The City of Kelowna is appealing a B.C. Supreme Court decision to uphold a 62-year-old covenant that restricts the commercial use of 4.5 hectares of prime Okanagan lakefront in the city's core.
Mayor Sharon Shepherd, however, says she does not support the appeal and plans to campaign for re-election Nov. 15 on a promise to scrap it.
Ms. Shepherd said she cannot discuss the votes that she and eight city councillors cast Monday night at a closed meeting about the filing of the appeal, but predicted the issue will be contentious in the municipal election campaign.
"Our phones and e-mails have been going non-stop since I said I'd try to defeat it. Everyone's in support. It's very heartening," said Ms. Shepherd, who has been mayor since 2005.
"This issue has been going on for over four years and I got a good feel from the community over that time about what they wanted."
The land, once owned by businessman Stanley Simpson, was the site of the Kelowna Sawmill Co. for 50 years until a fire destroyed it. He sold the land to the city in 1946 for $55,000. An agreement on the sale, which became known as the Simpson covenant, stated the property could be used for municipal purposes only, a position ratified by public referendum at the time.
Kelowna City Hall was built on the property, as was Memorial Arena, the city's main museum, the Kelowna Yacht Club and several parks and gardens.
In recent years, the city had begun to remove the covenant, saying it was outdated and unenforceable. City officials wanted to rezone the waterfront portion as parkland and apply a new civic centre zoning designation around city hall.
But that plan fell afoul of Sharron Simpson, the businessman's granddaughter, who formed the Save the Heritage Simpson Covenant Society to sue the city over its removal of the covenant, an action that eventually reached the Supreme Court.
Madam Justice Catherine Bruce ruled Aug. 13 that the covenant is a "valid and subsisting charitable trust that requires the city to use the subject properties for municipal purposes and not for commercial or industrial purposes, and which prohibits the city from selling the properties."
Ms. Simpson said there had been concern that public-private partnerships would have been created for projects on the land such as condominium towers with spaces for city use, which she believed would go against the spirit of the covenant.
"It's very curious that the council is arguing against a court ruling that says the land is to stay in trust for municipal use. There is certainly speculation in the community [about what the council had in mind]" she said.
She added that the society did not take issue with smaller commercial ventures that serve the public.
"Ancillary commercial uses on this property have been going on for 50 or 60 years. Nobody is challenging that and the ruling didn't either. They've been selling hot dogs and sharpening skates for many years."
Ms. Simpson's lawyer, Tom Smithwick, said the case is important for other B.C. communities.
"When a party gives land to a municipality and then enters into conditions or covenants, it's an important fact because the citizens of any municipality of any province are the benefactors of the gift," he said.
"If a government then ignores the conditions, the trust and the agreements, then shame on the government in question."
One offshoot of the controversy, Mr. Smithwick said, was that a local landowner told him he had planned to bequeath Kelowna a section of land, but changed his mind after the city's attempt to revoke the covenant.Report Typo/Error
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