Following the major flooding that occurred during the spring thaws of 2017 and especially 2019, the provincial government accelerated its review of the procedures for managing flood zones and announced the imminent adoption of a Draft Order respecting the declaration of a special planning zone to promote better management of flood zones and the exemption of the territory contemplated in the draft Order from certain prohibitions following its publication1 (the "Draft Order").
The Draft Order will not only have a vast province-wide territorial scope, including the municipalities of Gatineau, Laval, Longueuil, Lévis, Mirabel, Montréal, Quebec City and Trois-Rivières, but can be expected to have a major impact on the rights of the property owners affected.
We therefore recommend that property owners concerned by the Draft Order be vigilant, particularly regarding the protection of their right to peaceful enjoyment of their property, and the value thereof.
I. Notice by the Minister of Municipal Affairs and Housing concerning the Draft Notice
In a notice published in Quebec's Official Gazette on June 17, the Minister, Ms. Andrée Laforest (the "Minister"), indicated that the government intends to declare part of the territory of certain municipalities as a special planning zone.
Since the publication of the notice, any new construction, alteration, addition or installation, or any new use of land, are now prohibited until the Draft Order comes into force2. Some less extensive work will however still be permitted3, for example minor construction work in littoral zones, such as building wharfs or marinas, and works to maintain infrastructure in flood zones, such as water mains and sewers, in good condition.
II. Draft order concerning the declaration of a special planning zone to promote better management of flood zones
The provincial government may, by order, declare any part of the territory of Quebec to be a special planning zone, in order to solve a development or environmental problem when urgency or seriousness, in the opinion of the government, warrants its intervention4.
The Draft Order is aimed at establishing an interim control plan until a new prescriptive framework is established by the government and implemented by the municipalities concerned, which number 813 cities, towns and other municipalities, including 79 regional county municipalities5. The territory affected generally includes littoral zones and floodplains that are in both high-velocity and low-velocity current zones, as indicated in municipal land-use maps and those of the Ministry of the Environment6.
The Draft Order imposes a moratorium on construction and reconstruction for the period preceding the establishment by the government of a new prescriptive framework and its implementation by the municipalities. More specifically, the Draft Order prohibits any new construction or reconstruction project concerning a building having lost more than half its value due to flooding.7 However, restoration work is allowed on buildings where the damage from flooding represents less than half of the building's value, as well as certain other specified work8.
It should be noted however that any restoration project authorized in the special planning zone must be made flood-proof against future major flooding.9 A study must be carried out on any proposed construction below the 100-year flood elevation, showing that it can withstand such a flood10. Thus, no opening (such as a door or window) or ground floor can be installed at a level that is lower than that of the 100-year flood elevation.
These restrictions also apply to projects already underway within the perimeter affected by the Draft Order. Thus, every municipality concerned must send the Minister an annual report on all construction permits issued in the zones within its territory that are affected.
III. Waterside property owners and real estate promoters, protect your rights!
Since the final version of the Order and the maps are not yet known, it is difficult to determine with any degree of precision their impact on the property rights of those concerned, or on the value of their properties or real estate development projects.
However, for certain property owners a loss of enjoyment of their properties can already be anticipated, as well as damages due to their loss in value. In addition, some real estate development projects planned or underway may be no longer be feasible.
In those scenarios, certain recourses may be available to the property owners and real estate promoters concerned, such as a claim for compensation for disguised expropriation11, an application to quash an administrative decision12 or an application for judicial review of the municipal assessment roll. Administrative law and caselaw provide certain parameters for the protection of property owners against regulations that would have an excessive or intrusive impact on the use of land by its owner.
Public consultations were held across Quebec on July 4 regarding the Draft Order and the contemplated maps of special planning zones. Municipalities and persons concerned have until August 19, 2019 to make comments on the latest version of the maps13. This process is meant to take into account the comments made by certain municipalities, regional county municipalities and citizens concerning the accuracy of maps showing areas that were flooded.
Footnotes
1 Gazette officielle du Québec, June 17, 2019, Vol. 151, No.24A: http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=13&file=1924A-A.pdf
2 Section 162 of the Act respecting land use planning and development, CQLR, c A-19.1
3 For the complete list of permitted work, see sections 3.3 and 4.2.1 of the Protection Policy for Lakeshores, Riverbanks, Littoral Zones and Floodplains, CQLR, c Q-2, r.35.
4 Sections 158 and 159 of the Act respecting land use planning and development, CQLR, c A-19.1
5 For the complete list of affected municipalities, use the following link: https://www.mamh.gouv.qc.ca/fileadmin/publications/ministere/inondations_printanieres_2019/liste_municipalites_visees_zis.pdf.
6 To view the maps, use the following link: https://www.cehq.gouv.qc.ca/zones-inond/rapports-carto.htm.
7 Paragraph 3 of the Draft Order.
8 For the list of these works, see sections 3.3 and 4.2.1 of the Protection Policy for Lakeshores, Riverbanks, Littoral Zones and Floodplains, CQLR, c Q-2, r.35.
9 Paragraph 5 of the Draft Order. The flood-proofing standards are set out in Annex 1 of the Protection Policy for Lakeshores, Riverbanks, Littoral Zones and Floodplains.
10 Paragraph 8 of the Draft Order.
11 Article 952 of the Civil Code of Québec, CQLR c CCQ-1991: "No owner may be compelled to transfer his ownership except by expropriation according to law for public utility and in return for a just and prior indemnity."
12 Article 34 of the Code of Civil Procedure, CQLR c C-25.01.
13 Comments should be sent to the following email address: zis2019@mamh.gouv.qc.ca.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
