A civil lawsuit over the height and setbacks of a controversial condominium development planned for just east of Knox Mountain in Kelowna, Canada has opened in court.

The lawsuit, brought by Murray Porubanec, who lives 50 metres from the planned three-building, 218-unit development, centres on whether the height and the setbacks of the development contravene the zoning requirements for the site.

The City of Kelowna, Saskatoon-based project developer Meridian Developments and land owner Knox Eminence Development Corp. are all named in the lawsuit and Porubanec wants to have the approval Kelowna city council gave the project overturned.

“I want a project that fits (the requirements), said Porubanec, during a recess in the court proceedings. “I’m not anti-development. I’m very pro-development and pro-business.”

But he said it appears the city came up with a “new way” to calculate height in order to allow one of the buildings to be four storeys high and 19 metres tall in a zone that says the height limit should be a maximum of three storeys and 13 metres tall, Castanet reports.

The development, at 630 Boynton Place, was approved in a 6-2 vote by council in August 2022 after a fiery three-and-a-half-hour public hearing, where the developer and planning staff were accused of trying to misrepresent the building’s size.

Things were so heated that some councillors took the unusual step of chastizing members of the public who spoke at that meeting.

“I was really taken back by these character assassinations and attacks that were made by some members of the public…that’s wrong,” said Coun. Charlie Hodge at the subsequent council meeting.

The development’s initial proposal placed the building at 19-metres tall, plans that were pulled after neighbourhood backlash, and resubmitted with the city saying they recalculated the height and it conformed with zoning requirements of 13-metres in height — a figure Porubanec’s lawsuit alleges was achieved with incorrect measurements.

The lawsuit also claims the development should have to meet a six-metre front yard requirement, but was approved with just 4.3-metre setbacks and the zoning only allows a three-storey building, not four.

In court Thursday, the lawyer representing Porubanec said the “average grade point” used to measure the height at ground level is in question, adding the fact the building is slated to be built on a slope complicates matters.

A development permit was issued for the project some time between February and early April 2023, and shortly after that, on April 4, the development permit was amended using a different calculation for the building’s height, said Porubanec’s lawyer on Thursday.

Currently, site preparation work is underway on the property.

The lawsuit claims city council either “misapprehended” evidence and approved the development permit under the mistaken belief the buildings depicted in the building drawings were in compliance with the zoning bylaw or correctly understood the evidence and “made an internally incoherent” decision to issue a permit for construction of a development that could not lawfully be constructed.”

The civil court action is slated to run over two days.

Porubanec’s legal action is being funded by a GoFundMe campaign that has raised $14,569. He said that money was contributed by his neighbours who are equally concerned about the approval the project received.

He noted there was no variance approved for the project to allow for an increase in height and a decrease in the setbacks of the front yards.