Waterfront motives questioned

By Chuck Poulsen Friday, April 27, 2007 http://www.dailycourier.ca/stories.php?id=41057

City Hall is trying to do an end run on the Simpson covenant that won‘t stand up in court, Sharron Simpson and her lawyer said Friday. On Monday, Kelowna city council will be asked by staff to remove the covenant and zone the waterfront properties as parkland. The lands involve property that is in the Kelowna Sawmill (Simpson) Covenant, including waterfront land between Queensway and the Water Street Seniors‘ Centre. The covenant has been an issue because some downtown waterfront land would have been used in the Lawson‘s Landing development. That project was derailed by the federal government for environmental reasons, but lawyer Tom Smithwick is suspicious that the park zoning proposal is a means of circumventing the covenant whenever council might decide it wants to.

“It‘s been quite clear for the past two or three years with what‘s been going on with the signing of a contract by the city to sell land to a third party (Lawson Landing), that that placed the whole Simpson covenant issue and these lands in jeopardy. “That leads me to believe that if they (the city) want to remove the covenant, what they are doing is removing a nagging annoyance of people who have been saying ‘Wait a minute, there is history here and we have certain rights.‘ “If the nagging annoyance of the Simpson covenant goes away, does that leave them with free liberty to do what they will from decade to decade? Yes, it does. “Do I have suspicions that they may have uses they will bring forward on the land, contrary to the covenant? Absolutely.” Simpson worries the city might some day rezone the land from park to commercial use. “With any piece of property in this city, there can be an application to rezone that land unless there is some restriction on it,” said Simpson. “If they remove the covenant, there is nothing to say they can‘t rezone it to commercial afterward. If the covenant remains, the land can not be resold.” Smithwick says he has a precedent-setting decision from B.C. Supreme Court in 2004 that supersedes the city‘s previous legal advice. He said the case of Water Front Parks Society versus the City of Vancouver is similar to the issue here. The Vancouver case was won by the society, upholding a covenant on CPR land from 1919. Asked if she is prepared to take Kelowna to court, Simpson said: “I really hope we aren‘t going to go to that, but I‘m not going to back down on the issue, either.”

Should the rezoning be approved, it would mean a significant step towards the preservation of public waterfront from City Park to Waterfront Park and Rotary Marsh, said David Shipclark, the city‘s director of corporate services. The covenant was placed on the properties in 1946 when they were sold to the city. It restricted their use. The proposed rezoning would identify the original parcels, plus land that City Hall, the Museum and Memorial Arena sit on, for the public‘s use as parkland. The Kelowna Sawmill Covenant never guaranteed these lands would be public park. The covenant only stipulated the lands be for municipal use, said Shipclark. “If council agrees to the staff recommendations, we will be able to preserve public access to Okanagan Lake throughout the downtown,” said Shipclark. “There was no provision in the Kelowna Sawmill Covenant for public access to the waterfront, and no provision for parkland. The new arrangement would guarantee both.”