Thursday, January 01, 2009

Peter J. Beardsworth, Esq.


Hoyt, C.J.N.B., Ayles and Ryan, JJ.A.

Date: 19970324

Docket: 92/96/CA



(Respondent) APPELLANT



(Petitioner) RESPONDENT


March 13, 1996

DATE OF HEARING March 11, 1997

DATE OF DECISION March 24, 1997


Peter J. Beardsworth, Esq. for the Appellant

Sylvio A. LeBlanc, Esq. for the Respondent


The appeal is dismissed with costs.


This is an appeal from a decision of Godin, J. in the Court of Queen's Bench, in which he fixed compensation of $16,000.00 for land owned by the appellant Thomas Dana Snitch that was expropriated by the respondent Town of Dieppe on July 6, 1994. The decision is now reported in 174 N.B.R. (2d) 380. The decision followed a compensation hearing made necessary when Mr. Snitch refused the Town's offer of compensation.

The property, which had an assessed value of $10,800.00 at the time of expropriation, is a vacant lot of approximately 20,000 square feet located in an R-2 zone at the southern end of Beausejour Street in Dieppe. Apart from a sanitary sewer line that crossed the property, it was undeveloped. Both Beausejour Street and the municipal services stopped approximately 110 feet from the boundary of the property. The R-2 zoning permitted either a one or two family dwelling on the lot. Mr. Snitch, who purchased the property in 1991 for $12,000.00, operated a company engaged in the wholesale and retail supply of construction and industrial fasteners. It was his intention to eventually relocate his business to the property. Before doing so, however, Paul Street would have to have been completed so that the property would have access to a main thoroughfare. The land in the area, apart from the lots that fronted on either Champlain Street or Acadia Avenue, was, with one exception, in an R-2 zone. The one exception was a lot on an adjoining street that was rezoned in 1973.

It was with such information that the parties' appraisers based their opinions. The Town's appraiser, Daniel Doucet, valued the expropriated property at $16,000.00 based on its present zoning. Mr. Snitch's appraiser Harrison Goodwin, valued the land at $64,000.00. It was the latter's view that the highest and best use for the property, following a rezoning, would be a 16 unit apartment building. Mr. Goodwin acknowledged

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that it was "a critical premise" of his appraisal that the property would be rezoned. Both appraisers declined to attribute any value to the property based on the projected completion of Paul Street. Mr. Goodwin, for example, said "that the realization of Paul Street Extension is too remote for the purpose of this appraisal".

The Judge rejected Mr. Goodwin's appraisal because he was satisfied, from the evidence, that the land could not be rezoned as contemplated by Mr. Goodwin, thus leaving the property to be valued on its present zoning. The Judge said:

There is a history of consistent adherence to the existing municipal development plan in the area. That plan is consistent with the present zoning for the subject property. The rezoning of the subject property to allow the development of a multiple family dwelling on the subject property is speculative and remote. It is not a realistic consideration in arriving at the market value of the property.

Mr. Snitch submits that the Judge erred in reaching this conclusion because properties in the area have in the past been rezoned to uses that would permit a multiple unit apartment building, thus validating Mr. Goodwin's appraisal approach.

The evidence of Roland Richard, Director of Engineering and Public Works for the Town of Dieppe, and of Michelle Couturier, a Planner for the Greater Moncton Planning District Commission, supports the Judge's conclusion. Ms. Couturier pointed out that in 1995, a Municipal Plan was adopted that confirmed the R-2 zoning for this property, a zoning that existed since 1966. For the property to be developed for

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multiple dwelling use, there would have to have been spot rezoning that, Ms. Couturier testified, is "not to be encouraged at all". The entire basis for Mr. Goodwin's appraisal was predicated upon a rezoning for a 16 unit apartment building, a rezoning that, based on the evidence, the Judge found to be "not a realistic consideration". The evidence amply supports that finding. Apart from properties fronting on Champlain Street and Acadia Avenue, no rezoning from R-2 has occurred in that area since 1973. The recent adoption of the Municipal Plan in 1995 would confirm a continuance of that policy.

To determine the value of a property based upon a use other than that permitted by the zoning at the time of expropriation, there must be a realistic and reasonable probability of such a rezoning. Such probability does not exist in the present case.

Apart from the history of rezoning in that area, the lot itself, as pointed out by Mr. Doucet, presents practical problems for such a development. He, along with Mr. Richard, testified that the lot would have to accommodate a turning area and, as a result, the lot would not accommodate the 16 unit building as well. Thus, not only was there evidence to support the Judge's finding that it was unlikely that a rezoning would be approved, the lot could not accommodate the proposed building.

For the above reasons, we dismiss the appeal with costs of $500.00 payable by the appellant to the respondent.

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