Can a municipality refuse a project that is perfectly compliant with the zoning by-law by means of an SPAIP¹?

This article attempts to shed light on how the SPAIP discretionary land use planning tool should interact with binding urban land use regulations, particularly contained in the zoning by-law.

The Land Use Planning and Development Act ("LUPDA")² provides municipalities with legal tools for land use planning. Among these, municipalities must adopt a zoning by-law to govern a number of aspects related to land use on their territory, including permitted use, type of construction, building standards, etc. The binding aspect of a zoning by-law, which contains objective criteria to be respected, is often insufficient for municipalities wishing to impose subjective constraints on new constructions. Indeed, the inclusion of architectural styles, landscaping or interrelationship with existing structures can with difficulty be controlled by a zoning by-law since each situation is unique.

The Quebec legislature has therefore granted municipalities a discretionary power, allowing their councils the right to assess the quality and integration of submitted projects. Indeed, the LUPDA offers municipalities the possibility of making construction permit issuance subject to the approval of an SPAIP. The SPAIP is then analyzed by a Planning Advisory Committee ("PAC")³ , which submits a recommendation concerning its acceptability to the municipal council. The latter then makes the final decision. In sum, when a municipality adopts an SPAIP bylaw, it gives itself the possibility of controlling construction projects in a more flexible manner. This ensures that such projects are implemented and integrated into the existing environment.

The zoning by-law and the SPAIP by-law are therefore two very distinct urban planning tools, and it can be difficult to comprehend how they should interact with one another.

In Loblaw Quebec ltée v. Alimentation Gérard Villeneuve (1998) inc.⁴ , the Court of Appeal concluded that under no circumstances could a municipality use an SPAIP to derogate from the regulatory standards applicable on its territory and thus authorize a construction project whose elements contravene the zoning by-law.

However, the issue remains unresolved when a municipality relies on an SPAIP to add to the construction and building standards applicable under the terms of the zoning by-law.

The 9129-6111 Quebec inc. v. Longueuil⁵ case provides us with an initial answer. In this case, the developer was seeking approval for a construction project of 15 to 20 units, in full compliance with the zoning by-law. However, the PAC refused to accept the SPAIP, requesting that the number of floors and units be reduced. The plaintiff then instituted mandamus proceedings in order to force the issuance of a construction permit. The Court granted the request, reminding that the discretion granted to a municipal council to approve or refuse construction projects on the basis of an SPAIP by-law cannot be used to contradict or defeat the binding provisions of a zoning by-law.

Subsequently, the Court of Appeal in Al-Musawi v. Montreal (City of)⁶ validated the municipal council's decision to refuse an SPAIP request for a project that otherwise complied with the zoning by-law. The refusal was based on consideration relating to the size and the location of a building. The Court summarized the relationship between the SPAIP and the zoning by-law as follows:

[15] While, in practice, SPAIP regulations deal with aspects that are not covered by urban planning regulations applicable to the area where the construction project is located, they may also cover the same topics as long as they do not contradict them (Lorne Giroux, supra, p. 398). It thus follows that control of the qualitative aspect of a construction project cannot be carried out without having some impact on the "binding" aspect of said project. The situation would be different if this "binding" aspect was at the very heart of the intended objective sought when controlling the qualitative aspect. (our translation)

In our opinion, it is obviously necessary to give full effect to all the urban planning tools provided for in the LUPDA. Consequently, when applied correctly, an SPAIP by-law could have direct effects on the building standards of construction projects. However, in accordance with the Longueuil and Al-Musawi decisions, the binding aspect, of which the building standards are a part, must not be at the heart of the SPAIP objective, which, at its core, aims to control the qualitative aspect of a project.

If you are faced with an urban development quandary, contact one of the members of our municipal law and expropriation team who, with their quick and judicious advice, will be able to represent you properly and hopefully save you a great deal of trouble.

_{1. SPAIP stands for "Site Planning and Architectural Integration Program", also referred to as PIIA. When we use the acronym "SPAIP," we are referring to both the plans that must be submitted and the process that must be followed.}2. Also referred to as the LAU.
3. Also referred to as the CCU.
4. Loblaw Quebec ltée v. Alimentation Gérard Villeneuve (1998) inc. (C.A., 2000-10-04), SOQUIJ AZ-50079140, J.E. 2000-1930, [2000] R.J.Q. 2498.
5. 9129-6111 Quebec inc. v. Longueuil (City of), (C.S., 2005-03-11), SOQUIJ AZ-50298546, J.E. 2005-943, [2005] R.J.Q. 1487.
6. Al-Musawi v. Montreal (City of), 2006 QCCS 2774, upheld by Al-Musawi v. Montreal (City of), 2007 QCCA 1481

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