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The Journal Gazette

Friday, September 06, 2019 1:00 am

The Quintana Precedent

Future developers can learn from Jefferson project's ups and downs

Matthew Kelty

“You know what bugs me the most,” the city councilman told me, “is the precedent this will set.”

I received the call in late May to get involved with Martin Quintana's project at 6626 W. Jefferson Blvd. Quintana is a U.S. citizen who emigrated from Mexico in 1978 and now owns three popular Mexican food establishments in Fort Wayne.

He purchased the property as a place for his daughter to live and began adding a large garage on its east end to store personal possessions. As he built the residentially permitted structure for his intended use, people began inquiring about possible tenant space. His plans changed.

He expanded the size of the structure and had it clad in building wrap before he went to the Planning Department to investigate the requirements to use the property for commercial purposes. Many were dubious about it ever being anything but a commercial use. And now that he has requested a zoning change, many in the public believe he was “pulling a fast one” the whole time.

Three months later, Quintana may have the opportunity to complete his building as a commercial project. He had to hire a team of experienced professionals to modify and finalize the architectural design and related plans, to prepare civil engineering plans for development of the site to meet local ordinances and permit requirements, and to represent him legally to file the necessary land-use applications and make presentations at the plan commission and City Council hearings.

He and his professional team have obtained the approval of the plan commission after a public hearing, in large part because of the support of the Covington Creek Condominium Association and the owners of contiguous properties. But few people understand what Quintana has had to sacrifice to gain this support.

Rezoning property for commercial use is common. It is easiest when property is already adjacent to similarly zoned land and the public need for the commercial rezoning is apparent and not controversial. Controversy, however, is as common as rezoning.

Neighbors frequently object to a rezoning, for reasons sometimes as simple as “I don't like it.” Generally, if an application has merit, and if the plan commission likes the application, members also like to see that those aggrieved by the rezoning have, at least, a chance to air their grievances. Often, a developer will meet with the aggrieved party and figure out a way to address their concerns, e.g., additional landscaping and other buffering. Other times, no matter what reasonable efforts are made by the developer, the offended neighbor simply refuses to support the project.

Regardless, by the time a rezoning petition reaches the plan commission, an applicant is wise to have made a good-faith effort to diminish the potentially offensive characteristics of the anticipated development.

So what about Quintana?

The manner in which he proceeded to develop his property has created significant limitations on his ability to lease space in his building. His attorney, the experienced Jim Federoff, worked tirelessly with Tom Trent, who represented the Covington Creek Condominium Association. Together, they fashioned a written commitment (which is like a restrictive covenant) that will be recorded and run with the land. This will drastically restrict the types of businesses that can be located in Quintana's development; it also limits the hours of business and even regulates when deliveries can be made and trash collected.

Quintana has given up a lot more than most other developers ever would to secure support of the neighbors and the plan commission. Besides limitations on use, Quintana has agreed to a sophisticated series of efforts designed to minimize the impact on neighbors, including a long earthen mound behind his building that features terraces, landscaping and an additional elevated fence. Between his property and his neighbors to the east and west, Quintana is installing landscape buffers that would otherwise not be required by the zoning ordinance. The buffering will result in expensive additional development costs. This hurts Quintana's ability to lease the space as his investment costs soar and as the number of possible tenants is dramatically reduced. It also diminishes the value of the property if Quintana ever sells, as the use limitations will run with the property, not just the owner.

Even Trent acknowledges that Quintana's situation gave his client, the condominium association, significant leverage that otherwise would not have existed. The fact that all of Quintana's neighbors now publicly support the project is evidence of the ability of Federoff and Trent to help their clients accept conditions they do not necessarily like. City Councilmen can vote either to approve this rezoning that has gained the support of the plan commission and the neighboring property owners, or they can vote to kill the application.

Those with experience in commercial real estate development acknowledge that this property is destined, sooner or later, to become commercially zoned and developed. If City Council rejects the application, it is possible that Covington Creek Condominium Association, in the future, will not get such a beneficial set of terms to protect its property. If council rejects the deal, then the landscape terraces and the earthen mound go away, as do the hard-earned limitations of anticipated uses.

If the rezoning is rejected by council, the property will remain zoned residential, at least for the time being. Quintana's daughter can live in the residence (which is still intact on the west end) and Quintana can use the large structure for storage of his personal belongings. Inside their building, the Quintanas can do what folks do inside their garages, and they can have family barbecues in the backyard. They can use the property as any other residentially zoned property in Fort Wayne is used – for their personal enjoyment.

Ask almost anyone in the Department of Planning Services: People frequently make mistakes in their desired use of a property; some do it on purpose. It is uncommon that it happens with such a large building on one of the busiest corridors in the city.

Martin Quintana is a good man who works very hard and takes care of his family. That notwithstanding, his failure to achieve rezoning before substantial construction occurred at 6626 W. Jefferson Blvd. will now increase his development costs and limit what success he might have on that property. This is the Quintana Precedent. And it should encourage every potential developer to make sure developments are pursued properly from the outset.

Matthew Kelty, a licensed architect, is the president of Kelty Tappy Design, Inc., a commercial architectural practice established in Fort Wayne in 1999.