C . A . G . E .
Citizens Against Government Encroachment -- Citoyens Anti Gouvernement Envahissant
 

 

 

 

Municipal Laws

If you thought that your democratically elected Municipal government exists to represent your rights and interests, you may be right -- unless there is money to be made.  Read on to learn what happened to the residents of Hillsdale Gardens, how they appealed for help, and how they were ignored.  The names and apartment numbers of individual tenants have been removed. This whole episode brought to you care of Borough Mayor Michael Applebaum and City Mayor Gerald Tremblay.

As you read this, please ask yourselves what you would do, or what you could do if caught in a similar situation.

(footnotes are indicated by Roman numerals in parenthesis)

 

HILLSDALE GARDENS PROJECT

The large apartment building at 6525 Wilderton Ave. is home to some 400 or so resident tenants from diverse backgrounds and all ages. Some are born Canadians and some are from far away lands. Some are senior citizens, generally immigrants from Europe with more than a few of Jewish ancestry. Some of the more recent immigrants were refugees from the war-torn Balkans, and at least two of the apartments are homes to holocaust survivors. Some of these had to struggle through hardships we can only imagine in order to escape to Canada forty or fifty years ago. The Feders, for example, have been living in this building, in the same apartment, since 1965, very shortly after emigrating from Communist Europe. More recent arrivals include young families from Serbia, who can barely speak any French or English, and even Canadian families who have had some bad luck and were literally able to move all of their material belongings in one single car trip.

What all had in common is that they had found a quiet refuge in their homes, at a price they could afford, where they could either pick up the pieces and start over, or simply live out the rest of their lives in some well-earned peace and quiet. For the residents on the south side of the building, the peaceful nature of their refuge changed on September 24th, 2004. That is the day that a construction company began drilling through the solid-rock butte that had for decades graced the adjoining lot to 6525 Wilderton. The four-story luxury condominium project known as Hillsdale Gardens is now nearing completion (as of Autumn 2005), and many of the residents of 6525 Wilderton have been closed in by a sheer, red-brick wall that they can almost reach out and touch from their balconies.

For the unfortunates on the lower stories, this wall completely blocks out sunlight for most of the day. People as high as the sixth floor, have the impression that they are in a basement apartment given the low amount of natural light and ventilation they now get. Contrary to important municipal by-laws, the Hillsdale Gardens project has been built far too close to its pre-existing neighbour.

Despite numerous calls to the city and attendance to borough a assemblies, the city’s civil servants saw nothing wrong with the project and allowed it to proceed, as the developers were granted all the exemptions they needed from municipal bylaws. Despite numerous complaints to the police and to the city that the constant drilling and pounding through solid rock, beginning at 7am and continuing throughout the day six days a week, was far beyond the reasonable inconveniences that neighbours should be expected to tolerate, the project moved on like a juggernaut.

Despite the declaration by a municipal fire safety inspector that the new construction created no less than a death trap and was “completely unacceptable” for the existing residents, nobody in power seemed to care. Despite numerous appeals to the Notre-Dame-de-Grâce/Côte-des-Neiges mayor Michael Applebaum, concerned residents who attended city hall meetings were given the floor but not given the opportunity to speak adequately. The mayor himself interrupted their presentation and spoke for them, claiming that everything was fine. Despite no less than two registered letters and one petition containing eighty signatures being sent to Montreal Mayor Gerald Tremblay, nobody came to the residents’ aide.

The following is a greatly abbreviated summary of what the residents of 6525 Wilderton had to endure, what happened through the course of September 2004 to September 2005, and some speculation as to why such a thing could happen. Some names are provided, the rest of the names and phone numbers can be made available selectively.

1) On September 24th, 2004, Groupe Globe Constructioni began drilling and pounding into a solid rock butte, immediately adjacent to the residents’ building. The drilling consisted of using large tractors with power hammers to reduce stone to small chips which were then trucked away. The drilling began at exactly 7am every morning, six days a week, and usually continued to 3pm but sometimes until 11pm at night, only to recommence at 7am sharp the next morning.

According to Rocco Difruscia, president of Group Globe Construction, he had to drill through as much as 16 to 20 feet of rock in some places. He had to keep the power hammers going almost constantly in order to remain on schedule (i).

2) According to one tenant (ii) on the sixth floor, when she received a reporter (iii) from the Gazette in her apartment to do an interview on a different matter, the noise was so terribly loud that they could not hear each other and had to move the location of the interview to a nearby pizza restaurant. The option of spending everyday of the week somewhere else is not convenient for the wheelchair-bound and other less mobile retirees in the building.

3) According to another tenant (iv) on the seventh floor, the constant noise was beginning to cause a ringing in her ears that would continue long after the drilling stopped. She worried about permanent hearing damage for herself and for her daughters. When she called the city to share her concern, she was told: “if you don’t enjoy the noise, that’s too bad for you, you can go to the CLSC.”

4) Pounding innumerable tons of solid rock into powder created an excessive amount of dust. Residents of 6525 Wilderton were forced to keep their windows and balcony doors closed throughout the day. Everything in their apartments was covered in dust from the crushed rock. Some complained of their plants dying from being covered by all of this dust and grime.

5) Because the excavation was being done through solid rock, it required far more heavy machinery doing far more work than would have had an ordinary construction project. Office workers at the adjacent synagogue (v) complained of the diesel gas fumes, with one saying that she was on the verge of fainting on a day when the fumes were particularly bad. Even as high up as the tenth floor, a healthy and sprightly 86 year old resident (vi) of 6525 Wilderton, who claims never to have had health problems before, says that during the excavation the fumes were giving her constant headaches, causing her dizzyness and making her sleepy.

6) Many residents claim, and Mr. Difruscia of Groupe Globe Construction, as well the municipal clerks with whom I spoke all confirm, that the residents made many calls to the police to complain about the unbearable noise. Nonetheless, it appears that construction company abided by all the rules and exceptions accorded to it by the city, and the police were powerless to intervene on the basis of municipal law.

7) The construction project could possibly have been halted by an injunction based on article 976 (vii) of the Civil Code of Quebec, but affected residents of 6525 Wilderton possess neither the legal know-how to enforce their rights, nor the time to organize and come up with the financial means of consulting a lawyer asnecessary to protect them.

8) In desperation, one of the residents (viii) sent a seven-page registered letter to Montreal Mayor Gerald Tremblay requesting his assistance with this issue. She received no response.

9) Once the drilling was mostly completed in late-November, construction began in earnest and the residents were horrified to see a broad wall going up at the very limit of the border between the two properties. Local municipal codes require a minimum of a three-metre margin between the buildings and the limits of the property. This would imply at least a 6 metre distance between any two buildings in the neighbourhood. This margin was completely eliminated by the construction.

10) Seeing how the absence of the legally required margin of land between the buildings would negatively affect them, the residents sent a petition directly to Mayor Tremblay requesting his intervention in this matter. The petition had eighty signatures on it. According to one resident, they would have obtained many more, but some residents were too frightened to sign. As mentioned above, some had emigrated from tyrannical or oppressive regimes, and others, although they were legal immigrants or Canadian-born citizens, feared that they could somehow be punished by the authorities or their landlord if they complained. Despite the fact that eighty people did sign, the petition obtained no results.

11) Another five-page registered letter addressed to Mayor Tremblay, dated October 24th, and explaining the problem in detail also obtained no results.

12) After much effort, the residents managed to persuade a municipal building inspector to come to see for herself what was happening. On 10 November 2004, Danielle Shaputt (ix) visited the site. According to the residents (x), Ms. Shaputt informed them that the wall they were worried about would only be four feet high, and well within tolerable limits. To their dismay, she also informed them that only after the construction was finished would she send an architect to certify the building. The message was clear that even if something was wrong, it would then be too late to rectify. As the residents feared, the four-foot high wall ended up being two stories high.

13) Because the building was being built right up against the existing structure, thereby eliminating the required margins on both lots and completely eliminating the footpath that existed, the residents appealed to the fire department. A fire safety inspector (xi) visited the site on 11 November 2004, and was quite clear that the manner in which the Hillsdale Project encroached upon the existing apartment building was “completely unacceptable”. This raised the hopes of the beleaguered residents, only to have them dashed when, on 18 November, the fire inspector informed the residents that he had been told to “mind his own business”.

The residents understood that this message came from “city hall”, but could not obtain any further information.

14) When I questioned the municipal clerks on the matter of fire safety, I was told that it was the architect’s responsibility and not the city’s to make sure that the construction projects are up to code. The architect for Hillsdale Garden project was Mr. Karl Fischer (xii).

15) When a resident (xiii) tried to approach the developers directly by e-mailing them at an address she obtained from the construction site, they responded with the following message: “We are doing a service to the community”.

16) The residents then tried to go to their elected representatives. One resident in particular (xiv) presented herself at City Hall on two occasions where she spoke to a Mr. Berger, assistant to Borough Mayor Michael Applebaum, and to Mr. Applebaum himself. She could obtain no assistance and was not allowed to address the borough assembly, without being interrupted. Mayor Applebaum himself is alleged to have taken the microphone and insisted that everything is all right and the construction project conforms, using up most of the resident’s allocated time to speak.

17) Through a request (xv) made via the access to information laws, I was able to determine that even on paper, everything is not ‘all right’. The original plan (xvi) approved by the city on 11 May 1992, and derogated from municipal laws and zoning laws in the following ways:

a) not zoned for residential use;

b) height limit of 14m instead of proposed 15.5m on the north side;

c) height of the main floor above the limit;

d) zone permits individual or twinned residences, whereas this project proposed a contiguous structure;

e) less than 60% of the façade is built in alignment with Hillsdale crescent;

f) the lateral margins of the project encroach on the foot path;

Notwithstanding the fact that the non-conformity to zoning laws did in fact cause a prejudice to the neighbours, The Commission Jacques Viger accepted (xvii) the proposal with a few recommendations.

18) Unfortunately, when the city posted its construction plans for the 30-day period between the 12 of March 2001 and the 12 April 2001(xviii), only one neighbour submitted comments on the project, worrying about the project’s effects on quality of life in the neighbourhood.

19) Despite the important non-conformities to the zoning laws, the project was approved (xix) on the condition that the developers pay particular attention to the landscaping of the precious space between the Hillsdale Gardens and its neighbour to the north, 6525 Wilderton. More specifically, according to a ruling (xx) adopted at the1998 assembly of the City of Montreal, the landscaping should use greenery and the slope between the neighbouring buildings to ensure a harmonious transition and to preserve the privacy of the residents. In fact, there is no longer any land margin on which to do any landscaping between the buildings, and the residents of 6525 Wilderton now have to live with neighbours looking directly into their living and dining rooms from only a few meters away.

20) Justification for the project is specifically alleged in the summary decision (xxi) of the City of Montreal to approve the project: L’implantation du nouvel immeuble de 4 étages permettra à la Ville de Montréal d’augmenter ses recettes d’environ 120 000 $ par année.” (The installation of the new four story building will permit the City of Montreal to increase its revenues by approximately $120,000).

21) According to one municipal clerk (xxii) who was deeply involved in the project, the city justifies the existence of a wall abutting the very limits of the land boundaries by considering the wall to be part of an underground garage. Although buildings can be built no closer than three meters to rear margins of their lots, The Hillsdale project is built on a slope, so that the southern end of the garage is clearly underground where it approaches Hillsdale crescent. But on the north side along the border with 6525 Wilderton, the garage consists of a two-story high wall that completely blocks off the sunlight of balconies that were there since many decades past. To define this wall as being “underground” for the purposes of bypassing the zoning rule for rear margins is clearly a perversion of the intent of that law.

22) Equally disconcerting is that the mandatory 3-meter-wide margin behind the original 6525 Wilderton (xxiii) apartment building also seems to have disappeared. With a 3 meter margin between each building and its boundary, they should have a total of six meters between themselves and their new neighbours. The residents of the building suspect that their landlord sold the legal margin of land to thedevelopers of the Hillsdale Gardens project. A recent research (xxiv) in the Index des immeubles indicates that no sales or partitions have occurred since 1981. The clerk at the registry does maintain that it is possible for the owners of the respective lots to have agreed to make such a transfer of property, and that construction has already begun on the piece in question, but that the legal transfer of property has simply not yet taken place.

23) On 7 October 2005, I submitted another request for access to information to verify if the city had approved any sales or transfers of property between the apartment building at 6525 Wilderton to the Hillsdale Gardens project. Because such a sale would eliminate the 3-meter margin for an existing property, I assumed that it would require municipal approbation. The city has yet to respond to this latest request for information.

24) Now that the project is near completion, we can see that some 37 apartments are completely or almost completely obscured by the new building that was built too close. The apartments along the lower floors are severely prejudiced by a huge brick wall erected right outside their balconies. Viewing the wall from within their apartments brings up images from movies ghetto walls cutting across the neighbourhood. All the more tragic if for some, the image recalls real life experiences rather than movies.

The facts on paper and on the ground seem to indicate that these tenants of Montreal were sacrificed for the sake of a development company’s profits, and the tax receipts of the city. What is worse is that though they tried valiantly to fight for their rights for month after month, and they requested assistance through all the proper channels, the residents of 6525 Wilderton were frustrated by a lot of bureaucratic double-talk and stonewalling, or by just plainly being ignored. They allege rather curt treatment by the municipality, as represented by both its clerical and elected officials. They were ignored by the construction company. They acknowledge polite treatment by the police officers. They could never find out who the owners of the property and who the development company was (xxv).

In our modern, western democracy, we are led to believe that the strong should protect the weak, that political leaders should be motivated by the needs of the people, and that one of the mandates of the government is to protect the populace from excessively powerful individuals and companies. In the above case, we see a wealthy developer obtaining concessions so that they can build in an area that is not conducive to development, in a manner that is both non-conformant to the municipal rules and prejudicial to the existing neighbours whose very interests those rules were intended to protect. The whole occurred despite the residents’ express objections and most emotional pleas for assistance from their elected representatives. One cannot help but suspect that the project Hillsdale Gardens would never have been built if the tenant residents of 6525 Wilderton were actually owners of their units. In Canada’s democracy, such factors are supposed to be of little importance.

Resolution: The ideal solution to the problem of the Hillsdale Gardens project would be to dismantle the building and scrap the project. This would serve not only the ends of justice and of setting a precedent, but would also be the only solution to the safety concerns of the residents who are left with no means of escape from their building. Whether this ideal solution can be realized or not, the residents should at the very least be entitled to the following.:

a) Compensation: The residents on the south side of 6525 Wilderton should be compensated by the city and by the development company for the prejudice they suffered during the weeks of power drilling through the rock butte. This drilling was unreasonably loud, pernicious and constant, and far beyond what neighbours should have to tolerate.

b) Reduction of rent: The residents concerned should apply for a reduction of rent from their landlord based on the proximity of the new neighbour who obliterates their view, their privacy and their access to sunlight. When the landlord refuses, this application should be brought to the Regie du logement.

Because few if any of these residence have the means, the understanding or the mobility to make such an application, the developers of the Hillsdale Gardens Project should, as part of the compensation, pay for a representative to assist the residents with their respective applications.

c) Recognition: Any way you look at it, in this case the city failed its residents and citizens. A system exists precisely to protect residents of Montreal from the prejudices that these people suffered and will now continue to suffer. That system was bypassed, and attempts by the residents to correct the situation were stonewalled. It is important that both the responsible clerks and the elected officials who failed in their leadership obligations understand the gravity of the matter, apologize to the the victims of their apathy, and make a public commitment not to allow similar situations to recur in the future.


Daniel Romano

C.A.G.E. Citizens Against Government Encroachment

514-288-5016

d.romano@cagecanada.ca


 

i Groupe Globe Construction, Rocco Difruscia, 744-8335, www.globeconstruction.ca , R.B.Q. 8309-6065-

49.

ii A , apartment #.

iii Jeff Heinrich, Montreal Gazette.

iv N , apartment #,

v Synagogue Young Israel, 6235 Hillsdale.

vi T , apartment #,

vii Article 976 CCQ: Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom.

viii N, apartment #,

ix Danielle Shaputt 872-4985.

x N , apartment #,

xi F. Latraverse.

xii Plans A-100 to A103 filed with the Service du Dévelopement Écomonique et Urbain as of 1 June 2001,

file number SO10489025.

xiii N, apartment #,

xiv N, apartment #,

xv Request made on 2005-5-31

xvi C.E.: R400.003, 06-09-2001, Dév. Économique et urbain – Dév. Territorial 1, File No. SO10489025; Municipal Counsel decision CO9201150.

xvii Ibid.

xviii Ibid.

xix Final approval by Sylvie Champagne, management counsellor for the city, 872-3576.

xx Réglement sur la construction et l’occupation de bâtiments sur un emplacement situé au nord du chemin Hillsdale, à l’est de l’avenue Wilderton et au nord de l’avenue Van Horne; À l’assemblée du 1998, le

conseil de la Ville de Montréal; Section IV, 10.3, c.

xxi C.E.: R400.003, 06-09-2001, q.v.

xxii Nicola Lavoie, 872-4837.

xxiii Modern cadastral number, since 2002 = 2,173,791. Former cadastral numbers = Village de Côte-des-Neiges, lot numbers 63-1166 ptie, 63-1166-2 ptie, 63-1166-2-1, 63-1166-6.

xxiv Most recent update for rights and transfers: 2005-11-03 15:00.

xxv The development company is: 9127-6295 Quebec Inc.