The following is Part Two of an ongoing series written by investigative journalist Ken Cosentino.
Part One recap: Niagara Falls DPW removed a sensory garden owned by a family whose 15 year old son has come a long way since he was originally diagnosed with low functioning, nonverbal autism. The sensory garden occupied both public property (sidewalk/easement) and private property; its removal was conducted during Autism Awareness Month. The City then slapped the family with a $2,300 fine. Local journalist Mark Scheer first reported the story on Friday, April 25th; three days after the incident occurred. The Niagara Gazette article and social media uproar prompted a media frenzy, and the news was covered by WGRZ, WIVB and WKBW. The City of Niagara Falls released a much anticipated official statement which lacked information and misrepresented facts.
A MISREPRESENTATION OF FACTS
The inspector and the DPW workers took photographs of the condition of the property (on April 3rd and April 21st, respectively). The stark differences between the photograph of the sensory garden published by the Niagara Gazette, and the photos taken early last month – is a major focus of the City’s press release.
The Gazette published a photo of the sensory garden at its peak, during mid-summer; from perhaps last year or the year prior. The photos from the inspection and the DPW photos all show the garden in need of attention and cultivation, which is pretty typical of outdoor gardens right after a Western New York winter.
Everyone who lives in Niagara Falls knows that our city is a mud pit once it thaws out in springtime. It’s also covered in garbage which blows everywhere, along with dust, dirt and other debris. The streets are full of potholes caused by the winter weather, plow blades and melting “salt”; and it takes forever for the City to respond to complaints.
Comparing the Gazette photo with the photos the City released is like comparing apples to oranges; because the City’s photos were taken at the start of the growing season and the Gazette’s were taken in the summer. Same garden, but two entirely different seasons.
The City’s official statement does not take this into consideration whatsoever. Justine and her family didn’t even get the chance to reconstruct their garden and cultivate it to full summer growth. Had the inspector arrived in July, they would have discovered the sensory garden in full bloom; restored to the condition seen in the photo published by the Gazette.
For some reason, the Restaino administration seems to be implying that the photo of the sensory garden published by the Gazette is a misrepresentation of facts. Well, “the camera doesn’t lie” and the Gazette photo accurately depicts the sensory garden at full bloom (which would have been a full four months or more after the beginning of April, which is when the city inspection was performed).
Days before it was destroyed, Kenneth Johnson III had just turned the soil for the first time this year, while his father watched and supervised from the porch; unable to assist due to his disablement. Bricks needed to be straightened, cinder blocks needed to be moved, seeds needed to be planted and other general maintenance had all yet to occur. It’s a process that cannot be fully completed during the first few weeks of spring.
According to Johnson, Jr. the DPW workers began hauling away the bricks on the easement, when “My son went out to the easement and he was grabbing bricks. We understand the rule about the easement, but he was throwing the bricks onto our property and they said if you touch anything more, you’re guilty of obstruction.” Johnson said, “My son is autistic. I had to tell him to get on the porch and I had to lock him in the house. They called the police because I was yelling and I thought what do I do? You guys are taking my stuff!”
Among the bricks Kenneth III was trying to grab were his coveted hand-painted glow-in-the-dark bricks, which were an integral feature of his sensory garden.
Johnson, Jr. added, “I’ve got third degree burns on my feet. I didn’t leave the porch. Yes, I was screaming. What else am I gonna do?” Photos of the chemical burns on Johnson, Jr.’s feet are too graphic to include in this article, but he has made them publicly available on his Facebook page. A recent accident left him barely able to walk.
Evidently, some of the DPW workers felt bad about what they had done, and one of them even returned with a $150 gift card for the family. Still, others unintentionally trampled some rose bushes. “They stomped on four of my rose bushes and destroyed my stuff,” said Johnson, Jr., “Then they said here you go, you can have this back. They ruined all four of our flower beds.”
HOW DID THIS HAPPEN?
City Administrator Anthony Restaino told the Niagara Gazette that the house was “tagged on April 3” with an Order of Cleanup, enforced by City Ordinance 738. This was also stated in the official press release.
City Ordinance 738 (Clean Neighborhood) was amended by city council in September of 2024, adding stipulations about fines; and amended once again on January 22nd, 2025. The September resolution was sponsored by council Chairman Jim Perry and Councilman Brian Archie, but the January resolution was sponsored solely by Perry (while Archie actually voted against it). Still, the resolution passed with council members Perry, Bax and Zajac as the majority votes and Councilman Myles voting no as usual.
The January amendment states that “Section 738.06 of Chapter 738 of the Codified Ordinances is hereby amended to authorize the Director of Public Works and/or Director of Inspections (aka Director of Code Enforcement) to declare that an emergency exists relating to health, public safety or the public right away, thereby necessitating an immediate removal of the offending property condition, without the issuance of an Order of Cleanup, which may result in the assessment of costs and administrative penalties,” etc.
To date, the City of Niagara Falls administration has not directly identified which violations on the family’s private property were deemed a “public hazard”; or how this prompted the removal of the entire sensory garden.
In a text message to this reporter, Councilman Brian Archie explained why he voted against this amendment, stating “This was my fear with the Clean Neighborhood Resolution. To my understanding, this was the result of a neighbor complaint. The garden wasn’t in its completed form and presented as an obstruction.” Archie also wrote, “If this is about population health, I believe we have more egregious offenders, which include businesses, out of town landlords and city property.”
Despite the fact that the destruction of the family’s garden quite literally took the food from their family’s mouths, Johnson, Jr. said “I just want to say too that we aren’t against the city in any way. It’s the city who are against us.”
After a similar incident in another state, Jeff Rowes, lawyer for the Institute of Justice, told the New York Times “It’s the micromanagement of land that invades your liberty in a thousand small ways.” Rowes also told the Times that codification of a homeowner’s landscaping by local government can be “oppressive”.
The plot thickens in Part Three as inconsistencies in the City’s official press release are heavily scrutinized.
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