This is a rendering of the proposed highrise at 350 Doyle Ave. in Kelowna.

Image Credit: Image Credit: Submitted/Appelt Properties and Wexford Developments

The future of a highrise on city-owned land in downtown Kelowna is now in the hands of the courts with the city’s lawyers calling for the total rejection of a lawsuit filed against it.

At issue is the fact that 350 Doyle Avenue Holdings, which won the right to lease land at the former RCMP building at that address and build a 25-storey highrise, paid a number of students who spoke at a public hearing in support of its application.

“If council had learned of the payments to those students before it made its decision, along with the developer’s non-disclosure of those payments, it would have been a reasonable response to refuse approval of the application,” says the city’s defence against the lawsuit, filed late last week. “The amounts paid to speakers were not trifling and they cannot be taken to amount to ‘coffee and cinnamon buns’ as argued by the developer.”

Of the dozen or so people who spoke at the public hearing, all gave local addresses and two participated remotely.

The redevelopment of the site has been controversial since it went out for a call for proposals in 2019. Right from the start it was opposed by the Kelowna Legacy Group who called for a more detailed study of plans to redevelop that area of the city.

Over the next three years the project changed from 13 to 25 storeys with a public hearing held on July 26, 2022, where city council granted a development variance permit for the additional height.

When it came to light a number of students were paid per diems of $250 each to speak at that meeting, the city said the process was tainted, rescinded the permits and gave the developer time to re-apply.

READ MORE: Kelowna council stalls construction of 25-storey downtown highrise

Instead, the developer filed suit against the city last month, arguing there was nothing wrong with paying people who wanted to support the project because they would be out of pocket for things like travel and accommodation since the hearing was held outside the UBC Okanagan school year.

The money was paid through a third party consultant called JDH Naturals.

“No information was provided in JDH’s May 28th email or thereafter with respect to which students spent time away from work for information sessions, amounts of foregone wages, the number and length of the information sessions, the ‘significant amounts of time developing speaking materials,’ travel times or the amount of parking or meal expenses,” the city’s response says. “No information was provided by JDH as to its efforts or methods to identify ‘and unite’ the students, described as ‘a like- minded stakeholder group.’”

READ MORE: Developer sues City of Kelowna for stalled controversial downtown highrise

The city’s lawyers argue the city is fully within its power to rescind the permits and pointed out that, while consultants such as architects and engineers are often paid for their time at public hearings, that is not expected of the general public.

“The payment of funds to speakers is not something that council could be expected to contemplate in the normal course,” the legal response says.

“Therefore, contrary to the developer’s argument, council could not be expected to either question a member of the public speaking in support of a development about whether they had received any financial or other benefit from an applicant or enact specific rules prohibiting a member of the public from receiving a financial benefit from an applicant.”

It asks the entire lawsuit be dismissed with costs.

“In the alternative, if the court finds that the decision under review was unfair or unreasonable, the correct remedy is to remit the matter back to the city for consideration in accordance with the court’s reasons,” the response says, noting that three days will likely be needed if it goes to a hearing.

No date has yet been set for the hearing.

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