The lead attorney for the would-be developers of a controversial building project says a lawsuit University Heights residents filed against his clients should be dismissed. It’s now up to a Greene County judge to determine if the lawsuit will proceed.
Judge Michael Cordonnier heard arguments from attorneys representing University Heights residents and from the development group BK&M, short for Be Kind and Merciful. BK&M owns property at the corner of National Avenue and Sunshine Street in Springfield and aims to put in a mixed-use development with offices, apartments and restaurants called The Heights.
At the conclusion of a motion hearing on March 9, Cordonnier told the attorneys he would take their requests under consideration and issue a ruling on whether or not he will grant BK&M’s motion for case dismissal at a later date.
BK&M is represented by attorney Bryan Fisher of Springfield-based Neale & Newman.
Fisher said there are two issues at play: whether or not the covenant the University Heights neighbors are relying on is reasonable, and whether or not the case is ripe for court adjudication.
“A matter is not ripe for adjudication if it is contingent upon events that may happen or may not happen in the future, or may not happen as anticipated,” Fisher said.
Fisher argued using case law found in Citibrook II v. Morgan’s Foods of Missouri, the case of a property management company in St. Louis asserting that a covenant declared the only acceptable use of a piece of property was a Kentucky Fried Chicken restaurant, or KFC. In 2007, the Missouri Court of Appeals, Eastern District upheld a trial court ruling that the restriction was unreasonable. Fisher cited a line in the Citibrook opinion where the authoring judge wrote, “We strictly construe restrictive covenants and ‘any doubt as to their validity is to be resolved in favor of the free use of the property,’” citing Hall v. American Oil Company, a case in which a Missouri couple sued to lift a restriction that barred them from having a gas station built on a piece of property they owned in St. Louis in 1972.
Planning and zoning case still outstanding
A case is pending with the Springfield Planning and Zoning Commission to consider rezoning 2.6 acres of property at 1739, 1745 and 1755 South National Avenue, 1138 East University Street and 1111, 1119, 1133 and 1141 East Sunshine Street from single-family residential to general retail, and establish a conditional overlay district to allow The Heights to be developed for a mixture of commercial and residential uses. However, the case is in a perpetual state of limbo, appearing on the commission’s regular agendas and then being postponed repeatedly.
Fisher argues a pending application to rezone the property does not mean the property will be rezoned. He noted the Springfield Planning and Zoning Commission and/or City Council could deny the rezoning request, leaving the property zoned for residential use.
“The plaintiff’s case is entirely dependent and contingent upon some future event happening,” Fisher said.
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 restriction on its face as pled by the plaintiffs is unlimited in time; it purports to last forever regardless of whether it says the word, ‘forever,’ and so that on its face means that the restriction as pled by plaintiffs is unenforceable as a matter of law,” Fisher said. “Our case law says in order to be enforceable, in order to have a viable cause of action, the restriction must be reasonably limited in time.”
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.
“In addition to the recorded deed restrictions, throughout 1925-1927, Mackey advertisements in local newspapers heavily touted the existence of the restrictions,” a provision of the lawsuit reads.
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.
Plaintiff makes case for covenants
The University Heights property owners’ attorneys on record are Bryan Wade and Laura Greene of the Springfield-based office of Husch Blackwell.
“(Mackey) intended for it to always remain a single-family residential environment,” Greene said.
Wade is notable for having recently represented the Galloway Village Neighborhood Association in its legal battle with the city of Springfield and developers from Elevation Enterprises over property along Lone Pine Avenue. Wade succeeded in arguing for a referendum election that resulted in Springfield voters turning down a rezoning request for a proposed mixed-use development on the opposite side of Lone Pine Avenue from Sequiota Park.
Greene argues there is no case law in Missouri that makes covenants completely unenforceable, provided the covenant restrictions are legally reasonable.
“In our case, it’s very reasonable,” Greene said. “There are circumstances that exist to make sure that these restrictions can continue as they have existed for 100 years. Again, there is nothing that says that just because something is a hundred years old, it’s no longer enforceable.”
Greene told the judge the University Heights residents had a four-point test to bring their lawsuit forward. They would have to allege claims of distensible controversy meaning the controversy surrounding the case is capable of growing larger; legally protected interests; a ripeness for judicial interpretation; and that there is no adequate remedy of law, meaning no amount of money would make the plaintiffs whole.
Twelve plaintiffs, all residents of University Heights, are suing BK&M, LLC, Frizzell Properties and two individuals who own houses on Sunshine Street near the National Avenue intersection. 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.”
“Each particular plaintiff does have standing in this case, and there were allegations made on behalf of each particular plaintiff,” Greene said.
They claim their “lots are adversely affected by any proposed change of University Heights lots from private residential zoning to multi-family and/or commercial use, zoning or conditional overlay,” according to the lawsuit.
The suit was filed Dec. 9, and assigned to Greene County Presiding Judge Michael Cordonnier. The court issued summons for the four defendants in the case Dec. 15. Frizzell Properties and two individual defendants have been voluntarily dismissed from the case.
“There are no businesses in the University Heights area, there should be no businesses in the University Heights area,” Greene said. “The corresponding property owners around the property that was at issue are benefiting from the restriction.”
How we got here
In a somewhat infamous tent meeting in October 2022, 23 people spoke up against plans to develop the property at National and Sunshine for commercial use. BK&M has held three public meetings prior to any interaction with the Planning and Zoning Commission.
The white colonial home that stood on the corner of National Avenue and Sunshine Street for more than 90 years was demolished Oct. 4. The developer did so upon obtaining the necessary demolition permit from the city of Springfield.
“The applicant owns the property,” BK&M wrote in its explanation filed in planning and zoning documents. “The neighborhood does not and cannot dictate whether a structure is torn down. Moreover, the house was not habitable, dilapidated, and was broken into multiple times.”
On Nov. 7, 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.
Ralph Duda III and Anthony Tolliver are the developers behind BK&M LLC. The two paired up in 2012 to form Anything Possible, a fishing equipment company whose brands include Kid Casters, Profishiency and Perfection Lures. At the DoubleTree Hotel in Springfield on Nov. 7, Ralph Duda named two more partners for the Springfield project, two-time NBA all-star center Brad Miller and Marty Duda, Ralph Duda’s brother.
The developers said multiple times at the November meeting that the intersection of National Avenue and Sunshine Street is the “second-busiest intersection in Springfield,” seeing about 70,000 cars on a typical day.