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BK&M LLC filed its first response to a lawsuit by a group of University Heights neighborhood residents trying to prevent the company from developing at a busy Springfield intersection.
The motion to dismiss the lawsuit filed Jan. 20 was the subject of a hearing yesterday in Greene County Circuit Court. It is now up to the plaintiffs to respond to the dismissal motion.
The group of University Heights residents filed a petition for declaratory judgment Dec. 9 in an attempt to halt development of The Heights, a mixed-use residential and commercial development planned by BK&M at the northwest corner of National Avenue and Sunshine Street.
Plaintiffs seek judicial declarations that they have a legally protected interest in enforcing deed restrictions, that the developer’s lots are subject to deed restrictions and that applications to amend zoning at the project site are moot, according to past reporting.
The developer is seeking a zoning change to build The Heights, a residential and commercial development which could be up to six stories tall and 200,000 square feet.
The original complaint states that deed restrictions are present on all property deeds from the time the neighborhood was platted in 1925, and the restrictions prevent any buildings to be constructed in the neighborhood except for private residences, with further requirements related to building materials and distance structures must be from the road.
BK&M’s motion to dismiss, filed by attorney Bryan D. Fisher of Neale & Newman LLP, maintains that the restrictive covenant is unenforceable because of its age, at almost 100 years old.
“Missouri courts strictly construe restrictive covenants and ‘any doubt’ about their validity is ‘resolved in favor of free use of the property,’” Fisher wrote in the motion, adding that courts enforce restrictive covenants only when it is clear that the restriction filed against a use of the land is reasonable at the time.
“It is unreasonable, purporting to exist in perpetuity, evidenced, in part, by plaintiffs’ petition seeking to enforce it almost 100 years after it was created, and it also constitutes an unreasonable restraint on trade,” the motion states.
The motion also states that the plaintiffs’ petition is not timely and the matter is not ripe for adjudication because no act in violation of the purported covenant has occurred yet. It adds that nothing in the restriction prevents any property owner from applying to amend the zoning map.
The motion also says the plaintiffs lack standing to sue to enforce the deed restriction. It notes that there are variations among the deed restrictions, and it is not clear that the landowners benefit from the deed restrictions at the heart of the lawsuit.
Plaintiffs are listed as Dixie Sleight, Barbara Susan Robinson, Doug and Erinn Johnson, Anna Squires, Rod and Lisa Dixon, Rebecca Gilmore, Mark Wealand and Steve Waddell, Jeani Thompson and Virginia Olson.
At the last meeting of Springfield City Council, Councilmember Craig Hosmer attempted to halt all development at the corner for 210 days with an administrative delay. Council voted to send the resolution to its Plans & Policies Committee for consideration.
BK&M tore down a house at the corner of the intersection, and the delay would have forced a hold on other demolition or removal efforts.
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