Mayor hopes to clear up 'grey, black, shady, unclear areas' with port

Mayor Fred Eisenberger said Wednesday it's time for city officials to meet with the Hamilton Port Authority to "clear up some of those grey, black, shady, unclear areas" in the way their jurisdictions overlap and conflict. 

The city wants to have a say in development on port lands, to make sure those developments fit with the city's vision for its growth and well-being. The port, wants to retain its  independence over what happens on port lands.

And sometimes that leads to conflict.

A committee of councillors Wednesday voted to send the mayor and a delegation of city officials for a "fulsome discussion" with the Hamilton Port Authority to try to get to what Eisenberger termed "some agreement with our partners at the port authority in terms of how we're going to move forward." 

I don't want us to get into digging in heels and relying on potential court issues to sort some of these things out.- Mayor Fred Eisenberger

The often-contentious relationship with the port stretches back for decades. Eisenberger said he hoped to bring the city manager, city planners and legal staff along so the relationship doesn't have to resort to court processes, "which is where we've been for the last 50 or 60 or 70 years."

"I don't want us to get into digging in heels and relying on potential court issues to sort some of these things out unless we've had a great opportunity to sit down and discuss these things and come back and make some sense out of all of this stuff," he said.

The suggestion came out of a discussion on what say the city has in building and development projects on port lands. Two notable projects have caused consternation at council lately — a brewery in the old Lakeport building on Pier 10 and a proposed waste-to-energy gasification plant on Pier 15. 

• City can't use zoning to block port lands gasification plant
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On the gasification plant, the Hamilton Port Authority, and project developer Port Fuels and Materials Services, have stated they don't need city approval for the project because the port oversees the development of federal harbour lands and thus is exempt from local approval. 

A great debate on 'What is shipping and navigation?' 

But a city lawyer presented an opinion Wednesday that that federal jurisdiction only supersedes when the project is "integral to shipping and navigation". 

The city can pass zoning laws on harbour lands, "so long as it does not explicitly attempt to prohibit or regulate the use of land for purposes related to navigation and shipping." City lawyer Janice Atwood-Petkovski cited that quotation from an appellate court decision in 1978 on an agreement between the city and the port.

"That issue has been put to bed for many years now," Atwood-Petkovski said.

But how those uses are defined could still prove contentious. What constitutes "shipping and navigation" came up again in a settlement between the city and the port in the late 1990s. 

"I remember at the time … there was a great debate, and a difference of opinion, as it relates to 'What is shipping and navigation?'" said Coun. Chad Collins.

Atwood-Petkovski opined that both the brewery and the gasification plant would be subject to some city weigh-in via a "site plan approval" because the projects are "not integral to shipping and navigation." (Still, the gasification plant was found to fit into city zoning rules for that portion of the waterfront.)

Port spokeswoman Larissa Fenn said port officials would take a "very close look" at the city lawyer's opinion but wouldn't comment until they'd had a chance to consider it carefully.