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Niagara Falls City Hall

The battle between the Falls City Council and the city's Planning Board is expected to escalate in coming days, as city lawmakers decide what to do over the board's refusal to schedule a public hearing on a council proposed amendment to the city’s zoning code.

The amendment would repeal a requirement that all changes to the ordinance, not approved by either the city planning or zoning boards, could only be enacted by a unanimous vote of the city council.

Council Chair Kenny Tompkins said Thursday that the board, whose members are appointed by the council and the mayor, were trying to take the power to set policy for the city away from the elected council members.

"What we have is an appointed body taking over the powers of the legislative body and that shouldn't happen," Tompkins said. "They shouldn't control the destiny of the city. They are not elected. They're an advisory board, not a policy board."

The board's refusal to schedule a public hearing on the proposed zoning code change ignited a sometimes contentious and largely chaotic debate between members of the planning board, City Council Member Frank Soda, who has championed the code change, and members of an association of short term rental (STR) operators, who are opposed to changes in the city’s short-term rental rules, and see removing the unanimous vote requirement as a way to push those proposed new rules into law.

The voting requirement has been tucked away in an obscure section (Section 1302.4.2 (D)) of the voluminous zoning code. It became a flash point in September when the council failed to approve amendments to the zoning code, proposed by Mayor Robert Restaino, that would have changed the way the city regulates short-term, vacation and transient rental properties (STRs).

While a 4-1 majority of the council agreed to approve the new STR ordinance, the measure failed because a unanimous council vote was required to overrule an earlier decision by the Niagara County and Falls planning boards, which rejected the changes.

Council Member William Kennedy cast the negative and deciding vote on the ordinance amendments which had been vigorously opposed by a large number of short-term rental unit owners and operators and the association that represents them.

Planning Board Chair Tony Palmer said it was the only time in his memory that the unanimous council vote requirement has come into play since the zoning code was updated in 2009. He said the change being proposed now by the council was unnecessary.

“Why are we changing this? Because (the council) can’t agree,” Palmer asked. “That burden that they can’t pass something is being put back on us.”

Palmer also said that the planning board would only consider the proposed voting change by “follow(ing) the amendment process that is designed to be thoughtful and takes the time to avoid making decisions in the heat of the moment.”

Time, however, is not on the side of the city council which, at a special meeting on June 2, imposed a moratorium on new STR operating permits. Council members said the moratorium was necessary because they were again preparing to try to change the city’s zoning requirements for transient rentals.

That new STR ordinance was approved by the council at its July 7 meeting and must now be submitted to both the county and city planning boards for review and recommendation.

If the new ordinance is recommended by both planning boards, it would be returned to the council for a public hearing and a final vote on approval. Neither the city planning board nor the council have scheduled meetings in August and the STR permit moratorium is set to expire on Sept. 16.

Tompkins suggested that if the stalemate continues, city lawmakers could look to extend the moratorium or could schedule special meetings in August. The council chair said the council has "the power to force the Planning Board" to meet in a special session.

Soda clashed with Palmer over the planning board chair’s insistence that changing the voting requirement in the zoning code would require a State Environmental Quality Review (SEQR) in addition to an environmental assessment, both usually lengthy processes.

“A SEQR has to be performed in order to accomplish a language change,” Soda asked. “By requiring a unanimous vote, you have given yourself regulatory authority over the city council.”

Soda insisted no such authority exists in either the City Charter or New York’s General Municipal Code.

The council member also battled with Palmer and board Member Michael Murphy over questions of what the appropriate procedures for making amendments to the zoning code were and what state and local laws come into play when making those changes.

Murphy said he had asked for representatives from the city Corporation Counsel’s office to attend the meeting, but none were present.

Palmer said the request to schedule a planning board public hearing on the voting change amendment was “incomplete” and should not be considered. On a 6-2 vote, the board removed the item from it’s agenda.

Tompkins said the council does not believe its request was "incomplete" and that he and other members would meet with Falls Corporation Counsel Christopher Mazur to determine their next course of action.

"We have to find out if what (the planning board) says is true," Tompkins said. "If not, we'll hand (the request to schedule a public hearing) right back to them."

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