Judge dismisses part of lawsuit against BK&M

Greene County Circuit Court Judge Derek Ankrom issued a partial dismissal on Jan. 9 of a case brought by a group of University Heights neighborhood residents against BK&M LLC, the corporation that is seeking to build a commercial development at the intersection of Sunshine Street and National Avenue.

With only a partial dismissal of claims, the matter is scheduled to go to trial Jan. 18-19, according to the judge’s order.

Ankrom dismissed the portion of the plaintiffs’ lawsuit that sought to prevent BK&M from applying with the city of Springfield to change the zoning of lots in the neighborhood.

Other issues remain, including but not limited to the validity and enforceability of claimed deed restrictions, the judge’s order states.

That means the issue of whether deed restrictions that date from when the neighborhood was first platted in 1925 are now front and center in the case.

Ankrom’s ruling notes that the deed restrictions originated from individual deeds granted by the neighborhood’s original developer, Eloise Mackey, to original purchasers of the lots that BK&M now owns. He points out that not all deed restrictions are present in each of the original deeds.

The 17-page ruling declares the claims of plaintiffs Dixie Sleight et al. to be ripe when it comes to requesting a declaration on the enforceability of century-old deed restrictions that disallow commercial development within the bounds of the neighborhood. However, it notes that claims are not ripe when they request interference with BK&M’s efforts to achieve legislative rezoning of its seven residential lots with the city of Springfield.

Ripe is a legal term that means the facts of the case have matured into a substantial controversy requiring a judge’s ruling, according to a definition from the Legal Information Institute at Cornell University.

“The evidence before the court clearly demonstrates that BK&M’s effort to have the city rezone the lots is fluid and far from fixed or concrete – whether the property will be rezoned by the city and/or in what manner it will be rezoned remain to be seen,” Ankrom wrote.

Legislative versus judicial decision
Ankrom expressed a reluctance for the court to intervene in the zoning case, which is currently active.

“Courts are generally reluctant to involve themselves in legislative decision-making prior to the enactment of a particular statute or ordinance, because to do so would be to offer an improper ‘advisory opinion’ about an as-of-yet hypothetical circumstance,” Ankrom’s dismissal order states, citing case law precedents.

He added, “BK&M’s legislative proposal has changed numerous times during the course of the litigation, and it remains subject to change. The court cannot accurately divine what, if any, such rezoning proposal might be adopted by the city, nor can it decide that such unknown ordinance would necessarily cause or enable BK&M to violate the deed restrictions.”

Ankrom noted that BK&M could keep the lots empty or erect a private residence after rezoning, and seeking legislative rezoning does not establish or even threaten a violation of deed restrictions.

“Plaintiff’s effort to ‘prevent’ BK&M from proposing legislative rezoning, or to have such rezoning proposals preemptively declared ‘moot,’ requires no less guesswork on the part of the court than does meddling with the functioning of the electorate or a municipal legislative body before a final decision has been made,” he wrote.

Zoning case continues
Springfield’s Planning & Zoning Commission voted against the rezoning proposal on Dec. 14, 2023, despite a recommendation by city staff to approve the measure. It was the second rejection by P&Z, which also voted against recommending permission to rezone the previous April.

Ralph Duda, a partner in BK&M, had described a new concept for the property at the December meeting: a food hall with indoor and outdoor pickleball courts and underground parking.

After the second P&Z rejection, Duda told Springfield Business Journal it was clear to him that the commissioners and University Heights neighbors would prefer details to be spelled out in a planned development at the site, instead of a rezoning with limitations stipulated in a conditional use permit.

The lawsuit’s plaintiffs are 12 neighbors who are opposed to any non-residential development on the site, as they wish to uphold century-old deed restrictions that they believe still apply to the properties and limit development to residential only. There are also two neighborhood residents, Mark and Courtney Fletcher, who have joined the lawsuit as intervenors and represent themselves in proceedings.

Mark Fletcher told SBJ in an email following the ruling that he felt encouraged by it.

“Judge Ankrom’s decision found that the primary relief sought, a judicial determination of whether we are entitled to enforce the deed restrictions and whether the deed restrictions are valid and enforceable against BK&M, such that they are prohibited from constructing commercial buildings on the subject lots, was ripe for judicial determination and would be determined at trial next week,” he said. “Courtney and I are highly confident that the evidence which will be presented at that trial and applicable Missouri law will result in a judgment upholding the deed restrictions and prohibiting BK&M from constructing commercial buildings.”

He added, “Such a judgment would put an effective end to BK&M’s unlawful campaign to blight our historic neighborhood.”

Neither the attorney for the plaintiffs, Bryan Wade of Husch Blackwell LLP, nor the attorney for the defendants, Bryan Fisher of Neale & Newman LLP, responded to a request for comment by press time.