Greene County Circuit Judge Derek Ankrom heard nearly six hours of testimony in a flurry of action — and inaction — in a lawsuit over the northwest corner of Sunshine Street and National Avenue.
Ankrom oversaw the hearing over the suit between University Heights residents and developers Be Kind & Merciful LLC, or BK&M, on Dec. 27. Ankrom ruled on a few motions and took up the issue of legal “ripeness” — and possibly the dismissal of the case entirely — under advisement.
The awaited ruling could play a pivotal role in BK&M’s application to rezone 2.6 acres of property hugging the corner of National Avenue and Sunshine Street from single-family residential to general retail. Eleven plaintiffs and two intervenors — all residents of Springfield’s University Heights neighborhood — seek declaratory judgment from the court to enforce nearly 100-year-old deed restrictions that prohibit anything but single-family houses on the properties the developers are applying to have rezoned.
Under advisement, Ankrom will review the evidence and arguments presented Wednesday before issuing a ruling. Though it wasn’t immediately clear what that would be, his closing remarks pointed to the strengths of some elements of the plaintiffs’ arguments and the weaknesses of others, primarily regarding obstacles facing BK&M’s rezoning case with the City of Springfield. However, Ankrom noted that his decision likely wouldn’t be an end-all, “homerun, touchdown issue.”
A two-day trial scheduled for Jan. 18-19 is contingent on Ankrom’s pending ruling.
What did the judge rule on?
While the parties await a ruling on the issue of the lawsuit’s ripeness, Ankrom put to rest a handful of pending motions.
Ankrom picked apart a motion to dismiss the plaintiffs’ recently amended petition, taking into consideration two of four elements: BK&M’s claims of a lack of justiciable controversy — that the court doesn’t hold power in a case of property that hasn’t been rezoned or redeveloped — and a lack of standing. The plaintiffs filed an amended petition due to the changing circumstances around the rezoning application and lawsuit since the lawsuit was initially filed on Dec. 9, 2022.
Bryan Fisher, an attorney from Neale and Newman representing BK&M, argued there was no standing for University Heights residents to sue because there is no “common scheme or plan of development” in University Heights. Though each lot BK&M owns has deed restrictions, Fisher suggested the lack of restrictions on other lots in University Heights debunks the plaintiffs’ claim that the neighborhood’s original plat from the 1920s created a common scheme.
Ankrom indicated he doubted BK&M’s claim of the plantiffs' lack of standing.
Judge Ankrom also denied the plaintiffs’ motion to dismiss a counterclaim made by BK&M in October 2023. The counterclaim alleges the purpose of the plaintiffs’ suit is an “improper and perverted use of process.”
Fisher argued the plaintiffs did not file the lawsuit to seek relief, but rather to affect the status of the rezoning application at the city level.
Ankrom also denied BK&M’s request for the January trial to be postponed, telling Fisher that the amended petition didn’t contain changes substantial enough to warrant a continuance to a later trial date.
Dismissal contingent on ripeness
Judge Michael Cordonnier, who was originally assigned the case but has since retired, denied a motion to dismiss the case in March 2023. Ankrom, who was appointed to the 31st Judicial Circuit in August, has since reconsidered that motion.
On Nov. 6, Ankrom issued a show cause order for the plaintiffs to produce evidence that their allegations are presently relevant, or “ripe,” in court.
The plaintiffs, represented by attorneys Bryan Wade and Lauren Haskins of Husch Blackwell LLC, and intervenors Mark and Courtney Fletcher, revisited much of the evidence outlined in their initial responses to the order.
For example, they alleged the placement of a gravel parking lot at 1755 S. National Ave. and 1133 E. Sunshine St. — properties on which BK&M has demolished two houses — violated the deed restrictions, and served as a detriment to the neighborhood.
Ankrom doubted these claims, pointing to the language of the deed restrictions, which prohibit anything but single-family homes from being built on the properties.
Mark Fletcher argued the rezoning application warranted relief for the neighboring landowners, and that the purpose of asking for declaratory judgment was to stop any legal damages from happening.
Ankrom said at the Dec. 27 hearing that the BK&M rezoning application is nothing more than a proposal — one that has evolved since it was unveiled in November 2022.
Currently in line for a public hearing at the Jan. 22 City Council meeting after a second rejection by the Springfield Planning and Zoning Commission, developing partner Ralph Duda indicated the possibility BK&M will refile its application if city council members vote down the rezoning application.
Wade emphasized the need for Ankrom to rule on the deed restrictions, a decision even Duda indicated he would like to receive.
“Put them all out of their misery,” Wade said.
Amid the opposing arguments, Ankrom underlined the importance of making the “right” decision, predicting that anything otherwise will keep, or send this case back though more court litigation. No matter the outcome, Ankrom said that it’s unlikely his decision “will be dispositive of all issues.”
