The Quebec Court of Appeal has issued a serious warning to developers who buy land in the hope of changing a zoning bylaw. If their “bet” does not materialize, they cannot plead disguised expropriation and claim compensation.
Posted at 5:00 a.m.
A resident of Contrecœur learned the hard way that he was taking a risk by buying land hoping to have the zoning by-law amended to build houses on it. On two occasions, the courts refused to hear his case, ruling that the man had “lost his bet” and that he was not entitled to compensation for disguised expropriation, concludes the Quebec Court of Appeal in a decision rendered on June 2.
The affair began in June 2014 when Charles Robitaille bought land in Sorel with the aim of carrying out a residential project of 16 housing units. The land had been put up for sale by the City for non-payment of municipal taxes by the former owner.
The amount of the transaction is $14,001 for the land of 3800 m2whose “park” use is specifically provided for in the zoning by-law.
It is located in the heart of the residential area, rue Monseigneur-Desranleau.
In September 2015, Charles Robitaille filed a first request for a zoning change to carry out his project. This is refused by the municipal council a month later. The City of Sorel then indicates its intention to make a proposal to buy back the land.
In December of the same year, Mr. Robitaille nevertheless submitted a second request for a zoning change, even though he had not yet received a formal offer from the municipality. This was again refused by the City in February 2016.
An offer to purchase refused
An offer to purchase was finally presented to him in October 2016: $14,001 in addition to the costs paid since the acquisition of the land in 2014. He refused and instead tried his luck by submitting a third request for a zoning change four years later. , in June 2020. The request was again refused by the municipal council.
Charles Robitaille then put the City of Sorel on notice to modify the zoning by-law or to take steps to expropriate it.
As his formal notice was not followed up, he filed an action in Superior Court in 2021 for disguised expropriation in which he claimed compensation of at least $290,347 in addition to an amount of $50,000 “as exemplary and punitive damages for unlawful and intentional infringement of property rights”.
Sorel responds by filing “a motion to dismiss” arguing that its zoning by-law was already in effect when Charles Robitaille bought the land. According to the municipality, under these conditions, the buyer cannot claim a disguised expropriation and his request must be rejected by the court.
An informed purchase
Judge Sébastien Vaillancourt, of the Superior Court, ruled in favor of Sorel for the first time in a decision rendered in August 2021. He concluded that “the plaintiff acquired the land with the hope that the zoning by-law would eventually be modified, a hope born simply because the defendant [la Ville de Sorel] had not taken any steps to develop a park there and that it had even decided to sell the land.
“However, this hope was unfounded from the start, so the plaintiff lost his bet,” said Judge Vaillancourt.
Buying with the – unfounded – hope that a change in the zoning by-law would one day allow him to build does not allow the plaintiff, once this hope has been destroyed, to plead disguised expropriation and obtain compensation accordingly.
Sébastien Vaillancourt, judge of the Superior Court
Dissatisfied with the judgment, Charles Robitaille appealed the case. In its three-page decision, the Court of Appeal added that “the appellant bought the land knowingly and he must have known that he had no guarantee of being able to carry out his project”. “He wanted to try his luck and he lost. The magistrate was therefore right to write that he lost his bet, ”says the court.
Reassure municipalities
“We are going to file an application for leave to appeal to the Supreme Court, so I can’t make any further comments at this time,” said Robitaille’s lawyer, Mr.e Sebastien Poirier.
“This is great news for the municipalities,” said Rino Soucy and Simon Frenette, the two lawyers who represented the City of Sorel. The Court of Appeal made it clear that it was a bet and the plaintiff lost his bet. »
According to Anne-Sophie Doré, lawyer at the Quebec Center for Environmental Law (CQDE), “it is very unlikely that it will go to the Supreme Court”. “It’s not really a matter of national interest. But the decision of the Court of Appeal will however reassure the municipalities when there has been much talk of disguised expropriation for some time. »