Kelowna multimillionaire who lost court case stuck with highrise neighbours
The courts have ruled against one of Kelowna’s wealthiest men, leaving him to face a future with his prime waterfront property being overlooked by neighbours in soon-to-be-built highrise towers.
Charles Edgar Fipke made his fortune in diamonds and owns a 6,000 square foot waterfront home on Capozzi Road in the South Pandosy neighbourhood of Kelowna.
Last summer, he filed a lawsuit against the City of Kelowna and Aqua Resort Ltd. in an effort to stop construction on three towers of 13, 15 and 17 storeys with 154 housing units next door to his house.
A four-day hearing was held in January and the decision was issued yesterday, March 15, and Fipke lost.
READ MORE: Kelowna diamond mogul waits to hear fate of waterfront home's view
At issue was the fact that a portion of Aqua’s land that was used to calculate the floor area ratio, or density, of the project has been underwater for decades.
Fipke argued that land could not be included in the calculation of how many units were allowed.
B.C. Supreme Court Justice Geoffrey Gomery disagreed.
Under law, if land is eroded from someone’s property, it’s lost to the owner, Gomery's ruling explained. But that process happens over a period of time, often years.
If the land in question was washed away in a single event, called avulsion, the submerged land still belongs to the owner. In this case, the land was washed away in a massive Okanagan Lake flood in 1948.
Therefore, Gomery ruled, the land was appropriately included in the calculation of the density allowed for the highrise development.
As it has turned out, neither Aqua nor the city wanted to own the submerged land so, during the process of the development being approved, that land was given to the province but it still counted towards the density calculation.
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