ONTARIO LAND TRIBUNAL RULES AGAINST APPLICATION FOR CONDO TOWERS
9 March 2022

Firmly and unequivocally, the Ontario Land Tribunal has refused the application to build 29- and 10-storey condo towers in the River Road Heritage Neighbourhood. The development was proposed for the block along River Road between Philip and John Streets, where the Official Plan allows at most a 7-storey building. The development site, just north of the Rainbow Bridge, is currently vacant.

The project was first proposed in 2016, by Time Development Group, a Markahm company owned by Mike Wang. After that company went bankrupt in 2018, ownership passed to Saeid Aghaei, a principal of a different Markham company named Times Group Development. Niagara Falls City Council voted against the project in November 2019. Residents' opposition to the project led to the incorporation of Citizens for Responsible Development (CRD).

The key paragraphs of the OLT decision are the four at the end:

[147] Accordingly, upon all of the evidence, for the reasons given, as a result of the Built form and massing of the proposed development and most importantly the height requested, the proposal fails to achieve the required transition in scale, and is incompatible and does not fit harmoniously with the low rise residential character of the neighbourhood area to the west.
[148] The Tribunal finds the proposed development does not conform with all relevant and applicable provisions of the City of Niagara Falls Official Plan and is not in accordance with principles of good planning.
[149] Based on the evidence, discussions, findings and reasons summarized, and after due consideration for all of the arguments set forth in the opening statements and oral submissions of counsel for the City and 2486489 Ontario Inc., the Tribunal dismisses the appeals.
ORDER
[150] THE TRIBUNAL ORDERS that the appeals are dismissed.

Click here to read the full, 33-page decision.

The OLT has issued this decision in the midst of a broad, grass-roots movement across Ontario seeking abolition of the provincial tribunal. This movement would not exist if all the tribunal's decisions in recent years were as respectful as this decision is, of the official plans, planning staffs, and city councils of local municipalities.

THE DWINDLING OF THE CASE AGAINST THE CONDO TOWERS; OLT DECISION PENDING
27 January 2022

The application to allow high-rise condo towers on River Road finally came to a hearing at the Ontario Land Tribunal (OLT) on 25 October 2021. This was five years after the proposal was first submitted to the Planning Department of the City of Niagara Falls.

This webpage was created in August 2019, amidst a groundswell of opposition to the proposal. Earlier entries on this page (scroll down to see them) describe the public meetings, blog and Facebook posts, newspaper articles, planning reports, and City Council’s vote against the proposal on 12 November 2019.

By provincial law, however, all that matters now on this issue is what went on in the nine-day OLT hearing last fall. Dale Chipman, the adjudicator, will issue a decision, yea or nay, in coming months. She will base her ruling on the evidence and argument presented at the hearing. Everything else is beside the point, background noise, water under the bridge.

The plain fact is that in the years leading up to the hearing, the case against the condo towers dwindled, shrank, lost strength. Here are the five major ways this weakening happened.

(1) Drop from nine to one in the number of opponents involved as participants. In the initial pre-hearings in 2018-19 (click HERE and HERE), the OLT recognized nine outspoken residents of Niagara Falls as official participants, a status that would allow them to appear personally before the tribunal and present a critique of the proposal orally and in writing. Over time, public interest in this issue waned, and the Ford government changed the OLT rules. A participant is no longer permitted to speak to the tribunal, but only to submit written comments. Just one of the original nine participants did so by the time the hearing took place. Click HERE to read Linda Manson’s tightly argued, evidence-based argument against the development based on capacity of the sewage system and the risks of blasting. In keeping with the rules, she was not permitted to address the OLT orally.

(2) Withdrawal of a major opposing party. In the pre-hearings, the OLT recognized five parties, a status that allows presentation of a full-blown case at the eventual hearing. The two main parties were the applicant (Saeid Aghaei of Times Group, a large GTA developer) proposing the condo towers and the City of Niagara Falls opposing them. There were an additional three parties, all opposed: the Niagara Parks Commission (NPC), resident Kenneth Westhues, and a community group specifically incorporated to fight this project, the Citizens for Responsible Development (CRD). The NPC was the most important of the three additional parties. It is the governmental agency charged with safeguarding the Great Gorge of the Niagara River, adjacent to the development site. Its lawyer, Sarah Turney of Fasken, played a major role in pre-hearings for almost three years. In April 2021, the NPC relinquished party status without explanation, requested participant status instead, but then never even made a written submission. The NPC’s withdrawal profoundly weakened the case against the project.

(3) Exclusion of evidence from two parties, both opposed to the condo towers. In August 2021, the developer’s new legal team, led by Denise Baker of WeirFoulds, brought a motion to the OLT asking that two of the three remaining parties opposed to the project, Mr. Westhues and CRD, be disallowed from calling evidence. The motion record, including exhibits, ran to 266 pages. Click HERE to read the 39-page body of the motion, the gist of which was that these parties’ failure to engage expert witnesses disqualified them. Click HERE to read Mr. Westhues’s response to the motion, essentially arguing that expert opinion is not the only kind of evidence. At the motion hearing on 31 August 2021, OLT adjudicator Tony Prevedel summarily ruled in the developer’s favour on this issue. He said Mr. Westhues and CRD could make opening and closing statements at the upcoming hearing but no presentations of evidence in between. Click HERE to read Mr. Prevedel’s written ruling, issued on 29 September 2021. Time did not permit a request for review of this decision by OLT policy, since the hearing would begin less than four weeks later.

(4) Reduction of the number of issues to be raised against the project from 34 to 11. In keeping with OLT procedures, the five parties accredited at the start consulted with one another to produce an “issues list,” the questions that would be put to the tribunal for adjudication in the eventual hearing on the merits of the case. Forty-four questions were submitted to adjudicator David Brown in June 2020. Click HERE to read his decision. For clarity and to reduce overlap, he distilled the 44 questions down to 34, but then eliminated two questions on grounds of lack of jurisdiction. That left 32 questions or issues. Subsequent objections from the developer and the withdrawal of the Niagara Parks Commission led to the elimination of further questions, until only 11 were left when the hearing began. There is no better way to grasp how the case against the condo towers dwindled over time than to read the actual text of the questions or issues that were dropped between June 2020 and October 2021. A separate webpage has been prepared for this purpose. Click HERE to read the questions that were not asked, the issues that were not raised, as well as the smaller list of questions or issues that remained.

(5) Shutdown of the Westhues opening statement. Even though Mr. Prevedel had excluded their issues lists, both Debra Jackson-Jones, representing the Citizens for Responsible Development, and Kenneth Westhues accepted Mr. Prevedel's assurance that they could still make opening and closing statements at the hearing that began on 25 October 2021. Ms. Jackson-Jones was able to make her opening and closing statements. Click HERE to read them, thereby to understand why CRD was so strongly opposed to condo towers being built at the edge of the gorge in a heritage neighbourhood. As soon as Mr. Westhues began his opening statement, however, the developer’s lawyer erupted in outrage, mainly on grounds that there was evidence in what he said. He was unable to finish the statement he had prepared, complete with PowerPoint slides. Click HERE to read it and see the slides, as a chronicle of how the condo-towers proposal proceeded from its inception in 2016 until the present day. Mr. Westhues withdrew from the hearing after the first day. The remaining eight days were a face-off between two parties: Ms. Baker, representing the developer, and Tom Halinski of AirdBerlis, representing the City. Ms. Jackson-Jones mostly remained silent, but was permitted to ask a few questions.

Content of the hearing

As has become the norm in OLT adjudications, the hearing consisted almost entirely of opinion evidence by expert witnesses: credentialled professionals, hired guns in relevant fields.

Immediately after opening statements, for example, Ms. Baker called her expert planner, Ryan Guetter, Executive Vice-President of Weston Consulting. Responding to Ms. Baker’s well-rehearsed questions, Mr. Guetter walked Ms. Chipman through a long series of reports and documents, explaining to her how each one supports construction of the condo towers. Later, Mr. Halinski called his expert planner, Andrew Bryce, the city’s manager of current planning, who gave a contrary interpretation of the reports and documents.

Similarly, each lawyer called an expert in urban design to give an opinion on the project from that field’s point of view. Ms. Baker called Michael Spaziani, long-time owner of his own architectural firm in Mississauga. Mr. Halinski called Khaldoon Ahmad, manager of urban design for Niagara Region. Not surprisingly, Mr. Spaziani thought the proposal met the highest design standards, while Mr. Ahmad disagreed.

Ms. Baker greatly strengthened the case for the condo towers by calling yet a third expert witness, a prominent geotechnical engineer specializing in rock mechanics, a principal at Golder named Mark Telesnicki. He provided reasoned, evidence-based assurances that the project – 29 storeys high plus three levels of underground parking – would not harm the gorge or surrounding homes.

The case against the condo towers was weakened by the absence of a geotechnical engineer supporting the city's thumbs-down position. At the motion hearing in August, Ms. Baker asked that the city’s expert planner, Mr. Bryce, be prevented from giving opinions on the geotechnical aspects of the project, on grounds that he lacked relevant expertise. Mr. Prevedel refused that request but remarked that he was surprised the city was not calling a geotechnical engineer of its own, as an expert witness for its side of the case. As the hearing unfolded, Mr. Bryce did indeed challenge Mr. Telesnicki’s assurances, but from a background of less credibility.

How Ms. Chipman, the adjudicator, will decide the case remains to be seen. She is among the Ford government’s recent appointees to the tribunal, whose sympathies tend to lie more with developers than with protectors of local community and the natural environment. Ms. Chipman is not herself a planner or lawyer. She was formerly employed in administrative positions, organizing events and managing staff at the Law Society of Upper Canada.

LATEST NEWS: AMIDST PANDEMIC, DISPUTE PROCEEDS
13 April 2021

Whether the provincial tribunal ever actually holds a hearing on the proposed condo towers (shown above) is anybody’s guess. More than three years have passed since the then-owner took the proposal to the Local Planning Appeal Tribunal (LPAT). That owner eventually went bankrupt. A new owner, a subsidiary of Markham-based Times Group owned by Saeid Aghaei, took possession two years ago, in May of 2019, changed architects, redesigned the buildings, and added ten floors, but retained the same lawyer and planning consultants (Weston Consulting), and kept the LPAT appeal alive. Niagara Falls City Council voted against the proposal in November of 2019. There have been six “pre-hearings” so far, and plenty of backroom politics. Still no hearing.

Meanwhile, the condo market in Toronto has cooled, while the market for single-family homes outside Toronto has become white-hot. Average home prices in Niagara Falls have increased, year over year, by 30 percent or more. Will there be a market in Niagara Falls three or five years from now for small condos in Toronto-style towers? Maybe, maybe not. The market has more power than LPAT.

Following are five noteworthy developments during recent months pertaining to the LPAT case.

Adjournment of the hearing to 9 August 2021. On 13 January 2021, the lawyer for the City of Niagara Falls, Tom Halinski, asked LPAT to postpone commencement of the hearing from 31 May 2021 to sometime after 25 June 2021, on account of scheduling conflicts. LPAT agreed, reducing the number of consecutive days set aside for the hearing from 15 to 10, and setting the time of commencement for 10:00 AM on Monday, 9 August 2021. The hearing is to be held by remote video connection. Members of the public will be permitted to watch or listen in. The name of the adjudicator will not likely be known until the hearing begins.

Developer switches lawyers and law firms. Three years ago, in March 2018, the previous owner of the River Road development site, Mike Wang, hired Daniel Artenosi, partner at Overland LLP, to appeal the condo-towers proposal to LPAT. Mr. Artenosi continued to carry the appeal forward after Mr. Wang’s company went bankrupt and the site was purchased by Mr. Aghaei's company. He continued to represent the new owner as the number of storeys grew from 21 to 34. On 20 February 2021, however, Raj Kehar, partner at WeirFoulds LLP, announced that he now represents the applicant/appellant in this case. Mr. Kehar is a major figure in land-use planning in Ontario, having previously served as in-house counsel for the City of Mississauga and as chair of the Municipal Law section of the Ontario Bar Association. He has represented both municipalities and developers in LPAT proceedings.

Niagara Parks throws in the towel. On 12 April 2021, through its lawyer Sarah Turney, Niagara Parks formally asked LPAT to change “its status in this proceeding from party to participant.” The request is almost sure to be granted. This means the Niagara Parks list of 12 issues concerning the proposed development (including impact of blasting on the stability of gorge walls, hydrological changes, effects on pedestrians, tourism, and the surrounding neighbourhood) will be deleted from the procedural order for the LPAT hearing. Niagara Parks will not make a case before the adjudicator at the hearing, not call or cross-examine witnesses, but only make a written submission of the kind LPAT adjudicators can easily ignore. In the many Case Management Conferences held on this case over the past two years, Ms. Turney’s voice has been consistently well-informed, level-headed, and reasonable – as well as unsympathetic to the applicant’s proposal of high-rise condo towers. As a mere participant in the proceeding, Ms. Turney will have no voice. If a basic tactic for winning disputes is to neutralize one’s opponents, Niagara Parks’s surrender of party status is a significant win for the developer.

The grab of power from municipalities by the province continues. In 2017, the Wynne government changed the law on land-use planning in Ontario so as to strengthen the hand of municipalities and community groups, and weaken the authority of the provincial appeal body, the OMB, which it renamed LPAT. The Ford government, since coming to power in June of 2018, has reversed course, allowing LPAT to decide appeals with minimal regard for decisions by municipalities. Further, it has reorganized tribunals and appointed adjudicators overtly biased toward developers, in keeping with its pro-development agenda (click here for critical analyses at Tribunal Watch Ontario). Still further, delays in adjudication have gotten longer. The net effect is that LPAT has lost credibility. It has become a crap shoot at best, more often a stacked deck. Opponents of applications to override cities’ Official Plans and zoning by-laws cannot count on a fair hearing. As the Globe and Mail reported on 12 March 2021, moreover, the Ford government regularly uses Ministerial Zoning Orders (MZOs) to sidestep LPAT altogether and simply approve by fiat the projects of favoured developers. The current Minister of Municipal Affairs, Steve Clark, has issued 40 MZOs since 2019, more than his Liberal predecessors issued in the previous ten years.

15-DAY HEARING TO BEGIN 31 MAY 2021
7 January 2021

Ontario’s Local Planning Appeal Tribunal (LPAT) has announced a 15-day hearing by videoconference on the proposal to build 34-storey and 7-storey condo towers (shown above) on River Road between John and Philip Streets, near the edge of the Niagara River Gorge. The contested hearing is scheduled to begin at 10:00 AM on Monday, 31 May 2021.

The proposal is put forward by the owner of the site, Saeid Aghaei, working with his son Amir Aghaei and his daughter Shadi Aghaei, all associated with the prominent Markham developer, Times Group. Mr. Aghaei is represented by Daniel Artenosi and Natalie Ast of Overland LLP, Toronto.

Opposing Mr. Aghaei’s proposal is the City of Niagara Falls, represented by Tom Halinski of Aird Berlis LLP, Toronto. The proposal was on the agenda of the meeting of City Council on 12 November 2019. The city’s Department of Planning and Development recommended against it. Local residents spoke against it. City Council turned it down by a vote of seven to one, Mike Strange dissenting.

Also opposing the proposal are three additional parties to the LPAT proceeding: (1) the Niagara Parks Commission, represented by Sarah Turney of Fasken LLP, Toronto; (2) the Citizens for Responsible Development, an incorporated community organization in Niagara Falls, with Dianne Munro as President and Debra Jackson-Jones as Secretary; and (3) Kenneth Westhues, resident of the River Road Heritage Neighbourhood and owner/author of this website.

LPAT has officially recognized an additional dozen residents of Niagara Falls as participants in the proceeding, who are allowed to submit their views to the as yet unnamed adjudicator.

Click here to read LPAT’s announcement of the hearing, with directions for how to join the teleconference. Any member of the public is permitted to listen in by phoning 1-888-455-1389 and entering the access code 334-551-693.

PRELUDE TO THE CITY REJECTING THE PROPOSED CONDO TOWERS ON 12 NOVEMBER 2019
6 November 2019

About 30 residents attended an informational "open house" at City Hall on Monday, 28 October 2019, for the 34- and 7-storey condo towers shown above, proposed by Markham-based Times Group Development for River Road between Philip and John Streets. Niagara This Week headlined its story on the event, "Residents 'dead set' against condo tower plan next to Niagara River Gorge":

Marya Buckingham had a blunt message for the developers planning to erect a highrise condo tower on River Road, next to the Niagara River gorge.

“Go back to the drawing board and find something that fits the neighbourhood,” she told them at a public open house at city hall recently, at which tempers frequently flared. “Do something that can be really outstanding … rather than picking up a piece of Toronto and dropping it on River Road.”

Click here for the full story, with photos, on the newspaper's website.

In the first week of November, mature trees have been cut on the site of the proposed development, and demolition of the four existing houses has begun. Click here for description and photos on the SaveRiver Road Facebook page.

Of crucial importance in this matter is the City Council meeting on Tuesday, 12 November 2019, at 6:00 PM. All residents in attendance will have opportunity to express their views, and they can also make written submissions to Council beforehand, by letter to City Clerk Bill Matson. Immediately following this public meeting, Council is expected to vote on the developer's application for rezoning, and for revision of the city's Official Plan.

Click here for the official notice from the city's Planning Department, with details about what is proposed.

The scale of the proposed development is breathtaking: a building 110 m high with 384 dwelling units and three levels of underground parking. It would be the tallest residential building in all of Ontario, outside the Greater Toronto Area. On account of the high-rise hotels in Fallsview, Niagara Falls already has the tallest skyline in Ontario, outside the GTA. This development would extend the warren of skyscrapers beyond the tourist area into a heritage residential neighbourhood. It would be built, moreover, at the edge of the Niagara Gorge, without assessment by engineering specialists of the risk of rockfalls, damage to River Road, or eventual collapse of the condo towers themselves.

The proposal would require near-total disregard of the city's Official Plan. Current zoning allows a maximum of seven storeys and 119 dwelling units on the larger part of the property, three storeys and about a dozen homes on the remainder. The proposed density of 198 dwelling units per acre is double what is currently allowed, 96 units per acre. This would be the most massive development along the entire length of the Niagara Gorge.

Surprisingly, the new proposal is for a building evene taller than the 23-storey tower the previous owner proposed in 2017, which nearby residents strongly opposed and the city's Planning Department refused to recommend. Click here for the previous proposal, which was on City Council's agenda for June 19, 2018, but then deferred at the request of the applicant.

The proposal comes at a time when many cities in Ontario and beyond are placing height restrictions on new construction even in areas where zoning by-laws and official plans allow high-rise, high-density development. Click here for a CBC report on the measures taken in Hamilton last year to limit building heights and preserve heritage neighbourhoods. At 580,000, Hamilton's population is six times that of Niagara Falls. That a city so small as ours would throw height and density limits to the wind, threaten the Niagara Gorge, and diminish a heritage neighbourhood, so that people here could live as far from solid ground as people in downtown Toronto or Hong Kong, seems bizarre.

Ironically, the current owner, Times Group, is the same large, well-established Toronto developer who successfully took the previous owner, Time Development, to court for trademark infringement, and won the case. Click here for the court decision, which required "Time Development" to change its name to something that could not be confused with "Times Group." The new name was "Forme Development," but then this company, the one Times Group defeated in court, went bankrupt in October 2018. In May 2019, when the court-appointed Monitor put most of Forme Development's assets on the auction block, Times Group was the highest bidder for the development site on River Road in Niagara Falls. Click here for the full documentation. That is how this large, successful Toronto developer, with scant experience outside the GTA, has come to play a major role in shaping the future of the River Road Neighbourhood.

Another noteworthy aspect of the current proposal is that in the context of the Niagara Falls housing market, the dwelling units are small: most of them around 500 or 600 square feet. Condos at the nearby low-rise Makan development and at the Royal Port and Harbour Club developments in St. Catharines are more than twice as large. Having successfully built condo towers in Toronto with small dwelling units, Times Group may have the same business plan in mind for its venture into Niagara Falls.

City Council, however, will not likely have the final say. Already in spring 2018, the previous owner (Forme Development) appealed the matter to the provincial level, the Local Planning Appeals Tribunal. Click here for LPAT's file on the appeal, and here for the procedure and timeline ordered by the tribunal on April 18, 2019. According to the timeline, the parties to this proceeding will next convene on January 10, 2020. This meeting is scheduled to be by telephone conference call.

DON'T WORRY, SAYS GOLDER,
ABOUT BLASTING DEEP AND BUILDING HIGH
NEXT TO THE NIAGARA GORGE

In early October 2019, Times Group, owner of the development site on River Road between John and Philip Streets, submitted to the city a consultant’s report that dismisses concern about damage to the gorge from construction of 34- and 7-storey condo towers. Dated 4 October 2019, the report is an update of the geotechnical report submitted by the previous owner (click here), which also supported the project but without addressing risk of damage to the gorge or to the street that runs along its edge.

Like the first report, the update is by Golder Associates, one of the world’s leading engineering consulting firms. The bulk of it presents the same borehole data as before, but with additional calculations. Completely new, however, is Section 6, “Rock Slope Stability along River Road.” This section concludes as follows on p. 17:

Although bedrock excavation by blasting will result in ground vibrations in the rock along the gorge, the impact of this is expected to be relatively minor. In some circumstances where very loose, detached blocks or wedges of rock are present on the exposed surface of the rock face along the gorge (due to ongoing weathering and erosion), the blasting vibrations may cause some of these blocks or wedges to become unstable and fall into the gorge. However, many of these blocks or wedges would likely fall eventually due to the ongoing weathering including ice jacking in the winter months. The expected vibrations from the blasting, during the  bedrock excavation, are not anticipated to have any significant impact on the larger overhangs, such as those described above, or the overall stability of the rock slopes along the gorge near the site. Therefore, a large failure which would compromise the sidewalk or roadway is not anticipated.

No one should hesitate to read this section of the updated report out of fear that the procedures and equipment used to assess slope stability are too specialized and complex for a nonengineer to understand. On the contrary, anybody with a measuring tape and camera can replicate the study on his or her own.

As described on p. 14, the procedure was to walk on the sidewalk on the east side of River Road from Hiram St. north to Eastwood Cr. and look from time to time along the way over the wall toward the gorge. This is what one of Golder’s geological engineers did on 16 September 2019. The idea was “to visually inspect what can be seen of the rock slopes from the sidewalk of River Road in order [sic] identify any areas of potential instability.” The authors of the report, Rafael Abdulla and Andrew Hagner, caution that “the visual observations were limited by the available vantage points along the River Road sidewalk and were sometimes obscured by the vegetation along the crest of the slope.”

A notable difference between the initial geotechnical report and this update is that the former left open the question of whether excavation in the bedrock would be done by blasting (explosives) or by mechanical rock-breaking technology. It said blasting would be faster, but might not be allowed. This update, by contrast, seems to assume that the excavation will be by blasting, which generally causes more vibration than rockbreakers. The key question, of course, is how much vibration, regardless of the technology causing it, the gorge wall can withstand without risk of major rockfalls. Neither the original report nor this update addresses this issue.

Click here to read the full report (see especially pp. 14-17), or skip to the section below for evidence of the need for a thorough slope stability study before any large-scale project is begun.

BACKGROUND TO THE PROPOSAL
OF A HIGH-RISE CONDO TOWER

Proposals of commercial or high-density residential development of the block of River Road between Philip and John Streets have been made at least since the 1980s. Approval and construction would be major steps toward destroying the River Road Heritage Neighbourhood in favour of a warren of skyscrapers as in Mississauga, Brampton, Markham, and other cities of the Greater Toronto Area.

Not surprisingly, residents of this district have repeatedly come together to oppose such proposals, arguing that developments so tall and dense should be restricted in Niagara Falls to those areas (like Fallsview and the Queen Street Business District) where they are allowed by the Official Plan and zoning by-law. Residents argue that any new construction in the River Road Heritage Neighbourhood should be in keeping with its existing character, as explicitly required by the Official Plan, and should entail minimal risk to the gorge and natural environment.

The paragraphs below provide links to the main documents about the repeated eruptions of conflict since 2006, involving developers, residents, the city's planning department, the Mayor, and City Council, as well as the government of Niagara Region and the Niagara Parks Commission. Many relevant documents are also available on the richly informative SaveRiverRoad Facebook page, maintained by resident Debra Jackson-Jones.

The basic issue: risk to the Niagara Gorge

Setting aside issues of neighbourhood compatibility, could high-rise condo towers safely be built along River Road? Might excavation and construction destabilize the wall of the gorge? Might sections of River Road fall into it? Might the buildings themselves sooner or later give way? Until now, no buildings more than four storeys high have been built anywhere along River Road. Nor are there tall buildings near the edge of the gorge on the American side. Massive construction 25 or even 50 m from the edge of the precipice would be unprecedented, new, untried.

Questions like these are common all around the world, wherever construction is contemplated near cliffs and steep slopes. A huge mass of knowledge in the science of rock mechanics has been accumulated, and sophisticated techniques devised for assessing geologic risks. Engineering specialists in this field could conduct a slope stability analysis of the section of the gorge at issue here and estimate the odds that this natural environment can and cannot sustain large-scale development. No such study is available, but abundant historical evidence points to the need for the most careful scientific analysis before any such development is seriously contemplated:

• History of rockfalls. The walls of the gorge are not monoliths. They consist of uneven strata of shale, limestone, and earth, riven by fissures and fractures through which groundwater seeps, freezes, and thaws. This makes for instability. Rockfalls are routine. The Great Gorge Route, a spectacular railway built in 1891 along the river at the bottom of the gorge, suffered one rockfall after another until an exceptionally big one in 1935 put it out of business. Hikers today can see where the railroad used to run.
• Disappearance of Prospect Point. Click here for a video of the collapse of part of the gorge wall in 1954, at Prospect Point on the American side, about 500 m across from where high-rise condos have been proposed on the Canadian side. Notice how the crack started small, then widened until the entire promontory gave way. Even without human help, the same thing could happen to any section of River Road. The question is only of probabilities.
• The Schoellkopf disaster. Almost directly across from the proposed high-rise site are the ruins of the once massive Schoellkopf Power Plant, which lasted half a century before a build-up of hydrostatic pressure caused the gorge wall behind it to collapse and crush the entire structure in 1956. Thirty-nine workers managed to escape, some with injuries. One worker was killed. The photo shows how the enormous building looked after natural forces got the best of it.
• Record of seismic tremors in Niagara. Seismologist Austin McTigue, longtime chair of physics at Canisius College in Buffalo, attributed the Schoellkopf disaster of 1956 to an earthquake in Niagara ten years earlier, on 20 September 1946 (see the 1962 article or this 2014 report). McTigue pointed out that this area is on a fault line, that the 1946 quake had widened a crack behind the power plant, and that ice jacking had caused the crack to widen further over the next decade, until the face of the gorge gave way. The evidence is clear that the Niagara peninsula is among the more quake-prone areas of North America (click here for a map). At a public meeting in September 2017 on the proposal to build high-rise condo towers on River Road, the architect for the project voiced concern about vulnerability to seismic tremors.
  
• City's insistence on geologic study 40 years ago. In 1980, the Planning Department of the City of Niagara Falls produced a 31-page report identifying four alternative futures for the River Road area. According to the report, no redevelopment plan should be undertaken until a careful geologic study of the natural environment would be done. The report said problems of stresses and faulting along the gorge should be investigated to determine which areas "have the load-bearing capacity to accommodate new development."
• The slope stability analysis of 1982. In fact, the city did commission in 1980, a slope stability study of the gorge wall along the full length of the River Road Heritage Neighbourhood, from Hiram St. all the way north to Ellis St. In 2019, Debra Jackson obtained from the city the contract for this $21,000 study, but neither the city nor Golder (the respected engineering firm that did the work) has been able to locate the study itself now 40 years after it was done.
  Fortunately, a resident named James Hennessey (1920-2001) obtained a copy in 1982, when the study was discussed at City Council, and gave his summary of its findings to the Niagara Falls Review. According to Hennessey, the report identified five areas along the gorge as "extremely sensitive," with the stretch between Hiram and Eastwood being worst of all. By his reading, the report found the gorge wall to be so fragile that no development should be allowed closer than 200 feet (65 m) from the rim.
  In the absence of the 1982 report itself and of any later slope stability analysis, the summary in the Review remains the most authoritative professional assessment to date: that the risk of damage to the gorge wall by large-scale construction along River Road is unacceptably high.
• Hydro poles installation. Among the many objections to a proposal for high-rise condo towers in 2006 was one that deserves special attention, since it came from Bill Barrett (1931-2011), owner of the company that had recently installed hydro poles along River Road in the area at issue. In his letter to the city strongly objecting to the proposal, Barrett pointed out that securing the poles was difficult on account of there being little overburden in which to embed them. In Barrett's opinion, the wall of the gorge along River Road is too unstable, fragile, and vulnerable to rockslides, to allow large-scale construction next to it.
• The rockfall of 13 January 2018. Click here for photos of the recent rockslide near the corner of Eastwood Crescent and River Road, graphic evidence of the fragility of the walls of the Niagara Gorge.

In September of 2017, in the face of Time Development's proposal to build high-rise condo towers between Philip and John Streets on River Road, I sent a detailed letter to the city's planning department, asking that "the current proposal, or any proposal of similar magnitude, not be approved until engineers expert in rock engineering and slope stability assessment certify that the risk of environmental damage to the Niagara Gorge and to nearby homes, as well as the risk of future instability of the towers themselves, is no higher than for projects commonly approved in other jurisdictions." To my knowledge, no study has been done in response to my request, and the certification any reasonable observer would insist on is not yet available.

FURTHER BACKGROUND

As of October 2019, this webpage is still under construction. In the meanwhile, you may wish to browse through some of the following documents on the successive proposals for high-rise, high-density development of the John-Philip block along River Road, and what became of them.

The proposal of 29 storeys in 2006. This file brings together a wealth of documentation on a 250-unit proposal by O.R.E. Development, an affiliate of the Opus Group in Minneapolis, a major developer of commercial properties. Niagara Falls solicitor Italia Gilberti represented the company. Residents of the neighbourhood and the city's Planning Department opposed the proposal. City Council approved it anyway. It was later withdrawn.

The compromise proposal of 4-7 storeys in 2008. These are minutes of the City Council meeting of October 6, 2008. A new owner, Niagara Falls Pointe Ltd, proposed a 4- to 7-storey building with 119 units. Italia Gilberti was once again the proponent's solicitor. The Planning Department recommended in favour. City Council approved it. The resultant rezoning and amendment to the Official Plan remain in force as of 2019.

The Ontario Municipal Board (OMB) decision of 2009. Many nearby residents found even the compromise proposal of 119 units too high and dense. Led by F. J. Prentice, they therefore appealed Council's approval of it to the Ontario Municipal Board (OMB). This is the full text of the OMB decision, upholding Council's approval and confirming that the development could proceed.

The city's closure and sale of River Lane, February 2017. Niagara Falls Pointe did not proceed with the building approved by City Council and the OMB. For the next eight years, the property was neglected and overgrown with weeds. Then suddenly, the city solicitor recommended to Council that the city declare surplus the street next to the property at issue, River Lane, and sell it to a new owner for $12,000. Here are minutes of the meeting at which Council approved this recommendation. The buyer was Time Development Group, a company in Markham controlled by Mike Wang.

Community information meeting, April 2017. This is the flyer distributed to residents living near the development site. At this meeting, held at Simcoe Street Public School, residents were informed of the new owner's plan to build 12- and 21-storey condo towers with 390 units. The drawing at right shows the towers as described at that meeting. Planner Ryan Guetter chaired the meeting. Italia Gilberti was present, representing the new owner.

Public meeting at City Hall, September 2017. This is the flyer, "Fourteen Fast Facts" about the developer's proposal, that I circulated to residents before this second meeting, again chaired by planner Ryan Guetter. The proposal was essentially the same as presented in April.

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ONE MORE LINK

In November 2018, I sent to the Mayor and Councillors a detailed report on the five main irregularities so far in the handling of the 2017 proposal to build high-rise condo towers. Click here to read my report. I recommended that Council refer my report to its solicitor for this matter, Tom Halinski, and to request his opinion and advice. By majority vote, Council declined to do so, instead simply received my report for information.