Judge declares deed restrictions unenforceable for Sunshine, National corner 

Restrictive covenants limiting the University Heights neighborhood to private homes are mostly unenforceable, according to a recent ruling. 

Greene County Circuit Court Judge Derek Ankrom issued a ruling June 14 in a case brought last year against the developer BK&M LLC by 14 neighborhood residents. A decision by Ankrom has been pending since a two-day trial was held in January. 

In his ruling, Ankrom named each of the plaintiffs and showed how they themselves were in violation of some aspect of the deed restrictions they were citing to prohibit the commercial development. 

The verdict in the case clears a hurdle to the company’s plans for a commercial development on the northwest corner of Sunshine Street and National Avenue. The most recent iteration of the plan was for a combination food hall and pickleball establishment, following ideas for a tall mixed-use residential and commercial building and another for a boutique grocery store. 

Now, Ralph Duda, partner in BK&M, says the exact nature of the development to be proposed is in flux. 

“I’m not sure about the food hall proposal,” he said in a text message this morning. “The neighborhood clearly desires a less intense use case.” 

Duda added that he will be meeting his team later this week to discuss next steps. 

“Ultimately, we desire to rezone this site for commercial use, but we must be good stewards in the process,” he said. 

The city’s Planning & Zoning Commission voted twice not to recommend proposals by the developer for the site. The developer had sought Springfield City Council approval to rezone the site from single-family residential to general retail, but the city announced via a Jan. 10 email that BK&M had withdrawn its rezoning request pending the judge’s decision. 

Ankrom’s written decision offered a detailed analysis of four deed-specific restrictive covenants that, according to the plaintiff group, prohibited commercial development. The restrictions ban construction of any structure other than a private residence, limit construction materials that can be used, outline setback requirements and prohibit use of a garagette – defined as an apartment in or over a garage – as a living space. 

In his ruling, Ankrom demonstrates that the plaintiffs themselves have violated at least one of the covenants, with some living on lots that have been subdivided to include more than a single, private residence or containing sheds or other outbuildings, and some having alternate construction materials than the covenant-required brick, stone or stucco, such as vinyl siding.  

Ankrom names each of the defendants and points out the restriction that is bypassed. As examples, plaintiff Barbara Susan Robinson’s home at 1010 E. University St. straddles two of the neighborhood’s originally platted lots, and due to the lot-splitting, three residences are constructed across both of the original lots, and plaintiffs Doug and Erinn Johnson’s home at 1020 E. University St. is partially constructed with siding. 

Ankrom also found that some plaintiffs – Doug and Erinn Johnson, Anna Squires, Steve Waddell and Mark Wealand – lacked standing to bring the case because they do not own the property where they reside, but instead those properties are owned by revocable living trusts. 

Ankrom also wrote that enforcing a covenant that stipulates only a private residence may be built would hurt BK&M. 

“That covenant has not been complied with for decades within University Heights, due to no conduct on the part of BK&M, and the original purposes for its imposition, which appears to have included the creation of large ‘estate lots’ containing a single private residence to maintain a non-urban environment and prevent density of population, have been lost,” the ruling states.  

“Further, credible evidence establishes that enforcement of the restriction permitting erection of ‘nothing … except a private residence’ would work undue hardship on BK&M, and would be of no substantial benefit to the plaintiffs.” 

One restriction was ruled to be enforceable for some of the BK&M lots, and that was the restriction against garagettes being used as abodes. 

Ankrom offered a number of other reasons for his ruling, including the following: 

• The original plat did not spell out deed restrictions, and the deeds for lots sold within the development were inconsistent, with some citing all of the restrictions and others citing some or none.
• Citing case law, including Dierberg v. Wills, he quotes, “The law does not favor restrictive covenants, and thus they will be strictly construed in favor of free use of the land.”
• A 1930 foreclosure and sheriff’s sale of 41 of the neighborhood’s original lots negates any covenants. Ankrom cites Gray v. Shephard, which states, “A foreclosure sale passes title to the purchases as of the date of the deed of trust and extinguishes the inferior encumbrances made by the grantor subsequent to that date.”
• The judge wrote that the defendants presented credible evidence that the BK&M lots are no longer suitable for a single private residence and added, “Enforcement  would make the land virtually unmarketable, undevelopable and unsafe.” Additionally, he wrote that the plaintiffs presented credible evidence that tall structures are needed on the property to avoid sound and light pollution from nearby thoroughfares and the large hospital complex on the intersection. “Leaving the BK&M lots undeveloped would be detrimental to the neighbors and the neighborhood,” he wrote.

Springfield Business Journal reached out today to attorneys for both all parties, including plaintiff’s attorney Bryan Wade and defendant’s attorney Bryan Fisher, but they did not respond by deadline. 

Mark Fletcher, who with his wife Courtney Fletcher is named as an intervener in the suit, responded to say that they did not have a comment.