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Last Updated: , Created: Sunday, February 17th, 2013

Growing pains in a small Quebec municipality -- expensive by-laws and democracy.

Seance de conseil le 18 fev 2013 Seance publique le 16 fév 2013

Many Canadians buy land in small rural areas for a cottage or a retirement home.  Generally these are friendly areas where you feel comfortable.  But there are rules and regulations, costs and personal politics out there.  Are you ready to deal with small town City Hall?

Click the first audio button above for those of you who would like to hear the Municipal Public Consultation Meeting yourself, or revisit it -- totally in French: over 2 hours.  The second button is the Council Meeting that follows two days later, only 37 minutes.  To download the mp3s, right mouse on the "Audio" buttons and "Save Link As" or "Save Target As" and choose a location.   I am missing the first 5 minutes of the public meeting because they were unable to allow me to do my live radio show from City Hall before the meeting. The recording is not particularly clear as they did not have accommodations for media microphones, but it is understandable. At the front table you hear the voices of: Royal Dupuis -- Mayor; Donald Bonsant -- Consultant Urbanist; Monique Pepin -- Directrice general. Speakers from the audience identified themselves.  I was able to set up my microphone for the actual Council meeting Monday.


Saturday February 16, 2013

Municipal Public Consultation

A letter showed up, not from the municipality, saying that in four days there is a municipal public hearing this Saturday and two days later a by-law will be passed that could potentially make it impossible to build on the land that I bought a couple of years ago.  No word from the municipality to property owners, nothing on their web site.  A phone call to the municipality confirms that there is a public meeting on the bi-law but I would have to drop into the city hall, an hour and a half from my home in Longueuil, to get a copy prior to the meeting.


Welcome to Bolton-Est

Bolton-Est is a small rural community 5 minutes south of Eastman in the Eastern Townships of Quebec, Canada.  It is only 81 square kilometres in size with a population of about 900 and it is confronted with the arrival of the second home and retirement home boom of residential developments; a perfect setting for a conflict between the old-timers and the newcomers. 


Public notice

As with all small municipalities, resources and expertise are limited -- and habits are entrenched.  The legal requirement for the municipality to give notice of by-laws and public hearings is to post such notice on a bulletin board at the city hall.  100 years ago, a notice in the General Store would reach everyone quickly. In this case they even posted it in six commercial outlets and sent notice to the landowners associations.  They had gone beyond the requirements of the law in informing their citizens.  Their volunteer web site wasn't working too well and they never thought of e-mail.  Most of the land owners impacted by this by-law either only come to their homes on the weekend, or have not yet built, so by the time that information got through the grape vine, it was time to show up at the meeting.  Some argued that was a convenient way to hide the process while appearing open.  In this electronic era, I feel that an e-mail directly to any land owner potentially affected by a major by-law change should be required of the municipality.  Despite that, it was standing room only in the very small council chambers.


The whole by-law is about making access roads navigable for emergency vehicles -- on the surface a motherhood issue. 

But there were a few problems right off the start.  Initially this whole issue was brought up last Fall but only applied to a newly developing side of a small lake.  Suddenly about a week or so before this February meeting, a whole other development was included in the by-law, but not the whole municipality, despite the fact that much of this whole territory is faced with steep narrow access roads.  (Interestingly "Les berges du Lac Nick" are specifically identified in the preamble to the by-law, but "Les Sommets de Bolton" are not mentioned except through an indirect merging of a region called V-6.  If someone had not told me I could not have known that my property in the Sommets was included in the by-law).  When confronted with this legislative inequality the Mayor stated that they would in fact eventually extend it to the whole municipality.  Some saw that as divide and conquer -- others saw it clearly as a specific attack on the developer of these two regions. 

All building permits in these specific areas have been frozen, whether they have problems with access or not, until the by-law is passed and approved by the MRC, the regional authority.  Some claim that is only to put pressure on the other owners to ram this by-law through as soon as possible.  We have probably already missed the 2013 building season, or at least forced construction into the Fall.  

As it turns out, my personal property has no problem with this by-law and I wasn't going to build this year anyway -- but I still have a problem with this municipal democracy. 


Beneath the appearances

Now it starts to sound like a TV sit-com except that the individual consequences are going to be costing 10's to 100's of thousands of dollars for individual land or home owners.  And like any good sit-com, no-one is squeaky clean in this story, except perhaps the land buyers who would like to move to this beautiful little valley.  The developer has cut his land up into long narrow parcels, typical of the Québec countryside, so as to get the most homes possible on either the lakefront or the road side.  It appears that his divisions of land was not all that well thought out as some parcels have turned out to be useless -- to the delight of owners who will never have neighbours.  This same tactic is bothersome to the old timers on the lake as the pristine forest on the other side of the lake is becoming highly populated with houses.  Apparently of pertinent interest is the fact that the Mayor is an old timer who looks out his window at all of this invasion of the lake shore, and is understandably unhappy to see houses rather than trees.

Some homewoners are not happy with the original developer either, claiming that some private access roads that were built are not up to par and will require a lot of expensive work.  The developer assures me that all main roads in the developments are completely conform to and inspected to regional municipal requirements and that at the time of construction, private access roads had no defined requirements.


A public hearing or a done deal?

As the public hearing wore on it became apparent that this was not really asking the opinions of the public, but rather an information session to tell them what would be imposed as a by-law two days later. 


My honest sympathies for small municipalities

Now having worked with many municipalities on building issues for years, I must digress to describe some of the dilemmas these small organizations have. 

Municipalities give out building permits, and as such carry a certain liability if something goes wrong.  With such limited resources, they are forced to radically limit their liability.  Hence building officials are generally very conservative, often high handed as the "only" authority, and we have a great deal of difficulty in getting any alternative or innovative construction practices approved -- despite the fact the National Building code was revised in 2005 to encourage such innovation.  Generally we do get alternatives approved but only when we produce an engineer's stamp assuring conformity with the building code, essentially shifting liability from the municipality to the engineer.  The fear of liability causes municipalities to over legislate on the conservative side of every issue to protect themselves.  Also they cannot afford much professional staff, so they do have to rely on expert consultants, and they have very little money available for such expertise.

Even the National Building Code is faced with questions about just how far they should legislate.  Perhaps the example most pertinent to the issue at hand is that the National Building Code does not require residential fire sprinklers (which are required in all commercial buildings) despite the knowledge that these do save lives.  They are not a residential requirement because the cost benefit analysis made, and remade, demonstrate that residential sprinklers, although they can effectively save lives, are not cost effective compared to other measures such as smoke detectors, which are code required.  Like the degree of life insurance you want to buy is voluntary, the decision to invest in residential fire sprinklers is voluntary and not imposed in most jurisdictions.  I do have them in my house but do not support making them mandatory.


No cost analysis

No cost-effective or cost-benefit analysis has been made by this small community of Bolton-Est relative to the imposition of provincial commercial regulations (designed for motels and restaurants) on access roads on these residential developments -- and there appears to have been no comparative analysis with respect to other or modified solutions.

In fact it was a bit frustrating that when asked for copies of the analysis that lead to writing this by-law, the legal opinion that was produced for the city was considered confidential (the one that probably says they could get sued if they don't deal with emergency vehicle access), and the Urban Specialist report dictating this particular solution was not available either.  There is absolutely no access to information for the property owners to be able to evaluate or debate or propose alternatives to the proposed by-law or get a second expert's opinion.  The Mayor leans on his need to believe in his Urban Expert, who was hired on a small enough contract that there was no bidding for his services -- even though as this becomes a controversy it appears his bill will reach the $25,000 level that would have required public bids.  I am not questioning this consultant's knowledge or professionalism, but I do know that experts often have different professional opinions -- Bolton-Est is working with only one expert opinion and a very expensive one for homeowners; a very safe one for the municipality.


What initiated all of this?

It took 2 hours and 15 minutes into the public hearing before someone finally got an answer to the question: "Why did this whole issue come up after 200 years of building roads similar to these?" 

The fire department was a bit worried as to how they would find a house when several houses were served from a single private road off of the main road that ran across several properties.  They were requesting that there be a full listing of address posted at the public road, and clear address signs at each turn-off of these common shared private roads -- as we have all seen all over rural Canada.  It was when the Mayor took the city council on a drive around to look at the question that someone brought up the issue of width, steepness and turn-arounds.  I find it rather strange that the final wording of the by-law has gotten into roadwork and all mention of signage has gotten lost -- when originally it was a "solution" and appears to me, good roads or not, to be a good idea.  Maybe it was just too easy to implement.


Frustrations and vulnerability of political decisions on technical issues

So we have a volunteer city council -- voting on a single technical proposal of applying commercial standards to residential property without any presentation of an evaluation as to other alternatives to the safety question despite the enormous costs potentially required from property owners; with clearly inadequate consultation with the concerned property owners; with the clear intent on extending this by-law to the entire municipality without asking for any opinions from the rest of the population; all while holding certain landowners in hostage as to their construction plans which would be un-effected by this by-law.  The fear of doing anything wrong has frozen good sense.

It is still not clear as to whether all of this is just the unfortunate cost of dealing with growth with limited resources, or the side effect of conflicts of personal interests.

Monday morning is the council meeting where the by-law is scheduled to be adapted.  Did those present hear anything on Saturday?

Jon Eakes


Monday February 18, 2013

The City Council Meeting

The by-law passes -- zip zap it's done

The access road by-law was passed without any real discussion after a two and a half hour hot meeting two days earlier.  Four of the six city councillors and the mayor were present as were representatives of the two land owner associations and myself.  Everyone else had gone back to work.  

One small modification had been made as was agreed to by all at Saturday's meeting.  The official part of the meeting was quick and uneventful -- moving forward this by-law without any significant modification from the original expert proposition.  

The mayor was happy as he expressed that this moves forward the two most important issues: getting access roads that cut across more than one property regulated and safe, and moving forward so that construction permits that have been on freeze for some time can be opened up in time for the spring.  Now the by-law goes on for approval from the Regional Municipal Authority, probably just a formality.


Response to Saturday's public meeting

Although the by-law passed without opposition in council and without any real questioning of this particular solution to the problem of emergency vehicle access to houses, the Mayor spent considerable time responding point by point to the issues raised in the Saturday public meeting, clarifying some things that were not clear on Saturday.  Although he tended to respond directly to my article above, which he read the night before, I would hate to think that such attention was given only because the press was involved. 


All Bolton-Est will be covered by this by-law

Most significantly, the council passed a new resolution stating their intention to immediately begin the procedures to apply this same by-law to the entirety of the municipality -- equality of burden demanded by the Section V6 owners.  This includes a new freeze on all new construction elsewhere in the municipality just before that construction freeze is taken off in the V6 area.  This is a necessary egalitarian step that will come as a surprise and make some other people unhappy.  Yet acting quickly on this issue seems to have headed off a legal attack from one of the V6 owner's associations.  Once this new by-law procedure is finished, the entire municipality will have the same rules for access roads. 


Road signs and street addresses

Responding to my criticism that the initial issue of identifying which house is down which access road had gotten lost, the Mayor explained that the new system will be even better.  Essentially by requiring all common private roads to be rebuilt to 5 meters wide, at the landowners expense, these roads will qualify to become "named roads" and hence each house will have a civic number on that named road.  In addition, such roads will then be included in all GPS data and emergency vehicles can find their complicated route directly to any house.  This is certainly an elegant and modern solution for emergency vehicles and municipal liability, although a very expensive solution for property owners -- particularly when it is applied retroactively to properties purchased while there were no access road rules.


The secret expert opinion

During the discussion it was brought out that this municipality was trying to be extremely flexible with all of this, pointing out that several neighbouring municipalities have enacted similar by-laws that were even more demanding, limiting road grades to 10% or 12% rather than the 14% limit now being required in Bolton-Est.  Such flexibility is certainly appreciated, but only helps to confirm that none of this "expertise" is fixed in stone.  Yet the expert's report has never been open for public consideration or debate.

As to another technical detail, turn-around access within 45 meters of the house; I assumed that must have something to do with the length of fire hoses.  But when I asked that question, one of the councillors who is a volunteer fireman confirmed that they can run their hoses much further than that -- no connection to fire hoses.  So why a 45 meter specifications that could cost a home owner a fortune if he happens to be 55 meters from the street or the turn-around?  There must be an expert reason for that, but we will never know it.


Public notice

The mayor went to great lengths to assure us that public notice will be more timely and efficient in the future, including on the web.  But is public notice really useful if public meetings have no content?

It is interesting to have a public debate over a proposition where we are not allowed to debate the merits of the proposition itself.  In fact I haven't figured out just what this whole procedure was all about (leaving aside the rumours about personal interests) except for holding meetings that were required to be held as procedural formalities so that the municipality could reduce its civil liability, which came from a confidential legal advice document that we are not allowed to read.  And we complain about democracy in Egypt. 


"Lawyer sense" moves to the countryside

Perhaps with all that is going on today relating to Québec municipalities, citizens may just be looking closer -- not only on how their tax dollars are being spent, but on by-laws that can hit their personal pocket books directly.  And perhaps we need to use "access to information laws" more so we can be better armed to struggle with our elected officials -- but we really shouldn't have to go that route. 

I know that liability lawyers now run the US; I would hope that we might keep them just a bit at bay with a little more creativity and "common sense" than such expensive "lawyer sense" -- and that small municipalities with limited budgets might spend more time considering their citizens as allies with good ideas than as legal adversaries to be manipulated and kept in the dark -- for their own good of course! 

Jon Eakes


Wednesday February 20, 2013

Collateral Fall-Out on the way

Now that the dust has settled a bit, and that a few citizens of Bolton-Est have had a chance to actually read the final version of this adapted regulation relating to access roads (download here), and share their thoughts with me; it suddenly becomes clear that the age old convenience of negotiating a "servitude" or right of passage is now banned for ever-on throughout this municipality and is only legal on a few existing roads after radical upgrading but only those roads specifically included on the map that is part of this by-law. 

That implies that what is considered "safe" and now "legal" for these access roads is not good enough for the rest of the municipality - that this expensive option is not even open to anyone else developing a new property.  Such a position ignores the historical evolution of property ownership in the countryside.  Land used to be inexpensive and properties were very large, almost always permitting building a convenient access road from the public road to the site of the house within the property itself.  With the radically increasing cost of land, properties everywhere are today much smaller and rights of passage become more and more necessary to access the ideal building site on small properties.  Banning servitudes is perhaps the wrong way to address increased housing densities.

And how about existing rights of passage that already exist elsewhere?   Will they have to be upgraded to these new standards despite the fact that there is no construction going on?   

I think this by-law is called a poorly thought out bucket of worms with perhaps more legal implications than they were faced with in the beginning.  I am glad that I am not sitting on this city council for this coming year of debate.

Jon Eakes




Keywords: By-Laws, Government, Municipal, Legal

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