A developer building condos on contaminated Burnaby land is blaming the owners of nearby lots once used for dry-cleaning businesses and suing them for the cost of cleaning up the contamination.
In B.C. Supreme Court documents, I4PG Hastings Street Inc., which is building a new lowrise condo development at 4437 Hastings St., says the land is a “contaminated site” under the Environmental Management Act.
'Contaminated vapour plumes'
The company claims dry-cleaning chemicals and petroleum products have migrated onto the Burnaby Heights land from 4429 and 4362 Hastings St., both of which have been used for dry-cleaning businesses.
“The contaminants have migrated to the plaintiff’s site, and continue to migrate to the plaintiff’s site, thereby damaging and contaminating the plaintiff’s site, including, without limitation, causing contamination of the groundwater and soil of the plaintiff’s site and resulting in contaminated vapour plumes,” states a June 3, 2021 notice of civil claim.
The developer admits its land also used to have dry-cleaning businesses on it (Swan Brothers, Ltd., Cleaners and Dyers from about 1960 to 1962 and Empress Cleaners from 1985 to 1986) but claims both those businesses were depots only, where customers could pick up and drop off clothes that had been dry-cleaned at plants elsewhere.
“No dry-cleaning chemicals were used or stored at (the site),” states the notice of civil claim.
The developer claims all the contamination migrated to its site from two lots “up-gradient and west” of 4437 Hastings St.
Burnaby Dry Cleaners and Mr. N’s Fine Dry Cleaning
Practically next door, 4429 Hastings has been used for dry-cleaning businesses since at least 1967, most recently by Mr. N’s Fine Dry Cleaning, according to the claim.
Mr. N’s began leasing the property in December 1997 from Burnaby Dry Cleaners Ltd., which owned the property from April 1967 to April 2022, and also operated a dry-cleaning business on it, according to the claim.
The property is now owned by a numbered company (1350132 B.C. Ltd.), which bought it from Burnaby Dry Cleaners last year.
I4PG named Burnaby Dry Cleaners and Mr. N’s in its lawsuit, which was originally filed in September 2017.
Last week, the developer also succeeded in adding 1350132 B.C. Ltd. to the list, after a B.C. Supreme Court ruling.
The second site, 4362 Hastings St., is on the other side of Hastings and on a different block, west of the development site.
A produce business (Triple A Market) currently leases the property, but it used to be owned by Sketchley’s One Hour Cleaners (1982) Ltd. and, before that, Liberty Cleaners Ltd., which operated a dry-cleaning business there until 1997.
YMD88 Holdings Ltd., which currently owns the property, has been named in the lawsuit, but proceedings against Triple A Market and were discontinued.
I4PG claims the contamination at its site has been caused by the defendants’ “negligence,” which “caused or allowed” dry-cleaning chemicals and petroleum products to escape into the soils and groundwater of their properties and then migrate to 4437 Hastings St.
The developer is seeking damages, as well as declarations that the defendants are responsible for the remediation of 4437 Hastings St. and liable for the costs of “investigation and remediation.”
I4PG is also seeking an order that the defendants pay all the investigation and remediation costs and another order that the defendants indemnify the developer for all present and future damages, cost and loss.
'Safe and reasonable'
The defendants deny the developer’s claims.
YMD88 Holdings Ltd. argues it has never itself operated a dry-cleaning business at 4362 Hastings St. and says it acquired the property years before the environmental legislation relied on in the lawsuit came into effect.
YMD88 also notes its property is on the opposite side of Hastings, which is six lanes wide, and there is a Safeway, a parking lot and “various other operating businesses” between the development property and theirs – including Mr. N’s Fine Dry Cleaners.
Meanwhile, Mr. N’s and Burnaby Dry Cleaners say that, if 4437 Hastings St. is contaminated, it isn’t their fault.
Both claim they handled all chemicals in a “safe and reasonable manner” and no contaminants migrated from 4429 Hastings St. to the developer’s site.
All of the defendants also claim I4PG knew or ought to have known 4437 Hastings St. was contaminated before it bought the site and got a deal on the land because of it.
'Discounted purchase price'
Before buying the site to redevelop, I4PG received and assessed seven different environmental investigation reports, according to allegations by Mr. N’s .
“Based on its historical and environmental due diligence, the plaintiff negotiated and secured a discounted purchase price for and other contractual benefits related to the environmental condition of the plaintiff's site,” states Mr. N's response to the lawsuit.
Since the lawsuit began, Mr. N’s has been shuttered, and its owners have gone into bankruptcy, according to court documents.
But a 13-day trial has been scheduled with the other defendants starting March 25, 2024.
None of the allegations made in the filings so far have been tested in court.
Not the first lawsuit
Sienna The Heights, the five-storey mixed-use development planned for 4437 Hastings St., isn’t the first condo project to be announced at the site.
Another developer, Empire Developments, owned the land before, and its four-storey “Venice” mixed-use development plan made it to second reading and a public hearing in December 2008, but the project never materialized.
Empire launched its own lawsuit against Burnaby Dry Cleaners Ltd. in July 2011.
In its notice of civil claim, Empire said it had retained environmental consultants to investigate 4437 Hastings St. for contaminants and the determined the site was contaminated.
Empire, too, claimed the contaminants had migrated from 4429 Hastings St. and sued for damages.
“Empire has suffered loss and damages, including the costs of investigation of the damage to the site, the costs of investigation of the contamination, a lost opportunity to sell the site and a loss in the value of the site,” states Empire’s claim.
Burnaby Dry Cleaners denied the claims.