A Greene County judge won’t intervene in a zoning case the Springfield City Council is set to consider as early as Jan. 22.
Greene County Circuit Judge Derek Ankrom made a partial dismissal ruling in the civil lawsuit between residents of Springfield’s University Heights neighborhood and the Be Kind and Merciful development group. In the order, Judge Ankrom declares the neighbors’ claims over deed restrictions are ripe for hearing, but that the neighbors’ interests in stopping a zoning case from reaching its conclusion with the Springfield City Council are not ripe for legal review.
“The evidence before the Court clearly demonstrates that BK&M’s effort to have the City rezone the Lots is fluid and far from fixed or concrete — whether the property will be rezoned by the City and/or in what manner it will be rezoned remain to be seen,” Ankrom wrote in the partial dismissal issued Jan. 9.
That means some provisions of the lawsuit can still go to trial as planned, but that deed restrictions from 1925 are now the main focal point for the case.
The suit relies on nearly century-old documents from when University Heights was platted in 1925. The plaintiffs claim developer Eloise Mackey created a series of deed restrictions when University Heights was platted, and that the restrictions should still be enforceable today.
“(T)he Deed Restrictions at issue in this case originated from individual deeds granted by Mackey to various original purchasers of the Lots now owned by BK&M,” Ankrom wrote in the partial dismissal. “The Original Deeds contain similarly worded, but not identical, restrictions, and not all of the Deed Restrictions are present in each of the Original Deeds.”
Because BK&M’s property is zoned for residential use as of Jan. 9, Ankrom determined it wouldn’t be proper for a court to intervene in an active zoning case.
“Courts are generally reluctant to involve themselves in legislative decision-making prior to the enactment of a particular statute or ordinance, because to do so would be to offer an improper ‘advisory opinion’ about an as-of-yet hypothetical circumstance,” Ankrom wrote in the dismissal.
BK&M’s property at Sunshine and National
BK&M is requesting to rezone 2.6 acres at 1739, 1745 and 1755 S. National Ave., 1111, 1119, 1133 and 1141 E. Sunshine St. and 1138 E. University St. from single-family residential to general retail with a conditional overlay district.
Under Springfield ordinances, a conditional overlay district is a zoning classification limiting certain land uses and establishing requirements within those conditions. Members of Springfield’s planning staff recommended BK&M do a planned development, which would require a site plan and other standards that would be used to guide development of the property.
Bryan Fisher, attorney for BK&M, argues a pending application to rezone the property does not mean the property will be rezoned. He noted the City Council could deny the rezoning request, leaving the property zoned for residential use.
Fisher also argued that while the covenants the University Heights neighbors are using to make their case don’t include the word “forever,” the neighbors imply that the covenants were intended to last forever, which Fisher says is not legally reasonable.
The plaintiffs point out that University Heights has no commercial buildings or multi-family dwellings built within the bounds of the neighborhood.
“In nearly 100 years since Mackey platted University Heights, the University Heights neighborhood has retained its character of private residences with no radical change of conditions rendering the deed restrictions valueless to Sleight or the UH Preservation Group,” a provision of the lawsuit reads.
The plaintiffs all live on East University Street. The plaintiffs in the lawsuit are Dixie Sleight, Barbara Robinson, Doug and Erinn Johnson, Anna Squires, Rod and Lisa Dixon, Rebecca Gilmore, Mark Wealand, Steve Waddell, Jenni Thomson and Virginia Olson. They are referred to in the lawsuit as the “UH Preservation Group.”
How we got here
The white colonial home that stood on the corner of National Avenue and Sunshine Street for more than 90 years was demolished Oct. 4, 2022. The developer did so upon obtaining the necessary demolition permit from the city of Springfield.
On Nov. 7, 2022, Be Kind and Merciful held a public meeting to introduce the concept and early plans for the Heights, a development at the corner of Sunshine Street and National Avenue that would two restaurants, retail stores, offices, and 50 loft apartments on the upper levels. The buildings featured a series of terraces.
Be Kind and Merciful’s architect, BOTI Architects President Bo Hagerman, said the buildings could be anywhere from 75,000 and 200,000 square feet in size, and they could be five or six stories tall.
Those plans were scrapped for a less-prolific food hall idea BK&M rolled out on Dec. 14, 2023.
The developers plan to construct a food hall that would boast “over 12 local and established food vendors,” one outdoor and four indoor pickleball courts and an indoor playground.
The food hall would feature a variety of concepts — coffee, barbecue and cupcakes — two main dining areas. The 26,000-square foot building would have English Tudor and Bissman design styles and reach about 43 feet at its tallest point, according to Duda.
Ankrom noted how the plans have changed in his dismissal.
“BK&M’s legislative proposal has changed numerous times during the course of the litigation, and it remains subject to change,” Ankrom wrote. “The Court cannot accurately divine what, if any, such rezoning proposal might be adopted by the City, nor can it decide that such unknown ordinance would necessarily cause or enable BK&M to violate the Deed Restrictions.”
