Controversial development returns to Niagara Falls City Council, with not much changed, prompting rare recommendation to reject it

For the second time in less than a year, City of Niagara Falls Planning staff is recommending council refuse the Official Plan and Zoning By-law Amendment applications related to a controversial development scheduled for a public meeting on Tuesday evening.

Lyons Narrows, a project that would consist of 1,344 dwelling units on 82.9 hectares of land, including the lands that formerly housed King Waldorf’s Tent and Trailer Park and the Oaklands Golf Club, was deferred at the request of the applicant in October 2023 after a staff report argued that the application was “lacking in sufficient information to justify the suitability of the lands for the development proposed” and was premature, with the Grassy Brook Secondary Plan study still underway. In addition, the City’s Business Development Department, which rarely comments on development applications, stated the application would negatively impact the businesses located in the nearby Stanley Avenue Business Park and be contrary to the City’s Employment Lands Strategy.

At the time of the October meeting, the proposed development had already created a groundswell of public interest and opposition. Two neighborhood open houses in 2022 were attended by 46 and 53 area residents, respectively, numerous letters in opposition were included on the Council agenda and two petitions were submitted with a total of more than 600 signatures calling for a denial of the application.

The frequently raised public concerns included increased traffic volumes, environmental contamination and displacement of wildlife and habitat loss. City Planning staff indicated that their recommendation to deny the applications was premised on incomplete information “that did not guarantee that there would be no significant negative impact on the area’s core natural heritage system” and that there were potential areas of environmental concern that would require remediation before any change of land use was contemplated.

Craig Rohe, a Senior Planner and agent for the developer, 2610823 Ontario Inc. (Angelo Butera), explained the rationale for the deferral request, which was sent to the City a few hours prior to the October meeting.

“[H]aving just seen the staff report on Thursday, there are a lot of comments to go through and disagreements about aspects of the application and the materials provided. Some of the comments were given for the very first time (in the report) on some matters.”

With the deferral request from the applicant on the afternoon of the planned meeting, the City attempted to advise interested members of the public, via its social media platforms, that the formal Public Meeting would not be proceeding. Nonetheless, a sizable public contingent attended in the Council Chambers.

Mayor Jim Diodati explained that while a future public meeting on the application under the Planning Act would be scheduled, Council would entertain brief presentations from the public, but stressed no decisions or debate would occur at the October meeting.

After a brief overview by Planning staff, three delegates availed themselves of the opportunity to speak. Two of the delegates reiterated environmental concerns, while a third, John Morocco, one of the citizens on the Grassy Brook Secondary Plan Task Force, implored Council to not consider any future application related to the lands until the secondary plan process was completed.

“[Y]ou are halfway through a secondary plan study, there is a citizen’s focus group that you are using. If you end-run this program you are saying to the citizens that their voice doesn’t really matter. This should not be adversarial. We should all be in agreement on how to use this land properly. The plan recognizes at some point there will be development there, so let’s get it done the right way.”

A secondary plan represents a land use vision for a neighborhood or specific area within the municipality. Grassy Brook is the last unplanned, unserviced Designated Greenfield Area in the municipality. The first phase of the Grassy Brook Secondary Plan had been completed at the time of the October meeting. Since then, a second Public Open House occurred in April to gather input on the preliminary land use concepts for the area.

The April presentation by Dillon Consulting outlined that there were certain factors that the Secondary Plan process could not change, such as predetermined residential and employment density targets and the proposed future development of the South Niagara Hospital and a major wastewater treatment plant in the area; however, the process can address the protection of environmental features, land uses, potential urban design, infrastructure capacity and transportation needs.

Tuesday’s Planning report reiterates that the Secondary Plan process is ongoing, with the draft land use concept “based on the cumulative work performed to date by a number of ongoing background studies” anticipated later in the year. The report also notes that the developer has chosen not to participate in a Subwatershed Study for the area, but has commissioned its own environmental study.

During the October meeting, Mr. Rohe, the developer’s representative, explained that 83 percent of the lands were developable. The 1,344 dwelling units would consist of 679 detached dwellings, 155 on-street townhouse dwellings, and 510 multi-residential dwelling units and house an estimated 3,000 residents. Mr. Rohe posited that the development would help the City achieve housing and growth targets set by the provincial government.

Niagara Region has forecasted 141,650 people to the City of Niagara Falls by 2051. This population target will require 20,220 new units of housing, an average of 674 housing units constructed annually from 2021 to 2051.

Mr. Rohe tried to reassure those in attendance in October that 6 percent of the developable land would be for parks and trails, while 16 percent of the lands would be environmentally protected. He was confident that appropriate buffers and protective measures would be incorporated throughout the development.

When asked at the October meeting what the next steps would entail, Kira Dolch, the City’s General Manager, Planning, Building & Development indicated that staff and the developer’s planner agreed to meet, with other commenting agencies, to go over the various issues. Tuesday’s report indicates that while two site visits and two meetings with the applicant occurred, with some progress being made, no additional studies or materials have been submitted by the applicant.

With little change since October, especially in the way of key studies required of the applicant, Planning staff’s position that the application be denied remains. Other justification for a possible refusal by Council include the application not meeting Provincial, Regional and City planning requirements, a lack of demonstration that the proposed uses are needed and the premature nature of the application in light of the ongoing Grassy Brook Secondary Plan.

One of a number of new correspondences on Tuesday’s agenda is from Kevin Jacobi, owner of Canada BW, a business in the Stanley Avenue Business Park, who is also the Chair of the Niagara Industrial Association Communications and Advocacy Committee.

“[H]aving this land rezoned to residential only serves the owner of the property instead of committing to a balanced growth plan in Niagara Falls…To compound this issue further, building residential on both sides of Stanley Avenue puts housing along the primary artery for trucks serving the existing businesses in the business park,” Jacobi writes.

The proposed development has also raised a number of environmental concerns for residents.

Issues raised in a number of correspondences include the potential loss of significant wildlife habitat; elimination of approximately 120 acres of forest; impacts on the sensitive Lyons Creek and the fact that formal reviews by the Niagara Region and the Niagara Peninsula Conservation Authority have yet to occur.

Despite being in favour of the approval being delaye dby council October, the developer has since appealed the lack of a decision on the proposal to the Ontario Land Tribunal, citing Council’s “failure to make a decision on the applications”. The staff report questions the validity of such an appeal.

“[S]taff are unsure as to the logic or rationale for the appeal of a non-decision as the proponent asked for the application to be withdrawn, thus taking away the ability to make a decision.”

In a rebuttal posted to the City’s website on Friday, Nancy Smith of TMA Law, representing the developer, argues that “the City directed the language of the deferral”, not her client. She indicates that two applications had been submitted to the City since 2021 and that “over two years had lapsed without a City decision.”

In addition to the appeal for a non-decision, there is an appeal specifically related to 9015 Stanley Avenue, one of the parcels owned by the developer, that is part of the Lyons Narrows project. The City had redesignated that parcel as future employment lands, while the developer’s intent is to change the designation to residential, commercial and Environmental Protection Area. The matter is not scheduled for a merit hearing until March 2025.

It should also be noted that the developer, Angelo Butera, was denied a zoning by-law amendment by Niagara Falls City Council in July 2023 for a five-storey, 74 unit apartment building, elsewhere in the municipality. That matter is scheduled for a merit hearing before the OLT in October 2024.

While the traditional unfolding of a Public Meeting under the Planning Act at Niagara Falls City Council is that Planning staff will make a presentation, members of the public will speak to the application, often in opposition, and then the developer, usually represented by a planner and/or lawyer will argue the merits of their application. Tuesday’s meeting may differ.

Smith makes it clear that her client will not be attending the meeting and argues that the City is free to conduct a “courtesy meeting” but with the appeal before the OLT “the City is no longer the Planning Act decision-maker for the applications.”

The staff report takes the position that the public’s rights need to be maintained, with an opportunity to provide comment and that “nothing prevents the Council of a municipality from holding a statutory Public Meeting and or making a decision on a matter that has been appealed to the Ontario Land Tribunal for failure to make a decision.”

Regardless of which position is correct, a decision on Lyons Narrows is most likely to play out at the OLT, and not in the foreseeable future.

Tuesday’s Council Agenda and link to view the meeting can be accessed here.

The staff report can be read here.

To delegate before Niagara Falls City Council.

Email: dean.iorfida@thepointer.com

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Dean Iorfida, Local Journalism Initiative Reporter, The Pointer