Government Actions that are Not Expropriations
7/2/2013 7:53 AM
It is surprising to most citizens to learn that not all government actions that negatively affect the use or value of a citizen’s land constitute an expropriation. Further, unless an expropriation has occurred, the landowner is not entitled to compensation.
The distinction between government actions that are expropriations (with compensation being payable) and actions that are not expropriations (with no compensation payable) is that to be an expropriation, the government must have taken an actual “property ownership right” from the landowner. If the government action is simply to restrict a use of the land, then the courts have ruled that no property ownership right has been taken, this no expropriation.
An act that commonly affects landowners is municipal zoning. In Nova Scotia, as in all Canadian Provinces, the local municipal government has the jurisdiction to “zone” lands, which generally means to allow or restrict the types of development that can occur on those lands. For example, a municipality can zone a property for residential development only, which restricts other types of development such as industrial development from occurring on that land. This is a legitimate exercise of municipal power (provided that certain conditions are met) and no expropriation occurs as a result.
Other similar restrictions that do not amount to expropriations are the various “designations” pursuant to statutes of the Federal and Provincial Governments. In Nova Scotia these include: the Beaches Act (restricting any future use or development of the land); the Agricultural Marshland Conservation Act (restricting future uses to agricultural or uses consistent with agricultural uses); the Public Highways Act (by which the Province may “reserve” lands for future road development); among others. None of these designations are considered expropriations or injurious affection as no property right is actually taken.
It may seem illogical that these types of government actions do not amount to an expropriation, or at least some type of compensable interest. However, as stated earlier, unless an ownership right is taken or injured, no compensation is required. The reason that these restrictions are not considered to be takings or injuries to the land is that the existing use of the land is not restricted; it is a future change in use that is restricted (as the present uses are “grandfathered,” or considered to be legal, non-conforming uses). Therefore, the Courts have reasoned that no property ownership rights have been affected.
If you have questions or would like to discuss this topic further, please contact Robert H. Pineo at Patterson Law at 1-888-897-2001.
Please note that this article is meant to provide information only and is not intended to confer legal advice or opinion. If you have any further questions please consult a lawyer. Please note as well that many of the statements are general principles which may vary on a case by case basis.