Canada: Quebec Tightens Restrictions On Construction And Other Projects In Flood-Prone Areas

In 2017 and 2019, Quebec was struck with severe spring flooding. In the Spring of 2019, floods affected more than 250 municipalities, damaged thousands of residences and forced the evacuation of over 13,500 people. Following these incidents, municipalities and the Quebec government were criticized for issuing construction permits in flood zones over the years. In response, the government has set up a ministerial action group to better address the needs of those affected, prepare Quebec for spring flooding in the future and ensure strict management of flood zones.

In the wake of these events, the government published the Draft Order respecting the declaration of a special planning zone to promote better management of flood zones (Draft Order) on June 17, 2019, which establishes a special planning zone (SPZ) in 0-20-year flood zones, as well as in areas that experienced flooding in 2017 and 2019. The Draft Order placed a freeze on the construction and reconstruction of buildings in the affected areas, until the publication of the final version of the order. The final version of the order was published on July 15, 2019 (Order), which now imposes a moratorium (subject to certain exceptions described below) on the construction and reconstruction of buildings in the affected areas. These restrictions are to remain in effect until a new regulatory framework is established by the government and implemented by all municipalities.

Landowners affected by the floods of 2017 and 2019 are therefore now subject to prohibitions and restrictions that could have a significant impact on the value of their property and the feasibility of new development and construction projects, even if the property is located outside of flood zones mapped by their municipality.

LEGISLATIVE FRAMEWORK

The Protection Policy for Lakeshores, Riverbanks, Littoral Zones and Floodplains (Policy) establishes guidelines for the management of floodplains, prohibiting construction in areas that are prone to flooding every 20 years and restricting construction in areas that are prone to flooding every 20 to 100 years. Regional county municipalities and local municipalities are responsible for delineating flood zones and regulating structures, undertakings and works located in flood zones in accordance with the Policy. However, the Policy's application has been inconsistent; certain municipalities have yet to adopt a map designating floodplains whereas others have adopted local regulations that do not comply with the Policy.

In addition, under the Act respecting land use planning and development (Act), the government may, by order, declare any part of the territory of Quebec to be a SPZ for the purpose of solving a development problem whose urgency and seriousness warrant intervention. The provisions of the Order replace local and regional land use planning and development regulations. However, urban planning regulations that are compatible with the SPZ provisions will remain in force and municipal authorities will be responsible for the application of the entire regulatory framework.

SPECIAL PLANNING ZONE AND FREEZE

As previously mentioned, the Order establishes a SPZ encompassing all 0-20-year flood zones delineated in municipal planning tools as well as areas flooded during the spring floods of 2017 and 2019. The SPZ perimeter for the areas that were flooded in 2017 and 2019 is identified on this map. The SPZ established by the Order was reduced from the SPZ originally delimited by the Draft Order, following public consultations and comments from municipalities that it was too far-reaching. In all, the SPZ now includes 783 municipalities (instead of 813 municipalities in the Draft Order), approximately 312 of which were flooded in 2017 or 2019. Landowners whose lands are not located in areas that are mapped as being in a 0-20-year flood zone and which were not flooded in 2017 or 2019 are not subject to the SPZ.

As provided by the Act, upon publication of the Draft Order on June 17, 2019, a freeze was imposed on any new construction, alteration or addition in the SPZ created by the Draft Order, subject to the exceptions provided in Order 564-2019, including to avoid obstructing work that is consistent with protection measures permitted under the Policy.

The freeze enacted by the Draft Order remained in effect until the publication of the Order, on July 15, 2019, and as of this date, all structures, undertakings and works, including reconstruction of flooded undertakings and structures are prohibited, subject to certain exceptions. An exception from the prohibition applies to the territory of the Ville de Sainte-Marthe-sur-le-Lac, one of the most severely flooded municipalities in the spring of 2019, which was not already mapped by the regional county municipality as being in a 0-20-year flood zone, excluding vacant land. Other exceptions to the prohibition are also provided, including in respect of works permitted pursuant to the Policy, which include maintaining land in good condition; repairing, maintaining, modernizing or demolishing existing structures; works, structures or undertakings for municipal, industrial, commercial or public purposes; septic installations for existing residences; alteration or replacement of an existing water withdrawal facility; and land drainage works.

Repairs to buildings which have not suffered substantial damage (as set out in the Order) will be permitted, and buildings for which the extent of the damage is valued at more than half of that building's value will need to be demolished. Flood-proofing measures set out in the Policy and enhanced measures for residential structures will apply, as the case may be.

The measures provided for in the Order will apply in the territory of regional county municipalities until each of their respective municipalities has integrated the new prescriptive framework.

MAPPING – CONSEQUENCES AND MODIFICATIONS

Municipalities may now provide comments on the updated version of the map indicating the areas that are subject to the SPZ and it is suggested that individuals wishing to make comments communicate with their municipality. Comments must be sent to zis2019@mamh.gouv.qc.ca no later than August 19, 2019.

In light of the above, particular attention should be paid to the SPZ map established in the Order. Indeed, the application of the SPZ to flood-prone areas may impact the value of residential buildings, as well as property values and insurance.

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© 2019 Blake, Cassels & Graydon LLP.

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3 Oct 2019, Seminar, Toronto, Canada

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