(ADAM PROSKIW / iNFOnews.ca)

A real estate developer is suing the City of Kelowna to release its own lands from a restrictive covenant designed to accommodate a second crossing of Okanagan Lake.

Watermark Developments Ltd said it was originally forced to agree to the restrictive covenants on its lands in 2009. The statement of claims says the covenants were a requirement to begin developing the rest of its land along Academy Way near Arab Road near UBC Okanagan.

Roughly 35% of the lands, or 13 acres, were deemed to have no value because of the covenants.

The covenants were deemed required because the City was planning roadworks in conjunction with a proposed second crossing at the foot of Knox Mountain.

But a lot has happened since 2009. When Watermark noticed the crossing wasn’t in the Official Community Plan, nor long range transportation plans from the Central Okanagan and the province, it wrote to the city three times asking for the removal of the covenant, but was denied.

“The restrictive covenants effectively sterilize the property, as the portions of the Property unencumbered by the restrictive covenants do not have access to the existing roadways,” the suit claims.

“The City of Kelowna’s lack of concrete plans and budgets to use the Restrictive Covenants indicate that the City might not ever benefit from the Restrictive Covenants, even if they remain on title, making the Restrictive Covenants of no value to the City of Kelowna.”

Watermark is petitioning the court to remove the covenants.

“Watermark has been unable to realize the value that the property holds due to the restrictive covenants encumbering the land,” the petition says. “(They) prevent Watermark from developing the land and would significantly reduce any sale price of… property should Watermark choose to sell the… property.

“The City of Kelowna has other options. The 2040 Plans contain budgeted plans for two additional parallel roadways which will offer alternate routes to John Hindle Drive. If a third additional roadway is needed after 2040, the City remains free to negotiate with the Petitioners or other successors in title to pursue that initiative.”

The claims have not yet been tested by the courts.

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