Disguised expropriation within a heritage site
- Posted by Me Camille Ingarao
This month, the Superior Court rendered the decision SBFD inc. v. Ville de Saint-Augustin-de-Desmaures, 2023 QCCS 107, written by the Honourable France Bergeron, j.c.s, regarding a disguised expropriation in the City of Saint-Augustin-de-Desmaures (hereinafter the “City”). SBFD, the owner of a vacant lot, sued the City for including its lot in a heritage site when the lot was intended for the construction of a residence.
In November 2018 and May 2019, the City had taken several steps to allow the development of SBFD’s lot, located in an agricultural zone, including authorizing the subdivision creating this lot, signing a declaration of right form with the Commission de la protection du territoire agricole du Québec (CPTAQ) to allow SBFD to obtain its building permit, and issuing a certificate of authorization for the cutting of trees. However, as of July 2019, the City had undertaken the adoption of several resolutions under the Cultural Heritage Act, including by-laws amending its Master Plan of Land Use and Development, to create a zone to be protected corresponding to the Domaine des Pauvres heritage site, including the lot owned by SBFD. The City, relying on the amendments to its by-laws, refused SBFD’s applications for a building permit.
The Superior Court found that the lot owned by SBFD was disguisedly expropriated since the by-laws had the effect of prohibiting any new construction on it. In fact, in the Domaine des Pauvres heritage site, there were no guidelines or conditions to guide the analysis of a permit application for new construction on a vacant lot. Thus, in the case of SBFD’s application for a building permit regarding its vacant lot, the Superior Court held that the City had relied on an arbitrary analysis to deny the permit, thereby removing all use of the lot, and indeed the exercise of SBFD’s property rights:
“ Saint-Augustin chose to include the Lot in the Domaine des Pauvres heritage site rather than exercise its power of expropriation. In so doing, it expropriates the Lot, in a disguised way, since the effect of the by-laws is to remove all use of the Lot, and even the exercise of the right of ownership.
 With respect to the recommendations of the architect submitted in the event that Saint-Augustin decides to maintain the possibility of building a family residence, despite its general finding that no construction is permitted on the Lot, it should be recalled that these recommendations were not developed at the time of SBFD’s permit application. The Tribunal notes that these recommendations are not criteria enacted by the Council.
 Also, after examining the architect’s recommendations, the Court is of the opinion that these recommendations are so severe, particular, restricted and numerous that they are of such a nature as to nullify the right of ownership.
 Since the lot is vacant, this situation, where construction cannot be erected, destroys the possibility of using the lot, even though the lot was intended for residential use and was acquired for the purpose of erecting a family residence.
 The constraints imposed are prohibitive, depriving SBFD of building and reasonable use of the Lot.”
The Superior Court therefore awarded SBFD compensation in accordance with article 952 of the Civil Code of Québec and in the manner most advantageous to the expropriated party.
If you have any questions regarding municipal law and expropriation, do not hesitate to contact the team at Beauregard Avocats.