Does a zoning by-law limiting development possibilities on land constitute a disguised expropriation? No, replied the Superior Court of Quebec in a recent decision received as a breath of fresh air by the municipal world.
What there is to know
- In September 2021, owners of land in Léry, on the South Shore of Montreal, filed a $3.1 million lawsuit for disguised expropriation against the municipality.
- The plaintiffs alleged that a new zoning bylaw limiting development opportunities deprived them of their property rights.
- The court rejected their arguments in a decision rendered on October 19.
Judge Catherine Piché, of the Superior Court, points out that “the plaintiffs are not entitled to invoke “maximum use” of their land as justification for a claim for disguised expropriation.”
The plaintiffs are five owners of land located in the municipality of Léry, southwest of Montreal, including Claude Sauvé and Jean-Guy David. They claimed that a zoning by-law adopted by Léry and the Metropolitan Community of Montreal (CMM) had the effect of removing any reasonable use of their land.
They demanded 3.1 million dollars from Léry and the CMM for disguised expropriation.
Remember that in 2016, Léry adopted an urban planning regulation limiting development possibilities in the Châteauguay-Léry forest corridor, where the land of owners Claude Sauvé and Jean-Guy David is located. This new regulation aimed to ensure compliance with the development plan of the MRC of Roussillon. The MRC had to comply with the CMM’s Metropolitan Planning and Development Plan (PMAD).
Concretely, the MRC and Léry had to identify areas located in the woods and forest corridors where low density subdivision could be considered in order to protect this natural corridor with high ecological value.
A protected sector
The new regulation then provides that 55% of the applicants’ land had to remain intact while a subdivision of 0.5 homes per hectare was possible on the remaining 45%. However, under other regulatory provisions, the owners could have proposed a project with a higher density of housing.
It must therefore be understood that the applicants’ land is located as of 2016 in a protected area with restricted uses and minimal deforestation, as stipulated in the Scheme and the complementary document of the MRC [de Roussillon].
Extract from the judgment of Judge Catherine Piché
“Their land is therefore subject to restrictions on residential development. They consider that because the City does not offer to compensate them by purchasing their land, they are suffering a disguised expropriation,” she adds in her 37-page decision.
According to judge Catherine Piché, “a simple change in zoning or a reduction in the current or potential value of the building is not enough for there to be a disguised expropriation.”
The uses permitted by Léry’s 2016 regulations were sufficient to allow reasonable use of the land. There was neither confiscation of land nor absolute negation of the exercise of the plaintiffs’ property rights.
Extract from the judgment of Judge Catherine Piché
“The fact that, in the development of a potential project, applicants may have to overcome economic challenges and prohibitive costs, or that they may have to make requests for discretionary permission to enable services to be provided on the land in question, does not make the regulations prohibitive,” she mentions.
Lawyer Éric Oliver, of the Municonseil firm, who represented the plaintiffs, refused to answer questions from The Press. ” I do not have time. I have no comments to make to journalists,” he declared before hanging up suddenly.
Cities relieved
“We are very satisfied with this decision,” says Massimo Iezzoni, general director of the CMM. What we remember above all is that the judge [Piché] recognized that cities and the CMM are dependent on government orientations [en matière d’aménagement]. We also note that the judgment recognizes the reasonableness of these regulations [adoptés par les villes et la CMM]. »
“This is an important decision which helps clarify how the court analyzes proceedings for disguised expropriation,” said Marc-André LeChasseur, lawyer at the Bélanger Sauvé firm, which represents the CMM.
[La juge Piché] did not engage in alarmist discourse and excessive protection of property rights.
Marc-André LeChasseur, lawyer representing the CMM
Judge Piché also cites in her decision a judgment rendered by the Quebec Court of Appeal in 1993. “Finally, even if they date back more than twenty years, it is appropriate to repeat the words of the judge [Jean-Louis] Baudouin in the judgment Abitibi (MRC) v. Ibitiba ltée, which are still of great relevance in this context of exploitation of wooded wetlands. »
“Protecting the environment and adhering to national policies is, at the end of this century, more than a simple question of private initiatives, however laudable they may be. It is now a matter of public order. Consequently, it is normal that in this matter, the legislator, protector of the entire present and future community, limits, sometimes even severely, the absolutism of individual property,” wrote Judge Baudouin.
“Property rights are now increasingly subject to collective imperatives. This is an inevitable trend since, in Quebec as in many other countries, the protection of the environment and the preservation of nature have been abandoned to individual selfishness for too long,” concluded the magistrate in 1993.