Questions and issues

struck (deleted) in advance

of the hearing on the River Road

High-rise Condos application

For source documents, click here, then click on "N," then "Niagara Falls," then "PL180376," Ontario Land Tribunal, Fall 2021

Webpage uploaded January 2022

Standard procedure at the Ontario Land Tribunal, as at other judicial bodies, is one or more preliminary rulings about what issues will be addressed. These rulings are made on the basis of "issues lists" submitted by the parties. The expectation is that at the eventual hearing, each party will make a case organized around the issues on its list or a common list.

The two main parties in the case at hand were the applicant seeking approval of the proposed condo towers, and on the other side the city, seeking refusal of the application. Three additional, "non-appellant" parties, all opposed to the application, were also recognized: the Niagara Parks Commission (NPC), Kenneth Westhues, and an incorporated community organization called the Citizens for Responsible Development (CRD).

By the beginning of June 2020, after much back-and-forth among themselves, the four parties opposed to the project had prepared their issues lists. The city's list had 12 questions, most of them broken down into sub-questions. The Niagara Parks Commission had 18 questions on its list, Kenneth Westhues had 9, and CRD had five. Thus, a total of 44 questions were presented to adjudicator David Brown at the Case Management Conference held on 3 June 2020, as part of the draft procedural order.

In his decision issued on 9 June 2020 (click here for the full text), Mr. Brown rephrased and combined various questions. This resulted in a reduction of the total number of questions from 44 to 34, without much substantive narrowing of what the eventual hearing would be about.

Mr. Brown also, however, struck (that is, eliminated or deleted) two questions, ruling that these "are matters that are not relevant land use planning matters for adjudication by the Tribunal." This was the beginning of deletion of substantive questions and issues from the proceeding. More deletion lay ahead. By the time the actual hearing began in the fall of 2021, only 11 issues remained for adjudication, out of the 32 accepted by the tribunal 16 months earlier.

In chronological order of deletion, the five sections below show the items that were "struck": the questions that were not put before the tribunal, the issues that were not raised. The sixth and final section gives the 11 issues that were still on the agenda when the hearing began.

June 2020: Two questions eliminated
April 2021: Entire NPC list eliminated
September 2021: Westhues list eliminated
September 2021: CRD list eliminated
September2021: Traffic issue eliminated
October 2021: Eleven issues remaining for adjudication

June 2020: Two questions from the Westhues list eliminated (Brown decision)

8. Between the Pre-Consultation Meeting of 1 December 2016 and the Council Meeting of 14 August 2018, was the approval process at Niagara Falls City Council appropriate?

9. In summary: Did Niagara Falls City Council, in its decision on 12 November 2019 to deny this application, deviate so far from applicable laws and principles of urban planning that LPAT can appropriately disregard the purpose of the Ontario Planning Act stated in Para. 1.1(f): “to recognize the decision-making authority and accountability of municipal councils in planning”?

April 2021: Entire issues list of the Niagara Parks Commission eliminated, following the NPC's withdrawal from the proceeding

1. Do the applicant’s:
(a) functional servicing report;
(b) microclimate study; and
(c) traffic study,
satisfy the comments made in NPC’s comment letters to the City of Niagara Falls dated
October 29, 2019 and November 4, 2019? If so, how do the reports and studies satisfy
those comments?

2. How would the Proposal1 impact the character of River Road? In particular:
(a) Is the proposed development out of character with this section of River Road?
(b) Should the proposed tower be reduced in height and further setback, including to
avoid shadow impacts on River Road and the Niagara Gorge?
(c) Should the applicant be required to provide an amended pedestrian level wind
study that includes mitigation measures, to address the wind conditions on River
Road that will result from the proposed development?
(d) Is the Proposal appropriate given River Road’s function as a scenic road that forms
part of the surrounding park system?
(e) Will the Proposal negatively impact the tourist oriented function?
(f) Will the Proposal negatively impact the pedestrian realm?

3. Does the Proposal negatively impact the ecological function and natural environment of
the Niagara Gorge?

4. Does the applicant’s geotechnical and hydrological investigation report adequately
address any potential winter construction activities that could impact bat hibernacula in
the Niagara Gorge east of the subject lands, through additional bat monitoring prior to any
winter construction?

5. Has sufficient bat monitoring been completed?

6. Has the potential impact of the proposed development on endangered bats been
adequately addressed?

7. If blast techniques will be used (as indicated in the Golder report submitted by the
applicant), will blasting have a negative impact on the natural environment of the Niagara
Gorge?

8. Will the proposed development, including its construction, negatively impact any of the
following elements of the Niagara Gorge:
(a) stability of gorge walls;
(b) shadowing;
(c) hydrological changes that could impact the ecological health and function of the
Gorge, the flora and fauna.

9. Are there deficiencies in the applicant’s environmental impact study (the “EIS”)? Does the
EIS accurately describe the proposed development (scale)? Should the EIS identify, within
the Niagara Gorge,: i) key ecological features, functions, linkages and other natural
processes that may be affected directly or indirectly by the development; ii) all species at
risk; iii) potential impacts, direct and indirect, on the Niagara Gorge; and iv) recommend
actions to mitigate or avoid potential impacts?

10. Does the Proposal have regard to the matters of provincial interest set forth in section 2
of the Planning Act, with respect to:
(a) the protection of ecological systems, including natural areas, features and
functions (2(a));
(b) the resolution of planning conflicts involving public and private interests (2(n)); and
(c) dealing with the appropriate location of growth and development (2(p)).

11. Should any zoning by-law amendment include:
(a) provision for minimum landscaped open space and building setback for the River
Road frontage;
(b) no vehicular access to River Road;
(c) a minimum setback from River Road of 2.2 metres;
(d) a requirement that the 34 storey tower above the 27 m (7 storey) height be setback
to comply with the 45 degree angular plane from River Road; and
(e) the inclusion of a minimum landscape coverage of the River Road front yard
calculated from the coverage illustrated on the Landscape Plan Ground floor,
drawing no. L100 prepared by Strybos Barron King Landscape Architecture, dated
March 20, 2017 (last revised June 15, 2017)?

12. Should any official plan amendment include:
(a) a requirement that the development of the subject property and site plan control
agreement include:
(i) the preservation of the existing mature sugar maple;
(ii) enhanced density and type of landscaping along the River Road frontage;
(iii) building finishes in keeping with the character of River Road north of the
subject lands?

September 2021: Elimination of the remaining five questions on the Westhues list (Prevedel decision)

1. For the properties fronting River Road (zoned R5E), does the Application provide
sufficient planning justification to amend the Official Plan and Zoning By-law to permit the
proposed heights, density, building setbacks, and impact on the surrounding low-density
area?

2. For the properties fronting John Street (zoned R2). is the proposed development
compatible with the existing neighbourhood as required by Part 2, Section 1.15 of the
Official Plan with respect to height, density, architecture and design?

3. Does the Application unjustifiably exceed the provincially mandated targets for residential
intensification contained in the Niagara Region Official Plan?

4. Has the Applicant provided Geotechnical Reports that adequately address issues arising
from proximity to the Niagara Gorge, in particular the issue of slope stability?

5. Has the Applicant provided an Environmental Impact Assessment that adequately
addresses issues arising from proximity to the Niagara Gorge?

September 2021: Elimination of all five questions on the list of the Citizens for Responsible Development (Prevedel decision)

1. Is the proposal compatible with the character of the adjacent residential
neighbourhood?

2. Does the applicant’s traffic impact study adequately address the anticipated increase
in traffic resulting from the proposed development and include specific reference to the
City’s ability to widen the surrounding roads to accommodate any increase in traffic and
impact of the tourist related traffic volumes generated by the proximity to the
international border crossing?

3. How does the applicant justify the shadow impacts that would be created by the
proposed development with respect to the adjacent residential neighbourhood and the
Niagara Gorge as appropriate?

4. Given the proximity of the property to the Niagara Gorge, has the applicant
completed a geotechnical report including a slope stability that satisfactorily addresses
slope stability issues?

5. (a) Does the geotechnical study adequately address the potential impact of this land
use purpose on the structural integrity of the surrounding geology in conformity to City
of Niagara Falls Official Plan — Part 2, Section 11.2.21 (slope stability on site and off
site ...recommendations on how negative impact can be avoided); Part 4, Section 14.2.5
(slope stability study for proposals within or adjacent to valleylands, steep slopes or
hazard lands) and 14.2.3 (impact on existing municipal services) — to the satisfaction of
LPAT? (b) Are the proposed Official Plan and zoning by-law amendments consistent with the
Provincial Policy Statement, section 1.1.1 c (Healthy liveable and safe communities…by
avoiding development and land use patterns which may cause environmental or public
health and safety concerns)?

September 2021: Elimination of the issue on the city's list pertaining to traffic and infrastructure (Prevedel decision)

9. In conformity to Part 4, Section 2.6.6 of the Official Plan:
a. Can the traffic generated from the development be accommodated within
the transportation infrastructure?
b. Will surrounding local residential roads be negatively impacted from traffic
generated by the development?
c. Does the development support the use of mass transit, including GO trains,
and active transportation?l

October 2015: Issues remaining for adjudication at commencement of hearing

1. Are the proposed Official Plan and zoning by-law amendments consistent with the
Provincial Policy Statement, In particular sections 1.1.1 (healthy liveable and safe
communities), 1.1.2 (projected needs), 1.1.3 (settlement areas), 1.4 (housing), 1.6
(infrastructure and public service facilities) and 2.1 (protection of natural features)?

2. Do the proposed Official Plan and zoning by-law amendments conform to the
Provincial A Place to Grow – Growth Plan for the Greater Golden Horseshoe, in
particular sections 2.2.1, (managing growth), 2.2.2 (delineated built up areas),
2.2.6 (housing) 3.2 (policies for infrastructure to support growth) and 4.2.2 (natural
heritage system)?

3. Do the proposed Official Plan and zoning by-law amendments conform to the
Regional Policy Plan, in particular sections 2.1 and 2.7 (economic growth), 4.A.1
(growth management), 4.C.1 to 4.C.4 (residential intensification), 4.G (sustainable
urban vision), 4.J (urban design), 7A to 7C (natural environment), 8.A and 8 B
(servicing), 9.A, 9.E and 9.F (transportation including transit and active
transportation) and 11.A (housing)?

4. Does the proposal conform to the intent and purpose of the policies in the City of
Niagara Falls Official Plan, in particular;
a. Does the proposal conform to Part 4, Section 2.6.1 of the Official Plan in terms
of meeting the general objectives of the Official Plan?
b. Does the proposal conform to the intent of Part 2, Section 1.15 of the Official
Plan in terms of establishing an appropriate height as well as gradation of
height and density from low rise buildings?
c. Does the proposal conform to the intent of Part 1, Section 3.1 and Part 4,
Section 2.6 of the Official Plan in determining the need to establish a new area
of intensification?
d. Does the proposal conform to Part 4, Section 2.6.6 of the Official Plan in
demonstrating that municipal services, facilities and transportation
infrastructure are adequate for the proposed use and its impact on community
facilities and natural environment is mitigated?

5. Is the requested amendment to By-law 79-200, to change the zoning of the
property to Residential Apartment 5F Density, and requested site specific
departures from this zone to accommodate the proposed development,
appropriate?

6. If the amendments are approved, should a holding (H) regulation, to prevent the
development of the land until archaeological assessments have been completed
and a Record of Site Condition filed with the Ministry of the Environment,
Conservation and Parks, be included in the amending zoning by-law?

7. Does the proposal provide an appropriate form and transition in terms of height
and massing, and appropriate setbacks to abutting low density residential uses, in
accordance with Section 4a.6 of the Region of Niagara Model Urban Design
Guidelines and in conformity to Section 1.15.5(iii) of the Official Plan?

8. Does the built form have an appropriate step back from public sidewalks, to
minimize shadowing and massing impacts, in accordance with Section 4d.4 of the
Region of Niagara Model Urban Design Guidelines?

10. In conformity to Part 2. Section 11.2.21 and Part 4, Section 14.2.5 of the Official
Plan,
a. Will the construction, including excavation and site preparation, have any
impact on the integrity of the surrounding geology, including the Niagara
Gorge?
b. What methods should be employed to ensure the construction and
excavation does not impact on the structural integrity of surrounding
residences?
c. Is a stable top of bank indicated to the satisfaction of the Niagara Peninsula
Conservation Authority?

11. Is adequately demonstrated that the proposed development does not impact
natural heritage features, significant wildlife habitat or species at risk, in conformity
to Part 4, Section 2.6.6 of the Official Plan?

12. If the amendments are approved should they be conditional on a Section 37
(bonusing agreement) being executed, collecting 1% of the value of construction
costs for the project minus contributions already made, to be directed to one or
more municipal capital projects?

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