KEVIN LEININGER: Controversial shopping project on hold thanks to old restrictions that limit the area to residential use — and white people
It was one of the most contentious land-use battles Fort Wayne has seen in years. And yet, in the seven months since City Council voted 5-3 to allow construction of a three-building commercial center on West Jefferson Boulevard, not one shovel of dirt has been turned.
The reason lurks in a previously obscure 73-year-old deed restriction that not only limits the property and 48 surrounding acres to residential use but also bans stables, outdoor toilets, houses costing less than $7,500 and any occupants who aren’t white.
Unless they’re “domestic servants,” of course.
“This was unknown to us (previously),” said Josh Neal, attorney for Peter Franklin Jewelers, which would be the developer and anchor tenant of the 38,000-square-foot development planned in Jefferson’s 4900 and 5000 blocks just west of downtown. Following stiff opposition from neighbors who feared the project would increase traffic, decrease property values, exacerbate drainage problems and create even more development along the major east-west corridor, the Fort Wayne Plan Commission in April had unanimously rejected the company’s request to rezone the 6.5 acres for commercial use, resulting in council’s rare override vote that was motivated at least in part by a desire to protect the owners’ right to sell their property for development.
Despite council’s vote, the opponents still had one ace up their sleeve: those decades-old restrictions that had long been overlooked by developers and residents alike, allowing a series of commercial projects to sprout on land that had supposedly been limited to what would have been, in 1944, high-end homes built on large lots of at least one acre. Franklin and the owner of its would-be site, Mary Ann Hunter Hamilton, in turn asked a judge to declare the restrictions invalid, and the issue has been pending in Allen Superior Court ever since.
“Of the 28 owners (of the properties in question), we’ve come to agreements with most of them,” said Neal, who is “fairly confident” agreements can also be reached with the remaining neighbors, allowing construction to proceed. Whether the project would be identical to the one council approved or would have to be redesigned to ease some of the neighbors’ concerns remains to be seen.
When developer Don Steininger erected two commercial and office buildings at West Jefferson and South Bend Drive about a decade ago on land covered by the same restrictions, not even the standard title searches uncovered the 1944 document. But plenty of other lots are for sale on Jefferson, some of them touting their commercial potential.
“(The covenants) affect all the properties,” said David Nugent of BND Commercial, listing agent for a 1.6-acre parcel at 5323 W. Jefferson. The property is under contract to Steininger, who said he wants to locate the headquarters of the AWS Foundation there. That project, too, seems to be in limbo.
Surrounding property owners shouldn’t be blamed for invoking even obsolete deed restrictions in defense of their perceived self-interest. But there’s no denying Neal’s argument that since 1944, “substantial changes have occurred to the nature of the neighborhoods in the vicinity.” Parts of Jefferson have been rerouted, and the road is now a four-lane corridor that carries about 33,000 vehicles into and out of downtown. The fact property owners who opposed Franklin did not complain when commercial development happened elsewhere in the area “shows that (they) have waived enforceability of the deed’s restrictions,” Neal argues.
Back in May, Peter Franklin executive James Ball said the project would include a six-foot berm topped by a fence to shield nearby homes and agreed to exclude 90 types of shops and drive-through lanes that would be permissible under the limited commercial zoning he ultimately secured. Even so, some council members and opponents insisted approval of Ball’s project would guarantee a spread of the very commercial development the homeowners wanted to limit.
That’s likely to continue along Jefferson, no matter what the court decides. Even today, on the land in question, numerous real estate signs are advertising commercial potential. Under the restrictions, even such billboards aren’t supposed to be there but are. Ball and others no doubt are hoping history repeats itself.
This column is the commentary of the writer and does not necessarily reflect the views or opinions of The News-Sentinel. Email Kevin Leininger at email@example.com or call him at 461-8355.