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A dozen residents of University Street aim to stop The Heights from altering the skyscape of Sunshine Street.
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. 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.
BK&M, or “Be Kind and Merciful,” is a development group seeking to put a commercial development with restaurants, shops, offices and apartments at the intersection of Sunshine Street and National Avenue, catty-cornered from the Mercy hospital campus.
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.”
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.
The Heights is scheduled to go before the Springfield Planning and Zoning Commission for consideration Jan. 12, 2023. The commission will 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 developer has been on the Planning and Zoning Commission’s agenda four times in 2022, and has requested to have the case removed from the agenda all four times.
What the plaintiffs seek
The 12 people suing BK&M and the neighboring property owners are asking the judge who hears the case to declare that the deed restrictions from 1925 as legally enforceable. They seek for the court to declare The Heights properties as subject to deed restrictions, and, therefore, not able to house anything but a single-family dwelling.
The third count of the lawsuit seeks for a court declaration that all zoning applications associated with the Heights property are moot, because they seek zoning changes that are not permissible under the 1925 deed restrictions.
The University Heights property owners’ attorneys on record are Bryan Wade and Laura Greene of the Springfield-based office of Husch Blackwell.
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.
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.
Duda explained how the elbow-shaped building for The Heights would hug the corner of National and Sunshine, with a public atrium at the point of the elbow on the corner. The developers said multiple times 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.
Before BK&M bought the property
Precision Investments, run by Stephen Robert Plaster of Lebanon, Missouri, bought the property at 1755 South National, the corner property, from Federal Home Loan Mortgage Corporation, or Freddie Mac, on Aug. 18, 2009.
In 2015, a woman named Kathy Penrod wanted to purchase the home at the corner of Sunshine and National and convert it into a hospitality house, offering low-cost overnight accommodations for people with a loved one in the hospital. Residents in the neighborhood opposed Penrod’s idea, and Springfield City Council denied her request for a conditional use permit in 2016.
Plaster’s Precision Investments continued to own the house until March 30, 2022, when BK&M, LLC bought it. The Warranty Deed for the 2022 transaction shows BK&M bought two tracts of land, Lot 12 of University Heights, and the east half of Lot 13.
The warranty deed from 2022 reads that the property is “subject to easements, restrictions, reservations and covenants of record, if any.”