Galloway Village resident sues city over Chimney Rock subdivision

A Galloway Village resident is turning to the Greene County Circuit Court in an effort to get the city to submit a referendum petition with nearly 2,000 signatures.

A complaint was filed May 2 by Dan Clark, who the complaint states lives in a cul-de-sac backed by the undeveloped site of the proposed Chimney Rock subdivision and has dwelled at his 3108 S. Arcadia Ave. home for 25-plus years.

Clark’s suit seeks a writ of mandamus and/or a declaratory judgment against Springfield City Clerk Anita Cotter, who in March rejected a referendum petition put forth by residents designed to undo Springfield City Council’s decision on the preliminary plat for Chimney Rock. Clark was among the petitioners.

The complaint outlines the events leading up to the rejected referendum by stating that in 2018, council passed Conditional Overlay 151, “which controls how future development of this undeveloped land would unfold with respect to the Arcadia Avenue cul-de-sac, as well as Mimosa Street and nearby residential neighborhoods.”

The COD prohibits access from the undeveloped property to Arcadia Avenue, Mimosa Street or any residentially zoned tract, the complaint states.

On Feb. 10, council adopted an ordinance to approve a preliminary plat for Chimney Rock. The plat grants access to Arcadia Avenue, Mimosa Street and other residential property. Clark’s complaint alleges council’s decision to adopt the ordinance was unlawful and violates his property rights.

The petition states Clark and his neighbors made use of a city charter provision allowing the right of referendum under Article XIV, which states qualified electors of Springfield may refer “any ordinance” passed by council to a vote of the public or have council repeal its own ordinance in lieu of a public vote.

The complaint alleges Cotter’s role in the referendum process was merely administrative under the city’s charter, which required her to verify a proper statement of the petition’s circulator and whether it was signed by a sufficient number of qualified electors. The complaint maintains Cotter had no discretion to do anything besides certifying the approval of the referendum petition.

However, the complaint alleges the city clerk issued a letter purporting to void the petition despite lacking power under the city charter to do so. The letter said council’s decision to pass the ordinance approving the plat was administrative in nature; however, the complaint cites legal precedent – a case titled State ex rel. Whittington v. Strahm – to characterize the ordinance as legislative, rather than administrative, in nature. The city also has cited that case in its argument for rejecting the petition.

While Cotter informed petitioners that administrative acts of council are not subject to referendum, the plain text of the city charter states that any ordinance is subject to referendum, according to the complaint.

The complaint asks the court for injunctive relief to vindicate the rights of Clark, including rights in his property, rights to the referendum process and the right either to vote on the repeal of a council-passed ordinance or to have the ordinance repealed by the city. The right of due process is also cited in the complaint.

The legal challenge is a move that was presaged by Councilmember Craig Hosmer in the Feb. 10 meeting, when the Chimney Rock subdivision, with developer JCRS Development LLC as applicant, first came before council.

When introducing the preliminary plat to council on Jan. 27, City Attorney Jordan Paul advised council that their role was administrative, and therefore they had no option but to approve the plat if they found that it met previously approved city subdivision regulations.

“When you enacted the general subdivision regulations, you were wearing your legislative hat,” Paul said at the time. “Those are the overarching rules, like what lot size is going to be, what setbacks are going to be – in other words, you’re kind of constructing the goalpost whenever you create your overarching subdivision ordinance.”

On Feb. 10, Hosmer requested a postponement of the vote to allow the developer and the neighborhood to resolve their differences. Council instead decided to vote on the measure to approve the plat, and Hosmer cast the lone vote against it.

Hosmer cited history with the Galloway Village neighborhood, whose neighborhood association petitioned for a citywide vote to reject a rezoning in the Sequiota Park area for a proposed mixed-use residential development by Elevation Enterprises LLC.

The city’s voters in 2022 roundly rejected the development, with 71% voting against it.

Hosmer said in February that the COD for the property is clear in limiting access from the roads mentioned in the case, while Paul said zoning does not apply to right of way.

Hosmer added that council should not be surprised that its processes anger neighborhood residents. 

“Sometimes we wonder why neighborhoods get upset with the way the city’s process works,” Hosmer said. “I think this is fundamentally unfair to neighborhoods, to change what they thought was a prohibition against access to Arcadia.” 

He added that litigation is likely, whichever way council votes. 

“If the neighbors are right, we’re going to get sued. And if the developers are right, there’s probably going to be litigation anyway,” he said. 

Asked for comment on behalf of the city of Springfield or Cotter, spokesperson Cora Scott said by email early today that the city does not comment on pending litigation. She added that at the time of her email, the city had not yet been served.

Filing on behalf of Clark was attorney Kirk A. Kaczmarek of law firm Evans & Dixon LLC. Kaczmarek did not respond to a request for comment by the time of this story’s publication.