The Bay Observer has learned that up until last summer there were conflicting opinions about whether the city’s noise bylaws applied to Sarcoa, because the night spot was at that time located on federal land that was leased to the Hamilton Waterfront Trust. A published report in August of 2014 quoted a city bylaw enforcement officer as saying the federal property was not subject to municipal enforcement, although in the same interview acknowledging that nonetheless the city had filed charges against Sarcoa. Retiree Erich Buss who lives in Burlington and complained about the music, quoted another Hamilton bylaw officer as saying the Sarcoa situation was “a jurisdictional nightmare because Sarcoa is on federal land.” Additionally Hamilton Police, to whom all afterhours noise complaints are forwarded, also were under the same impression. “I would phone the afterhours number every weekend, and the officer would tell me the same thing, that they didn’t have jurisdiction,” said Buss . The Bay Observer attempted without success to learn how the bylaw officers and police came to be under the impression, subsequently refuted, that they lacked authority to enforce the noise bylaws; but nobody appeared to recall the source, although. one person familiar with events did say that there had been extensive discussions during this period with the Hamilton Waterfront Trust. Bill Young, director of Municipal Law Enforcement told the Bay Observer, “we don’t take instruction from the Hamilton Waterfront Trust”, pointing out that even in the period where conflicting views on the enforceability issue existed, that a charge had been filed against Sarcoa. All of this was occurring at a time when angry residents from Hamilton and Burlington stormed a Committee of adjustment hearing to protest an application from Sarcoa for exemption from the noise bylaw.
The question of the enforceability of the noise bylaw takes on significance now as Sarcoa threatens legal action against the Waterfront Trust for allegedly signing the owners, Sam Destro and Marco Faiazza, to a lease that expressly contained language acknowledging they would be allowed to play music on the patio. The operators maintain that it was on the strength of that understanding that they poured $4 million in leasehold improvements into the former Discovery Centre, transforming it into an upscale nightclub. Sam Destro told the Bay Observer that the intent to have patio music was made clear to the Waterfront trust from the beginning, in meetings that at times involved both staff and board members, and that their plans were applauded. “At no time during our negotiations was any noise issue ever raised with us,” said Destro. The music has ceased since late July this year and the owners report a sharp drop in revenue a result.
Before the renovations were made, the Waterfront Trust, as landlord, submitted a development application to the city for approval. The plan made no mention of the combination patio bar and stage that was ultimately placed on the patio, but instead referred to it as a “building …in the middle of the patio serving as a bar area.” City planning staff told the Bay Observer that had the structure been identified in the planning application as a stage for music, or had the lease talking about live music been circulated to city legal and planning staff that red flags would likely have been raised.
Caption: an excerpt from an application filed by the Hamilton Waterfront Trust for the Sarcoa patio renovations describing the bar-stage area as simply a “bar area.”