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No ruling yet in trial pitting University Heights against Be Kind & Merciful

White house at Sunshine Street and National Avenue, along with other nearby houses.
Gregory Holman/KSMU
A white house at Sunshine Street and National Avenue was demolished by Be Kind & Merciful LLC as part of a proposed plan to build a food hall and pickleball court. Neighborhood residents nearby oppose the idea and sued BK&M in December 2022.

The Springfield court case brought by University Heights homeowners against commercial developers went to trial on Thursday.

There’s no ruling yet after a trial featuring homeowners in University Heights, who in late 2022 sued commercial developers with Be Kind & Merciful LLC.

BK&M wants to build a food hall with pickleball courts at the corner of Sunshine Street and National Avenue.

Located across from Mercy Hospital and a CoxHealth urgent care, the area where BK&M wants to build sees at least 70,000 cars per day, according to court testimony from owner Ralph Duda.

Both sides argued for more than 9 hours, wading into the weeds of the case before local circuit Judge Derek Ankrom.

Meanwhile, this case is being closely watched around town as the city has gone through a series of recent confrontations involving residents, developers and city officials.

“I think that neighborhoods really need to be united when any threat comes that could take away some of our identity or degrade our property values," said Melanie Bach, speaking outside the courtroom.

Bach doesn’t live in University Heights but spent much of the day at the trial. Serving as president of the Galloway neighborhood in south Springfield, Bach also ran unsuccessfully for mayor last year after her neighborhood got into a dispute with a different development company. She favors University Heights homeowners who say they don’t want extra noise and car traffic from a food hall.

Her response to evidence presented at Thursday’s trial?

“I’m having a little bit of flashback from our case," Bach said, "because I know there are times that some things that are said that are positive for your perspective and your side in the legal battle. And then sometimes things are said that are positive for the other side. And there’s really, really no way to know how these things are going to go until you hear that ruling.”

Plaintiffs, defendants present evidence on deed restrictions

The case centers on whether restrictive deed covenants that go back to 1925 are still legally valid. In court on Thursday it emerged that the deed restrictions don't just call for construction standards in University Heights. They say “nothing” can be built in University Heights except private residences with 30-foot setbacks. Homes can be made only of brick, stone or stucco, with no outbuildings used as living quarters.

They also include other restrictions. Local realtor and historian Richard Crabtree testified that the 100-year-old deed restrictions also prohibited keeping horses in University Heights, or selling property to unmarried women or people belonging to racial minorities. That part of the deal wasn’t mentioned in copious 1920s-era newspaper advertising for University Heights properties. Those ads focused on the classy construction standards.

Plaintiffs with the neighborhood argued evidence intended to support those deed restrictions, citing property records and a long history of neighborhood identity. The development company’s lawyer pointed out other evidence, including a long history of lots getting subdivided. That could be seen to contradict some of the deed restriction language and show that the restrictions have long been disregarded.

BK&M also submitted recent photos of homes in University Heights with features that arguably violate the deeds. That includes houses with vinyl siding instead of brick, stone or stucco — and houses with outbuildings like garden sheds or so-called garagettes with apartments upstairs.

The first witness of the day, homeowner Sue Robinson, pointedly told the court she doesn’t have a garagette, even whipping out her smartphone after the trial to show KSMU a photo of the garage attached to her house.

After all parties rested their case Thursday evening, Judge Ankrom gave plaintiffs and the defendant two weeks to submit their proposed findings before he issues a ruling.

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