West Kelowna forcing strata to open its waterfront walkway
The City of West Kelowna has won an injunction to, at least for now, force Boucherie Beach Cottages to unlock the gates it put on its waterfront walkway on Okanagan Lake.
The June 17 Supreme Court ruling grants the injunction until the dispute is resolved at a full trial sometime in the future.
“Balancing the relative harms to the parties, I consider that, while the strata and property owners will suffer some inconvenience with the walkway being opened, the city and the public will suffer the greater harm if the city’s application is not granted because they will lose the benefit of using the walkway as part of the city’s recreational path,” Justice Gordon Weatherill wrote in his ruling.
The root of the dispute dates back to 2008 when the developer of 3740 West Bay Rd. started negotiating with the city to rezone the property in order to build 35 townhouse units.
That culminated in an agreement in 2013 and the issuing of a development permit for the project.
Part of that agreement was that the developer sign a walkway covenant and build not only the walkway but also develop Aberdeen Park, which it did.
Two years earlier, the City of West Kelowna adopted its Waterfront Plan that envisioned a three-metre-wide walkway/trail/cycling path along the entire Okanagan Lake waterfront from Peachland to the Bennett Bridge. This was to be part of that pathway.
In 2014, construction was started on the townhouse and a strata corporation was established in May 2015.
At that time, few members of the public used the walkway because there were no connections to other pathways on either end.
That changed in 2017-18 when the Frind Winery was developed on the south side and Paradise Estates to the north.
Still, there was little traffic until Frind Winery removed a hedge that prevented a connection between the two walkways.
“Almost immediately after the hedge was removed, the strata’s residents noted increased traffic along the walkway of upwards of several hundred pedestrians per day in the summer months,” Justice Weatherill wrote. “As a result of this increased traffic, the strata has experienced what it describes as significant problems.”
Those problems included nuisance behaviour by intoxicated people coming and going from the winery, trespass that included into the strata’s private pool, playground, washrooms, and beach and dock, the strata said.
Boaters, including commercial operators, would use the strata’s dock to drop off and pick up winery patrons, the strata said.
On Sept. 17, 2020, the city wrote to the strata asking it to agree to a statutory right of way for the walkway.
Three months later, the strata told the city it had put up a gate and fences at each end of the walkway. It argued that the issue of the walkway predated the creation of the strata and that the conditions of the requested right of way were too onerous.
“I accept that the strata exists because of the quid pro quo that the walkway would be available for the city and public’s use,” Justice Weatherill wrote. “The walkway covenant was essential to the rezoning application being granted. By opposing the city’s application, the strata seeks to avoid the quid pro quo.”
He ordered the strata to not only open the gates but, within 14 days, give the city copies of any keys to locks on those gates and to remove all signage saying use of the walkway is trespassing.
The City of Kelowna has a similar dispute with the Hotel Eldorado over locked gates along its waterfront boardwalk.
That issue is different in the sense that the hotel prevented the city from forcing it to open the walkway during COVID because it ran through its restaurant’s outdoor patio.
Now that COVID restrictions have been eased for restaurants, the city is fighting again to have it reopened.
The root of that battle also revolves around a statutory right of way for the walkway. That issue still has to go to court.
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