BK&M trial ends, verdict to come

A planned two-day trial was kept to one day on Thursday as Greene County Circuit Court Judge Derek Ankrom received evidence and listened to witness testimonies in a bout pitting a group of University Heights neighborhood residents against developer BK&M LLC.

No verdict was delivered yesterday, with Ankrom saying at the end of the more than eight-hour trial that the parties' attorneys have two weeks to file any proposed summaries for him to consider in his verdict. Ankrom, who did not indicate a planned date for his decision, previously issued a partial dismissal of claims on the portion of the plaintiffs' lawsuit related to the zoning of lots in the neighborhood.

At issue is whether BK&M – represented at trial by partner Ralph Duda and his attorney, Bryan Fisher of Neale & Newman LLP – can move forward with its commercial development plans at the northwest corner of Sunshine Street and National Avenue.

Plaintiffs Dixie Sleight et al. are seeking the enforcement of deed restrictions – largely related to the prohibition of commercial development – that were implemented when University Heights was created 100 years ago. Additionally, neighborhood residents Mark and Courtney Fletcher joined the lawsuit as intervenors and represented themselves in the proceedings.

Bryan Wade of Husch Blackwell LLP, the plaintiffs' attorney, called a series of witnesses, comprising residents of the neighborhood who are plaintiffs in the case and a real estate agent identified as an expert witness because of his experience with historic homes.

Sue Robinson, one of the property owners and plaintiffs, presented the first testimony in what became a theme among Wade's witnesses: that the deed restrictions protect the character and property values in the neighborhood.

"When I purchased my home, obviously it was a historic residential neighborhood. That has a tremendous amount of value to me," she said.

In his cross-examination, Fisher asked Robinson to identify where in her property deed it allows her to enforce century-old restrictions, particularly when ownership has changed in the decades since. Fisher sought to distance the current iteration of the neighborhood from when it was built.

"It's part of the common plan in the neighborhood," Robinson said.

Lisa Dixon, a plaintiff whose home is behind BK&M’s proposed development, said the construction process would create a "very negative" impact on the neighborhood. Her husband, Rod, also took the stand.

"I think it'll be the value of the property itself, and any time later if we wanted to sell, I think that would reflect on that," he said of his opinion that the development would diminish property values.

Wade called Murney Associates, Realtors agent Richard Crabtree as an expert witness due to his historical approach to the real estate business and his research into the history of Springfield's neighborhoods.

Crabtree spoke of homes within University Heights that are significant for various reasons, including residences designed by Springfield architect Carl Bissman.

"Year after year, they've went up in value," Crabtree said of University Heights homes.

Wade asked if Crabtree's research found whether the original creators of University Heights intended for the neighborhood to stay residential.

"I don't see how you could look at the material and come up with anything otherwise," Crabtree said.

Fisher questioned the validity of Crabtree's research, making the point that his information is not first-hand knowledge but rather historical documents that he's read.

"So, you don't have first-hand knowledge?" Fisher asked.

Crabtree responded, "Nor do you."

Wade additionally called Daniel Neal, senior planner for the city of Springfield, as a witness, and turned over questioning to plaintiff and intervenor Mark Fletcher.

While questioning Neal about the documentation the city prepared on the proposed BK&M development for the Springfield Planning & Zoning Commission and City Council, Fletcher referenced photos of University Heights homes that were included in the Forward SGF comprehensive planning document.

"The city is showcasing University Heights for how neighborhoods should look like, correct?" Fletcher asked.

Neal said, "It's one of the most established neighborhoods that we have in the city."

Fletcher later called his wife, Courtney, to the stand to testify, asking her to confirm several pictures she took of University Heights homes and identify those with deed restrictions related to commercial development, but also requirements on the types of materials that can be used, namely brick, stucco or stone.

Courtney Fletcher said the deed restrictions are important "because we know there's not going to be a commercial development there."

"It's like an oasis in center city. People love it," she said of University Heights.

Fisher's only witness, called after 5 p.m. as the trial neared its closure, was his client, Duda.

Fisher asked Duda to identify photos that the developer said showed examples of University Heights homes that have broken the covenants presented in the deed restrictions. Duda took issue with garages that appeared to have living spaces above them, exterior sheds and homes he said either did not conform to the building standards or had partial construction elements, such as siding, that was not originally permitted.

Duda also was questioned by the attorneys about the properties BK&M purchased in preparation for the development, some of which have been torn down.

"There were trees growing through the roof. There was wood rot. It was in pretty rough shape," Duda said of one of the homes.

In response to questioning from Fletcher, Duda acknowledged University Heights is "a great neighborhood" at its core, but the outskirts of it have properties in decline.

"Some of the houses look like they're deteriorating," Duda said, referencing residences he's seen while driving west on Sunshine. "The inside of the neighborhood is gorgeous."

Fisher asked Duda why he invested millions of dollars in buying residential lots at the corner of Sunshine and National if they were in deteriorating condition.

“What was valuable to BK&M?” Fisher asked.

“The spot,” Duda replied. “It’s the second-busiest intersection.”

Following Duda's testimony, Ankrom asked the attorneys if they'd like to give closing arguments. Declining to do so, the attorneys were given another two weeks to file further documentation for Ankrom to consider.

"With that, the trial will be concluded," Ankrom said.

BK&M's most recent iteration of its development plan calls for a food hall with indoor and outdoor pickleball courts. Last week, a city news release indicated BK&M had pulled its rezoning request to change its property to general retail from a single-family residential district and to establish a new conditional overlay district. The release indicated BK&M plans to apply for a rezoning to a planned development in the future.