Judge considering next steps in case on contested Sunshine, National corner 

Greene County Division I Circuit Court Judge Derek A. Ankrom said he would need a few days to figure out his orders following a six-hour hearing yesterday in a lawsuit that will help to determine if a commercial development can move forward at the corner of Sunshine Street and National Avenue. 

The suit was filed by a handful of University Heights residents against developers BK&M LLC, with the residents arguing that deed restrictions on the properties do not allow commercial development. 

At issue in yesterday’s hearing were the case’s “ripeness” and “justiciability,” as indicated on the docket. Cornell Law School’s Legal Information Institute defines ripeness as existing when the facts of a case have matured into a substantial controversy warranting judicial intervention and justiciability as suitability for a court to hear and decide on its merits. 

In short, Ankrom must decide whether the case should move forward to a bench trial scheduled for Jan. 18-19. 

In the case Dixie Sleight et al. vs. BK&M LLC, filed in December 2022, the plaintiffs are 12 neighbors who refer to themselves as the University Heights Preservation Group. They are joined by two interveners, Mark and Courtney Fletcher, in seeking declaratory judgment to stop development efforts. 

BK&M is seeking to establish a food hall with indoor and outdoor pickleball courts. The company’s previous visions for the corner were for a mixed-use residential and commercial property and a boutique grocery store. The city’s Planning & Zoning Commission voted down a request to rezone the property from residential to commercial at its Dec. 14 meeting – the second time it has done so – but the matter is scheduled to come before Springfield City Council for a decision on Jan. 22. 

Ankrom told the parties it was unlikely his decision following yesterday’s hearing would fully settle all issues, and he added that it would not be a “home run, touchdown” for its parties. 

He said that if he were to find the deed restrictions valid and enforceable, that would only get the issue to the 10-yard line. 

“Until approved by City Council, I do believe there’s a legal impediment to construction,” he said. 

Ankrom could rule to dismiss the case. His predecessor, Judge Michael Cordonnier, denied a request for dismissal in March. 

Yesterday’s hearing included testimony from three witnesses: Ralph Duda, the managing member of BK&M, which owns seven residential properties on the corner; plaintiff Susan Robinson, an owner of property near the planned development; and Courtney Fletcher, a property owner, an intervenor and an attorney representing herself in the case. 

Duda testified that he paid $415,000 for a white corner house at 1755 S. National Ave that BK&M subsequently demolished. He said a tenant was paying $1,800 per month in rent for the property until shortly before it was razed. He said he moved the tenant at BK&M’s expense to the house north of the property on Sunshine. According to Duda’s testimony, the tenant did not want to live at the property any longer because it was in poor condition and the tenant was paying an additional $900 per month in utilities. 

Attorney Bryan Wade of Husch Blackwell LLP, representing the plaintiffs, said the property was not blighted but rather was still viable, as evidenced by the purchase price and monthly rental amount. 

Robinson testified that she was concerned about the potential development eroding home values, increasing traffic and affecting quality of life in the neighborhood. She also raised concerns about mature trees being removed from the property and gravel being put down on the vacant lots and cars using it for parking. 

Attorney Bryan D. Fisher of Neale & Newman LLP, representing the defendant, asked witness Courtney Fletcher if she knew of any plan by BK&M that was not contingent upon council approval, and Fletcher said she believes the developer is pursuing a deliberate plan to blight the property. It was a claim that Fisher characterized as pontificating. 

After all parties had rested, Ankrom spoke to say that the issues of ripeness and justiciability cannot be waived and constitute a threshold issue that the court must get right. 

He referred to the matter as a “sticky wicket of a decision” because if he gets it wrong, it will likely come back on appeal. He added that the additional evidence presented helped to elucidate the evidence for the court. 

Ankrom said the zoning application is nothing more than a proposal that can be changed, withdrawn or modified. 

“I don’t have a copy of the proposal, I don’t have a copy of the plan, I don’t have a copy of the conditional overlay district,” he said. 

He added that BK&M’s rezoning application had already been refiled with the city since the court case was filed, and that points toward a lack of ripeness. 

In his closing argument, Fisher argued against ripeness. He said the case is based on contingency and probability, but a predicate event – rezoning approval – must happen before his client can take any action on the property. He also questioned the standing of the plaintiffs to bring the case, as they had not established a common scheme or design for the entire neighborhood. 

In Wade’s closing argument, he said all parties are on pins and needles as they wait for a decision, and the defendant even testified under oath that he wants the matter to be decided. 

Mark Fletcher made the closing argument that declaratory judgment exists to provide relief from insecurity and uncertainty and to prevent litigation. He added that conflict exists regarding the enforceability of the deed restrictions, and the court has wide latitude to make a ruling. 

If Ankrom finds the case to be ripe, the bench trial will take place as scheduled in January.