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Burnaby wasn't 'vengeful, overreaching' in dispute with pizzeria: court

B.C.’s top court has sided with the City of Burnaby in its lengthy, heated dispute with a local pizzeria over parking, a pizza oven and a patio.

B.C.’s top court has sided with the City of Burnaby in its lengthy, heated dispute with a local pizzeria over parking, a pizza oven and a patio.

Rino Aufiero bought Anducci’s Cucina on Hastings Street in 2009, but the restaurant was closed after a 2011 fire. Aufiero renovated the building and reopened it under the Cotto Enoteca Pizzeria name, the same as his other pizzeria in Surrey.

Those renovations included an addition to the building to house a pizza oven; a wood, glass and metal structure to cover a patio; and a banquet hall and catering area on the second floor.

Aufiero made the changes without getting building permits, setting off a years-long dispute with the city that ended this week when the B.C. Court of Appeal sided with the city. The May 20 ruling reinforces a 2018 B.C. Supreme Court decision on the legal battle.

In April 2016, Aufiero applied for retroactive approval for the upstairs banquet area, which likely would have brought the restaurant’s seating well beyond its permitted capacity, according to B.C. Supreme Court Justice Robin Baird.

“Their goal was to bring their illegal banqueting and catering business into compliance with city bylaws. Instead, this turned out to be the point at which the dispute between the parties started in earnest,” Baird wrote.

The application spurred building inspections, which “uncovered the full scope of the unpermitted construction and alteration work,” Baird said.

Those inspections revealed that the pizza oven brought the building over its permitted size. The zoning bylaw only allows the building to cover 50% of the lot, but the 88-square-foot oven extension caused the building to cover 51.5% of the lot.

The city also argued the patio structure caused the building to cover even more of the lot, leaving the building without enough parking space. Aufiero had agreed the parking space was inadequate but said he had a deal with the neighbouring lot’s owner to use part of its parking space, which only created more issues.

That property was not in use, meaning parking would be that lot’s primary use, which was not allowed on that property.

While the city ordered the pizzeria to come into compliance with bylaws, the pizzeria filed several applications to gain retroactive approval. None of the applications was approved, however, and bylaw enforcement tickets piled up to around $30,000 by 2018.

The dispute boiled over in July 2018 when the city issued a warning letter to Aufiero and the neighbouring property owner that the shared parking had to stop. Aufiero responded by hand-delivering flyers around the neighbourhood, complaining of the city’s refusal to approve his parking plan and encouraging people to call the city and complain, according to Baird.

“The flyer did, indeed, spark a flurry of complaints, but only of the sort that created additional pressure on the city to deal assertively with Mr. Aufiero’s misuse of his property,” Baird wrote.

A month after the warning letter, a city bylaw officer showed up with a liquor inspector and an RCMP officer.

“All activity on the second floor and the patio was conclusively stopped, and it was announced to the surprise of patrons and staff alike that the place had no liquor licence,” Baird wrote.

That’s because, while Aufiero had been paying for the liquor licence, it had never been properly transferred from the previous owners. The liquor licence has, however, since been approved following “a lengthy investigation of the petitioners’ ‘fitness’ by the Liquor Control and Licensing Branch.”

“The petitioners’ overall complaint is that they have been singled out for punishment by a vengeful, overreaching municipal bureaucracy,” Baird said of the dispute. “I’m afraid that I must reject this contention. This case is not, in the end, about bad faith, pointless red tape or pettifogging inspectors.”

Instead, Baird concluded the case was one of “illegal building improvisations leading to a commercial property in significant non-compliance with city bylaws.”

Aufieri appealed Baird’s ruling, but the B.C. Appeals Court only reinforced that decision, unanimously dismissing Aufieri’s case.

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