Hamilton’s best theatre isn’t a theatre at all in the city’s eyes — not legally, anyway.

Central Hamilton artist hub The Pearl Company won a Hamilton Music Award last weekend for best theatre, beating out local stalwarts like Hamilton Place, Mohawk’s McIntyre Performing Arts Centre and The Staircase Theatre.

But while they’re being honoured on one hand, the venue’s co-owners, Barbara Milne and Gary Santucci, have also been fighting a legal battle with the city for years over zoning issues.

They were charged in 2009 and 2010 for holding performances in a residential zoned building, and have been fighting it in court ever since. Milne and Santucci have maintained that their building’s commercial history means it shouldn’t be subject to residential zoning bylaws.

“We can’t move. We can’t do anything. We’re just completely stuck,” Milne said in an interview with CBC Hamilton in the couple’s home above the performance space.

“We’re caught in this push/pull of the past versus the future — and the present is suffering,” Santucci said.

'Our taxes are being used to prosecute us'

It would cost around $150,000 to rezone the building as a commercial property, a process Santucci calls “extremely onerous.” The couple has been operating in the space for seven years and has hosted over 1,000 events there. The Pearl Company building has stood since the early 1900s, and has housed a variety of commercial entities, from banquet halls to videographers.

The Pearl Company is a performance space for music, theatre and art. It's located on Steven Street in central Hamilton. (Adam Carter/CBC)

Santucci and Milne had been pushing, in pre-trial meetings on the case, for the charges against them to be dismissed, and argued that their building constitutes “legal, non-conforming use,” a protection for property that recognizes historical use, Santucci says.

But earlier this fall, a justice of the peace denied their request for the case to be dismissed because the owners didn’t provide enough evidence to back up that claim. Now they're back to court.

“They want us to be convicted of illegal use,” Santucci said. “But we pay commercial taxes here.”

“We are a business and we are paying taxes. And our taxes are being used to prosecute us.”

Ward 3 Coun. Bernie Morelli told CBC Hamilton he was happy to see The Pearl Company win a Hamilton Music Award, but says that needs to be kept separate from their ongoing zoning dispute.

“I salute anyone who has been recognized for their accomplishments,” he said. “But we have to keep those two issues apart.”

A broken system

Morelli said he would not comment on anything that’s before the courts, but did say “anything we do out there has to be done within protocol.”

Santucci and Milne say they believe the city’s new urban official plan would absolve them of their zoning issues. The plan came into effect earlier this year, long after the charges were originally laid — but the city says the couple would still have to resolve the outstanding issues before the new plan’s implementation.

Milne says the zoning war is an example of fundamentally broken and inefficient city systems that stifle entrepreneurship for everyone but big corporate businesses.

“Why is it not a completely different mindset?” she asked. “Why is it more about ‘this is why you can’t,’ more than ‘this is how you can?’”

The Pearl Company will be back in court in December. Should the matter go to trial, Santucci expects it wouldn’t be heard until 2015.