Focus On


Thursday, June 10, 2021 @ 5:46 AM  

Lexis Advance® Quicklaw®
Appeal by two property owners from refusal of their claim based on constructive expropriation by the respondent municipality. The respondent passed a resolution in accordance with a storm water management plan developed by an engineering firm that restricted the appellants from developing their properties due to their presence within the designated flood zone and buffer. One appellant’s property was located within the flood zone and contained a shed, greenhouse and vegetable garden. The other appellant’s property was partially within the flood zone and was used as a parking lot for commercial vehicles. The respondent denied subsequent requests by the appellants to further develop their properties. The appellants took the position that the respondent’s resolution constituted a whole or partial constructive expropriation of their properties. The application judge found no constructive expropriation, as the resolution did not absolutely prohibit all development and the appellants still enjoyed some reasonable uses. The property owners appealed.

HELD: Appeal dismissed. The doctrines of issue estoppel or abuse of process did not preclude the respondent from arguing that the resolution did not prohibit all development, as there was no prior judicial determination of the issue of constructive expropriation, and no prior finding on the prohibition issue in a purchase notice proceeding. The respondent’s position on development was consistent with its overriding assertion that no constructive expropriation occurred. No errors of fact or mixed fact and law were established with respect to the application judge’s analysis. The finding that development was restricted rather than prohibited was supported by the evidence. There was no evidence of the resolution being relied upon to deny development for a permitted or discretionary use. There was no evidence the appellants were unable to continue their current uses of their properties. The restrictions placed upon the properties by the respondent did not rise to the level of confiscation required to justify a finding of constructive expropriation.

Gosse v. Conception Bay South (Town), [2021] N.J. No. 98, Newfoundland and Labrador Court of Appeal, D.E. Fry C.J.N.L., C.W. White and W.H. Goodridge JJ.A., April 20, 2021. Digest No. TLD-June72021010