CONFRONTATION BETWEEN A NO-BUILD EASEMENT AND A MUNICIPAL BYLAW

On one side of two adjoining lots on Moody Boulevard in Terrebonne is a restaurant operating under the St. Hubert banner on land (the St. Hubert Lot) belonging to 9128310 Canada Inc. (912) and, on the other. a Super C grocery store on land (the Metro Lot) belonging to Metro Québec Immobilier Inc. (Metro).

The properties are encumbered by real, reciprocal and perpetual no-build easements created in 1978 as part of a deed of sale, including an easement encumbering the St. Hubert Lot in favour of the Metro Lot. That easement effectively prevents any construction along the Moody Boulevard frontage of the St. Hubert Lot for a depth of approximately one hundred feet from Moody Boulevard.

At the end of the sale in 1978 creating the servitudes in question, the seller sold the St. Hubert lot and kept the Metro lot. The latter was then sold in 1996 to Épiciers Unis Métro-Richelieu Inc. which transferred it to Metro in 2017.

The Metro Lot was redeveloped in 1997. The Super C grocery store was built at the rear of the lot, with parking in the front. At the time, draft documents to create easements for common parking lots were exchanged between Metro and the owner of the St. Hubert Lot, but no action was taken.

912 acquired the St. Hubert Lot in 2015, with the deed mentioning neither the existence of the easement nor that its representatives had knowledge of it. The deed specified 912's objective to demolish the building for the purpose of reconstruction. In fact, a building used for the operation of a restaurant under the St. Hubert banner was then erected, in compliance with the terms of the easement.

912 now seeks to replace the building, still being used as a St. Hubert restaurant, with a new one, given that the existing building is in poor condition.

The City of Terrebonne's current bylaw, however, encourages buildings to be located along the street frontage with parking areas to the rear, contrary to the previous bylaw, which conflicts with the easement.

Metro is opposed to redeveloping the St. Hubert Lot with a building along the street frontage, as it would be detrimental to its visibility and contrary to the terms of the no-build easement.

Urban planning experts retained by the parties state, on the one hand (according to Metro's expert), that the regulations in question do not oblige the owner of the St. Hubert Lot to construct a new building along the street frontage, and that 912 could rebuild on the site of the existing building. On the other hand, the City's planner testified that the current bylaw favours buildings with street frontage and parking areas located at the rear. No formal application has been filed with the City, but a plan to reconstruct the existing building on its current site was filed in February 2022 by 912 for a preliminary opinion from the CCU urban planning committee. The committee indicated that the development plan does not in fact meet the objective of locating the building along the street frontage and placing the parking area in the rear.

912 argued that it must take into account the existing municipal bylaw, whose easement causes it grave, abnormal and disproportionate harm.

The case reached Québec Superior Court, which deemed the wording of the easement to be clear and not in need of interpretation.

It clearly states that construction within the easement area is prohibited. The 912 plans for building along the frontage of the lot are thus contrary to the easement.

To settle the dispute, however, the Court noted that 912 need not obtain evidence of a final refusal by the City of Terrebonne to approve a new building on the site of the existing building. According to the preliminary comments of the CCU urban planning committee, any development of the St, Hubert Lot is virtually paralysed because the requirements of the easement are contrary to certain general objectives of the bylaw on Site Planning and Architectural Integration, which encourages buildings located on street frontage.

In fact, the easement imposes restrictions that go beyond the prohibition to build since it dictates constraints that go against urban development intentions and harmonization of the layout of the built environment, as reflected in the abovementioned bylaw.

The Court therefore concluded that the easement is contrary to public policy and must be declared invalid and inoperative, and removed from the land register.

The decision has been appealed. It will be interesting to see if the Québec Court of Appeal agrees.