A recent decision of the Superior Court of Quebec risks modifying the balance of power between the municipalities of the Metropolitan Community of Montreal (CMM) and the developers who have construction projects in natural environments.
In a judgment described as a “decisive moment” by an expert in environmental law, Judge Florence Lucas dismissed real estate developers who claimed $ 20 million for “disguised expropriation” of their land which notably shelters wetlands in Saint -Bruno, on the South Shore of Montreal.
On the CMM’s territory, many wetlands are also the subject of intense pressure from real estate construction even though they are considered essential in a context of climate change.
In 2017, businessman André Simoneau and the Montarville Investment Corporation filed a $ 20.2 million lawsuit against the municipality. According to the promoters, a new by-law governing the felling of trees in wetlands prevented them from carrying out their subdivision projects and therefore constituted disguised expropriation.
“A decisive moment for the continuation of things”
In her decision rendered on September 23, Judge Lucas recalls that “the right to property is not absolute” and that it “is subject to collective imperatives”. It rejects the proponents’ arguments one after another and concludes that the new regulations do not constitute a disguised expropriation.
The magistrate underlines in particular that “it is not the municipal regulations that prevent residential real estate development, but their particular characteristics and the presence of wetlands, which are protected by the LAU. [Loi sur l’aménagement et l’urbanisme], but also by the Environment Quality Act, under which a certificate of authorization from the Minister is required for the purpose of erecting a construction ”.
The 40-page judgment specifies that the new regulations adopted by Saint-Bruno are consistent with the objectives of the CMM’s Metropolitan Land Use and Development Plan, including increased protection of natural environments.
It cannot be denied that the SAD [schéma d’aménagement de l’agglomération de Longueuil] and the new regulations have the effect of preventing planned residential and commercial development and affecting the value of developers’ properties. However, this is not sufficient to conclude that they have been expropriated.
Judge Florence Lucas, in her judgment
Judge Lucas points out that “the City has not really and materially appropriated the enjoyment or use of the land in dispute” and that the right to property is not deprived of “its fundamental attributes, including that of the exclusive use ”.
Joined by Press, the promoter André Simoneau said he was surprised by the judgment, but did not want to offer any other comments. “We are in the analysis period to decide whether we will appeal or not. ”
PHOTO ROBERT SKINNER, LA PRESSE
On the territory of the Montreal Metropolitan Community, many wetlands, such as the Sabourin woodland, are the subject of intense pressure from real estate construction.
“This judgment crystallizes the current state of the law. Municipalities have the necessary powers to protect their natural environments ”, affirms the lawyer specializing in environmental law, Mr.e Jean-François Girard. “It’s a game changer, a decisive moment for the future, particularly in the territory of the Montreal Metropolitan Community. ”
This verdict also comes on top of many other judgments relating to environmental protection in recent years. Judge Lucas also quotes a decision of the Court of Appeal which recalls that “the Supreme Court considers that the protection of the natural environment of the municipal environment cannot constitute an illegitimate goal for a municipal council”.
The importance of wetlands
The Saint-Bruno conservation plan indicates that these natural environments “provide several essential goods and services, including climate regulation, improving air quality and controlling runoff”. There is also an endangered species, the Western Chorus Frog.
However, according to a portrait produced for the Ministry of the Environment and the Fight against Climate Change in 2013, researcher Stéphanie Pellerin had established that 19% of wetlands had disappeared over the previous 20 years in the lowlands of Saint Laurent. The bleeding continued despite the adoption of a law on wetlands in 2017.
According to Ducks Unlimited Canada, up to 70% of wetlands have been destroyed in populated areas across the country. They are, however, essential in the fight against global warming. “In Quebec, peatlands are the terrestrial ecosystems where the greatest amounts of carbon are stored, about nine times more than in forests,” estimates the Ouranos consortium.
“Wetlands are essential in the fight against climate change,” recalls Rafael Ziegler, visiting professor at HEC Montréal, where he teaches a course on sustainable development. “In Germany, a lot of wetlands have been destroyed for agriculture and urbanization. But we have now understood that they were very important, especially since they render valuable services. ”
There is not a stone that has not been returned and analyzed by Judge Lucas in this case.
Jean-François Girard, lawyer specializing in environmental law, on the Superior Court’s decision
17 % : Minimum percentage of its territory that the Montreal Metropolitan Community wishes to protect, according to its Metropolitan Land Use and Development Plan
10,1 % : Proportion of the territory of the Metropolitan Community of Montreal currently protected
Source: Montreal Metropolitan Community