The Superior Court upholds the right of the City of Laval to refuse the transfer of a lot used as a retention basin as park fees, since it is in an environmental compensation zone covered by a CA 22.

Summary:

The developer, Véridis I, submitted a project comprising wetlands, thus requiring a certificate of authorization under s. 22 of the Environmental Quality Act (CA 22) and compensation measures. In the course of its project, Veridis constructed a retention basin which it transferred to the City as park fees. However, the City of Laval, being of the opinion that the transfer of the basin, being in an environmental compensation zone, could not be accepted as park fees, demanded from Veridis the payment of $ 208,900. This amount was paid under protest not to delay the issuance of the subdivision permit and the completion of the project further. Véridis then claimed reimbursement, alleging that the transfer of the retention basin had to be and had been accepted as a contribution for park costs.

According to the Court, the decision of the City to exclude the area of ​​the retention basin from the calculation of the compensation due as park fees is reasonable and in accordance with the Act respecting Land Use Planning and Development (LUPDA) and the applicable by-laws.

The facts:

Véridis was to build as part of its real estate project a conventional retention basin, typically a steep, fenced and inaccessible, serving only the utility function of rainwater retention. Its consultants had the idea of ​​changing its shape, softening the slopes, and incorporating wetlands and diverse native vegetation. The area of ​​the clearing area authorized in 2008 by a CA 22 was increased. The objective was to give a triple vocation to the work, namely the retention of rainwater, environmental compensation, and its use of by citizens.

During a meeting with the City Planning Department, Véridis set out its position regarding the transfer of lot 5 381 657, where the compensation zone is located, to be considered as park fees. The City’s representatives, without committing to consider the Site as payment for park fees, received the concept with interest, that they found beautiful and avant-garde. Véridis said that it did its new development project because the City representatives did not tell it that, under any consideration, the City would not accept the compensation zone for park purposes.

The final contribution :

The City decided that the transfer of the retention basin could not be considered in the calculation of the required park fee contribution and imposed a cash payment of $ 208,900. The City invoked that these basins are an inalterable environmental compensation measure and an infrastructure that it will have to maintain in the future. The City considered that it can’t modify the configuration of a compensation zone because of the conditions imposed by a CA 22. It maintained that it wishes to reserve for itself the possibility of developing or redeveloping the ceded land for park and playground purposes. It had never accepted a compensation zone in the calculation of park fees, regardless of its configuration or topography. This was and, to our knowledge, still is an automatic exclusion criterion for the City of Laval.

The decision of the Superior Court:

The Court ruled in favour of the City. The judgment does not appear to have been appealed.

Although natural spaces, terrestrial as aquatic, can qualify as a contribution for park purposes under the law (LUPDA), as it does not impose any restriction in this regard, the issue was whether the City’s refusal to receive this lot as an adequate contribution for park purposes constitutes a reasonable exercise of its discretion. It is recognized that the decision to accept as a contribution for park purposes the transfer of land or the payment of a sum of money (or one and/or the other) is a discretionary decision for City Council (in this case, the Executive committee).

The City rightly interpreted the relevant provisions of the LUPDA and the Environment Quality Act as prohibiting the redevelopment of lots constituting an environmental compensation area. In light of these provisions, the obligations they create, and the prohibitions they set out, the Court decided that the City’s decision certainly belongs to the possible acceptable outcomes and confirmed the reasonableness of the decision, which is the applicable analytical criterion. Veridis did not in any way establish that the City had exercised its discretion 1) for improper or non-statutory purposes, 2) in bad faith, 3) on erroneous principles or taking into account irrelevant considerations or 4) in a manner that is discriminatory and unfair, arbitrary or unreasonable, the Court confirmed its decision not to accept the transfer of the retention basin as a contribution for park fees, but rather to require the payment of a cash sum.

In the alternative, Véridis invoked the doctrine of promissory estoppel in support of its action. It stated that it had favoured her proposed new development because the City representatives did not indicate that, under no consideration, would not accept the park compensation area.

For this doctrine to apply, four criteria must be met: 1) the public authority has made promises; (2) the public authority intended to induce the taxpayer to do certain things; 3) the taxpayer relied on the promises of the public authority to adjust his behaviour; and finally, 4) the taxpayer acted in consideration of the promises made to him.

The Court decided that this doctrine did not apply in the case at bar, because the prevailing evidence did not establish that the representatives of the City made any undertaking to Véridis to consider the compensation zone for park purposes. On the contrary, according to the Court.

Reference : Immobilier Véridis I inc. c. Ville de Laval, Guylène Beaugé, J.C.S., 7 novembre 2018