1 Main St.
Fort Wayne IN 46802
August 1, 2007
RE: Rezoning of 83 acres on South Anthony
Dear Council members:
It's my understanding that on August 7, 2007 the City Council will vote up or down on rezoning 83 acres to be known as South Anthony Pointe. I am requesting that you vote not to rezone this real estate, because in my opinion it would not be in the best interest of the citizens of Fort Wayne, and only benefit the promoters of this development.
Both Fort Wayne newspapers made the statement that I was the only vocal critic of this project at the Plan Commission hearing. That statement isn't quite true, because I was not allowed to speak. When I tried to influence the decision of the Planning Commission by pointing out that rezoning this property would be detrimental to commercial development at the adjacent Southtown Crossing, I was silenced because my arguments were based on the questionable business ethics of the developers and their ability to finance the project. I was interrupted and told I had to restrict my comments strictly to the zoning issue. The Planning Commission felt that the business ethics of the developers, and their ability to finance the project was not pertinent to their decision to take 83 acres in the city of Fort Wayne out of the realm of possible expansion of the adjacent shopping center. I then challenged their authority to silence my by asking for the legal opinion of the commission's attorney. After little thought he agreed with the commission and I took my seat at the back of the room. At that point it was clear to others prepared to speak against the rezoning, that their views based on the same argument would not be heard. It's worth mentioning that I did not know any of these people, but seeing papers and notebooks in hand, it was evident they were prepared to speak against the project.
Planning Commission Bias
In addition to not hearing arguments against the rezoning issue, I believe there was additional bias in their decision to approve rezoning of the 83 acres in question. At least two of the members of the commission had conflicts of interest and should not have voted. Barney Niezer is the brother of Tom Niezer the attorney representing the project. Additionally, Connie Haas Zuber also had a conflict of interest in approving the rezoning. Connie Haas Zuber, while working for the News Sentinel, acknowledged she killed several stories involving the Fort Wayne Neighborhood Housing Partnership (NHP)- she has never denied this. After taking early retirement and cashing out her retirement fund she formed a 501(c) to raise money for NHP, and later was appointed to the NHP Board, where she still serves. Rev. Anthony Payton, the individual seeking the rezoning, also was a board member of NHP, and his attorney Niezer is president of NHP. According to published reports this organization was forced into receivership by the Indiana Attorney General, and is under investigation by both state and federal agencies. Additionally, while all three were on the board their real estate appraiser voluntarily surrendered her license after facing criminal charges- I believe that separate issue is still under investigation. The above issues are separate from the civil suits against the organization that have now been granted class action status.
My issues concerning these and other conflicts are well documented. Rev. Anthony Payton purchased a 2400 square-foot brick house on Lafayette Esplanade with no money down. The financing for the property was provided by NHP. Within days (before or after) closing on the house, Rev. Anthony Payton was made a board member of NHP, representing Lafayette Place Neighborhood Association. However, no officer, board member, or resident of Lafayette Place was informed of this arrangement.
According to published reports (newspapers and now currently on blogs) Rev. Anthony Payton's house was foreclosed on and went through a Sheriff sale on or about February 6, 2004. It is unclear if Payton ever made a payment. The Economic Development Department of Ft. Wayne has informed me that Rev. Payton also borrowed $50,000 from the City, and I have been unable to, with requests via the Indiana Open Records Act, to determine whether that debt was ever satisfied. As city councilmen, perhaps you will have better luck then me.
Tom Hayhurst's argument should prevail
At the very same Planning Commission hearing Councilman Hayhurst argued that commercial property should not be mixed with residential property, as it does not benefit either zoning use. In arguing against commercialization of property on Jefferson Blvd. he stated it decreases lifestyle enjoyment of residential neighborhoods. I totally agree.
Carl Sandburg said it best: Whether that jug hits the rock, or the rock hits the jug; it's still hard on the jug.
Now comes Rev. Anthony Payton with his in-indicted co-conspirators to undermine an emerging commercial property that the city has worked so hard to nurture. What benefit will there be for potential residents to live next door to a commercial enterprise? It's simply the same Jefferson Blvd. argument in reverse. Nevertheless, in this case both the residents and the merchants will suffer. I envision the first complaint will be that the drive-through speaker box at Wendy's is too loud and keeps residents awake. The next complaint will be that the industrial vacuum cleaners used to clean the acres of parking lots are too loud. Menard’s opens to customers at 7 a.m.- contractors an hour or two earlier depending on the store. This is the time when contractors pick up their lumber and building supplies for the day’s building schedule.
I know that many of you would like to believe that Menards is at Southtown because of extraordinary efforts by Graham Richard. In reality Menards is there because the late Jim Kelley picked up the phone and asked his good friend Tom Menard to site a store at that location. Trust me, the owner of a store in a highly competitive market is not going to bother to keep a marginally profitable still are open if it is creating political headaches. The store will close as fast as it opened, and the same is true of Wal-Mart.
Take a look at the project and see if you see anything familiar. The residential section is going to be 55 ft. lots with houses costing between $175,000 and $250,000. That's right 55 ft lots. Mr. Niezer says that he wants a cozy little neighborhood. Who is going to build the houses, and more importantly who is going to appraise them? For that price range you can buy a very nice house on a very large lot on Old Mill Road - I have seen them; I have been inside them. Same people, same part of town, same fraud, and the same victims. When reviewing the transcript of the Planning Commission Meeting please notice that Tom Niezer doesn't use the words my client, clients, or investors. He uses the words, I, we, and us. It is Tom Niezer accepting a portion of financing or profits from the project in lieu of attorney's fees, or is Mr. Niezer an investor or partner in the project. I believe the City Council has a right to know that. That places his brother, Barney Niezer, in double jeopardy of conflict of interest, as well as certain Common Council members.
Your rezoning approval will take 83 acres off the tax rolls
It was interesting to watch the presentation made by Tom Niezer at the Plan Commission meeting. If you read that transcript carefully, it quotes Mr. Niezer as saying that the project will either be a for-profit corporation or a not-for-profit corporation. That was for the benefit of your friend and mine, Councilman Tom Smith, who sits on the Planning Commission. Niezer did not want Mr. Smith to know that the corporation developing the project will be a not-for-profit, and as such will not pay property tax. Niezer as always was very slick with his comments, he said it will be either not-for-profit or for-profit; he didn't lie. What he didn't tell Mr. Smith was that the decision to go not-for-profit had already been made. In news releases outlining the project to the South Bend Tribune and the Indianapolis Star, both papers clearly stated (30 days before the Planning Commission hearing) that it's going to be a not-for-profit corporation. Molly McCray can find both articles on the Internet (in this case I recommend searching under yahoo rather then Google). Trust me, they are there.
In reality it's the only way they can finance the project. No mortgage Company as going to loan the quarter of $1 million on a house setting on a 55 ft a lot next to lumber yard. By holding all of the project's entities under one not-for-profit umbrella, they are free to play the NHP game. They can lease to own, rent to own, and sell on contract at any price they choose, and because all the property is held by the not-for-profit corporation - they are tax exempt - no property tax. They might even try to use the shield of the good reverend’s church. However, once it is rezoned, and only a single house is built on the property, it cannot be rezoned commercial unless the house (or houses) is removed. This might be the first opportunity in the history of the Common Council for them to actually create a commercial dead zone.
The only remaining question is whether or not you are willing to take 83 acres of prime commercial property, which can be used to expand Southtown, off the tax rolls. With rising property taxes, Harrison Square, and the demolition of the baseball stadium, are you willing to take 83 acres off the tax roll that will result in increasing the tax levy on every taxpayer? Are you willing to step forward three months before an election and stand beside un-indicted co-conspirators of one of the largest real estate frauds in the city's history? I know Tim Pape will. When first exposed to their corrupt activities his exact words were: “It sure looks shady, but I think I could get them off”.
Charles C. Garnette Sr.
PS This correspondence was generated by voice recognition software, I apologize for any errors.