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Friday, July 25, 2014

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Court dismisses city’s attempt to shut synagogue

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MONTREAL — A Quebec Superior Court judge has rejected the city of Montreal’s demand to shut down a synagogue in the Outremont borough.

Justice André Prévost decided that the chassidic Congregation Munchas Elozer Munkas, at 1030-1032 St. Viateur St., is not in conformity to the zoning bylaws but the city did not provide sufficient evidence that closure after more than 35 years is justified.

“The circumstances of this case are exceptional and the exercise of judicial discretion appears necessary to avoid the injustices that a strict, rigorous and indiscriminate application of the regulation would bring about,” Prévost wrote in his 18-page decision.

The case, which involves a dispute between municipal officials, the congregation and the original owner of the building going back to the early 1980s, was heard over five days last October.

The city maintained it was illegal to operate a place of worship in that residential-only zone and that the congregation did not have acquired rights to a derogation from the bylaw. It further argued that there would be no infringement on religious freedom because other areas exist in the borough for religious institutions.

The congregation began renting the two-storey duplex, dating back to the early 20th century, from Pinchos Freund and using it as a “house of study and prayer.”

In the early ’80s, the then city of Outremont took Freund to municipal court because no one was living in the property and therefore it was not residential – and won. He appealed to Superior Court and won by default when the city failed to bring forth evidence of illegality.

In 2009, the city of Montreal started legal action against the congregation.

Prévost slammed the city for failing to provide any good reason to shutter the synagogue, given the fact that Montreal, and before that, Outremont, which was merged into Montreal, were well aware of what the property was being used for over some three decades.

Through the early 1980s, the congregation applied for and received a series of permits for extensive renovation work, including the removal of the dividing wall between the two units and the excavation of the basement for the installation of a mikvah, the judge noted.

The congregation, located between Hutchison and Durocher streets, is on the border of two zones – one where residential and commercial properties, as well as the other religious institutions and public spaces are allowed, he further noted.

The congregation, represented by lawyer Marvin Segal, argued that since it began renting the building in 1976 it had never hidden the activities that took place there, and even had a sign with its name on it over its entrance from the beginning.

All renovations to transform it into a house of worship had been received from, and the finished work inspected by, the city, Segal said.

In effect, the municipality had “accommodated” the congregation for 33 years, he said.

Prévost agreed, writing that the city has a duty of “reasonable accommodation” toward the congregation, under the circumstances.

“In summary, the good faith of the congregation and its diligence [in trying to] correct its situation of non-conformity has been established to the satisfaction of the court,” the judge decided.

He agreed that Outremont had to have been aware since at least 1980 what the building was being used for when the renovations began, and certainly when the Montreal Urban Community granted the congregation tax exemption.

He also found it significant that Outremont had abandoned its legal pursuit of Freund, even though the municipal court’s result was in its favour.

Prévost also wrote that the city had received numerous requests from the congregation to find a way to conform to the law, and through the 1990s, the congregation offered to relocate its prayer room away from the main building, but received no response.

He further wrote that Montreal had failed to provide credible evidence that the activities of the congregation have a major impact on the characteristics of the neighbourhood, especially as it is located at the zone’s extremity, next to two other non-residential properties, including one within that zone.

Prevost found fault with the city’s argument that neighbours are complaining about the congregation being nuisance. He found only one bona fide complaint about traffic and parking and that was settled amicably.

Prévost dismissed a petition against the congregation because, among the more than 200 signatories, none live on St. Viateur, and some are not even Outremont residents.

 

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