Favouritism
toward Niagara Grandview Manor
at the City Council meeting
of September 10, 2019

Kenneth Westhues
Resident of the River Road Heritage Neighbourhood
Niagara Falls, Canada

Two and a half years after neighbours formally asked city officials to enforce its by-law governing Niagara Grandview Manor, the by-law was still not enforced. I therefore took the request to City Council (click HERE) at its meeting of September 10, 2019, presenting a petition signed by 34 residents:

We ask Niagara Falls City Council to ensure immediate enforcement of By-law 2015-51. This by-law limits Niagara Grandview Manor to 12 rooms at one location, 5359 River Road, and excludes serving meals to anyone lodged elsewhere.

The violations of the by-law are open and undisguised, and have been ongoing since 2014. The inn’s owner, John Pinter, has gradually expanded it to 25 or 30 rooms by buying or leasing nearby single-family homes and making them part of the inn. There are six such homes so far. They are all zoned residential. Using them for any commercial purpose is against the law. Mr. Pinter has made them part of his business anyway, and the city has let him do it.

The tourists who stay in these extensions of the inn not only sleep illegally. They also eat illegally. By-law 2015-51 allows Mr. Pinter to serve food only to guests lodged at the inn. Mr. Pinter serves food to guests staying in all six properties. He calls the inn’s dining room a restaurant – a use specifically forbidden by By-law 2015-51.

Plainly, the city has played favourites, exempting Mr. Pinter’s business from routine by-law enforcement for five years – and for two and a half years since my wife Anne and I, along with seven neighbours, first formally complained. Putting the matter on Council’s agenda could have been the occasion for setting things right: for closing down Mr. Pinter’s business on the five properties zoned residential and limiting it to the one property, 5359 River Road, where By-law 2015-51 allows it to operate.

No such luck. As things turned out, the city continued its favouritism toward Mr. Pinter’s enterprise at the Council meeting, even after granting my request to put the matter on the agenda and letting me give a five-minute presentation.

Say Lor Lee, a woman from outside the River Road Neighbourhood who observed the meeting, was so struck by the favouritism shown to Mr. Pinter that she wrote an angry letter to Council that same night. She sent me a copy, though I had not met her previously. With her permission, I have included it in this website (click HERE).

For my part, I went home and studied the agenda (click HERE) and video (click HERE; this item runs from 1:10 to 1:59). From this exercise I identified nine ways the preferential treatment of Niagara Grandview Manor was revealed. You can confirm them by reviewing the agenda and video yourself. They are a case study of how a municipal government can rebuff a request for even-handed enforcement of municipal by-laws.

1. Mistitling the agenda item

The by-law that directly governs Niagara Grandview Manor is No. 2015-51 (click HERE), the one that allows a 12-room inn at 5359 River Road. This is the by-law cited in my email asking to address Council (click HERE). Hence the relevant agenda item should have been titled “By-law 2015-51, pertaining to an inn” or “Niagara Grandview Manor.”

The agenda item was instead titled “Bed & Breakfast Operations and Vacation Rentals” – forms of tourist accommodation my request had made no mention of. By-law 2015-51 specifically excludes “Bed and Breakfast” from permitted uses of 5359 River Road, and none of Mr. Pinter’s houses qualifies as a bed and breakfast under the relevant by-law. Similarly, zoning does not permit operation of a vacation rental on any of his properties.

Why was the agenda item mistitled? The effect was to lend undeserved credibility to Mr. Pinter’s inaccurate claim on promotional and reservations websites that Niagara Grandview Manor is a bed and breakfast, and that his other properties are vacation rentals. Mistitling the agenda item confused the issue.

2. Mixing up the meaning of words

Confusion about the various forms of tourist accommodation – hotel, motel, inn, bed and breakfast, vacation rental – and which by-laws pertain to which persisted throughout the discussion. Near the start, Councillor Campbell asked the City Solicitor to clarify definitions, but she declined.
 
In my presentation, I called Niagara Grandview Manor a “multi-building motel,” as opposed to the 12-room inn on one property that it is legally allowed to be. I used the term motel as defined in the city’s zoning by-law, “a building or buildings or part thereof consisting of a number of motel units and catering primarily to the travelling public by supplying overnight sleeping accommodation with or without meals...”

Mr. Pinter took offense at my calling his business a motel. He said the breakfast served is “very high-level,” with multiple pastries and entrées: “You’re not going to find too many motels that serve anything like that.” His rejoinder missed the point. A high-level motel is still a motel if it fits the city’s official definition. A motel is what Mr. Pinter is in fact operating, even though this is not a permitted use of his properties. All he is allowed to operate is a 12-room inn, as defined in the enabling by-law, No. 2015-51.

Mr. Todd gets the prize for the most Orwellian misuse of a word. In his remarks at Council, as in his long email prior to the meeting (click HERE), he claimed that Mr. Pinter aims to bring his properties into compliance with zoning by-laws. This word means acquiescing or yielding to an external standard, as in modifying use of a property to make it conform to what a city requires. Mr. Todd went on to explain, and Mr. Pinter confirmed, that his aim is to change the zoning by-laws in such a way that his currently illegal activity becomes legal. This is the opposite of compliance. Mr. Pinter wants the city to yield to him, not the other way around. Mr. Todd’s misuse of the word compliance turned the reality upside down – in Mr. Pinter’s favour. 

3. Giving Mr. Pinter 43 minutes at the podium, as compared to five minutes for me

In my email requesting permission to address Council, I said that others, including Mr. Pinter, might also wish to speak, and I hoped Council would let them. Somebody in City Hall did indeed invite Mr. Pinter to speak, but not anybody else but me. Fair enough, procedurally defensible: two five-minute presentations, one for and one against enforcement of the by-law.

The way things turned out was not defensible by the rules of fair procedure. Mayor Diodati invited me to speak, I did so, no Councillors had questions, the Mayor thanked me, and I returned to my seat in the public gallery. Then Mr. Pinter had his five minutes. Fair enough. Councillor Strange asked him two friendly questions that let him speak for a couple minutes more. Still fair. Mayor Diodati invited more questions but only Counsellor Campbell raised his hand. The latter said he had a question for staff.

That was the point at which the Mayor should have thanked Mr. Pinter and signaled that he could return to his seat, as I had done. Instead, Mr. Pinter remained at the podium for all the rest of the discussion, including the votes at the end. The Mayor never asked him to be seated. That meant he occupied the podium for 43 minutes, as compared to five for me.

Not only that. The Mayor allowed Mr. Pinter to question and argue with Councillor Campbell. The latter objected that Mr. Pinter had had his five minutes. The Mayor responded, “He’s answering questions” – the opposite of what was going on. Later, when Councillor Kerrio seemed to address a question to Mr. Herlovitch, Mr. Pinter jumped in and gave his answer first, then interrupted and corrected Mr. Herlovitch when the latter spoke.

When Mr. Pinter made snide comments specifically about me, the Mayor might have offered me opportunity to respond. He did not. Later, when Councillor Dabrowski was speaking, exasperation got the better of me and I cried out loudly, “Read the by-law.” The Mayor shouted at me, “You’re out of order.” This was true. It was also true that Mr. Pinter had been out of order for the past half hour.

By the way he chaired Council’s handling of this issue, Mayor Diodati showed his hand in favour of the lawbreaker. He let Mr. Pinter physically position himself in the decision-making circle and freely take part in discussion, leaving me and a dozen others in favour of enforcing the by-law to watch from our seats outside the circle in the public gallery.

4. Staff experts’ ducking of questions

When called upon, staff experts in law and planning assist Council by pulling out pertinent quotes from by-laws, policies, and research reports. They normally anticipate and are prepared to answer questions that draw on their expertise. In this instance, the staff experts copped out.

Councillor Campbell asked the City Solicitor about the difference between a hotel and a bed and breakfast. “I’m happy to provide you with a legal opinion,” Donna Jaques replied, “but probably not in open session, and once I’ve had a chance to prepare one.”

Sometime later, Councillor Pietrangelo asked the Director of Planning about the status of the River Road district in the city’s Official Plan. “I’m gonna take a page out of the solicitor’s notebook,” Alex Herlovitch replied, “and say, ‘I’ll get back to you.’”

Ms. Jaques and Mr. Herlovitch seemed to sense that questions on this agenda item were above their pay-grade and that they had best remain silent. Ms. Jaques said nothing further. Mr. Herlovitch made some comments later, but cautiously.

5. The CAO’s provision of false information to Council

At the start of discussion, when Ms. Jaques opted not to answer Councillor Campbell’s question, Mayor Diodati turned to Ken Todd: “Mr. CAO, could you maybe weigh in?”

In his reply, Mr. Todd made a blunt statement to Council: “Technically, those other satellite houses did not become illegal until you passed your Airbnb by-law about a year and a half ago.”

This statement was and is patently false. The satellite houses have been illegal ever since Mr. Pinter began using them for a commercial purpose in 2014, since the zoning by-law then and now restricts all of them to residential use.

The wrongness of Mr. Todd’s statement is exposed by actions of his own staff. On 14 September 2017, half a year before Council passed its Airbnb by-law, Enforcement Officer Jamie Cerminara sent a tough, threatening letter to the owners of 5411 River Road, informing them that Mr. Pinter’s commercial use of this property was “forbidden by the comprehensive zoning by-law of the City of Niagara Falls....”

In 2012, previous owners of 5401 River Road applied for rezoning in order to use the property for a commercial purpose, as a vacation rental, but then withdrew the application in the face of opposition from neighbours. After Mr. Pinter bought the property in 2014, he began using the property for a commercial purpose on his own authority, without applying for a zoning change. Obviously, this was just as illegal as in 2012 and as it is today.

Mr. Todd’s false statement to Council biased all the rest of the discussion in the lawbreaker’s favour. If Mr. Pinter’s motel was legal until April 2018, when Council passed its Airbnb by-law, then leniency in enforcement  would be correct, especially since that by-law is still under appeal. In truth, as the actions of Mr. Todd’s staff demonstrate, Mr. Pinter’s motel has been illegal from the start.

6. Displacement of law and policy by idiosyncratic personal opinions

Law and policy are the rudders that guide fair governance. In this case, the city solicitor and the director of planning failed to supply these rudders, and the CAO supplied a crooked one. The by-law directly governing Niagara Grandview Manor, No. 2015-51, got lost in a blur with the by-laws on vacation rentals and bed and breakfasts. The discussion went adrift, allowing Councillors to voice idiosyncratic sentiments contrary to law and policy.

The city’s Official Plan is unambiguous: “No commercial uses shall be permitted in the River Road Satellite District” (Para. 4.2.38). Homeowners are allowed to operate bed and breakfasts in their own homes, but no property can be put to purely commercial use. By-law 2015-51 reaffirms the zoning of 5359 River Road as residential, but with exceptional allowance of a 12-room inn on this one property. All the surrounding properties are residential, most of them single-family and owner-occupied, in keeping with the Official Plan.

Compare these legal provisions with the offhand assertions of three Councillors, all of them tending to excuse Mr. Pinter’s illegal enterprise:

Councillor Dabrowski: [addressing Mr. Pinter] “You run a legitimate business....” [referring to the River Road Neighbourhood] “I don’t see it as residential..., there’s a lot of commercial businesses along River Road..., you’re running a bed and breakfast and I think it’s consistent with the other businesses in the area.”

Councillor Pietrangelo: “It’s a difficult situation. I also see both sides.... I agree with Mr. Pinter that the River Road district is a little bit different.... I really can’t see Council being supportive [of rezoning applications to change residential to commercial] unless the area itself is of a commercial nature.”

Councillor Thomson: “This is a very difficult decision.... I thought we were looking at River Road as a different type of zoning.... In my opinion, River Road is not a typical residential area, and that is why Mr. Pinter is in the business that he’s in.”

These quotations illustrate how the discussion drifted from one idle musing to the next, uninformed and unguided by the Official Plan and relevant by-laws – or even by reality. Contrary to Mr. Dabrowski’s claim, there are no commercial businesses in the River Road District, just residents – about 15 percent of whom operate bed and breakfasts in their homes.

As if to compound the confusion, Mayor Diodati asked Mr. Herlovitch about the houses Mr. Pinter has incorporated into his inn: “We have a by-law, but the by-law as I understand it has been appealed to LPAT. What status does that leave these B&Bs?” To his credit, Mr. Herlovitch replied accurately: “The by-law that’s under appeal really doesn’t apply.”

7. Voting down a motion to enforce By-law 2015-51

Despite obfuscations and evasions by Mr. Pinter, Mayor Diodati, and Mr. Todd, three Councillors managed to focus on the essential issue, that the hotelier at whose request Council passed By-law 2015-51 has been violating it for five years, overstepping what it allows, and that the city has let him keep doing so even in the face of neighbours’ complaints:

Councillor Campbell: “Problem is, it’s an illegal operation. Are we going to stand by our by-laws or are we not?”

Councillor Lococo: “We do have a by-law in place. If we don’t want to enforce this one, why are we enforcing the airbnb? To me, it’s either enforce it or don’t.”

Councillor Kerrio: “It’s a tough situation but we can’t do nothing. Technically, he’s running an operation that doesn’t meet the by-law.”

If Council had chosen to end the favouritism shown to Mr. Pinter’s business, it would have passed the plainspoken motion moved by Councillor Campbell and seconded by Councillor Lococo: that the city enforce its by-law governing Niagara Grandview Manor.

But these were the only two Councillors who voted in favour. Councillors Pietrangelo, Strange, Kerrio, Dabrowski, and Thomson all voted against.

Whatever the illegal use to which an owner wants to put a piece of property, the general rule is to refrain from the illegal use until a rezoning application has been submitted to the city and approved. By voting down the Campbell-Lococo motion, Niagara Falls City Council made an exception to the rule for Niagara Grandview Manor. That is favouritism.

 8. Passing a motion requiring Mr. Pinter to do what he already planned to do.

From their previous comments, I had the impression that four Councillors – Strange, Dabrowski, Pietrangelo, and Thomson – would have been content to be done with the matter, once the Campbell-Lococo motion had been voted down. This was the point, however, at which Councillor Kerrio said “we can’t do nothing.” The risk was to seem to deserve what one observer called the majority on Council, “Pinter’s puppets.”

Councillor Kerrio moved that Mr. Pinter be required to submit a rezoning application by the next Council meeting. Mr. Pinter had already said this was what he planned to do. All except Councillors Campbell and Lococo voted in favour. Thereby Council gave an appearance of exerting its authority without actually doing so.

As Mr. Herlovitch explained, the city’s processing of the application would probably take four months, after which an appeal to the provincial appeals tribunal would take a further six months or a year. All the while, Mr. Pinter would continue to be exempt from by-law enforcement, free to get his multi-building motel better established and perhaps expand it to additional properties, meanwhile damaging further the residential character of the neighbourhood.

Passage of this motion may actually have strengthened Mr. Pinter’s hand when the rezoning application comes before Council, as is likely several months from now. At that point he can accurately say, “See, I met your deadline. I did what you asked me to do. It is therefore only fair that you approve the rezoning application.”

9. Omitting this matter from its public report on the Council meeting

One final way the city gave Niagara Grandview Manor special treatment was by leaving this matter out of the news report, “Update and Highlights,” circulated the next day to its subscriber list as part of “My City – Let’s Talk.” The report described almost every other agenda item from the Council meeting, but not the item that had consumed fully a quarter of the time, namely the dispute about exempting Mr. Pinter’s business from by-law enforcement.

This was favouritism in the sense that the exemption of Niagara Grandview Manor from by-law enforcement was somewhat shielded from public view. On the other hand, this matter has not been censored from the agenda and meeting video available on the city’s website.

Looking to the future: Mr. Pinter’s rezoning application

The paragraphs above have described nine ways in which the preferential treatment accorded to Mr. Pinter’s business over the past five years was continued in City Council’s meeting of September 10, 2019. The question now is, what next?

Residents can expect that sometime this fall, agents for Mr. Pinter will describe at a public meeting his application for rezoning. From Mr. Todd’s email of August 27 (click HERE) and from the Council meeting, we know essentially what will be proposed: legalization of the business as it stands. The inn at 5359 River Road will be called the “hub.” The other houses where guests are lodged will be called “satellites.” The city will be asked to rezone all of them for commercial use and allow a restaurant for all guests in the hub. Residents will be able to speak for or against this proposal at the meeting, or convey their views to the city by letter or email.

The city’s Planning Department, headed by Mr. Herlovitch, will then make a recommendation to Council about the proposal. Residents will have a further opportunity to register their opinions at a Council meeting, at the end of which Council will vote yea or nay. Whichever side loses at Council  – opponents of commercial rezoning or Mr. Pinter – can appeal to the province’s Local Planning Appeal Tribunal (LPAT). The process will take about a year.

The future of the River Road Neighbourhood – and of other neighbourhoods vulnerable to commercialization by stealth – hangs on how this issue is resolved. If Mr. Pinter’s motel becomes legal, he is likely to expand it to additional homes, as he has already tried to do. Further, other entrepreneurs will likely establish similar multi-building motels. The percentage of homes put to commercial use will rise. Feeling squeezed, more residents will move away. In the space of a few years, River Road will cease to be a neighbourhood.

On the other hand, if Mr. Pinter’s rezoning application is refused, his business will be restricted to the twelve-room inn at 5359 River Road, and he can devote his considerable talents and energies to making it a community asset. The River Road Neighbourhood will continue to be what it has been for more than a century: a residential area, a place where people live, and where a minority of residents welcome tourists into their homes in legal bed and breakfasts.

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