Court removes barrier to BK&M development

A judge has ruled that restrictive covenants limiting the University Heights neighborhood to private homes are mostly unenforceable.

Greene County Circuit Court Judge Derek Ankrom ruled June 14 in a case brought last year against the developer BK&M LLC by 12 plaintiffs and two interveners – all residents of University Heights neighborhood – where BK&M plans a commercial development at the corner of Sunshine Street and National Avenue.

A decision by Ankrom had been pending since a two-day trial was held in January regarding restrictions placed on many of the neighborhood’s deeds by Eloise Mackey, who devised and advertised the restrictions when the neighborhood was platted in 1925.

In his ruling, Ankrom wrote about each of the plaintiffs by name and showed how they 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 BK&M’s development plans. The most recent idea announced was for a combination food hall and pickleball establishment, following a plan 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 nature of the development is in flux, and the food hall idea is out.

“I’m not sure about the food hall proposal,” he said in a June 17 text message. “The neighborhood clearly desires a less intense use case.”

Duda added that he would be meeting his team later in the 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.

Judge’s analysis
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.

SBJ reached out to attorneys for all parties, including plaintiffs’ attorney Bryan Wade and defendants’ attorney Bryan Fisher.

Fisher provided a brief written statement in an email, which said, “We are pleased with the court’s well-reasoned opinion. Judge Ankrom’s judgment evidences the court’s thorough and thoughtful consideration of the legal issues and the evidence presented at trial.”

In a phone call, Wade said that he would be meeting with his clients and would not have a statement in time for this story.  It is not yet known whether the plaintiffs plan to appeal.

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

Previous opposition
The city’s Planning & Zoning Commission voted twice not to recommend proposals by the developer for the site.

In December 2023, P&Z voted 5-1 against rezoning the site from single-family residential to general retail when presented with the plan for a food hall with indoor and outdoor pickleball courts. Commission members cited traffic concerns and neighborhood integrity in their opposition.

Following the P&Z ruling, 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.

Duda told Springfield Business Journal by text after the December 2023 meeting that it was clear neighborhood residents desired the certainty that a planned development would provide.

Prior to that meeting, P&Z also voted in April 2023 against rezoning the site, when BK&M was proposing a mixed-use residential and commercial building that was scaled back from a similar but larger structure. A conditional overlay was included with the request to limit some of the allowable uses of the site.

Later in April, BK&M released plans for a boutique grocery store concept.

The measure appeared on the Springfield City Council agenda in May 2023, as council has the ability to approve zoning changes that P&Z does not recommend, but council remanded the matter back to P&Z for further study.

In January of this year, BK&M withdrew its rezoning request and signaled its intent to apply to P&Z for a planned development.