After a year of patio silence, waterfront restaurant Sarcoa plans to restart playing outdoor music on Canada Day in defiance of the city's noise bylaws.

"We can't just sit here and do nothing," said co-owner Sam Destro.

"Without the ability to play the music it significantly impacts the Sarcoa brand and has impacted the profitability of the business."

The ritzy restaurant stopped its patio parties last year after complaints about thumping dance music resulted in it being charged with violating city noise bylaws a second time.

According to Destro, they now intend to lower speaker volumes, change the music format to appeal to a slightly older crowd, and follow the recommendations of a sound engineer to control noise levels.

"We'll do whatever we can to mitigate it."

Sarcoa, which subleases the city-owned former Discovery Centre from Hamilton Waterfront Trust (HWT), is suing both bodies for $15 million for allegedly breaking their lease agreement by not exempting it from noise bylaws and a contentious zoning ban against live and amplified patio music.

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Destro says when the court date was moved from May to December, he and co-owner Marco Faiazza opted to resume patio music to stop a revenue slide and respond to consumer demand.

"We wanted our rights clarified … but given the delay and the fact that we still believe we have a right, we're going to exercise that right until the courts tell us not to."

If Sarcoa is charged again, lawyer Konstantine Ketsetzis says his clients will fight it.

"If these guys are taking every step possible to reduce noise pollution and to abide by the noise bylaws and there are still complaints being made, then I'm going to be inclined to think it's malicious in nature and we'll defend it accordingly."

Interestingly, Sarcoa's music resumption coincides with a long-awaited city report on how other municipalities deal with music, noise and time-of-day issues.

Jason Thorne, general manager of planning and economic development, says the information report will go before councillors July 5. Specific options for easing current restrictions, however, will be presented to council in October as part of city-wide review of commercial and mixed use zoning.

Mayor Fred Eisenberger has repeatedly called for the existing ban to be reasonably relaxed.

When Sarcoa opened in 2012, the building was owned by the federal government and leased to HWT. (The city took over ownership last July in exchange for dropping the Red Hill lawsuit against Ottawa.)

Sarcoa's owners allege when they signed the sublease, HWT was fully aware of its plans for patio parties and agreed the city's bylaws would not apply. HWT denies the allegations, none of which have been proven in court

The agreement does appear to have conflicting clauses. One gives Sarcoa the right to stage live outdoor parties. Another says it has to abide by city bylaws.

Given all this wrangling, Destro is clearly worried Sarcoa may be seen as a bad neighbour by surrounding residents. In his defence, he points to a piece of correspondence stating the restaurant is not subject to the city's zoning bylaws.

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The letter deals with Sarcoa's application for an indoor and outdoor liquor license. It's dated July, 27, 2012, when the building was still owned by the feds.

It reads: "Municipal law enforcement has had an opportunity to review the application and all submissions from the commenting departments. The establishment is located at 57 Discovery Drive, Hamilton, which is Crown Lands and is not subject to the zoning bylaws of the City of Hamilton. The establishment licenses was issued today.

"At this time Municipal Law Enforcement has no objection to this application."

It's signed by a Todd Lawrie, liquor licensing facilitator.

The relevance of the letter is for the courts to decide, of course. If the case gets that far. Lawyer Ketsetzis says Sarcoa is hoping to move toward a mediated settlement. He says the allegations cry out for a creative solution.

"Getting in front of a mediator might be the best way of achieving that."

Andrew Dreschel Andrew Dreschel is the city hall columnist for The Hamilton Spectator. Email | Twitter

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