More than a year of litigation to decide the enforceability of deed restrictions in University Heights culminated in a trial on Jan. 18, queuing up a ruling that could determine the fate of a proposed development at the corner of National Avenue and Sunshine Street.
Greene County Circuit Judge Derek Ankrom heard hours of testimony, evidence and hearsay, concluding the long-awaited trial in one day rather than the originally scheduled two days. A ruling will likely follow a two-week window for attorneys to submit additional findings and post-trial briefs, plus time for the judge to author a ruling.
“My objective is to get it right at the end of the day, so I’m considering everything that’s being filed,” Ankrom said.
Background of the case
In December 2022, a group of University Heights residents sued developer Be Kind & Merciful in an effort to stop a potential rezoning and commercial development at the northwest corner of National and Sunshine.
The suit relies on nearly century-old deed restrictions written by developer Eloise Mackey, who platted the neighborhood in 1925. The plaintiffs say the restrictions prohibit anything other than private homes in University Heights.
BK&M contests the validity of the deed restrictions in its pursuit to rezone its seven lots in University Heights from single-family residential to general retail. In addition to the basic rezoning, BK&M sought a conditional overlay district, a zoning classification under Springfield ordinances that would allow some flexibility in what the group could develop.
Despite the recommendation of approval by city government staff of BK&M’s rezoning application, the Springfield Planning and Zoning Commission has twice recommended denial to the City Council.
The developer recently withdrew its application for a conditional overlay — a leading concern of neighborhood residents and planning commissioners — and is now seeking a planned development, which would provide more stringent guidelines.
If successful in court and with the Springfield City Council, BK&M's latest plans call for construction of a food hall with 12 vendors, one outdoor and four indoor pickleball courts and an indoor playground.
The Jan. 18 trial featured similar arguments to those in a recent hearing, in which Ankrom weighed the “ripeness” of the case and eventually dismissed only part of the plaintiff’s claims.
Neighbors fear a development will “ruin everything”
The trial began with a handful of University Heights residents — all plaintiffs in the case — opining the value they place on their homes.
The plaintiff’s attorney, Bryan Wade of Husch Blackwell, asked his clients to envision the potential consequences of a development at National and Sunshine. The homeowners fear years of construction, added traffic in and around the neighborhood and that a development could devalue their homes.
“It’s just going to ruin everything,” Lisa Dixon said.
University Heights residents also attested to impacts they’ve already experienced with BK&M’s demolition of two homes at 1755 S. National Ave. and 1133 E. Sunshine St.
Rebecca Gilmore was on vacation during the demolition of one of the houses. Gilmore claimed to have found a water leak and pictures that had fallen down upon her return home.
Dixon said the emptied lots have allowed noise pollution from vehicles on Sunshine Street to perforate into the neighborhood.
Mark and Courtney Fletcher are plaintiffs in the case. They intervened apart from the original group of plaintiffs. Mark Fletcher is acting as his own attorney. Courtney Fletcher, who was later questioned by her husband, testified that dust from a demolition aggravated her son’s severe asthma.
Realtor versed in Springfield’s history provides testimony
Richard Crabtree, a real estate agent with Murney Associates, was called upon for his historical expertise on Springfield’s neighborhoods. Crabtree runs a popular Facebook group titled Springfield, Missouri History, Landmarks & Vintage photography.
Crabtree presented extensively on the history of University Heights, its deed restrictions and the styles of homes constructed in the neighborhood.
Though Ankrom allowed Crabtree's lengthy testimony, it wasn’t without some doubt to its validity and relevance.
“Mr. Wade, what are we doing here?” Ankrom asked Wade at one point during Crabtree’s testimony.
“Giving you a flavor of University Heights,” Wade responded.
Crabtree also weighed in on specific points of contention and queries, interpreting the deed restrictions as University Heights developed and subdivided.
Ankrom was particularly inquisitive over how the lots have been subdivided since they were originally platted, specifically whether a deed restriction would allow a private residence on any lot, no matter how small. He even asked Crabtree if he thought the deed restrictions would allow for BK&M to subdivide its seven lots into 120 lots and build 120 homes.
“I’d love to see that,” Crabtree said. “I don’t even see how that’s remotely possible.”
BK&M attorney Bryan Fisher of Neale and Newman suggested instances in which lots were sold or deeded without restrictions brought to question their present enforceability. Crabtree referred to the omission of restrictions as nothing more than a “typo,” and alleged newspaper advertisements at the time substantiated that.
“I don’t see how you can look at the material and come up with anything otherwise,” Crabtree said.
Crabtree testified about language limiting development to allow only private residences made of brick, stone or stucco.
Crabtree acknowledged that advertisements also implied other restrictions, including obstructing racial minorities from purchasing land in University Heights, but agreed such restrictions aren't appropriate and no longer applicable.
Precedent, interpretation of deed restrictions
Ankrom pointed out that the deed restrictions say “nothing” can be constructed on a lot but a private residence, an interpretation that lays the foundation of one of Fisher’s chief arguments.
BK&M’s lawyer alleges that detached garages — particularly those with apartments upstairs — were a violation of the deed restrictions. He also argued that there were homes in University Heights with exterior material other than brick, stone or stucco.
BK&M developed a map, along with a series of photos that pinpointed all of the lots in University Heights with detached structures and homes with building materials not expressly allowed in the covenants.
Fisher also pointed to a number of instances when lots or homes were sold without deed restrictions, but was quickly refuted by Wade and Mark Fletcher.
Wade inquired over the changing of circumstances, both for BK&M and its rezoning application. He asked BK&M principal Ralph Duda to recount his experience buying the properties at National and Sunshine, and subsequent events that led to the demolition of two homes.
Duda claims some of the homes BK&M purchased have deteriorated, prompting their demolition, and that heavy traffic has driven tenants away.
Wade challenged that traffic problems would persist, and likely worsen, with a commercial development.
Springfield Senior City Planner Daniel Neal testified that the deed restrictions — referred to in the official staff reports as a “civil matter” — have not been considered by city staff as a matter of policy, and the changing circumstances of the property itself was only a small factor compared to the influence of the comprehensive plan and city codes.
