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After a Greene County judge announced he will reconsider dismissing a lawsuit filed by homeowners in University Heights Neighborhood seeking to enforce 100-year-old deed restrictions on the developer looking to rezone multiple properties on the corner of National Avenue and Sunshine Street, the plaintiffs submitted their evidence supporting their case Monday afternoon.
Earlier in November, Judge Derek Ankrom ordered the University Heights residents to produce evidence that developers with Be Kind & Merciful, LLC, have actually violated the deed restrictions.
The plaintiffs allege the restrictive covenants prohibit anything but residential homes, among other requirements, and seek declaratory judgment enforcing the covenants throughout University Heights.
BK&M seeks to rezone approximately 2.6 acres of land across eight properties hugging the corner of National Avenue and Sunshine Street from single-family residential to general retail with a conditional overlay.
It remains unclear what exactly BK&M plans to develop, as the conditional overlay doesn’t require a site plan, though previous renderings illustrate uses alternative to single family homes, including a mixed-use development with restaurants, shops, offices and apartments and a boutique grocery store.
New judge reconsiders motion to dismiss
In January, BK&M filed a motion to dismiss the case, which was later denied by Judge Michael Cordonnier, who has since retired. On Nov. 6, Ankrom — who was appointed to the Greene County 31st Judicial Circuit in August and subsequently took over the case — issued a show cause order, in which he required the plaintiffs to submit evidence as to why BK&M’s motion to dismiss the case shouldn’t be reconsidered.
Specifically, Ankrom is looking at the issue of “ripeness,” placing the burden on the plaintiffs in determining whether their allegations are presently relevant in court.
Ankrom notes that while the rezoning request may show the developers intend to violate the deed restrictions, it remains dependent on the approval of the Springfield City Council. Although declaratory judgments are remedial in providing “relief from uncertainty and insecurity,” Ankrom references case law in that “it is not available to adjudicate hypothetical or speculative situations that may never come to pass.”
The order asked the plaintiffs to determine whether BK&M violated the deed restrictions before or after the rezoning application was filed, whether BK&M showed intent to violate the deed restrictions in the event the rezoning request is denied, if the properties’ current zoning hinders a violation of what the plaintiffs allege restrictions require and whether there is a “ripe, justiciable controversy.”
University Heights neighbors respond
The plaintiffs — currently listed as Dixie Sleight, Barbara Susan Robinson, Doug Johnson, Erinn Johnson, Anna Squires, Rod Dixon, Lisa Dixon, Rebecca Gilmore, Mark Wealand, Steve Waddell, Jeani Thomson and Virgina Olson — filed the following “short answers” to the judge’s questions on Monday:
- Has BK&M engaged in any conduct that actually violates the terms of the deed restrictions either before or after its rezoning application was submitted to the City of Springfield? The plaintiffs argued in part that yes, BK&M has constructed a gravel parking lot on portions of three University Heights lots and demolished two private residences. The plaintiffs argue that demolishing existing private residential structures without replacement “violates the deed restrictions or, alternatively, indicates an affirmative intention to do so.”
- How BK&M has evidenced a positive intention to engage in conduct that plaintiffs’ allege violate the deed restrictions in the event its rezoning application to the City of Springfield is not successful? The plaintiffs responded yes and pointed to multiple instances in the past when BK&M representatives announced their intention was to tear down the houses to build a mixed-use establishment. To support this, the plaintiffs noted different media reports in which BK&M representatives were quoted saying as such. The plaintiffs also included in their response a portion of an email from BK&M developer and partner Ralph Duda to Springfield Mayor Ken McClure and members of City Council, in which Duda wrote, “We do not believe it is logical to keep this corner residential. Our company supports economic development. We support improvising this corner and we will be exhausting our efforts to prove our cause that it should be rezoned for commercial use. …”
- Does the present zoning of BK&M’s lots constitutes an impediment to BK&M’s actual violation of what plaintiffs’ allege the deed restrictions require? The plaintiffs responded no. “In theory, the present zoning should prohibit commercial development; however, BK&M has chosen to destroy two residential homes as well as construct a gravel parking lot. In response to BK&M’s actions, the City has either (a) acquiesced or (b) authorized the actions. Further, BK&M’s actions to change the zoning while ignoring the deed restrictions create the justiciable controversy.”
- Generally, does this action present a right, justiciable controversy either based upon pleaded facts or upon developments arising or occuring after the petition was filed? The plaintiffs responded yes, they believe the underlying purpose of the declaratory judgment act is to dispel uncertainty before an actual loss occurs.
The plaintiffs also filed exhibits of evidence Monday afternoon. These can be viewed by searching for case number 2231-CC01284 at www.courts.mo.gov.
Mark and Courtney Fletcher, intervenors with the plaintiffs, submitted their own evidence. The Fletchers argue that an actual violation of the deed restrictions isn’t required to illustrate ripeness and emphasized a declaratory judgment is meant to “resolve conflicts before a loss occurs.”
The Fletchers reference the Declaratory Judgement Act, and assert that its purpose is to “dispel uncertainty,” and reduces the needs for the plaintiffs, in this case, to reduce the need to “spend thousands of hours and thousands of dollars defending their legal/property rights in non-legal forums such as planning and zoning commission and city council or in referendum elections.”
In addition to the evidence presented, the plaintiffs are looking to amend their initial lawsuit due to the changing circumstances around BK&M’s activities and plans for the property, implications of the show cause order and the lack of participation in the case from one of the 12 original plaintiffs. Three of the original defendants have sold their properties and are no longer involved in the suit.
BK&M has until Nov. 29 to respond to the plaintiff’s evidence. All parties have until Dec. 6 to request an opportunity for live testimony, for which a hearing would be scheduled for later in December.
The rezoning case is set for the Springfield Planning and Zoning Commission’s consideration on Dec. 14, though the case has been postponed several times since being remanded by the City Council in May.