A lawsuit filed against the owners of the controversial corner property at Sunshine Street and National Avenue will proceed.
Greene County Presiding Judge Michael Cordonnier denied a motion of dismissal in a civil lawsuit between a coalition of University Heights residents and development group BK&M, the group with a desire to build a mixed-use development of restaurants, shops, offices and apartments at Sunshine and National opposite Mercy Hospital.
BK&M aimed to have the lawsuit dismissed so that it could continue its effort to have the property rezoned, allowing for it to implement its plan for the Heights. The BK&M partnership includes brothers Ralph and Marty Duda, and former NBA basketball players Anthony Tolliver and Brad Miller.
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BK&M is represented by attorney Bryan Fisher of Springfield-based Neale and Newman. He will have 30 days to file a response to the initial lawsuit petition from the plaintiffs. Another hearing has not been scheduled as of March 31.
At a motion hearing March 9, Fisher argued using case law found in Citibrook II vs. 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 vs. 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.
Who are the people suing BK&M?
Twelve plaintiffs, all residents of University Heights, are suing BK&M, LLC, to stop the company’s development of what is presently residential property. 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.” In March, Judge Cordonnier granted a motion for University Heights residents Mark and Courtney Fletcher to intervene and join the plaintiff’s case.
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 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.
What about the zoning case?
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. The case appears on the Springfield Planning and Zoning Commission’s agenda for April 6, but it has been appearing on agendas in a series of postponements dating back to last fall.
A 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.
“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.
BK&M’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.
