Opening statement prepared for the

hearing on the River Road High-rise

Condos application, PL180376,

25 October 2021

Kenneth Westhues, 5419 River Road, Niagara Falls, Ontario L2E3H1
Non-appellant party to OLT Case PL180376

Preface

I attended the first prehearing of this case on 30 October 2018, explaining to the tribunal that I had relevant evidence I thought it should hear, evidence the two main parties, city and developer, would likely gloss over or skip. Mainly, I wanted to inform the tribunal about the city's closing of a street before the development proposal was even formally submitted, let alone approved, and its, in effect, gifting of the land to the developer.

Acting for the tribunal, adjudicator Hugh Wilkins admitted me to the proceeding:

Kenneth Westhues, who lives in the vicinity of the subject lands, also requested
party status. He outlined height, density, environmental, and geologic issues regarding the proposed development. He also raised issues regarding the approval process at City Council. The Appellant and the Commission did not oppose Mr. Westhues’ request. The Tribunal granted him party status. (Click here for Mr. Wilkins's decision.)

On the strength of this ruling, I studied the tribunal's rules and took part in the long series of consultations and prehearings over the next three years. At every turn, I had to resist efforts by the applicant's lawyers (sometimes by the city's lawyer, too) to exclude the evidence and argument I thought should be brought to the tribunal's attention at the eventual hearing of the merits of the case.

At almost every turn, my resistance failed. At the lawyers' urging, other adjudicators acting for the tribunal little by little whittled down the issues I would be allowed to raise until none were left. On 29 September 2021, a few weeks before the actual hearing, adjudicator Tony Prevedel ruled that I would not be allowed to call evidence. Click here to read his decision.

Mr. Prevedel also ruled, however, that I "would have every opportunity to provide an opening and closing statement to the Tribunal at the upcoming Hearing." According to the hearing plan, I would have 45 minutes for my opening statement.

I understood this to mean I would have one last chance to bring to the tribunal's attention the information that had motivated me to get involved in this case three years earlier. I searched out online sources about what is normally allowed in opening statements, learning that parties have wide latitude about what to say. This was confirmed by an email of 3 September 2021 from the tribunal's "Strategic Projects and Communications Coordinator," Crisann Alevizos: "At the beginning of the hearing, parties may give brief opening statements addressing what they feel are the issues in the case before the OLT, a summary of the evidence they intend to present, the names of the witnesses that they intend to call, and the amount of time they feel they will need to present their case."

Accordingly, I wrote my opening statement carefully, rehearsed and timed it to stay within the 45-minute limit, and illustrated it with PowerPoint slides for the virtual event.

I had scarcely begun my presentation when the hearing commenced, however, when the head of the developer's legal team, Denise Baker, interrupted with fierce objections, principally — so far as I understood — that I was trying to present evidence. She came across as a highly combative character.

Adjudicator Dale Chipman — who is not a lawyer, though she did complete 15 days of training in conflict resolution at the University of Windsor Law School — appeared to be a less aggressive personage than Ms. Baker. Deferring to the lawyer, Ms. Chipman told me repeatedly, "Just tell your story." I replied that this was what I was trying to do. When I resumed my presentation, Ms. Baker erupted in protest again.

The only way I could have continued was if Ms. Chipman, as the presiding authority, had intervened firmly on my behalf, directing Ms. Baker to let me speak. Ms. Chipman did not do so. With time running out, I abandoned my presentation and the slides, and stumbled through some sentences that I am sure left no impression on the adjudicator or anybody else.

Below, complete with the 21 slides, is the opening statement I had prepared but was unable to present.

Opening statement

Last February, when I received the notice from Raj Kehar that WeirFoulds is now representing the applicant/appellant in this case, I googled his name to find out something about him. Thereby I came across a quotation from him and his late colleague Barnet Kussner in an OLT hearing last February. They were representing the City of Richmond Hill, opposing a developer named North Elgin Centre. They said the developer had taken a stance of “my way or the highway,” showing scant “willingness … to achieve consensus and middle ground, as this Tribunal actively encourages.” (PL 180073). The Tribunal quoted Messrs. Kussner and Kehar approvingly, and ruled in their favour.

The relevance of this precedent is that from the start of this case, the applicant – initially Mike Wang, and since 2019 Saeid Aghaei – has taken the same stance of “my way or the highway,” showing uncompromising rigidity, unwillingness to bend in response to the host community’s concerns, disinterest in finding consensus or middle ground.

On April 17, 2017, four and a half years ago, a cheerful young man named Shaoyong Shen arrived at the door of our home distributing this flyer.  I remember exactly what he said, “This meeting is where we show you what we are going to build.” He didn’t say, “We’re looking for feedback from residents on our proposal.” His message was that residents would be informed of a fait accompli, a decision already made.

I studied the flyer and was shocked to see a map of the “subject site” that included the home of our elderly neighbour and friend, Susie Ong, who had operated a B&B in her home for 20 years. She had told my wife Anne and me that somebody had tried to buy her property but that she had firmly refused. Now here was a map that showed not only the street next to her home, the street that buffered her from high-density housing approved but not yet built, but also her own home itself as part of the “subject site.”

I complained by email to Mr. Shen, also to Ryan Guetter, the contact person named on the flyer. Mr. Shen apologized to me for the mistake. I don’t believe Susie Ong ever got an apology. The neighbourhood meeting took place, orchestrated for presenting information as opposed to inviting feedback.

Some possibly wild rumors are circulating in our neighbourhood – the area along River Road north of the Rainbow Bridge. Rather than engage in gossip-mongering myself, it’s more responsible citizenship that I ask you directly if or to what extent the rumors are true.
According to the rumors, a Toronto developer is working quietly with you or members of your staff, planning a high-density, high-rise condo development contrary to current zoning and inconsistent with the low-density, primarily single-family residential character of this neighbourhood, as set down in the Official Plan.
…
This email is to ask if there is any truth in these rumors, and if so, when local residents will be able to give input. I’ll copy this also to Mayor Diodati, since I would think it unlikely that your Planning Department would participate in an initiative of the rumored scale without the mayor being aware and involved.

Mr. Herlovitch wrote back the next day, July 22, 2016, saying a developer had indeed come to see him to discuss development along River Road between Phillip and John Streets. Mr. Herlovitch said:

I reviewed with him the long history of official plan and rezoning of the site. The information I passed along is pretty much as you outline in your email below. He expressed an interest in developing a much taller building(s) than currently approved with an increased number of units. I explained the heights and densities proposed far exceeded current Official Plan designation of the lands. I reviewed with him the intent of the policies affecting the lands, the zoning of the lands and also reviewed the OP and zoning for the surrounding residential neighbourhood. I explained to him that this was a very solid residential neighbourhood with strong resident interest which had objected to the previous two development scenarios (which you outlined. I advised him (as I do many developers) to consult with the surrounding neighbourhood to determine whether or not there would be any support for his application. I told him he would have to provide sound planning rationale to substantiate any application he would intend to submit to the City.
I have had no further contact with this man since that initial meeting. I told him the site was too small for the density he proposed. I certainly did not encourage him to purchase additional lands, if he is acquiring lands it was not on my advice.
The Planning Department does not have an amendment application for these lands. In the event an application is received, it will follow the regular processing which includes a neighbourhood meeting in advance of the statutory public meeting under the Planning Act.

I was grateful and relieved to receive this response from Mr. Herlovitch, and said so in a reply email:

What you told the developer who came to see you about a possible River Road development seems to me to be accurate and responsible and to reflect best practices in urban planning. It's what residents of this neighbourhood would hope and expect you to say.
I appreciate the assurance that your department would handle any amendment application for this property in the normal way according to the Planning Act, which includes public notice and meeting.
…
Thanks for setting some unfounded rumors to rest.

In light of the quote from Mr. Kehar with which I began, about the importance of cooperation, seeking consensus and middle ground, I especially appreciated Mr. Herlovitch saying he advised the developer “to consult with the surrounding neighbourhood to determine whether or not there would be any support for his application.”

But this advice fell on deaf ears. The public consultation process Mr. Guetter describes in Section 10 of the PJR has been a formality. One looks in vain for significant changes to the initial proposal that have resulted from it.

After ownership had passed to Times Group and Mr. Aghaei’s company, with a deadline looming for submission of the final proposal, the Citizens for Responsible Development and I jointly made a last-ditch effort to find middle ground, writing to the developer’s solicitors on June 19, 2019:

Each of us would be pleased to give informal feedback on any drafts of your proposal that you would be willing to share with us between now and the end of September. We believe the Niagara Parks Commission, also a party to this proceeding, might also appreciate the opportunity to give feedback.
Obviously, it will be to the benefit of all concerned if agreement among all or most parties can be reached this summer on the development proposal, thereby avoiding adversarial proceedings before Niagara Falls City Council and LPAT, and consequent delays.

Now at last comes the showdown before this Tribunal. By all available evidence, is the development application so stellar an example of good planning that the developer has been justified in snubbing the City and the neighbourhood, declaring in effect, “My way or the highway”? If so, the Tribunal should approve the application. If not, the Tribunal should tell the applicant to take the highway back to Toronto and devise a proposal that respects the Official Plan of the City of Niagara Falls and that fits this old, established neighbourhood on the edge of the Niagara Gorge.

A paper trail documents how these many years have been wasted and how we have arrived at this regrettable confrontation. I believe Mr. Herlovitch told the truth in his email to me, that he was at that time opposed to high-rise condo towers on this site and not in cahoots with the developer.

Other city officials, however, in particular City Solicitor Ken Beaman, pandered to the developer. The statutory pre-consultation meeting took place on December 1, 2016, with 17 people in attendance, though not Mr. Herlovitch. Mr. Guetter had by then prepared drawings of the two proposed condo towers, 12 and 21 storeys comprising 390 dwelling units. The meeting seems to have gone well. City officials suggested at the end that a proposed deeming by-law be submitted with the application, to lump together all the assembled properties: the part already approved for a 119-unit building on the east side of River Lane and the four single-family homes on the west side. As for the street itself, River Lane, the summary said simply: “Acquisition of River Lane necessary for development. Please continue to work with Legal Services on this.”

This shows how far the City has been willing to bend in order to accommodate the developer. Already five years ago, the City rode roughshod over the interests of abutting landowner Susie Ong, sidestepped the Planning Act, and made a basic planning decision in support of this application, namely to close a one-block length of a city street, River Lane, and sell this linchpin parcel to the applicant, permitting properties on both sides to be developed as a whole.

Even though the recommendation to eliminate River Lane came from the pre-consultation meeting with Planning Staff, Mr. Beaman’s report to Council made no reference to planning. He said simply that this stretch of River Lane was disused (a false statement), that it should be declared surplus and sold to the owner of all abutting properties except Susie Ong’s.

At the Council meeting on February 14, 2016, Susie Ong’s niece Eugenia Pitre spoke on her behalf, protesting that she did not want to lose the street alongside her property, her buffer from high-density development. Mr. Beaman replied that “this has nothing to do with any developing proposed by the new owner.”

I submitted a letter to Council for that same meeting, asking it to follow the Planning Act and local precedents, and to defer the closure and sale of River Lane “until such time as an amendment application for the subject lands has been received by the Planning Department and processed in the normal way.”

Ms. Pitre’s oral objections and my written ones were for nought, because just before the open meeting where Council heard these objections, Council had decided in camera to close River Lane and in effect gift the land to the applicant for $12,000.

The handling of River Lane is dramatic evidence of how helpful to the applicant, at that time Mr. Wang, the City initially was. That helpfulness complicates matters for this Tribunal, if the Tribunal should decide – as I think it should – to deny the application and retain current zoning, R2 on the west side of River Lane and special-plan high density on the east side of River Lane. But River Lane is no more. It no longer exists. No home can have a driveway onto it. It can no longer be a boundary between zones.

The slide shows the problem. At left is the map of the zoning status quo that Mr. Halinski submitted last week to this Tribunal. Notice that River Lane comes down from the north until it gets to Philip Street, but then it stops. There is then just an imaginary red line about in the middle of where River Lane used to be, dividing R2 zoning from residential apartment zoning. At right on the slide, by contrast, is the map of the zoning status quo on the website of Ontario’s Municipal Assessment Corporation. River Lane still exists on this map, but in a distinct colour, and described as “Non-buildable land (walkways, berms, stormwater management….)”

This Tribunal can deny the application, as I believe it should, but it can’t put River Lane back where it was, any more than it can rebuild the four family homes on John Street that the applicant, now Mr. Aghaei, demolished two years ago.

Acquiescence to developers is a longstanding attribute of the Niagara Falls municipal administration, and this has often meant siding with developers against residents.
Of direct relevance here is the City’s approval back in 2008 of a 119-unit building four to seven storeys high for that part of the subject land fronting River Road. This was more height and density than most residents thought appropriate. They thought a townhouse development would better suit the neighbourhood, and so appealed the matter to the Ontario Municipal Board. It was a one-day hearing. The City went to bat for the developer. The OMB summarily rejected the residents’ appeal, and confirmed the Official Plan Amendment that has been in place for the past dozen years, allowing a large building like the one shown on the slide.

If the applicant in the present case had been willing back in 2017 to reciprocate even a little the City’s eagerness to find common ground with him, if he had proposed, say, 150 units instead of 119, with height and density on the R2 portion similar to what was already approved for the portion fronting River Road, the City would likely have approved.

Instead, the formal application was for two towers, 12 and 21 storeys, 390 dwelling units, and the Applicant resisted even the modest scaling back suggested by the City’s Planning Staff.

The applicant would not bend, and then he got spooked by the Wynne Government’s new rules that would take effect on April 1, 2018, strengthening the authority of municipal councils and facilitating citizen participation in land-use planning. Afraid that he would not get his way at the municipal level, Mr. Wang appealed the application to the provincial tribunal three days before the new rules came into force, on grounds that the City had taken longer than six months to make a decision on it.

So now here we are 43 months later, with no decision yet made. If the applicant had been willing to give as well as take back in 2017, finding middle ground with the City at that time, construction of 150 units of housing, 150 homes, maybe more, would now be nearing completion on the development site. Such is the cost of unwillingness to compromise.

Mike Wang’s stubbornness cost him more than delay of his project in Niagara Falls. His umbrella company, Time Development, got into a long legal battle over trademark infringement with an older, competing company, Times Group, of which Saeid Aghaei is a founder, partner and principal. Mr. Wang’s company lost to Mr. Aghaei’s company in Federal Court in 2016, then lost again in the Federal Court of Appeal in 2017. Mr. Wang had to change the name of his company to Forme Development.

Meanwhile the website of Mr. Wang’s company disappeared from the internet and the Globe and Mail reported the sudden cancellation of one of his projects in Toronto. I shared all this news in a letter to neighbours in the River Road Neighbourhood on February 25, 2018, commenting that the common theme was that Time Development Group, “if it still exists, is in legal and financial difficulty.”  I copied Mr. Guetter on this letter, and asked if he continued to be associated with Mr. Wang’s company.

But the handwriting was on the wall. It was not business as usual. In November of 2018, Mr. Wang’s company went bankrupt. The court-appointed monitor, KSV Kaufman, put most of his assets on the auction block that next spring, to pay Mr. Wang’s creditors. These assets included his prized possession, 5507 River Development in Niagara Falls.

At that point, I got in touch with KSV Kaufman and offered to buy the former River Lane for the same amount, $12,000, that Mr. Wang had paid for it. I said I would then sell it back to the City for the same amount, so that the development process for the properties on either side of River Lane could start over with a clean slate, without any backroom deals or sidestepping of the Planning Act.

Not surprisingly, KSV Kaufman declined my offer, saying it would sell all the assembled properties, including the former River Lane, as a package. This way, they would bring a higher price. I could hardly object. Assets liquidated in a bankruptcy must ordinarily be sold for as much as possible, to reduce creditors’ losses.

Studying the brochure, I worried that a developer would be misled by those drawings and buy the development site with an expectation of building the high-rise condo towers, and we would end up where we are today, in an adversarial hearing with the developer and the host community at loggerheads. I therefore wrote to the members of Niagara Falls City Council, asking each of them to provide full background information to any prospective purchaser who might contact them.

I was not the only one worried in this respect. Mr. Herlovitch followed up with an email of his own to all Members of Council: “For the record, I saw the advertisement for the property which referenced a 12 and a 21 story development. I called the agent and left a message stating the only zoning approval on the property was for a 7 story 118 unit residential development. I have no idea whether anything was done with the information I provided.”

To make a long story short, KSV Kaufman received four bids on the development site. It accepted the highest of the four, an unconditional offer from a subsidiary of Times Group Corporation, Mike Wang’s archrival in the Markham condo market and his nemesis in the trademark infringement case. The owner of the subsidiary was identified as Saeid Aghaei, founder and principal of Times Group. The sale closed on April 30, 2019.

Meanwhile, on April 18, 2019, just before the sale closed, this Tribunal convened the second Case Management Conference in the appeal, scheduled six months earlier before the bankruptcy, and intended for “finalization of an issues list and draft Procedural Order.” Obviously, that couldn’t happen. Mr. Wilkins, the presiding Tribunal member, managed to reach by telephone Stephen Aghaei, who said the new owner’s plans for the site were not yet finalized.

Mr. Wilkins set a third Case Management Conference for May 27, 2019. The new owner said again that he had not yet finalized his development plans. The Tribunal set a deadline of September 27, 2019, for the new owner to submit his plans, then for a public meeting in Niagara Falls in November, and a further Case Management Conference in January 2020.

Those first eight months of Mr. Aghaei’s ownership of the development site were crucial for how we have arrived at the present hearing. This was the period in which the Citizens for Responsible Development and I sent in vain to Mr. Aghaei’s lawyers our joint offer to give feedback on any plans or ideas the new owner was contemplating for the development site.

Unlike Mr. Wang’s now defunct Time Development, Times Group has a hugely impressive record of successful residential developments in the GTA, especially Markham: high-rise towers like Riverside and Riverview along Highway 7, and this low-rise development called Village Park II just down the street. The company is versatile, reputable, experienced, and loaded with talent.

The drawing of Village Park II stuck in my mind in the summer of 2019. A development something like it, even a few storeys taller, would fit well in the neighbourhood along River Road in Niagara Falls. It would not require deep excavation along the Niagara Gorge, and only minor amendments to the Official Plan and zoning by-law. City staff, City Council, and nearby residents would mostly be delighted. Such a development would be an asset to the community surrounding the single main tourist destination in Canada, one of the natural wonders of the world.

But the new owner turned away from this window of opportunity for finding middle ground. Instead, he dug in his heels behind the previous owner’s application for high-rise condo towers, even increased the height. It’s as if the new owner couldn’t get out of his mind those drawings in the TD Securities ad, and he mistakenly imagined that building a skyscraper in an established neighbourhood beside the gorge of the Niagara River would be just like building a skyscraper in vacant farmland along the Rouge River in Markham.

This mistaken impression underlies the revised application. It’s the reason we are in the midst of a showdown in this regrettable hearing. I think of it as Mike Wang’s revenge.

I want to compliment Ms. Baker and Mr. Guetter on the one hand, Mr. Halinski and Mr. Bryce on the other, for providing the Tribunal with pretty exhaustive documentation, with countless drawings, maps, and photos, on the issues to be decided. I shudder at the amount of time and money this showdown is costing the developer on the one hand, the public purse on the other.

Despite all the information available, I was struck by an offhand remark of Mr. Prevedel, the presiding Tribunal member, at the motion hearing this past August 31. He said he was surprised that the City is not producing its own expert witness on hydrogeological issues, the issues that arise from the proximity of the development site to the Niagara Gorge.

I share Mr. Prevedel’s surprise, and I regret the onesidedness of the evidence before the Tribunal about the risks of construction without precedent, building so high and digging so deep so close to the lip of the gorge. The Applicant’s experts say there is nothing to worry about. They may be right, but experts often disagree, and this often has something to do with who is paying whom.

On September 17, 2017, four years ago, I wrote the City a letter giving six good reasons for why it should obtain an expert opinion of its own. I recommended that no development of this scale at this location should “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.” As things turned out, neither the City nor Niagara Parks ever commissioned its own study of slope stability or environmental impact at this location, and Niagara Parks appears even to have entirely withdrawn from this proceeding.

Fortunately, and to the credit of the principal parties, the joint document book includes letters that refer and point to evidence of serious risk of large-scale construction in this location, including even a study by Golder in 1982. Debra Jackson obtained from the City a copy of the contract for that study. As the slide shows, it directly addressed issues of slope stability and the effects of blasting. The trouble is that all copies of the two-volume report seem to have disappeared.

I hope that the Tribunal will be attentive to the letters in the joint document book, as an imperfect but still useful way of compensating for the City’s failure to produce an expert witness of its own on geotechnical and environmental issues. The single most important question before the Tribunal is whether the Applicant’s expert reports on this matter are enough, whether they satisfy the provision of the Provincial Policy Statement (2.1.5), that development shall not be permitted in a significant area of natural interest, which the Niagara Gorge surely is, “unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions.”

A disheartening outcome of the Motion Hearing a few weeks ago is that the City’s issues about traffic were at this late date struck from the Procedural Order. The City’s question had been well phrased: “Can the traffic generated from the development be accommodated within the transportation infrastructure?”

Residents’ letters on the earlier proposal in 2008 showed much more concern at that time about traffic congestion due to high-density development at this location, than letters on the current proposal show.

The reason is that the bulk of traffic on Highway 420, the main route for getting to and from the proposed development, is motorists travelling to and from the United States via the Rainbow Bridge. The bridge is a bottleneck.

Long-time residents of this area recall horrendous traffic jams every summer around the turn of the century. In 2008, traffic to the bridge would still often be backed up for miles. What has happened over the past 20 years, ever since the 9/11 attacks, the international border here – unlike anywhere in Europe – has hardened, passports are now required, more questions are asked, more searches conducted. As a result, bridge traffic declined by almost half between 2001 and 2019, and then, of course, dropped to almost nothing in 2020 and 2021. I can assure you that this past summer, traffic congestion was not a problem on Highway 420 or River Road.

The Applicant’s traffic study is based on data mainly from 2017, no data earlier than 2012. It projects a one percent increase per year and foresees no issue with the additional traffic from the proposed development. That projection is reasonable, assuming traffic on the bridge never recovers to the volume of 2001.

If, on the other hand, cross-border traffic returns to the level of 20 years ago, or increases beyond that, construction today of more housing at the foot of the Rainbow Bridge, adding to horrific congestion on Highway 420, will be seen in retrospect as a big mistake and a disservice to anybody living there.

I return in closing to the point I made at the start, quoting Barnet Kussner, Raj Kehar, and this Tribunal in the Richmond Hill case last February, that an attitude of “my way or the highway” does not make for good planning. By Ontario law, it is now up to this Tribunal to decide whether the application at hand is so excellent, so perfect a fit for the edge of the gorge in Niagara Falls, such a model of good planning, that it justifies the years of wasted opportunity for dialogue and compromise.