an integral part of their adoption. 

The consultation process agreed to by the town and its urban planning consultants calls for three meetings (open houses Thursday, Jan. 25 and Saturday Jan. 27, plus a Q&A Wednesday, Jan. 31). Residents have two weeks after that to submit their observations and suggestions, which may or may not result in changes to either or both draft bylaws. Hutchison said the target for final adption is April 2.

Next, the draft bylaws must be submitted to the Vaudreuil-Soulanges MRC to ensure they don’t clash with the MRC’s master development plan, or SADR3, and by extension, the Montreal Metropolitan Community’s PMAD. The MRC has 150 days to respond.

Bylaw 767 is what is termed an omnibus because it amends sections of existing bylaws without replacing the bylaws themselves. Parts of zoning bylaw 526, subdivision bylaw 527, permits and certificates bylaw 529 and architectural control bylaw 571 are being replaced with new definitions and tighter rules on everything from tree protection and replacement to the acquisition and sale of private and town-owned greenspace. Remarkable trees — a new protection category — lists 187 trees by address and GPS co-ordinates and will require a consultant’s finding that the tree is dead, dying or dangerous before one can be felled. Fines for violations range between $100 and $15,000.

Bylaw 768 “on comprehensive development programs” imposes tighter development constraints  on the four largest parcels of undeveloped land in the urban perimeter: Willowbrook (R-7, R-15); Sandy Beach (R-22, R-24); Charleswood/Côte St. Charles (R-55) and a site on the north side of Main Road opposite Somerset.

The bylaw defines comprehensive development programs thus: 

“When one or more owners wish to enhance one or more properties in the sectors concerned by theis bylaw, they must prepare a comprehensive development program (CDP/PAE) before making any request to modify the current urban planning bylaws…” To be eligible for submission to the town planning advisory committee (TPAC), a CDP must be in the form of a booklet which must satisfy a lengthy list of requirements. These include studies and concepts for the preservation of natural and built structures, plus allowances for transportation, recreation and other public amenities such as underground energy and communications infrastructure. 

Any CDP of more than 10 pages must also include an executive summary of up to six pages.

The bylaw also establishes the town’s right to demand that developers shoulder the bill for connection to existing infrastructure.   

Noteworthy in light of the town’s potential exposure to legal action by thwarted developers and  property owners is Section 4: “this bylaw is adopted in parts, so that if any division of this bylaw is declared nul and void by a court, such a decision would have no effect on other parts of the bylaw.” 

Also noteworthy are the built-in delays and the revised role of TPAC in draft bylaw 768.

The town’s urban planners have up to 60 days to determine whether a file is complete or requires additional material before passing it to TPAC, which can take as long as it wants  to draft its recommendation for acceptance, modification or rejection of the project. TPAC may also request additional information from the CDP applicant and defer its recommendation indefinitely.

The bylaw’s second chapter deals with Willowbrook, with permitted densities of between five and 15 units per hectare depending on whether they are single-family, townhouses or row housing, all of which are open for consideration as long as the result is more greenspace. “The planning of any development must be subordinate to the respect for natural environments and ecosystem balance.” The goal is to preserve a minimum proportion of greenspace for the overall project, rather that per lot.

In summary, the bylaw would allow Habitation Robert to proceed with future phases of Willowbrook if the developer agrees to protect additional greenspace.

Regarding the proposed 214-unit Sandy Beach development, Bylaw 768 holds out the possibility the town could approve single-family, semi-detached two and three-family dwellings with an gross density of 17.5 to 35 units per hectare. Again, the claimed goal is to preserve greenspace by encouraging greater densities in sectors of the project. 

For both R-55 and Sandy Beach, the bylaw offers the conceptual underpinning for creation of residential sectors where people aren’t dependent on their cars. “The comprehensive development plan […] is close to the village core and at a short distance from the Hudson train station…Therefore particular attention must be paid to reducing facilities favouring automobile use, both in housing offerings and outdoor facilities.”

Neither bylaw addresses the fate of multi-unit residential projects in the town core, of which three were approved by previous councils. Only one, the 18-unit assisted-care Villa Wyman, has been cancelled by its promoters.

But despite extensive lobbying by Save Sandy Beach activists and those opposed to Como’s Willowbrook, nothing in either bylaw blocks their development.

They are a bunch of amateurs,” Hudson mayor Chloe Hutchison tells 1019 Report’s Brenda O’Farrell. “Put it in the hands of people who can get it done.”

An unfortunate choice of words in a town which depends on amateurs and volunteers for a wide range of activities and services, many of them taxpayer-funded. Was it meant to be off the record? Not for attribution? Or will the mayor insist yet again that she was taken out of context?

Whatever, the mayor’s gratuitous insult appears to have been directed at the Villa Wyman’s board of directors, who voted earlier this month to abandon plans for an 18-unit assisted-care senior’s residence in Hudson’s downtown core after having been jerked around by the current council for the better part of two years. 

Although the Villa Wyman project was eventually approved by the current council a year ago (Nov. 7/22), the town continued to demand architectural, parking and landscaping modifications, each one of them pushing back the construction start date by the time it took to work its way through the urban planning approval process.

The board’s Dec. 7 decision to terminate the project followed council’s refusal to grant the project a minor derogation to accommodate an encroachment on the parking lot shared with the former Wyman Memorial church, now a Sikh temple. “It was less than three feet,” board member Diane Ratcliffe told me. 

A municipal derogation was required because the temple’s administrators, after months of delay, refused Villa Wyman’s request for a legal servitude.

The irony in the mayor’s bunch-of-amateurs comment is that it was Villa Wyman’s architect —a professional — who failed to notice the encroachment. Nor were they alone in missing it. Encroachments are highlighted in surveys as well as in deeds of sale, which involve realtors, surveyors, notaries and urban planning departments. 

My point is that a raft of professionals were involved in the eight-year journey planning this $8 million project. Municipalities, Hudson included, routinely approve minor derogations for exactly these reasons.

Earlier this fall, an alarm bell rang when the mayor, asked about the project’s advancement, said this council would not approve a derogation. I took it as a warning that unless the various actors in this slow-mo farce could come up with an alternative, the Villa Wyman project was doomed. 

Those of us who have followed its evolution since it was introduced as a rezoning bylaw during the Prévost administration know it was crippled from the outset by a slew of factors. Its location, on the south end of the Wyman parking lot behind Stephenson Court, was less than ideal. 

Residents, including Hutchison, fought the rezoning bylaw before a provincial administrative tribunal, which ruled the town was within its powers.

Throughout the process and even now, board members have refrained from attacking the administration, but when asked if they might reconsider their decision, the answer remains a firm no.

The board isn’t looking at doing anything else in the future, Diane Ratcliffe told me this past week. “If we were to go forward, we would be getting into the hard part — construction, where decisions have to be made quickly.”

In the end, it became a matter of whether the board could trust the current council not to sabotage the project, then blame it on them.

“In any endeavour you need partners. The town told us ‘Do not come to us for a request for a derogation’ […] the Sikhs are not willing to work with us. Without approval, support or partnership we didn’t have the stomach to go forward.”

The next phase begins with cancellation of the mortgage associated with the project, Ratcliffe said. “The SHQ (Société d’habitation du Québec) will help guide us through the process of rolling it back.”

Once costs already incurred are paid out,  the rest of the $4.2 million in federal and provincial funding will be returned. 

As for the now-empty lot, the mayor indicated at the August 7 council meeting that the town could use its power of pre-emptive rights to put a freeze on the land for as long as 10 years. Whether or not the town would be forced to buy it at some future date will depend on recent changes to legislation giving Quebec municipalities greater powers to expropriate land.

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Ratcliffe is hopeful that the board’s work won’t be wasted. “I gather that there is a non-profit group created this past February, Toît d’abord, that has been set up, with (St. Lazare mayor) Genevieve Lachance president of the board of directors […] Chloe, chairing the MRC regional housing board, suggested we get in touch with them.”

“We are going to look into it with Manon Leduc, our point person and DG of Groupe des ressources techniques du sud-ouest, our staff person who steered us through the entire process,” Ratcliffe added. 

Leduc’s professional track record includes the 82-unit co-op apartment block in Pincourt’s Pointe-a-Renard sector. “She has contacts with similar associations that exist everywhere in Quebec.”

Ratcliffe’s harshest words directed at the mayor and council? “It would be really nice if they made their intentions clear. If they had a plan for the village core, they should share it.”

A heartfelt apology is in order, Madam Mayor.

Eight years in the planning, an 18-unit assisted-living facility in Hudson’s downtown sector is being withdrawn by its backers following council’s rejection of a proposed parking modification.

Although the Villa Wyman project was approved by council a year ago (Nov. 7/22), the configuration of parking spaces on the enclaved lot proved to be the devil in the details. 

According to Hudson mayor Chloe Hutchison, the project’s promoters could not reach agreement with its neighbours on the layout of the parking area shared with the former Wyman Memorial United Church, now a Sikh temple. 

At its December meeting, council voted to reject Villa Wyman’s request to modify the approved project to satisfy both its neighbours and the town’s bylaws. Council’s rejection was based on the lack of landscaping and vegetation on a parking lot that has existed in its current form since the church was built in 1909.

Council’s refusal to grant Villa Wyman a derogation of less than three feet was the last straw for Villa Wyman’s volunteer board.

 “Our Board of Directors […] decided on Thursday by resolution to abandon the project,” founding member Diane Ratcliffe told me Saturday. “If [this council] had wanted to wear us down, they’ve succeeded.”

The project’s financial backers, including Soulanges MNA Marilyne Picard, Vaudreuil-Soulanges MP Peter Schieke and the Town of Hudson will have received an email advising them of the board’s intent to terminate the endeavour, Ratcliffe added.

 The board’s decision triggers the lengthy process of unwinding years of work, beginning with the hiring of a professional evaluator early in the new year. The property — with a 2020 evaluation of $3,296,672 — will be listed for sale and close to $7 million in funding from the federal and provincial housing programs will be returned. Hudson’s only financial exposure is in the form of a 10-year tax holiday, representing $23,661 annually.

At some point in this process, the Town of Hudson is expected to file a preemptive reserve on the property. At the August 2023 council meeting, the mayor included “the Wyman Memorial parking lot where Villa Wyman is to be built” in a list of properties eligible for a pre-emptive reserve.

Adopted at that same meeting, Bylaw 762 enables the municipality to freeze the transfer of designated lots for up to 10 years while an expropriation tribunal determines its market value. (Companion legislation currently before the National Assembly would allow a municipality change zoning to lower a property’s market value.)

Ratcliffe questions the motives of the current council, which twice rejected approval of plans for the structure (in June and October 2022) before conditionally approving them in November. 

“Consistently, every single time, council would tell us to go back and redo the plans. They have not shown any good will. There has been zero co-operation…if you don’t have the support of the town, you won’t succeed.” 

She also wonders whether the temple’s executive has its own agenda for refusing to agree to a servitude in a shared parking lot when Villa Wyman already has 22 parking spaces, whereas the bylaws require 15. “At first they were very agreeable to a servitude, but after months of chasing after them to make it official, they said no.” 

Could it be that the temple hopes to buy the entire site for parking after the town refused to allow them to pave over the greenspace  at the corner of Main and Selkirk? Ratcliffe asks the question, but doesn’t expect an answer to this or any queries about council’s agenda.

After years living in Hudson, she and her husband Peter moved to Kingston to be closer to their daughter, son-in-law and grandchildren. Their son James, a Hudson volunteer firefighter, died in a nautical training accident June 7, 2005.

Gary Dover, ex military intelligence teacher, cabinetmaker, forester, historian, naturalist, friend.

It’s coming up on the anniversary of Gary Dover’s sudden death last September, a sad passing I just learned about from Gary’s wife Anita. There was no obit, no death notice, only a For Sale sign on their house that prompted me to call and Anita to text me the news from the UK. 

 

Gary and I have been in and out of each other’s lives for years. He served in the Canadian Armed Forces with military liason and intelligence in the Middle East and Southeast Asia, taught at the Canadian War College and so happened to have been the intel duty officer the night of the ’95 referendum. We’d talk for hours over beers or in the woods, where we’d bushwack on snowshoes or chop a route through the brush with Gary’s Gurkha kukri and my bush axe. 

 

I never saw him get lost. Before we’d head out, he would study the relevant topographical map and carry a photographic image in his mind as we roamed the expanses of woodlands and wetlands that still cover most of northern Vaudreuil-Soulanges. Back at home, he would draw our route onto the topo map if he thought it warranted marking.

 

Back in the early 2000s, a bunch of us, alarmed at the rate of uncontrolled development and the loss of our region’s eco-corridors, banded together to create Sentiers Vaudreuil-Soulanges. The aim was to lobby the Vaudreuil-Soulanges regional municipality and our respective communities to integrate green corridors in their master plans. With Gary masterminding, volunteers rough-mapped a chain of local walking trails through Hudson, Vaudreuil, St. Lazare, Ste. Marthe, Trés-Saint-Redempteur to connect with Rigaud’s l’Escapade network. 

 

At first, it all seemed to be coming together. The Hudson SVS contingent convinced the Corker administration to give our registered non-profit a mandate to add new trails and maintain Hudson’s trail network at no cost to taxpayers with funding from a national trail-network coalition and a mix of paid and volunteer labour — much as it is done throughout Canada and the U.S. 

 

We hired landscape architect Jamie Nicholls (yes, Hudson’s last mayor) to come up with a trail plan for the 30-acre Viviry Valley Conservation Area. We hired a logger with a team of horses to clean up the existing trail network. We blazed every trail with approved markers, a few of which one can still see.

 

On Thanksgiving weekend in 2008, some 30 of us set out on the inaugural two-day Grand Trek, starting with a blessing from Father Roland Demers next to Hudson’s Mount Pleasant Elementary School and finishing at Rigaud’s Parc de Lotbinière and the Festival des Couleurs. Although some of it passed on public roads and unauthorized rights of way, it proved the concept of a contiguous trail network connecting our communities. 

 

But the intensity didn’t last. In Hudson as in Quebec and Ottawa, every election brings changes in orientation. Throughout the county, municipal councils bowed to landowners who didn’t want strangers anywhere near their properties, let alone on their land. A few of our trails remain, like Hudson’s Parkinson walking and snowshoe trail behind Whitlock West, but the legacy of that first Grand Trek died from a combination of municipal indifference and landowners’ legal threats.

Gary’s response was to go underground. We shut down the SVS website and other administrivia. The outing-club component broke away. Thus died the concept of a contiguous trail network.

 

Freed from the burden of a doomed mission, Gary threw himself into his many passions — gardening, woodworking, history and exploring nature. A skilled and innovative craftsman and cabinetmaker, he taught a generation of amateurs the rudiments of carpentry at his Merlinwood School. He led nature outings at Mount Pleasant Elementary. He experimented with mushroom production. Eventually, he closed his carpentry school and brought everything home to the cozy shop behind his and Anita’s Vaudreuil home, where he quickly branched out into yet another passion — researching ancient musical instruments and their reproduction.

 

My first inkling of this latest twist was the day he invited me to see his first try. It was a lyre, a stringed instrument right out of Homer’s Iliad. To set the table for its presentation, Gary had a basket of home-baked oatcakes and mead standing by. It would prove to be the first of many, many accurate reproductions of historic instruments, including the Irish harp featured on the Guinness beer label. Fittingly, he allowed me to write its story in time for St. Patrick’s Day.

 

The Dover homestead was furnished with beautifully crafted antique reproductions that began life in Gary’s workshop as recycled wood, mainly exotic hardwoods from Asian shipping pallets, but also salvaged timber from deadfalls closer to home. His abilities brought him to Hudson’s Greenwood Centre for Living History and the accurate restoration of pieces in their collection.

 

Gary still found time for hikes, especially when I was sniffing out a story for the Hudson Gazette. In the fall of 2011, he and I hiked into what was to have been the site of the new Vaudreuil-Soulanges regional hospital. (The site, vetoed by the Montreal Metropolitan Community, would have provided space for new schools and health-centred CEGEP as well as for housing for 3,500 hospital employees.) We were left speechless by the beauty and size of the old-growth forests we came across, a major reason why the site remains in its natural state.

 

One might ask why it took so long to learn of a friend’s passing. Gary and Anita would spend long periods travelling to the Middle East, Anita’s Mauritian homeland and the UK among other destinations. During and after the COVID lockdown, he and Anita would head off to a beautiful woodlot they owned in the Glengarry highlands. 

 

Our last conversation was in February 2022. We worked together on a story about the failing aquifer along the height of land above the Viviry Creek’s headwaters. Gary and Anita’s well wasn’t producing as it had; his survey of the neighbourhood revealed that everyone was having similar concerns. The result was Hudson’s priceless wetlands (Feb. 11/22, www.thousandlashes.ca).  

 

Gary and I aren’t quite finished our hike together. Before his death, he provided me with hours of information about his work as a military intelligence officer and historian. God wiling, I’ll have the opportunity to share his insight.

518 Main from the corner of Reid: demolition by attrition?
A Hudson visitor recently asked me why the town allows what looks to be an abandoned crack house in the village centre.
Council wants to preserve a century-old heritage structure, I explained. The timber-frame duplex at the corner of Main and Reid was sold by the family of the original owners to a developer, who flipped it to Groupe Lawlor, whose plans for a three-storey multi-unit condo were rejected by council in July 2022. Hudson’s demolition bylaw (652.2) states that nothing in town can be torn down or moved unless the owner has first obtained authorization to build a replacement, so nothing can move forward until the two sides agree on a compromise.

The town doesn’t have the legal tools to force the developer to maintain or restore the building, let alone incorporate it into plans for the replacement structure. The municipality has adopted legislation that would allow it to place a reserve on the the property, but the courts have established the seller has the right to fair market value. Lawlor paid just under $1.1 million, so the question becomes whether the property would be a worthwhile acquisition for the town.
As long as this stalemate persists, the old Gaudreau house at 514 Main, once a well-kept testament to the skill of the inventive artisans who built much of the town’s French quarter, will remain a very public eyesore, the once well-manicured yard and outbuildings filled with junk, the once cozy sun porch running the length of the frontage a sorry spectacle of torn screens, sagging doors, clapped-out furniture and a tattered Canadian flag.
Demolition by attrition they call it — and it’s not the only example in Hudson’s downtown heritage district.

While Save Sandy Beach activists, the Town of Hudson and developer Nicanco Holdings are waiting for an Appeals Court ruling on Nicanco’s right to backfill, a lower court decision involving a proposed project in South-Shore St. Bruno is setting precedent for municipalities and developers alike.

In a nutshell, it says municipalities have the authority to remove the right to develop — but developers have an equal right to market-value compensation.

The St. Bruno case has its roots in a 2006 land deal. Sommet Prestige Canada, a consortium whose majority owner is Senator Paul Massicotte, purchased six hectares of forested land adjacent to Mont Saint-Bruno provincial park. Working with the city over the next six years, Sommet drew up and submitted subdivision and architectural plans for Le Boisé des Hirondelles, a high-end 31-home development on large lots and maximum 40% footprints. Sommet would pay for all infrastructure — including close to $500,000 to the city to cover connection costs. 

In May 2012, St. Bruno’s council approved the project, conditional on issuance of an Article 32 certificate of authorization from the environment ministry and the removal of one lot where wild ginseng grows in abundance.

While awaiting the Art. 32 CA — which hasn’t been issued to this day — citizen opposition to the project grew. Most wanted the forest maintained in its natural state. One group filed an injunction request that would halt any development. It was refused, with the judge pointing out that the action was premature because the project lacked ministerial approval.

November 2013 saw the election of a new mayor and council whose platform adamantly opposed the project. The new administration adopted a conservation plan and a strategic vision that would include a rewritten master plan and a wholesale bylaw revision.

In July 2014, the agglomeration of Longueuil — St. Bruno’s regional government — adopted an interim control resolution (RCI) designating Sommet’s woodlot as an ‘ecosystem of interest,’ thus limiting tree cutting and freezing any development. Sommet, still without a CA, filed a memo with the regional government reminding them of the development agreement and demanding that the ecosystem-of-interest designation be retracted. Over St. Bruno’s objections, the agglomeration changed the designation to ‘area to be studied’ while maintaining a temporary freeze on development. 

December 2017: St. Bruno designates the woodlot as a protected natural area and adopts revised zoning and tree cutting bylaws which, in Sommet’s opinion, blocks any development. The developer launches legal action with the aim of striking down the city’s bylaws and demanding $15 million in compensation for what it terms disguised expropriation.

Almost two years went by before the sides agreed to split Sommet’s action in two. The compensation question would wait while the courts decided whether St. Bruno’s actions constituted disguised expropriation. 

In February 2020, MELCC finally delivered its decision on Sommet’s infrastructure CA: rejected on grounds the project couldn’t proceed with St. Bruno’s bylaw revisions. Sommet’s response was to take the ministry before the administrative tribunal (TAQ). TAQ’s ruling: action suspended while Sommet’s complaint is litigated.

August 2020: St. Bruno petitioned the court to include Quebec’s solicitor-general in further actions on the grounds that Quebec should be on the hook in further disguised-expropriation proceedings. Likewise suspended while Sommet’s complaint is litigated. 

That same month, Sommet modified its filing to demand annulment of MELCC’s CA refusal and re-examination in light of the proceedings underway.

On April 28, 2022, the Montreal Metropolitan Community piled on, adopting its own RCI identifying large sections of the Boisé as a “milieu terrestre d’interêt metropolitain.” Sommet’s response was to file another legal challenge. This, too is suspended pending the outcome of the original action.

The long-awaited showdown played out before Quebec Superior Court Lukasz Granosik over seven days in late November and early December 2022. Lawyers for the developers opened with a surprise gambit — Sommet wanted the court to decide whether this was a case of disguised expropriation. The developer no longer wished to challenge St. Bruno’s right to regulate development or protect the environment. The essence of their argument was that the end result effectively removed their right to develop, allowing them to demand compensation for that loss. 

St. Bruno’s legal team objected to making disguised expropriation the key issue. They argued it should be subordinate to the legality of the process, and therefore outside the case at hand.

Ruling: disguised expropriation will cost 

In his March 7/23 judgment, Judge Granosik found for the plaintiff and rejected St. Bruno’s contention that the disguised-expropriation issue shouldn’t be part of the action. At the heart of his 35-page ruling: Article 952 of the Quebec Civil Code.

No owner may be compelled to transfer his ownership except by expropriation according to law for public utility and in return for a just and prior indemnity.

“Given the evidence, I conclude that despite having maintained the residential zoning for Boisé des Hirondelles, the standards for tree cutting and regulations imposed by the municipality not only block any development, but any reasonable usage for this property […] this reglementation  represents excessively severe norms for preserved natural areas.”

Judge Granosik recognized the municipality’s right to regulate development, particularly in environmentally sensitive areas. “It’s undeniable that municipalities, notably through their zoning powers, play an ever greater role in environmental management, whether in the protection of wetlands, or in this case, forest cover.”

However, that evolving right isn’t balanced by recognition of the right to property enshrined in Quebec’s Civil Code. “It is equally uncontestable that protection of the environment in all its dimensions constitutes a publicly useful cause, that as our court has affirmed, may have the effect of imposing an extra burden on the landowner. It remains, subject to legislation which currently does not exist, that when the burden results in a disguised expropriation, the cost of this measure should not fall on a sole landowner.”

Likewise, Judge Granosik rejected St. Bruno’s argument that nothing blocks the developer from selling the land as a greenspace.

“From this perspective, is this an example of suppression of “all reasonable usages of the property”? Effectively, this becomes the only applicable test, not its taxable value. Even if St. Bruno eloquently demonstrated of the existence of a market dedicated to the protection of natural areas and its ecological inhabitants, that isn’t the issue.  Whether the Boisé des Hirondelles could be sold to specific organizations for a sum doubtless much less than its evaluation or its fair market value, is irrelevant. Uses are what count. And the uses permitted by the current regulation are insufficient to constitute reasonable usage.”

Unchallenged evidence showed that even if this property could be used as a sugarbush or managed woodlot, annual revenues were estimated at less than $1,000 — far below the acquisition value ($2 million) or the annual tax bill ($30,000). Evidence presented at the hearing established that organizations buying land for conservation purposes won’t pay more than $30,000 per hectare. Likewise, Saint Bruno’s contention that the owners could defray their costs with biking or walking trails, a community garden or urban agriculture were unreasonable, given the proximity of a provincial park and the residential zoning. 

The judge is sympathetic to Saint-Bruno’s environmental protection concerns. Everyone wants to live surrounded by protected spaces, in harmony with nature, in the midst of dynamic ecosystems capable of providing eco-corridors for flora and fauna at risk, he writes. The public’s concern for the woodlot’s wild ginseng colonies is well founded and the current administration was within its rights to enact bylaws in keeping with that and other concerns. (Among the jurisprudence cited in his ruling is the 2001 ruling upholding the Town of Hudson’s famous pesticide ban.) 

Granosik was satisfied that the urban planning measures adopted in St. Bruno were the result of a process that included analyis, consultation and deliberations by a newly elected administration whose electoral platform included stricter environmental controls.  Moreover, the planning measures being challenged by the plaintiffs were in line with regional orientations and within the competencies of the municipal council.

But, he goes on, the city  is wrong in arguing that it has the power to expropriate without compensation. “…such an extraordinary shift in our judicial paradigm — the possibility of being dispossessed without compensation as the result of a decision by the collectivity when the right to property constitutes one of the three columns in our judicial system, requires the legislator’s explicit language, which I do not find in this case.”

What I find significant is that this legislative-shortcoming argument has similarities to that invoked by Sandy Beach developer Nicanco Holdings in its case against the provincial environment ministry (MELCC). Recall that Nicanco is one of three developers whose certificates of authorization were annulled on the pretext that they hadn’t started work within a prescribed delay. As I noted in Another legal twist in Sandy Beach saga (thousandlashes.ca, Oct. 1/22) Superior Court judge David Collier restored Nicanco’s right to backfill Sandy Beach wetlands because the environment ministry failed to include retroactivity in a 2017 modification to its environmental protection act.

As I wrote in Sandy Beach: leave to appeal, Quebec appealed Collier’s ruling, effectively nullifying the certificates of authorization for Sandy Beach and two other developments. The appellate court heard all three parties on March 22. No date has been given for rulings.

Meanwhile, there’s growing anxiety among those counting on Quebec’s appeal to quash the Sandy Beach project once and for all. 

As La Presse reported this past Friday, the Centre québécois du droit de l’environnement (CQDE), Nature Hudson and the Fonds d’héritage pour l’environnement are asking Quebec environment minister Benoit Charette to exercise his powers to determine whether Nicanco supplied the ministry with false data on the presence of endangered species and additional wetlands in Sandy Beach. 

Specifically, they want the ministry to consider the contents of a 2021 study by TerraHumana Solutions and field notes taken by an environment ministry analyst. Hudson Mayor Chloe Hutchison said during a council meeting last year that the TerraHumana study was not receivable by the municipality because it was conducted on private land without authorization. 

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.

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.

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: 

http://citoyens.soquij.qc.ca/php/decision.php?ID=6FF141BDC6E21A81E3DCCCF215FD6734&captchaToken=03AIIukzhxHjd6XoDaYToVErQ_j5JCz9W8gWDuLSZ3fTmyETjYAJ54DjfucoWz0EiXd-EqCDIPk_MTVgv-1ymrPMLA1F8_0pzApS9XaBAQsaheVcQuWW4bo-1fWcwRmhz-azLr0I8wooDwDe1ftK1wEnnvKUXRIO7E_45a2G3-crSKiKwckfhaj3UahikaqtJVBuLcTcvlLV3znTt3pEgDRnMDU0quZTRmC6bgiZZgiotOPN8ZImIKdAh1BSKZgty1i90-ZzOq4xur6BraBsuwSeU5C5oVSAJN1zFLgbSEVIrdQCNXmV23JbmwtkgIUbZ45rLNlXvTVaT4lu1fy2MDLRJ8DZJuYn9wgY4v-x9A7VJZG4QgECtXaP7OHDrSOM8VkN05h1ZEIvVnoEXKknSNclNEXKW7Vhn1g9ySwpiiUlo2ruZASZwN2GqoboW84APGS2h2HtVaRJ5l3W86CHSovy4B-JQeF5ULpfUMDAo8VbHgobTOrHMQzS2OtUc95wFk9cUQny5DUcZgvKMEXSpYXUXBsaGvJURdXaYOFmfyP19XKi-EvmV-Frd6r6XS_5znhpK5Y9-Owet3qZtGPOecXfVc_RH2pYfOQw

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