This beach may one day be a park but access to it has been blocked off by the City of Kelowna.

(ROB MUNRO / iNFOnews.ca)

The Hotel Eldorado and City of Kelowna spent two years waging a court battle over whether a gate leading to the hotel’s outdoor patio should be open or closed.

The city won that fight in April and the gate – which gives access to a waterfront boardwalk that runs through the hotel’s patio – remains open.

But not far away, the city turned around and blocked off public access to the lakeshore.

READ MORE: Fight over gate at Kelowna’s Hotel Eldorado now before the courts

The hotel locked the gate when COVID restrictions limited the number of people able to use the patio and required safe distancing.

The city sought an injunction to force the gate open so people could walk along the waterfront, coming out at Rotary Beach Park, about half a kilometre to the north.

BC Supreme Court Justice Paul Riley ruled in October 2021 that the gate had to be left open on days not suitable for outdoor dining.

“Although it might fairly be said that denial of public access to a short stretch of lakeside walkway for the period of time necessary for this action to come to trial is a harm of a different magnitude than complete denial of access to a public body of water, I would not want to trivialize the public interest in unimpeded access to the lakeside walkway in the interests of recreation and tourism,” he wrote.

A more recent ruling, now that COVID restrictions are gone, says it has to be open during the day.

This is the gate at Hotel Eldorado that's now open during the day. The blue sign reads: Private Property: Daytime public access on the Hotel Eldorado and Manteo boardwalks is available by agreement between the Owners and the City of Kelowna.

(ROB MUNRO / iNFOnews.ca)

The Hotel Eldorado is on the north side of the Cook Road boat launch.

The city also owns a short boardwalk in front of the Mission Shores Vacation Rentals on the lake south of the boat launch and just north of Mission Creek.

Despite what the court said about access to the waterfront at Hotel Eldorado, the city has closed off all access to the south side of the boat launch.

This is the fence blocking access to the waterfront south of the Cook Road Boat Launch.

(ROB MUNRO / iNFOnews.ca)

That includes the beach pictured above, which is in front of the Mission Group's Aqua development now under construction, and the city’s own boardwalk by Mission Shores.

In fact, there is no public access to the roughly one-half kilometre beach between the boat launch and Mission Creek.

‘Yes, it’s going to be a city park, eventually,” Blair Stewart, the city’s parks services manager told iNFOnews.ca about the beach in front of Aqua. “But currently, it’s got demolished retaining walls and a bunch of random structures on it so we fenced along the dock at Cook Road. People were crossing over the dock and going into this beach area because they knew it was owned by the city.

“Just because it’s owned by the city doesn’t mean it’s accessible to the public. Sometimes there’s a reason why we acquire property for the future so we fenced it off at the dock side. We also fenced it off on the walkway on the north end of Truswell.”

That does not sit well with Al Janusas who heads the Plan Kelowna group that has long advocated for increased public access all along Okanagan Lake, with a particular focus on the area from City Park to Mission Creek.

“In front of Mission Shores, all the taxpayers collectively own that, yet you can’t really get to it,” he told iNFOnews.ca.

This Google map shows the stretch of beach closed to the public, although it's Mission Creek, not Trust Creek. Aqua is being built along Capozzi Road.

Image Credit: Google Maps

Instead of blocking it off, the city and province should simply tell Mission Group to clean it up so it’s safe and accessible to the public, he argued.

“It should be a top priority of the city,” Janusas said. “The relatively small amount of land that we have that’s on the lake that people want to use – and I think it’s completely reasonable that people want to use property that we own – the city is intentionally not allowing access or not facilitating access to that lakefront property. I think that’s a real problem.”

There once was a narrow access lane between one of the last remaining single-family homes on that stretch of shoreline (owned by diamond millionaire Charles Fipke) and the houses that were bought and demolished by Mission Group, Janusas said.

READ MORE: Kelowna multimillionaire who lost court case stuck with highrise neighbours

That, too, has been fenced off.

At the south end of Truswell Road, a chain-link fence was put up last summer blocking off access along the creek to the beach, Stewart said.

People had been walking through private property next to the creek in order to get to a beach that is on Crown land and not owned by the city.

It took about a day before that fence was cut and it’s been repaired about a dozen times since. The city has now installed a much stronger steel fence.

“People were dragging pallets out there,” Stewart said. “They were drinking and causing problems. Having fires. Residents of adjacent properties had to phone the fire department, the RCMP and bylaw when there was drug and alcohol stuff going on so we were asked by all those services to do something to try to mitigate people getting there.”

It made more sense, he said, to block it off and save police and firefighting resources for other tasks. They, too, had to cross private property to get to the beach.

“The city doesn’t own the property so we’re just trying to stop people from trespassing on private property from this location,” Stewart said. “It’s just unsafe.”

There is also the question in all of this as to where the high water mark is on the lake. The public has free access to all lands below the high water mark.

Janusas says the city uses antiquated methods of determining that mark, such as evaluating the debris and vegetation.

He argues that modern technology should be able to easily record the exact high water mark so the public can simply walk unimpeded along the lakeshore.

“From a legal standpoint, no it shouldn’t be (closed),” Janusas said. “Does the city have justification in blocking it off, even though technically it’s illegal for it to be blocked off? Is there justification because there’s a perceived danger to the public because of construction ongoing and the fact there is debris there?

“I don’t think there’s any good reason why the city and the province couldn’t say to Mission Group, clean this up so people can use it. If you have construction going on adjacent to it, erect proper fencing in between this public beach and your construction site.”

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