Preserving natural environments, but at what cost?

Do cities have to compensate an owner each time they change the zoning of land in the name of preserving natural environments? The Supreme Court of Canada could decide.

The land at the heart of the dispute is adjacent to the municipal park of Grand-Coteau and located near the park of Saules, in Mascouche.

In the mid-1970s, Ginette Dupras became the owner of a large wooded lot, which she acquired from her aunt for the modest sum of a dollar.

The lot of just over 10 hectares is located north of Highway 640, in Mascouche, on the outskirts of what will house the Grand-Coteau municipal park in the early 2000s.

Although she owned it, Ms. Dupras did not go to the field for several years. It nevertheless authorized the City to develop a cross-country ski trail in 1985, open for the season.

But now, wanting to inquire about the potential of her land, she learned in 2008 that her lot, previously zoned residential over 70% of its area, had been completely allocated to conservation since the adoption of a zoning by-law in September 2006.

Under this zoning, possible uses are limited in order to protect the natural environments and the biodiversity they shelter. All construction is prohibited. Only forestry, maple syrup or recreational activities are permitted.

Discussions then begin during which the parties discuss two scenarios: a new zoning change, which would involve the triggering of a long regulatory process, or the purchase of the land.

The talks come to a halt, the two parties not agreeing, in particular, on the value of the lot. The owner, based on an assessment of the potential market value conducted at her request in 2015, estimates it to be $4.5 million.

In February 2016, the City of Mascouche finally announced to Ms. Dupras that she no longer wished to acquire the land. The owner then decided to sue the Municipality for disguised expropriation, believing that she had been deprived of all use of her land.

To date, Ms. Dupras does not cannot exploit her lot as she wishes. The Superior Court and then the Quebec Court of Appeal have nevertheless in turn ruled in its favor in the dispute between it and the City of Mascouche. However, the case could be taken to the highest court in the land.

This is what the Center québécois du droit de l'environnement (CQDE), which last week filed a motion with the Supreme Court of Canada to intervene in this dispute, hopes.

In a concerted approach with the David Suzuki Foundation, Agiro, Nature Québec, Vivre en Ville, the National Grouping of Regional Environmental Councils of Québec and the Network of Protected Natural Environments, the CQDE has sided with the City from Mascouche. The latter filed an appeal before the Supreme Court on May 13.

Like the seven environmental organizations, the Communauté métropolitaine de Montréal (CMM) and the Union of Municipalities of Quebec (UMQ) have also sent motions to be heard by the Supreme Court.

It is in the national interest for the Court to take up this appeal, pleaded the CQDE and its partners in their request. If the judgment in favor of Ms. Dupras is upheld, they insisted, it will have far-reaching implications for environmental protection.

If the Supreme Court refuses to consider this file, the decision of the Court of Appeal will become the one that prevails. And that's what worries environmental groups.

To understand this judgment, we must first go back to August 12, 2020, the date on which Superior Court Justice Judith Harvie of Quebec has determined that the City of Mascouche was guilty of disguised expropriation.

Far from offering Ms. Dupras the $4.5 million requested, the judge rejected the valuation report that her team had presented, considering that several elements called into question the credibility of the expertise. The Municipality's lawyers had argued that the property was worth much less than this estimate.

The judge concluded that the City should pay Ms. Dupras compensation for the expropriation of $436,000.

Dissatisfied with the result, both sides then appealed the decision. On March 16, the Court of Appeal upheld the disguised expropriation verdict. However, it referred the whole thing to the Superior Court which will have to, in the light of new expertise, reassess the price of the compensation to be paid.

In December 2014, Ginette Dupras realized that a section of the “La Persévérante” trail and a bike path from the Grand-Coteau municipal park cross her land.

What is worrying in this case […] is that the validity of the zoning by-law of the City of Mascouche was not questioned by the Court , raises Me Marc Bishai, who represents the seven environmental groups in this case.

To our knowledge, this is new in Quebec law: even a valid settlement can lead to a disguised expropriation, and therefore to compensation, he summarizes.

Mr. Bishai is of the view that private ownership is not absolute: one must consider the effect of the exploitation of the land on the community. If the development of a wooded area threatens the ecosystem services provided to the population, he says, the City should be able to act to protect it without being accused of disguised expropriation.

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The lawyer believes that compensation costs can be prohibitive for municipalities, which are required by the Government of Quebec to implement plans to protect natural environments.

“Municipalities are between the tree and the bark. They have an obligation [to protect the environment], but they expose themselves to having to compensate the owners. »

— Me Marc Bishai, partner lawyer of the Center québécois du droit de l'environnement

These demands echo those of municipalities that have found themselves in recent years in a arm wrestling with owners – often developers – who wanted to turn green spaces into real estate development projects.

Me Jean-François Girard, who represents the City of Mascouche in this case, also believes that it is “crucial” that the highest court in the country settle the matter once and for all.

Several unknowns remain, according to Mr. Girard: Should we compensate all landowners who will say they are wronged? And if so, how much? Is the land assessed as if it is intended for conservation or as if it can receive residential development?

While the fight against climate change and the loss of biodiversity force public bodies to implement policies to protect ecosystems, the light of the Supreme Court [is] necessary to know where we stand. going in the next few years, he insists. We are really at a crossroads.

This is where Sylvain Bélair disagrees with his opponents. This lawyer, who has specialized in municipal law and expropriation since 1987, does not see it as a case of national interest.

Plead the contrary is part of the political agenda of public bodies, says the lawyer for Ms. Dupras.

According to Me Bélair, the common front of Mascouche, of the CMM and the UMQ in this dossier aims to prepare the ground for a reform of the Expropriation Act, which has been demanded by the municipalities for years.

< p class="e-p">I've been doing expropriation for 34 years, I've never seen it, he says. If the Supreme Court of Canada agrees to hear this appeal – and to allow the intervention of public bodies and environmental groups – the fight will not be on an equal footing, believes Mr. Bélair.

However, the lawyer does not doubt the arguments he pleaded before the Court of Appeal, before which he won his case. The guidelines for expropriation are, in his view, sufficiently established, although they have been determined by the courts, and not enshrined in law.

Jurisprudence [on the matter], there is enough to pave Highway 20 between Montreal and Quebec!, he says.

Me Bélair ensures that there was never any question of contesting the will of the cities to preserve the natural environments nor the public authorities in terms of expropriation. The collective right, where the protection of the environment takes precedence, is quite valid, notes Me Bélair, but there is also the right to private property. We have to reconcile the two.

Protect biodiversity, okay, but at whose expense?, he wonders instead. Not to those of his client, now in his seventies, insists Me Bélair.

The Supreme Court of Canada should announce whether it will assess the case by the end of September . As usual, she will not be required to explain her decision.