She fought city hall – and won

Don Plant 2009-01-02 Kelowna Courier:
Sharron Simpson was going through security at Kelowna Airport last weekend when a guard in his 50s congratulated her. As champion of a historic agreement to retain part of downtown Kelowna for public use, Simpson is accustomed to people endorsing her battle to preserve the Simpson covenant. The security guard was just one more supporter to wish her well. Still, she was surprised to hear it from such an unlikely source. “I thought, ’What?‘ He‘s lived here all his life. He said ’I‘m so glad you won.‘” Many questioned whether she would.

Simpson, The Daily Courier‘s newsmaker of the year, seemed to be a modern-day David hurling stones at the Fortress of Kelowna. City council had made a unanimous decision to remove the covenant, saying it was outdated and unenforceable, and planned to rezone the 11 acres of prime real estate to parks instead. The move touched off outrage among supporters of the covenant, who suspected it was the first step toward rezoning the land for commercial use. Simpson, lawyer Tom Smithwick and a non-profit society of allies served the city with a legal challenge soon after. “You have to stand up for what you believe in and fight for it,” Simpson said this week. “You must fight city hall if they‘re wrong. That‘s how democracy works.” She argued her grandfather, Stanley Simpson, whose Kelowna Saw Mill occupied the land, signed the property over to the city in 1945 on the condition that it be used only for municipal purposes and the enjoyment of Kelowna citizens. Voters supported the city buying the parcel for $55,000 and stood behind the covenant in two referenda. “The city council of the day and the people . . . agreed with this purchase. A subsequent council did not have the right to rewrite history and simply wipe that off and say ’We changed our minds.‘ An agreement is an agreement,” Simpson said.

After a June trial in B.C. Supreme Court, Justice Catherine Bruce agreed – to a point. The judge concluded the covenant protecting the area bordered by the waterfront, Ellis Street, Doyle Avenue and Queensway didn‘t actually exist. In its place was an enforceable, charitable trust based on common law. The city refused to back down. Its lawyer, Barry Williamson, suggested the judge made a mistake; a charitable trust can‘t be created when money changes hands, as it did more than 60 years ago. Councillors accepted the advice. In August, they agreed to take Bruce‘s decision to the B.C. Court of Appeal. The decision unleashed a fury among voters. Some accused city council of being secretive and evasive, with key decisions made in-camera. Others suggested councillors had a secret agenda or some back-room deal in the works. What followed council‘s decision to appeal was an about-face rarely seen in Kelowna politics.

Mayor Sharon Shepherd sent out a startling press release that declared her intention to abandon the appeal as part of her re-election campaign in November. Her council colleagues accused her of violating confidentiality rules outlined for politicians in the Community Charter. Simpson thinks Shepherd was courageous. “It was a gutsy move,” she said. “I think it precipitated council‘s decision not to proceed with the appeal.” Any politician sniffing the wind could tell the electorate was fed up with council‘s apparent secrecy. By late October, councillors voted to scrap the appeal and create a public consultation process to determine the potential uses of the municipally owned property. For candidates running for council, the covenant was a moot issue.

Simpson fought the city on principle, she said. If politicians replaced the covenant with a policy that restricts selling off the Simpson land, another council might bend the rules. Councillors could hypothetically approve a 15-storey residential tower next to City Hall and dedicate the first five floors to city staff. “That would be commercial use – not allowed under the covenant,” she said. Selling treats or sharpening skates for a fee at Memorial Arena is a red herring, Simpson said. Selling goods or services at that scale is ancillary to the main use of the building. She now has her eye on the parking lots across the street from and next to City Hall. Kelowna may need more parking in that area, but “it doesn‘t have to be on that valuable land, and certainly not along the waterfront.” Instead, she‘d like to see parkland with trees, sculptures, a skating rink and a plaza – an “oasis” amid a downtown crammed with highrises. “It‘s OK to have open space and not build anything on it,” she said. “It‘s an opportunity. We have to create a more human scale.”