The following is Part Four of an ongoing series by investigative journalist Ken Cosentino.
Part One, Two and Three recap: Niagara Falls Department of Public Works (DPW) invaded a privately owned home sensory garden, which occupied both public and private property; and removed just about everything. The family whose garden was destroyed were fined $2,300 by the City for expenses incurred during the clean up. Some of the sensory garden was on public property which violated Ordinance 738, but it is unclear as to whether or not any health hazards which may have been discovered on private property prompted the DPW workers to enter and remove private property.
Construction materials which do not appear to pose a threat to public health were removed from private property. A fridge was found in the backyard which may be considered a hazard, but the fridge was not at all mentioned in the City’s official press release. The fridge was taken by DPW because it was found outside with the door still attached. It is currently unknown whether or not the fridge was first found on April 3rd by the City inspector or by DPW workers on April 21st during the clean up. The same can be said of the dog feces which was in the backyard.
If the City did declare a public health hazard on the landlord’s private property, it seems logical that the DPW workers should have only removed the hazards and nothing else. If the City did not declare a public health hazard, how did they enter private property and confiscate privately owned property, destroying an autistic child’s sensory garden?
FACTS VS. FICTION: SPEAKING WITH THE NEIGHBORS
Nearly two pages of the City’s official press release display an attempt to discredit Burger and Johnson, Jr.’s claim that they’ve been building the sensory garden for nearly five years. However, the earliest photo included in the press release is from Google Earth street view in 2022, and it does indeed show the beginning stages of the garden. In the photo, there are flowers lining the driveway and the sunflowers are planted in front of the porch; though they are almost unreadable due to the quality of the image.
Justine and Kenneth never claimed that the garden was fully completed prior to summer of 2023.
The City administration felt compelled to pull a three year old photo from Google Earth in order to try and justify their actions. Perhaps it would have been a better plan to have a discussion with the family, rather than vilifying them and scarring an autistic child for life with PTSD from this public event.
The press release points out that there are no raised beds, logs or cinder blocks in the 2022 photo and that the portion of the garden occupying the easement (“hellstrip”) was not yet present. Thus, the City has concluded “that the image published by the Gazette (below) is not representative of whatever gardening was being done during the growing seasons of 2020, 2021, and 2022. Logically, the Gazette photo could only have been taken during the growing season of 2024, or 2023 at the earliest.”
The Gazette photo clearly shows a well maintained and managed sensory garden, albeit encroaching upon the City sidewalk. Whether the garden reached this completed form in the summer of 2023 or 2024 is irrelevant. The press release focuses heavily on the easement portion of the garden, which was absolutely in violation of Ordinance 738 since this is public property. There is no argument about the easement.
The City’s press release also focuses heavily on the parts of the garden which extended out and slightly onto the privately owned neighboring driveways on both sides. The press release seems to imply that these next door neighbors made the complaints. I went to both of these houses and knocked on their doors, and I spoke with both of these neighbors. The neighbor on one side of the house did not have any issues with the family putting anything in their driveway because they do not own a vehicle. The neighbor told me that Justine and Kenneth have permission to use the driveway.
This neighbor had only positive words about Justine Burger, Kenneth Johnson, Jr. and their three children. They told me that they did not speak with anyone from the City, nor did they ever file a complaint. They were also a bit bothered by the fact that the City’s official press release seems misleading in this regard, because it could cause angry residents to misdirect their anger towards the wrong people. In the City’s press release it is stated that threatening phone calls were made to the DPW office.
The press release also includes an image from the April 3rd inspection which shows a pile of yard trimmings left on the apron of this neighbor’s driveway, to be picked up by the garbage truck two days prior. The rubbish is not properly bundled and was not picked up, but it was not bothering the neighbor since she does not own a vehicle. This neighbor gives permission to the family to set their garbage at the end of the driveway for pickup.
The neighbor on the other side of the garden house was not home when I knocked, but they returned a phone call; telling me that they have never had a single problem with Justine, Kenneth or their children. They said if there was ever anything blocking their driveway and they asked Justine or Kenneth to move it, they would move it because they’re good people. In the winter time, their autistic son Kenneth III helps take out their neighbor’s garbage cans. Likewise, this neighbor said that they never spoke to the City or filed a complaint.
SMOKE AND MIRRORS
The press release speaks heavily of the messy condition of the sleeping sensory garden, focusing mostly on the easement and materials that are on the driveways on either side. However, since both of these neighbors occupying these homes told me that they weren’t the ones who complained; it appears that the City removed privately owned property from not one but three private residences. Kenneth and Justine have a great rapport with both of their next door neighbors, and the driveway “issues” highlighted by the City in the press release were not actual issues to either of these neighbors.
I spoke with several other neighbors directly across the street and also a few houses down – all of whom expressed great disappointment in how the City raided the sensory garden. One of these neighbors told me that they “believe it was done as a way to extort $2,300 from the family in a shakedown.” Another neighbor told me he believed it was “done by the City to promote the DPW crackdown on garbage and blight in the newspapers; and if that were the case then it backfired.”
The City’s official press release makes no mention of a refrigerator or the imaginary rats alleged in Perry’s statement (which the City of Niagara Falls – Mayor’s Office official Facebook page publicly shared twice). Johnson, Jr. and Burger say that they have never had any rats on their property.
The press release does mention feces, as apparently there was dog feces that hadn’t yet been picked up in the backyard; but no photos of the feces were provided. It would seem logical that, just like the fridge which was in the backyard, if the feces was deemed a hazard then removing it would remove any hazard that it may have imposed.
Other than that, the rest of the sensory garden on the front lawn was not directly addressed by the City’s statement, which poses potential problems. It could perhaps benefit the City to release the itemized list of violations from the April 3rd inspection. Or it could perhaps be disastrous to the City’s case to release the itemized list.
The dog feces and the fridge are both key elements of this story. The feces “could attract rats”, claims City Council Chairman Jim Perry. The outdoor fridge could have been a hazard, which is a Class B Misdemeanor in New York State.
Why isn’t the fridge mentioned in the City’s official press release and does finding dog feces in the backyard justify removing the sensory garden that occupied the private property in front of the house?
Outlined in blue is the portion of the sensory garden on the front lawn. This area is contested. Why was anything touched in this part of the sensory garden, which was on private property? This large portion of the sensory garden occupying private property is not directly addressed in the City’s official press release. Nor has anyone from the City provided any ample explanation as to why this portion of the garden was disturbed and removed.
There are some bricks up front which barely encroach upon the sidewalk, but most of the garden appears to be out of the way and on private property. The City has not explained how any of that which is seen within the blue outline posed a public health hazard or a violation of Ordinance 738; which says nothing about construction materials from a private garden on privately owned property.
How many cinder blocks or bricks are we allotted on our private property? Whether or not any member of the public, press or government views these materials as a garden is irrelevant; what matters solely is how 15 year old Kenneth III views his sensory garden. This was his artwork and a successful therapy device for his autism. The garden was started for this purpose and featured hand-painted glow-in-the-dark bricks which added to the sensory experience. Though he was originally diagnosed as nonverbal with low functioning autism, lots of therapy and prayer has helped improve Kenneth III’s quality of life and condition.
The family did not have the means to hire a professional landscaping company. They made due with the resources that they had. Photos which were leaked onto Facebook by Council Chairman Jim Perry and supposed DPW workers using fake accounts showed stacks of branches on the side of the house. Those branches come from a tree that the City cut down in the backyard, prior to the property being purchased by Justine and Kenneth’s current landlord.
Despite numerous attempts from Kenneth and Justine, the remains of that tree were never picked up by the City. Eventually, they gave up trying to get rid of the wood and they stacked it beside the house, upscaling the larger logs into the overall motif of the sensory garden and using the rest for firewood. The neighbor on that side of the house gave the family permission to use their private driveway. If it could happen to them, it can happen to you.
Stay tuned.
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