Sansfaçon, Cournoyer, Baudouin

Appeal from a judgment of the Superior Court dismissing an application for judicial review. Dismissed.

In 2013, the impleaded party became the owner of two lots on the territory of the respondent city. The first lot was occupied by a religious building, and the second, by the abandoned building of a former primary school. These lots were covered by zoning by-law PC-2775, which authorized them to be used for “multi-family buildings” only. The “church” use on the first lot was maintained through acquired rights.

The City adopted zoning by-law PC-2775-53.2 amending zoning by-law PC-2775, with respect to the permitted uses in Zone Re20, so as to add certain authorized uses and thus allow the impleaded party to build an ecclesiastical complex partly on the lot where its religious building was located as well as on the contiguous lot in order to add a library, a gymnasium, a theatre, and a reception hall. The appellants then brought their application, arguing that the new authorized uses were inconsistent with the City’s planning program and that the City had exceeded its jurisdiction].

The trial judge found that (1) the Act respecting land use planning and development (CQLR, c. A-19.1) required the City to ensure that the new uses authorized by zoning by-law PC-2775-53.2 were consistent with its planning program, and (2) the by-law was consistent with the orientations set out in its planning program.

Even though zoning by-law PC-2775-53.2 added uses and provided for land occupation densities that were perhaps inconsistent with the City’s planning program, the Act did not impose any such duty of local conformity on it. Indeed, in one situation, the Act does not subject the coming into force of a local by-law to the issuance of a certificate of conformity, nor does it impose any obligation to verify its conformity with the planning program or any duty of conformity. This is the case where the municipality makes a specific amendment to one of its planning by-laws on its own initiative other than in the context of an amendment to its planning program and without it being required to do so subsequent to the revision or amendment of the land use plan. In such a case, the approval of eligible voters who are affected by the by-law must be obtained. Thus, it cannot be said that a municipality has carte blanche to amend its zoning by-law. The legislature has also imposed a significant restriction on the freedom of municipalities to amend their planning by-laws on their own initiative, by requiring them to remain in conformity with the land use and development plan. It has therefore given priority to regional conformity over local conformity.

While it is not necessary to consider the judge’s second conclusion, it should be noted that he erred in finding that zoning by-law PC-2775-53.2 was consistent with the planning program. In 2011, when the planning program was adopted, the lot on which the abandoned school was located did not benefit from an acquired right for church use. Thus, the new uses added by zoning by-law PC-2775-53.2 could not be characterized as accessory or complementary uses permitting a use of that lot to be maintained. As for the lot on which the church was located, it was not open to the judge to find that because the City did not intend to [translation] “force” the redevelopment of this land for residential purposes if the use it was given could continue, it meant that, in the meantime, it was giving itself the latitude to authorize other uses than those set out in its planning program.

Text of the decision: http://citoyens.soquij.qc.ca