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Municipal law — Zoning — By laws — Validity — Whether Court of Appeal erred in disregarding fact that amendments to planning program inconsistent with land use plan in effect — Whether Court of Appeal erred in holding that referendum process under Act respecting land use planning and development, R.S.Q., c. A-19.1, could apply to part of single by law made possible by application of exceptional provisions, namely ss. 89 and 89.1 of Charter of Ville de Montréal, R.S.Q., c. C 11.4 — Whether Court of Appeal erred in fact and in law in failing to find unlawful [TRANSLATION] “fragmented zoning”.

Outraged to find that the Université de Montréal was selling a heritage building located in the historic and natural district of Mont Royal to a real estate promoter, the applicants decided to join forces to fight the sale of the immovable. They instituted an action in nullity and for a declaratory judgment seeking the annulment of public notices published by the City of Montréal (“the City”) and by laws and a resolution adopted by the City. Section 89, para. 1, subpara. 5 of the Charter of Ville de Montréal (“CVM”) authorizes the city council to adopt a by law containing planning rules for the carrying out of a project related to a heritage immovable. The parties disagreed on the proper interpretation of s. 89.1 CVM, which was at the heart of the dispute:

89.1. Notwithstanding the third paragraph of section 123 of the Act respecting land use planning and development (chapter A 19.1), the by law adopted by the city council under section 89 is not subject to approval by referendum, except, subject to the fourth paragraph, where applicable, in the case of a by law authorizing the carrying out of a project referred to in subparagraph 5 of the first paragraph of that section.

In the applicants’ view, this provision eliminated s. 123, para. 3 of the Act respecting land use planning and development (“ALUPD”) from the approval by referendum process. As a result, all the provisions of the [TRANSLATION] “By law authorizing the transformation and residential occupation of the building located at 1420 du Mont Royal Boulevard” adopted by the City were subject to approval by referendum. According to the applicants, this meant that the City could not divide up that by law and exclude some sections from the referendum process on the ground, for example, that their purpose was only to ensure concordance with the planning program, as permitted by the exception in s. 123, para. 3, subpara. 2 ALUPD. The City argued that s. 89.1, para. 1 CVM in fact made the relevant provisions of the ALUPD, including s. 123, para. 3, applicable to a project covered by s. 89, para. 1, subpara. 5 CVM.