DECEMBER 2, 2021 – The Town of Qualicum Beach has threatened a local couple with legal action over what the couple says are efforts to clean and maintain the Town’s beach and Waterfront along Highway 19A. A “cease and desist” letter dated September 14, 2021 was hand-delivered to the couple’s home by the Town’s bylaw officer.
Qualicum Beach residents Eileen and Trevor Wicks say they have been volunteering their time for years to help keep QB’s Waterfront safe and attractive, and are there almost daily. “Many people ask us if we work for the Town, and are surprised [when] we tell them we don’t and that sometimes [we] get harassed by Town staff.”
“It was almost like a joke,” says Wicks, when he read the letter handed to him by Town bylaw officer Don Marshall.
The letter states that Wicks “contravened municipal bylaws by pruning trees/foliage along the 2800 block of Island Highway West.” Lawyer Troy DeSouza, of the Victoria, BC law firm Dominion GovLaw LLP identified in the letter as “the solicitors for the Town of Qualicum Beach,” states that Wicks faces potential legal action if he does not “cease and desist the aforementioned breaches.”
It’s an issue of safety say the volunteers
“It’s not about me, it’s about safety,” says Wicks of the couple’s efforts to keep the Waterfront clean and safe.
Wicks and his wife Eileen regularly collect trash strewn along both sides of the highway bordering the Waterfront, clear leaves away from drains and entrances to the public washrooms, pull noxious weeds, trim overgrown vegetation and clear beach stairwells of debris. “I’ve worked for municipal government and if somebody brought a safety issue like trees blocking [view of] a stop sign or anything like that, that was handled the next morning.” Wicks was Parks and Recreation foreman for Lacombe, Alberta, a community about the same size as Qualicum Beach.
One morning this past summer, while clearing garbage from the ditch along the south side of the roadway bordering the Waterfront, Wicks noticed two places where trees had grown across the ditch right over the roadway, blocking the vision of walkers and cyclists. An avid cyclist himself, Wicks says that electric vehicles can pose a problem, especially e-bikes. “These electric bikes come along at 25 km/hour or more. If it’s a regular vehicle, you can usually hear it, but with these electric bicycles, you can’t. If you’re walking with your back to the road, and you come past these trees, you couldn’t see the traffic,” he says of the overhanging branches.
“I saw one of the Town guys and I said, look this is a dangerous situation. Can you get these trees trimmed back so you can at least walk along the paved shoulder of the road and see [the traffic]? He said, ‘Well I don’t know.’ I said, well, you can talk to somebody, surely. He said, ‘No, I don’t think I can.’ And I said, if you don’t, I will. I’ll cut them off. ‘No, no, no,’ he said, ‘you can’t do that.’ A week or two later I go out on a Sunday morning with my pole saw. If I’d had equipment like I used to, it would have been a 10-minute job. As it turned out, it was half an hour, but no big deal. I cut the branches back as much as I could reach and piled them up along the side of the road.”
Wicks says, “a few days later, I’m down at the Waterfront doing something else, and the bylaw officer, Don Marshall, comes along and says, ‘I’m going to have to follow this up because you committed an offense, cutting vegetation on Town property.’ So I said, well, go ahead. Do I get a ticket, or what?” The bylaw officer replied, “well I’ll see, I’ll have to check back.“
About two weeks later, says Wicks, the bylaw officer appeared at the Wicks’ home to hand-deliver the letter from a law firm acting on behalf of the Town of Qualicum Beach, threatening Wicks with legal action.
Town threat of legal action based on false information
Wicks says he explained to the bylaw officer, Don Marshall, that, “cars park on that side [of the QB Waterfront road] all summer, and if somebody got out of their car, couldn’t see oncoming traffic and got creamed, you [the Town] could be [held] responsible. If I see a situation that’s downright dangerous, and nothing is done, I’ll fix it myself.”
Wicks asked bylaw officer Marshall what bylaw he had contravened but the bylaw officer did not answer. The lawyer’s letter only referenced unspecified “municipal bylaws.” Wicks says he’s since learned that the municipal bylaws only prohibit pruning trees/foliage in parks. “The bylaw says I can’t go into a park and cut trees without permission, fair enough,” says Wicks but “that roadway isn’t a park, it’s a public highway.”
A review by Second Opinion QB of Town bylaws turned up only one Town bylaw related to pruning foliage under TOWN OF OUALICUM BEACH BYLAW No. 551 PARKS REGULATION BYLAW, dating back to 1995:
3.20 No person shall cut, uproot or damage in any way, or cause to be cut, uprooted or damaged in any way, any tree, plant or other natural foliage within any park.
This prohibition applies ONLY to designated parks, and presumably would apply ONLY if damage is done. “Park” within the bylaw is defined to mean “all those lands in the Town reserved or dedicated as park, by bylaw, or dedicated as park by the deposit of a subdivision or reference plan, or conveyed in trust to the Town for the purposes of park, or otherwise held by the Town for park purposes, and includes specifically, playgrounds, squares, greens, beaches, golf courses and other lands, where these lands are held for pleasure, recreation or community uses by the Town.”
This likely explains the inability of both the bylaw officer and the Town lawyer to suggest a specific violation.
Trevor Wicks, directed by the law firm to respond to the Town’s threat of legal action by September 27, 2021, replied to the lawyer with a letter stating in part, “the Town of Qualicum Beach has a responsibility to prevent accidents, injuries, property damage and environmental problems on public lands, whenever possible. Public safety and/or accessibility issues often require immediate action. Examples include broken glass on a walkway, tree branches blocking vision on a busy highway, or slippery mud and trip hazards in high-use pedestrian areas.
“There are many obvious safety concerns that could result in liability claims to the Town, i.e. taxpayers; if they are not corrected within a reasonable timeframe. Staff members who are made aware of public safety concerns should be provided with the mechanism to resolve these concerns in a timely and efficient manner.”
In his letter to the Town lawyer, Wicks asked the Town’s lawyer “please, could you define unauthorized works on public lands.” The lawyer has not replied. Wicks included a report containing many photos illustrating the safety and maintenance issues he has tried to raise with the Town previously regarding the Qualicum Beach Waterfront.
Previous harassment by Town management and staff
Wicks says the couple has been harassed and even videotaped by Town staff when they are at the beach. The bylaw officer “has probably confronted me six times this year alone on various issues. If we’re doing some cleanup work at the Waterfront, on average there will be five or six [Town] vehicles drive past to check on what we’re doing — almost every time, sometimes within minutes of us getting here. One truck will drive past and then turn around at the end and then come back, and then another one will come past. You can tell they’re talking to each other. Then bylaw enforcement comes along, stands some distance away and videotapes what I’m doing. This has happened a few times. So I usually do a little dance with a big smile, and ask if this is going on Youtube, and ask him if he’s brought a shovel to come help me. Then he usually puts his cell phone down.”
Wicks says he has tried to engage Town staff about safety issues before but staff won’t engage. “I’ve worked for other municipalities, and was in business myself for many years, and the normal response is to explain what you’re doing, if people ask, and to always be friendly, say ‘good morning’ or ‘are you having a good day?’ or whatever, and have a good rapport with the people with whom you’re communicating. It’s just the opposite here. I’ve had some conversations with some town employees and they’re very good, but they said ‘we can’t do anything.’ “ There’s a chain of command. So I said, well can’t you talk to your foreman? They say, ‘Oh no, no, we can’t do that.’ “
This is not the first time that Wicks has tried to bring maintenance and safety issues to Council’s attention and been rebuffed. “One time I was scheduled to be a Delegation at Council, and I was refused at the last minute. It was on the Agenda for 7 PM that night. I had already sent in my Powerpoint presentation in. At 6:30 PM I got a phone call from Heather Svensen [Deputy Chief Administrative Officer for the Town of Qualicum Beach] who said, ‘Trevor, you can’t do your presentation tonight. We’ve reviewed it and it’s too intimidating to staff.’ ”
Complaints about the refusal by Town managers and Council to hear residents’ concerns are not new, but is it Ms. Svensen’s job to protect herself and her manager colleagues from justified criticism? Second Opinion QB has reported about other QB residents who were inappropriately refused an opportunity to speak before Council in the article QB Deputy CAO Svensen cited for misconduct by BC Ombudsperson.
Sweeping up leaves is also a safety issue, says Wicks “because we see people pull up to the washroom and someone with a walker is trying to get through the leaves, twigs, mud and debris piled up there. That’s not right. The leaves had been there for two weeks [without having been cleaned up]. So, we were cleaning up around the toilet building yesterday (November 18, 2021) and today there were two trucks with leaf blowers to clean up the piles we had swept up, but they didn’t do a good job. They didn’t do anything else, just around the toilet building.”
Town finally doing meaningful maintenance
Wicks says, “it seems like they’re getting the message. A lot of people have seen us cleaning up.
Suddenly the Town has been doing extra work at the Waterfront. Yesterday [November 24, 2021] they had a sweeper there, they had a crew there sweeping up the piles that Eileen and I had raked up along the waterfront. There were two trucks and guys with forks and shovels cleaning up, so it actually looks quite good now.”
“A couple weeks ago we were actually sweeping the road of leaves. They [the Town] had had a fellow there with a leaf blower but it was not cleaned up, so they [the leaves] end up on the highway. Anyone getting out of their vehicle or riding a bike or using a walker is disadvantaged because they have to push their way through debris. So that all got cleaned up.”
Shortly after the exchange of letters between the Town’s lawyer and Trevor Wicks, the Town of Qualicum Beach issued a news release stating that staff would be “trimming back branches along Crescent Road and Elizabeth Avenue to reduce the risk of vehicle contact and improve pedestrian access… to allow safe pedestrian passage and for vehicles to pull off onto the shoulder…” and raising the tree canopy “to ensure a minimum vehicle clearance of 4.15 meters.”
The news release, issued September 21, 2021, cites many of the same concerns Wicks raised with the Town about Hwy 19A along the Waterfront but Wicks believes that the overhanging branches on Hwy 19A have still not been cut back far enough to the required distance to ensure vehicle clearance of 4.15 metres.