The City of Kelowna and Hotel Eldorado are back in court this week, the latest chapter in a dispute over a gate that was blocking access to the public boardwalk alongside the hotel’s patio.
The city first sued the hotel in 2021 after the hotel locked a gate providing access to the boardwalk, citing concerns related to crowds and the COVID-19 pandemic.
The gate has since been opened during daylight hours, following a pair of court hearings, but the two sides are back before a judge to settle the outstanding question of whether the city actually has a legal right of way to the boardwalk.
City of Kelowna director of real estate Johannes Säufferer was on the stand Friday morning, under cross examination, on day two or what is expected to be a five-day trial.
Eldorado lawyer Jeffrey Frame raised questions about the development process that went into securing a public walkway in front of the nearby Aqua Resort development, under construction nearby.
Säufferer noted repeatedly that he is not a part of the city’s planning department so has only a surface understanding of what went into approving that project.
The Aqua Resort development resulted in a lawsuit by nearby resident and prominent businessman Charles Fipke who tried and failed twice to have the development approval overturned.
Fipke argued that the Aqua development achieved density that was higher than what should have been allowed because the city counted land that is now under water as a developable area. He lost that argument at both the BC Supreme Court and the BC Court of Appeal.
Frame made multiple references to the Fipke case and the court heard that the hotel would be relying on the Fipke case as part of its argument in the case involving the boardwalk.
It’s not clear at this point how the Fipke case could be used against the City of Kelowna, as Säufferer responded to questions about it on Friday by stating his understanding of the Fipke case was limited to media reports.
The city’s original lawsuit claims that there was a provision in a 1999 agreement between the city and the former owner of the hotel that a "registered statutory right-of-way in favour of the city for public access along the foreshore of Okanagan Lake" be maintained.
The hotel is arguing that right of way is non-enforceable because it imposes a “positive obligation” by requiring the hotel maintain the lakeside walkway and keep it in good repair.