University Heights litigants maintain judge erred in BK&M ruling

Neighborhood litigants on June 5 filed an opening brief in the appeal of a lawsuit regarding development on the northwest corner of Sunshine Street and National Avenue.

The brief, filed in the Missouri Court of Appeals, Southern District, opens the next chapter in the story of a group of University Heights neighbors and developer BK&M LLC, which seeks to build a commercial establishment on the contested site.

A group of neighborhood residents lost the case titled Dixie Sleight et al. v. BK&M LLC when Greene County Circuit Court Judge Derek Ankrom ruled against them on June 14, 2024, following a two-day trial in January of that year, and the plaintiffs filed a notice of appeal late last year. In his decision, Ankrom found restrictive covenants that were the basis of the plaintiffs’ objection to development had been applied only sporadically to neighborhood deeds and were frequently violated over the years by residents. Those covenants, originated in 1925 when the neighborhood was platted, were referred to in original advertisements for the residential properties in it and appeared on most, but not all, deeds. Among other requirements, they restrict commercial development in the neighborhood.

The opening brief of the appeal, filed on behalf of the appellants by attorneys Bryan Wade and Jacob Addington of Husch Blackwell LLP, requests oral arguments.

The appellants maintain that the trial court erred in finding covenants to be unenforceable by deeming the waiver of one covenant sufficient to constitute the waiver of all of them, the brief states.

The brief also objects to the trial court’s finding that the subdivision of lots in the neighborhood, disallowed by the original covenants, constituted a waiver of the covenants.

Additionally, the appellants state the trial court was in error in asserting there was a widespread waiver of the covenant allowing only single private residences because some houses have secondary or accessory structures, like sheds or detached garages. The appeal calls the appellants’ appurtenant structures “immaterial” and says they do not preclude the court from enjoining the commercial development.

Judge Ankrom also declared the covenants to be unenforceable because he found there would be no benefit to the plaintiffs and some hardship to BK&M from the enforcement of covenants. The appeal states this finding is against the weight of the evidence, which showed “widespread and historical benefit” to appellants with “no or wholly avoidable hardship” to BK&M from enforcement of deed covenants.

The appeal also maintains that Judge Ankrom erred in his decision that four plaintiffs lacked standing for the action because they operated as representatives of revocable trusts.

The request for oral arguments has not yet been ruled on by the higher court, and therefore a date for possible proceedings has not yet been set.

The appellants in the case, listed in the order they appear in court filings, are Dixie Sleight, Barbara Robinson, Anna Squires, Rod Dixon, Lisa Dixon, Rebecca Gilmore, Mark Wealand, Steve Waddell and Virginia Olson.

The brief notes that original plaintiffs Doug Johnson, Erinn Johnson and Jean Thomson joined the appellants in filing a verified petition but are not party to the appeal. Two interveners, Mark Fletcher and Courtney Fletcher, voluntarily dismissed their appeal in March, as they sold their house in the neighborhood.

Judge Ankrom offered multiple reasons for finding against the plaintiffs, as noted in past SBJ reporting:
• 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.

An opening brief has not been filed on behalf of BK&M. Respondents have 30 days after the filing of the appellants’ brief to file their own, according to the Missouri Courts website.