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New property bylaw in Nanaimo means city will sometimes have to judge what’s graffiti and what’s art

Council gives third reading to amended property maintenance bylaw
Nanaimo city council has passed three readings of an updated property maintenance and standards bylaw to tackle graffiti. (News Bulletin file photo) Nanaimo city council has passed an updated property maintenance and standards bylaw to tackle graffiti with penalties that target perpetrators and victim property owners. (News Bulletin file photo)

Nanaimo property owners are losing a loophole to avoid removing graffiti from buildings, fences and other surfaces and the associated costs.

City council gave third reading to amend a property maintenance and standards bylaw at a meeting Monday, July 5. The new wording specifies property owners cannot say they had given permission to an artist or tagger to place a graphic on their properties in order to avoid being ordered by the Nanaimo’s bylaws department to remove graffiti and incurring the costs of doing so.

The bylaw states that a property owner must not cause or permit graffiti to accumulate and remain on a fence, surface or structure visible from an adjacent property or public place.

“The initial definition, which included the approval of the property owner, it was sort of targeted towards the mischief graffiti and it also avoided having the city become the pre-approved arbiter to determine what is in good taste or not,” said Karen Robertson, deputy city clerk.

Coun. Sheryl Armstrong noticed there was potential for conflict in the original bylaw wording, which could allow a property owner to claim they’d given permission to the artist to avoid the charges associated with cleaning up their property. The new bylaw definition removes wording pertaining to approval and permission given by the property owner.

Council approved the amended wording unanimously, but the change raised questions from Coun. Don Bonner, who posed a hypothetical situation in which a property owner might allow their child, for example, to paint artwork on a surface visible to the public.

Robertson said enforcement would be complaint-driven.

“We have to figure out what is the mischief graffiti versus artwork and so this is where the test of reasonableness comes in,” Robertson said. “Perhaps having some artwork on your building would not be offensive and not raise anybody’s dander at all, but if it becomes offensive that’s when we get into what’s the standard of reasonableness.”

Robertson said it would be the city’s manager of bylaw enforcement who would make that determination.

Sheila Gurrie, city clerk and director of legislative services, said if the bylaw enforcement manager determined the graphic was graffiti or not acceptable, the property owner or artist who disagreed would have to appeal to city council to allow it to remain.

READ ALSO: Utility boxes in Nanaimo covered in artwork to combat graffiti

Although it was Armstrong who pointed out the loophole in the original bylaw wording, she is opposed to the potential consequences for property owners affected by the bylaw who will bear the brunt of graffiti cleanup costs.

Under the updated bylaw, anyone who contravenes the bylaw or “who neglects or fails to do anything required to be done pursuant to this bylaw” can be fined up to $50,000 and be liable for the costs of prosecution and other penalties.

“My concern still remains with that fact that we’re putting all this onus on cleanup to people who didn’t do this in the first place,” Armstrong said.

She cited a Nanaimo business that she said was spending tens of thousands of dollars annually for cleanup.

“And I just think that’s grossly unfair that they’re responsible for something that they had no control over, so for me, I just can’t support this without some kind of support or something for the owners of the properties because … they remove it and the next day it’s back,” Armstrong said.

The amended bylaw passed third reading with Armstrong and Coun. Jim Turley opposed.
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Chris Bush

About the Author: Chris Bush

As a photographer/reporter with the Nanaimo News Bulletin since 1998.
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