A judge has ruled against a Kelowna multimillionaire’s bid to stop a massive condo project from being built next to his waterfront property.
In B.C. Supreme Court on Tuesday, Justice Geoffrey Gomery dismissed Chuck Fipke’s application to quash two important permits regarding Aqua Waterfront Village — a three-tower project featuring 154 residences on the shores of Okanagan Lake.
Basically, Fipke argued that Aqua shouldn’t proceed because of incorrect math, saying the development’s density calculation includes submerged land that shouldn’t be counted. Subtract that unusable land, and the ratio exceeds the city’s floor-area ratio (FAR) limit.
Ultimately, in a 6,000-word decision, Gomery sided with the defendants, Aqua Resort Ltd., and the City of Kelowna, which issued the necessary building permits for the controversial project.
In his decision, Gomery noted that the lakeshore has moved inland over the years, and that a portion of the land belonging to Aqua is now under water.
The court decision noted the city relied on a land survey conducted nearly 100 years ago, in 1938, along with modern surveyors.
“The city proceeded on the basis that the submerged land could be considered as part of the land owned by Aqua, prior to development, for the purpose of satisfying a density calculation requirement imposed by City bylaw 8000,” wrote Gomery.
According to the decision, Aqua said the submerged land was due to avulsion, not erosion – an important factor that Gomery sided with.
Avulsion is the sudden and perceptible loss of land, such as flooding, unlike erosion, which is slow and imperceptible.
“Council approved issuance of a development permit to Aqua on this basis,” wrote Gomery, who later noted that Aqua would transfer the land to the province if the project was given the green light.
Gomery also said that “Fipke contends that a fundamental premise of the city’s decision – that Aqua retained ownership of the submerged land – was legally and factually unsound, and that the decision was therefore unreasonable.”
The court decision discussed how land surveyors attributed shoreline loss to the 1948 flood, though Fipke submitted that “surveyors mistakenly ignored the evidence of a loss of land prior to and subsequent to the flood of 1948,” and that there has been “further recession of the shoreline since 1948.”
Ultimately, though, Gomery dismissed Fipke’s application.
Regarding the submerged land, the justice said “it was reasonable for the city to put its faith in professional surveyors who had investigated the matter and articulated reasoned conclusions.”
He also said “acting reasonably, the city was not required to challenge the legal and factual analysis presented to it. It could view the submerged land as owned by Aqua.”
In an email to Global News, counsel for Fipke said he is seriously considering appealing the decision.
Four years ago, Kelowna Mayor Colin Basran was the only one to vote against the project.
The court decision can be viewed online.