City of Kelowna files lawsuit against Hotel Eldorado over access to waterfront

Photo: Kirk Penton

The City of Kelowna and owners of the Hotel Eldorado are at odds over public access along the foreshore of Okanagan Lake.

That dispute may ultimately be decided by a judge after the city filed a lawsuit earlier this week in BC Supreme Court.

At issue, according to the court filing, is 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 public access in front of the hotel stretches from Gyro Beach south to the Mission Creek Greenway.

The city was granted the perpetual right-of-way as part of a development permit application by the Hotel Eldorado for construction of a fuel facility on its dock.

City council granted the application, including the right-of-way provision in March of 1999.

Court documents state the agreement granted all members of the public, during daylight hours (sunrise to sundown), "at their will and pleasure, to enter, go, pass and repass upon and along the perpetual right-of-way."

Provisions were made for temporary interruption as long as it does not unreasonably impair the use of the right-of-way.

The city alleges in its filing that the hotel began locking the gate at the south end of the right-of-way in the spring of 2020, thus preventing public access.

The lawsuit claims the reason for the closure was a risk to public health from potential COVID-19 transmission "allegedly posed by the proximity of the public passing along the perpetual right-of-way to food and beverage staff and patrons."

The city is claiming closing access is in direct contravention to provisions outlined in the agreement, and is not justifiable on public health grounds.

The city also claims the southernmost section of the right-of-way is obstructed by landscaping improvements made by the Hotel Eldorado, improvements the city alleges were not permitted.

In its court filing, the city is seeking a declaration from the hotel that it is in breach of the agreement, that the gate remain unlocked from sunrise to sundown, that landscaping encroaching onto the right-of-way be removed, and that the Hotel Eldorado pay costs incurred by the city.

Multiple calls for comment to Argus Properties, which owns the hotel, have not been returned.

Argus has not yet filed a response in court and the allegations made by the city have not been proven.