Niagara Falls Council refuses to make decision on controversial 1,300-unit Lyons Narrows development

It was hard not to feel dissatisfied, especially if you were one of the numerous local residents that packed Council Chambers on Tuesday, May 28th to witness Niagara Falls City Council consider an Official Plan and Zoning By-law for the Lyons Narrows development, a proposal consisting 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.

It would be one of the largest residential developments in Niagara Falls’ history. And with the recent vote by local elected officials to defer the matter, the decision will likely be left to a provincial land tribunal, with little to no input from residents.

The proposed development was a rare example of an application that not only had been criticized by the City’s Planning Staff but had also elicited negative comments from business development staff for being contrary to the City’s Employment Lands Strategy and having potential negative impact on the businesses located in the nearby Stanley Avenue Business Park. In addition, two petitions had solicited more than 600 signatures and numerous correspondences, primarily from residents in the nearby Chippawa area of Niagara Falls, and had outlined concerns regarding increased traffic volumes, environmental contamination and displacement and loss of the area’s wildlife habitat.

If you had been one of those residents who attended Niagara Falls City Council on October 24, when the Lyons Narrows application was first scheduled for a public meeting under the Planning Act, you may have been disappointed when the matter did not formally proceed, at that time.

In October, faced with a negative staff report, Craig Rohe, the Planner for the developer (Angelo Butera), indicated that they had requested a deferral of the application. Nonetheless, Council did entertain three delegations from the public and a brief presentation from Mr. Rohe that evening, however, no debate on the merits of the application or decision was made with the promise that a future public meeting would occur.

May 28th was the promised public meeting. If you had been one of those residents in Council Chambers, who showed up at the meeting’s start time of 4:00 p.m., you may have also been dissatisfied after waiting four hours before the application was considered.

At 8:00 p.m the Council emerged from an hour and a half in camera session, a part of the meeting closed to the public, where they received legal advice on two matters, including on the Lyons Narrows application. The public Planning report had indicated that Council would receive in-camera legal advice related to the developer’s appeal to the Ontario Land Tribunal (OLT) for Council’s “lack of a decision” on their application, which was first submitted to the municipality in 2021.

As the formal public meeting commenced, Planning staff reiterated their comments from the October 24 meeting, recommending that Council deny the applications based on incomplete information from the developer “that did not guarantee that there would be no significant negative impact on the area’s core natural heritage system”.

The meeting on May 28th allowed members of the public to “go on record” to present their positions on the application and, seemingly, preserve their rights to appeal a Council decision to the OLT.

Eight delegates availed themselves of the opportunity to speak before Council. While all were opposed to the application, as currently constituted, a number of the speakers were pragmatic in their pleadings to the Council.

"[T]his is not a situation where the community does not want development, this is a situation where the community wants good planning to occur where we protect our natural heritage features and environment, support our business sector, respect our culture heritage and ensure we plan a development that positively affects the Chippawa community," Sarah Ward, a Chippawa resident, said.

Her comments were echoed by one of those who initiated the petition, Marie Nobes, who also made the point that as a real estate agent, she certainly was not opposed to housing:

“[W]e are not against responsible development but what we are against is irresponsible urban sprawl, as well as the destruction of the conservation lands.”

On the latter point, Ms. Nobes asserted that the developer had rototilled and spread liquid fertilizer in a 60 foot protective buffer, causing “wild turkeys to fly into trees because their nests full of babies were chopped up (by the rototiller)”. Kira Dolch, the City’s General Manager, Planning, Building & Development, indicated that the concerns had been forwarded to the Ministry of Environment and Ministry of the Environment, Conservation and Parks for investigation.

A number of the other speakers primarily addressed the broader environmental issues, many of which exist in the Chippawa area regardless of the proposed development. Cathy Blott, a field biologist, promoted overland stormwater treatment as an eco-friendly option, avoiding underground piping, plastic and concrete; Fonthill-based biologist Anne Yagi spoke to the need for “road mitigation” to protect the animal habitat from destruction due to development and Dr. John Bacher, perennial speaker at Niagara councils on environmental issues, pointed out that despite the numerous changes in Provincial planning legislation over the last decade, the protection of various habitats under the Provincial Policy Statement has remained unchanged.

Many of the speakers echoed the City report and comments from Regional Planning staff that it was premature to consider the application until the Grassy Brook Secondary Plan was complete. Lyons Narrows is within the study area.

A secondary plan is a planning process that determines a land use vision for a neighborhood or specific area within the municipality. The City’s consultants, Dillon Consulting, have held two public open houses and there is a task force of citizens in place providing input. A draft land use concept “based on the cumulative work performed to date by a number of ongoing background studies” and a third public open house is anticipated later in the year.

John Morocco, one of the citizens on the Grassy Brook Secondary Plan Task Force, was hopeful that the OLT would rule that the developer’s appeal was premature and “kick it back” to Council for a decision.

Whether the on-going secondary process is enough to thwart the developer’s plan is difficult to predict. The OLT decisions are mixed when it comes to whether an application is premature while a municipality undergoes such planning studies. A 2022 case in Whitby dismissed a developer’s appeal, indicating the following:

“[T]he Tribunal finds that it is premature to usurp the ongoing municipal comprehensive review process by considering the proposed development as it would undermine the public consultation process in its final stages.”

In a decision out of Markham, earlier this year, the OLT rejected the municipality’s position that it was premature to proceed while the secondary plan process was underway:

“[T]he Tribunal finds that determining what would constitute good land use planning is best derived through a full hearing (at the Tribunal) on the merits.”

With an application that has galvanized public opposition, such as Lyons Narrows, it is not uncommon for residents to organize and file an appeal, however, the Province’s introduction in April of Bill 185, the Cutting Red Tape to Build More Homes Act, if proclaimed into law, will limit third-parties, such as citizen groups, from appealing official plan and zoning by-law amendments.

In a separate report on the May 28th agenda, according to Niagara Falls Planning staff, Bill 185, being pushed by Ontario’s PC government, will be “approximately” the tenth piece of legislation since 2021 that addresses matters of land use planning, development and municipal regulatory powers. The Bill also proposes to make the changes retroactive, meaning that unless a hearing on the merits of such an appeal has been scheduled before April 10, 2024, a third party will not have standing.

While the developer has appealed Niagara Falls City Council’s failure to make a decision, a merit hearing has yet to be scheduled.

After the conclusion of the delegations from the public and formal closing of the public meeting under the Planning Act, Mayor Jim Diodati opened the floor to the Council members for consideration of the application. Councillor Wayne Thomson was recognized and opined that it was “really strange” for Council to be considering the application without the developer present.

Nancy Smith of TMA Law, representing the developer, had sent in a correspondence making it clear that they would not be making representations at the Council meeting, being of the belief that in light of their appeal to the OLT, Niagara Falls City Council had lost jurisdiction as the decision-maker on the matter.

Councillor Thomson moved a motion to defer the matter, seconded by Councillor Tony Baldinelli. The Mayor pointed out that based on the Council’s procedural by-law a deferral motion is non-debatable, effectively ending any further discussion on the matter from the Council members. The City’s Chief Administrative Officer Jason Burgess suggested that the deferral motion include language that the matter be deferred until “all information requested is provided by the developer”.

With the developer’s legal counsel already indicating that they would not be engaging the municipality, as they take their fight to the OLT, it is unlikely that the condition appended to the deferral motion will ever be fulfilled. It also seemingly plays into the developer’s argument on Council’s “lack of decision” on the application.

With the deferral motion on the floor, those gathered in the chamber were clearly dissatisfied that Council was abdicating its responsibility and avoiding a decision on the Lyons Narrows proposal, one of the biggest in the municipality’s history. The Mayor called for “decorum”, while grumbling occurred in the gallery. Nonetheless, the majority of Council approved the deferral, without going on record with a position on the application that is likely to play out at the OLT and, possibly, play out without input from the affected residents, which would be even more dissatisfying.

Email: dean.iorfida@thepointer.com

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Dean Iorfida, Local Journalism Initiative Reporter, The Pointer