October 16, 2021

The Queens County Citizen

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Protection of natural environment | “Property rights are not absolute”

Protection of natural environment |  "Property rights are not absolute"

The Supreme Court removes promoters who request land grabs in disguise


Eric-Pierre Champagne

Eric-Pierre Champagne
Tap

The risk of modifying the power balance between the municipalities of the Metropolitan Community of Montreal (CMM) and developers who have construction projects in their natural environment is a recent decision by Quebec’s Superior Court.

In what was described as a “decisive moment” by an expert in environmental law, Judge Florence Lucas dismissed real estate developers who claimed $ 20 million for “disguised land acquisition” of their land sheltering wetlands in St. Bruno in the south. Montreal.

In the territory of CMM, many wetlands are under extreme pressure from real estate construction, although they are considered urgent in the face of climate change.

In 2017, businessman Andre Simono and the Monterville Investment Corporation filed a $ 20.2 million lawsuit against the municipality. According to the promoters, a new law regulating the felling of trees in wetlands prevented their subdivision from carrying out projects and therefore established disguised land acquisition.

“Decisive moment for the continuation of things”

In his decision of September 23, Judge Lucas recalled that “the right to property is not absolute” and that it is “subject to collective requirements.” It rejects the promoters’ claims one after another and concludes that the new rules are not disguised elimination.

The magistrate specifically emphasized that “it is not the municipal regulations that prevent the development of residential real estate, their special features and wetlands are protected by the LAU. [Loi sur l’aménagement et l’urbanisme], But also by Environmental quality law, A certificate from the Minister is required to construct a structure under it ”.

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The 40-page ruling states that the new regulations approved by Saint-Bruno are in line with the objectives of CMM’s Metropolitan Land Use and Development Plan, which has increased the protection of the natural environment.

This cannot be denied by SAD [schéma d’aménagement de l’agglomération de Longueuil] And the new regulations have the effect of inhibiting planned residential and commercial development and affecting the value of developers’ assets. However, this is not enough to ensure that they are eradicated.

Judge Florence Lucas, in his judgment

Judge Lucas stated that “the city has not really and physically acquired possession or use of the land in dispute” and that the property will not receive “its basic features, including special use.”

Joined Tap, Promoter Andre Simono said he was shocked by the verdict, but was reluctant to provide any other comments. “We are in the period of analysis to determine whether we will appeal.”

Photo by Robert Skinner, Law Press

In the territory of the Montreal Metropolitan Community, many wetlands, such as Saborin Woodland, are under severe pressure from real estate construction.

“This judgment crystallizes the current status of the law. Municipalities have the necessary powers to protect their natural environment,” said a lawyer who specializes in environmental law.E Jean-Franకోois Girard. “It’s a game changer, a decisive moment in the future, especially in the territory of the Montreal metropolitan community.”

The ruling also comes in the wake of a number of other rulings on environmental protection in recent years. Judge Lucas also cited the Court of Appeals’ ruling that “the Supreme Court considers that the protection of the natural environment of the municipal environment does not constitute an illegal objective for a municipal council”.

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Importance of wetlands

The Saint-Bruno Conservation Plan states that these natural environments “provide many essential goods and services, including climate control, air quality improvement and runoff water control”. There is also the endangered species, the Western Chorus Frog.

However, according to a portrait created by the Ministry of Environment and the fight against climate change in 2013, researcher Stephanie Pellerin found that 19% of wetlands in the St. Laurent Inland have disappeared in the last 20 years. Bleeding continued despite the passage of a law on wetlands in 2017.

According to Ducks Unlimited Canada, up to 70% of populated areas across the country are devastated by swamps. However, they are essential in the fight against global warming. “In Quebec, the Peatlands are terrestrial ecosystems, where the highest amount of carbon is stored, which is nine times more than forests,” the Uranos consortium estimated.

“Wetlands are very important in the fight against climate change,” recalls Rafael Ziegler, a visiting professor at HEC Montreal, where he teaches a course on sustainable development. “In Germany, a lot of wetlands have been destroyed for agriculture and urbanization. But we now understand that they are very important, especially since they have provided valuable services.”

There is no stone in this case that Judge Lucas did not return and analyze.

Jean-Franకోois Girard, a lawyer specializing in environmental law on the decision of the Superior Court

17% : Minimum percentage of land that the Montreal Metropolitan Community wants to protect according to its Metropolitan Land Use and Development Plan

10.1% : The proportion of Montreal metropolitan community territory is currently protected

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Source: Montreal Metropolitan Community