Some residents see opportunity with flood damaged docks to open foreshore to the public

Some Kelowna residents are seeking action to prevent the reconstruction of private property that hinders access to the Okanagan Lake foreshore between Kelowna’s City Park and the mouth of Mission Creek.

The high water levels and flooding have caused immense damage to Kelowna’s waterfront fences and private boat docks.

According to provincial legislation and Kelowna bylaws, private property that obstructs access to Crown foreshore shouldn’t legally be there in the first place without a permit.

According to the Land Act:

• Property owners are required to ensure that public access to the Crown foreshore is maintained. Fences that do not maintain public access to Crown foreshore are unauthorized as per Section 60 of the Land Act, and subject to trespass action and removal under Section 59 of the Land Act.
• Most (if not all) tenures require the licence/permit holders to maintain public access across Crown-owned foreshore. However, there may be certain instances where commercial tenures are granted rights of exclusion depending on provisions in the tenure.

According to zoning bylaws in Kelowna:

• Section 7.5.8 states that no fencing shall be permitted at or below the high water mark (geodetic elevation of 343 m) of the Okanagan Lake.
• Section 9.9.3 states that public access along the foreshore shall not be impeded.
• Section 9.9.5 (d) states that all docks shall not impede pedestrian access along the foreshore. As well, in cases where the dock platform is raised by more than 0.3 m above any point on the public foreshore, steps must be provided for public access over the dock and this access must not be blocked by fences or other means.

Walking along the beach foreshore between Kelowna’s City Park and Mission Creek, there do exist a number of private structures - predominantly docks and fences - that obstruct public access.

To get an idea of the impediments, watch this video uploaded to Youtube showing footage of Kelowna's waterfront.

Some residents argue that when the Okanagan Lake begins to recede, it will present an opportunity for the City of Kelowna to begin enforcing the provincial and city bylaws so that people can walk along the foreshore without being hindered by private structures.

“For decades the public has been illegally prevented from walking along big parts of our beach foreshore by impediments that were put there by some waterfront homeowners. These unlawful blockages mostly consisted of fences that extended into the lake, or improperly constructed docks,” said Al Janusas, a Kelowna resident.

According to Janusas, the results of the high water levels is nature presenting Kelowna with a “fresh start” to shoreline development.

After lake water levels recede, Al is proposing the city consider three courses of action:

• First, that the city refuse to issue dock building permits for properties between the Bridge and Mission Creek
• Second, if permits are issued, then the city must mandate that at least two separate boat slips share one shore access, so that foreshore disruption is minimized.
• Third, that the city enforce the existing provincial and city bylaws that enable members of the public to walk along their foreshore.

Janusas is also the spokesperson for Pandosy Lakeshore Active Neighbourhoods of Kelowna (PANKelowna), a recently established citizen’s group that advocates for public waterfront accessibility.

According to a statement on their Facebook Page, if the shoreline laws are followed and become enforced, all Kelowna residents will soon be able to walk along the beach with ease.

“In my youth we could walk this beach with the only impediment being natural barriers here and there, such as old gnarly willow trees that could be climbed over,” said Brenda Bachmann, a Kelowna resident. “As the decades have gone by, it has gotten more and more difficult to walk the beach because of adjacent homeowners constructing fencing, rock barriers, and planting hedges right up to the water. Maybe if enough people share the video and speak up, this will change.”

According to Ryan Smith, the City of Kelowna’s Community Planning Manager, problems could arise if lakeshore home owners attempt to rebuild private structures that don’t follow provincial guidelines or the city’s zoning bylaws.

"As long as docks are reconstructed in accordance with the approved dock license from the province and the city's zoning guidelines then I don't think that's an issue. It's probably where people go in and either they had structures before that were non-compliant or they're trying to add on non-compliant structures when they're rebuilding that they'll be problems,” said Smith.

However, when asked about how the city intends to enforce the laws, Smith said it depends on the definition of the public structure.

“Issues with fencing and blocking off access through fencing would fall back on the ministry… but the city remains open to working with them [the Province] on identifying locations that are particularly problematic. We definitely don't support repair or replacement of structures that didn't conform in the first place, like fences that run below the high water mark.”

Ultimately, the city is aware of private structures restricting public access and is against any homeowners breaking the law - whether it be provincial or municipal. However, the enforcement can be difficult with both the city and the province having jurisdiction over different structures.

In the near future, it’s possible this issue could be addressed when the zoning bylaws are updated, which according to Smith could occur before the end of summer.