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Judge hears 'ripeness' arguments in University Heights development case; rezoning plan set to go before Council on January 22

Be Kind & Merciful developers want to put up commercial buildings in the University Heights neighborhood at the intersection of National Avenue and Sunshine Street, shown here on Nov. 8, 2023.
Gregory Holman/KSMU
Be Kind & Merciful developers want to put up commercial buildings in the University Heights neighborhood at the intersection of National Avenue and Sunshine Street, shown here on Nov. 8, 2023.

After six hours of court argument and testimony from three witnesses taken two days after Christmas, it’s still not clear what will go up — if anything — on the northwest corner of Sunshine Street and National Avenue in Springfield’s historic University Heights neighborhood.

Springfield’s Planning & Zoning Commission has twice rejected plans by developers with Be Kind & Merciful LLC, who want to put some sort of commercial structure at a busy corner across from Mercy hospital.

The latest iteration of their business ideas — a food hall with indoor/outdoor pickleball courts — was presented to Planning & Zoning in mid-December, along with a rezoning request that would make commercial development possible, under city code, in the hundred-year-old residential neighborhood. Earlier versions of the BK&M plan included a boutique grocery store or a five-story mixed-use development with apartments and commercial space.

Planning & Zoning voted 5 to 1 not to recommend BK&M’s latest plans back on December 14, but the rezoning request is expected to go before City Council at an upcoming January 22 meeting. Regardless of whether a project gets a greenlight from Planning & Zoning, City Council has the final decision to approve or reject a rezoning request.

But along with municipal government process, BK&M’s plans are also the subject of intense court action. City Council’s role was at the center of legal arguments on Wednesday in a lawsuit related to BK&M’s plans. The legal challenge was filed a year ago by a dozen residents of University Heights. They sued BK&M in a bid to block commercial development that the residents believe is already harming their property values and neighborhood quality of life.

Much of their lawsuit hinges on century-old restrictive deed covenants that, plaintiffs argue, allow only residential construction — no business buildings of any kind — in the University Heights area, which was originally platted by Eloise Mackey in the mid-1920s.

Earlier this fall, Judge Derek Ankrom asked the parties in the lawsuit to argue why the lawsuit should be heard in the first place. 

Ankrom wrote that because Springfield City Council hasn’t yet made a decision on the BK&M rezoning plan, the neighbors’ lawsuit may not be “ripe” for a full hearing in court.

Residents disagreed. They argued that BK&M’s plans constitute premature commercial construction that violates Springfield’s zoning code. As evidence, they and their attorneys cited BK&M actions including the demolition of an “iconic white house” at the corner, the removal of trees and the installation of a gravel surface on part of the disputed area owned by the company.

The residents also argued that BK&M is already hurting their neighborhood property values and quality of life. One of the plaintiffs, Courtney Fletcher, said from the witness stand that the gravel surface — plaintiffs call it a “parking lot” — is part of a “plan of blight” that’s “being orchestrated” against the neighborhood by BK&M, creating “uncertainty” prompting homeowners to contend with falling property values.

Fletcher also testified that Springfield city officials weren’t enforcing the restrictive deed covenants from the 1920s as they completed staff reports on the project for City Council and Planning & Zoning.

“It’s become very clear that the city is not going to step in and defend property rights,” Fletcher said from the witness stand.

She asserted that the deed restrictions allowing only residential building in University Heights were “well-known to everyone,” particularly those linked to local title companies.

“At what point has [zoning code] been violated, then?” Fletcher asked while responding to questions from Judge Ankrom. “When we’re putting in a footing [for a new commercial building]?”

Judge Ankrom told both sides of the lawsuit that the issue of “ripeness and justiciability” was highly important for the court and that it was “a sticky wicket of a decision,” so he opted to spend a few days considering his decision before issuing an order.

“If the court gets this question wrong,” he said, “it doesn’t matter at a subsequent trial, who wins.” Because either side could appeal in a drawn-out, costly process.

Defendant BK&M’s attorney, Bryan Fisher, argued that University Heights residents’ “true purpose” was to influence the Planning & Zoning and City Council processes, not necessarily to gain relief in court. Residents “really want to use their litigation to say ‘here’s why you shouldn’t do something’” to the municipal authorities, he said.

Fisher said the lawsuit was “a case based on a contingency;” meaning BK&M can’t make progress toward its business goals without the blessing of City Council. He also noted that every property owner has property rights.

“Anyone in University Heights can tear down their house,” or remove trees, or ask for a rezoning plan, just as BK&M has done, Fisher said. 

Before adjourning, Judge Ankrom said he’d take a few days to decide the “ripeness” question, but he indicated his view that the neighborhood-resident plaintiffs had a stronger case for enforcing deed restrictions than they have for any hypothetical “home run, touchdown” order that would render BK&M’s zoning application moot.

“Until [BK&M’s plan] is approved by City Council, I do believe there’s a legal impediment to construction,” Ankrom said: namely, the deed restrictions.

Ankrom cautioned both plaintiffs and the defendant that it was “unlikely” his decision on the ripeness argument “will be fully dispositive of all issues,” hinting that the trial in the University Heights lawsuit, currently scheduled for January 18-19, is likely to go forward.

Gregory Holman is a KSMU reporter and editor focusing on public affairs.