University Heights residents push for post-vote deed restrictions

A Springfield City Council vote last week denied rezoning the corner of National Avenue and Sunshine Street, but a group of University Heights residents are continuing the lawsuits in an effort to preserve the property for residential use in the future.

A lawsuit filed nearly two years ago by a group of University Heights neighbors against the developers of Be Kind & Merciful LLC aims to enforce 100-year-old deed restrictions in hopes of blocking the construction of anything other than a residential home . Over the past two years, BK&M has implemented a rezoning to allow commercial development of the corner, a plan that neighbors have fiercely opposed. In the most recent version of the rezoning application, BK&M sought a direct rezoning to general retail with a conditional overlay district with a plethora of use restrictions and design guidelines, but without a specific plan for the property.

During last week’s meeting, the The municipality rejected the application by 4-4 votes. To allow the rezoning, a supermajority of six votes in favor was required after neighbors submitted a sufficient protest request. This was the first time the council actually voted on the application and also the first time the application was assessed under the comprehensive Forward SGF plan. In a move that drew criticism from some residents, city staff had for the first time categorized the corner under the Institutional and Employment Center place type instead of the Traditional Neighborhood place type outlined in the Forward SGF Comprehensive Plan. The reasoning was that the site type was more suitable as a transition zone. near a busy intersection where the other three corners have been developed.

On to the state court of appeals

Earlier this year, Greene County Circuit Judge Derek Ankrom issued a 42-page ruling that largely sided with the developers, ruling that residents cannot enforce the restrictions to build only private housing and that BK&M is not bound by the restrictions because they are largely The residents themselves have renounced them over the years.

One of the main restrictions is that “nothing may be built on it except a private dwelling.” Due to the nature of this language, Ankrom notes that this is a unique case for the courts to address, one that has not previously been considered. During the trial it was shown that the originally plastered plots had been subdivided or now contained more than one house and associated structures such as sheds and fences. The deed restrictions also include restrictions on materials that can be used in the neighborhood and setbacks. Ankrom ruled that these restrictions were not severable and because the materials covenant was also violated by several residents, he declared that all deed restrictions had been waived. He also highlighted the inconsistency of the deed restrictions during the original plating of the neighborhood.

Although the neighbors filed a motion for reconsideration asking Ankrom to reconsider his order, the judge did not budge and reiterated his interpretation of the restrictions.

Last week, the group of neighbors appealed the decision in the lawsuit. Among the issues being appealed is Ankrom’s conclusion that the materials and single residential covenants are not severable, that the subdivision of lots constituted a waiver, and that there have been sufficient changed circumstances that the deed restrictions no longer give a benefit.

Susan Robinson, one of the neighbors who filed the lawsuit, said the appeal was a way to preserve the residential character of the neighborhood, regardless of what BK&M does next or whether a rezoning is ever approved by the City Council.

As neighbors celebrated the City Council’s vote, several council members noted that their vote against the rezoning was not a vote against the possibility of development in the future. According to city code, no new rezoning application can be filed for six months after the city’s denial. Some council members noted that there is not a broad consensus among neighbors on what is acceptable for the corner. Robinson said she believes most neighbors are against commercial development, although some people noted during public hearings that lower-intensity development with more safeguards could potentially work.

During the discussion, several council members pointed out shortcomings in the rezoning process that limit opportunities for creative solutions and collaboration. The city is currently working on one new development code which will emphasize design standards to align with the comprehensive Forward SGF plan.

More: The Council denies rezoning University Heights for commercial use, citing flaws in the process

In Robinson’s eyes, one way to deal with a “mistake” in the process is to require developers to verify that they have reviewed all subdivision plats, deed restrictions and restrictive covenants associated with the property, as they do in Austin, Texas during the application process. Springfield does not have this type of process in place and has noted in its reports that the city cannot take into account the deed’s limitations as it is up to the courts to determine its legal status.

“The responsibility to protect our homes should never have been placed on local residents,” she said.

Neither BK&M developer Ralph Duda nor his attorney Bryan Fisher could be reached for comment by deadline.

Marta Mieze focuses on local government at the News-Leader. Do you have feedback, tips or story ideas? Contact her at [email protected].