Feathers fly over heron lawsuit

Photo: Contributed - Not for reproduction. Property of Bob Marsh, Magic of Flight Images

When Jan Bos purchased nine acres of property east of 24 Street in 1986, he had no intention of creating an ecological reserve for endangered birds.   

At that time, there were only a few Great Blue Heron nests in a stand of cottonwood trees at the north end of his property. Within three years, there were over a dozen.

In 1992, the North Okanagan Regional District (RDNO) asked Bos to sign a restrictive covenant to protect the heron habitat.

Bos understood the special significance of the heronry and signed the agreement, which prohibits him from cutting down trees or otherwise interfering with the herons’ natural nesting habitat.

“I thought to myself, if I’m gone tomorrow, what will happen to these birds,” says Bos.

Today, Bos says, there are between 60 and 70 nests.

“If you’re kind to nature, nature tends to respond in a kind way,” he said.

Bos essentially signed over his right to develop the property. The covenant covers approximately 1.5 acres of his land. In return, the RDNO pays a portion of his taxes.

Roseanne Van Ee, local naturalist and former BC Parks staffer, says there has always been a strong push to limit development around the heronry.

“We could see that development was happening, yes, but the unique heron habitat was important to protect in and of itself,” says Van Ee. 

She says organizations like the Ministry of Environment and BC Parks, along with local biologists and naturalists, held meetings with the City of Vernon and the RDNO.

“A strong recommendation was made that there shouldn’t be development right up against the heronry,” said Van Ee.     

A residential subdivision was built in the early 2000s on 53 Avenue, directly north of the heronry.

In 2010, one of the trees on the Bos property fell and damaged a house in the neighbouring subdivision.

“It was known that the cottonwood trees would get old, and branches would fall. That isn’t new information for the city or the developers,” said Van Ee

“It’s common sense not to build under a bunch of cottonwood trees,” she said.

An insurance policy covered the damage to the home, but the insurer is now suing Bos along with the City of Vernon, the RDNO, and the developers to recoup their costs.

City of Vernon planner Dale Rintoul claims there weren’t any hazard trees within range at the time the subdivision was built, and that the onus is not on the City.

“Mr. Bos and the RDNO should have monitored the property. The covenant does not prevent the property owner from dealing with hazardous trees,” said Rintoul.

Rintoul also says the City is working on a land survey that will show the tree in question was outside of the covenant area.

RDNO Chair Patrick Nicol, while a supporter of the heronry and sympathetic to Bos’ plight, says such a matter is not the responsibility of the RDNO.

“The heronry is a beautiful thing in our area that people really treasure….but this is between the insurance company and the neighbours involved,” said Nicol.

“It’s in front of the courts now so they will have to sort it out,” he said. 

Easy to say when municipal insurance is covering the legal fees. Bos is paying for his own legal defense, and if found liable he will have to pay out of pocket for any damages.

The case is currently in the hands of lawyers for all parties. A court date has not been set.