Springfield's University Heights deed restrictions case will go to trial in January
A lawsuit that seeks to enforce 100-year-old deed restrictions on properties in the University Heights neighborhood is finally set for bench trial. The case has been pending since December.
The properties in question in the case are those located on the northwest corner of National Avenue and Sunshine Street owned by developers at Be Kind & Merciful, LLC, which have been the center of controversial commercial development plans. A group of residents from the University Heights neighborhood sued the developers for violating the deeds that restrict the use of the lots to residential.
Circuit Judge Derek Ankrom scheduled the case for bench trial on Jan. 18-19, 2024. During a case management meeting Monday morning when these dates were set, Ankrom made it clear the trial will not be pushed past these dates.
"We won't delay this forever," he said.
The case was originally scheduled for bench trial Aug. 28. However, due to the unprecedented judicial turnover at the circuit level, the date was pushed until a new judge for the division was appointed. Ankrom was appointed to the bench in September and has been presiding over the case since then.
BK&M to file counterclaim
Ankrom asked Bryan Fisher, attorney for BK&M, how much time he anticipates needing for discovery that has not yet been filed. Fisher said written discovery will be filed next week and that he plans to depose all twelve plaintiffs. Ankrom noted that with the original bench trial scheduled for August, more progress should have been made.
Bryan Wade, representing the neighborhood plaintiffs, said they are awaiting responses to their current requests — with a court-ordered deadline of next week — and have no further inquiries. (Wade in the past has represented the News-Leader in Sunshine Law cases and regulatory matters.) Fisher initially objected to almost all the requests, though during a hearing on Sept. 20 the two parties were able to agree on some of the information and document requests while the judge ruled on others.
Before setting the case for trial in January, another resident of the neighborhood, Mark Fletcher, who has intervened in the case argued that there is an urgency to set trial earlier because of the rezoning case regarding the use of the lots. Fisher noted that the case has no control over the rezoning, which is in the hands of the city. While Ankrom agreed, he also stated that the rezoning is a factor in the issue at hand and the ruling in the lawsuit could render the rezoning request moot.
Fisher told Ankrom the rezoning case has not yet been scheduled for hearing. According to a city news release published Aug. 21, the request will appear on the Planning & Zoning Commission's agenda on Nov. 9.
Ankrom said that since it seems like the rezoning is not moving along at a steady pace, the January dates should suffice. He said he does not want to delay the case much longer to avoid any possible gamesmanship.
More: Judge orders University Heights developers to produce records in deed restriction lawsuit
After the trial date was set, Fisher told the judge he anticipates filing a counterclaim for abuse of process claiming that the plaintiffs did not sue based on an actual need for judicial rulings but rather to influence the rezoning process. Ankrom granted Fisher the ability to file such a claim, but set a deadline of 10 days to do so.
Wade called this a "waste of time" and agreed to respond with his motion to dismiss the counterclaim within 10 days of the counterclaim deadline, by Oct. 23. Ankrom urged both parties to "get on the ball" and get whatever is necessary for trial prepared as to not delay the process any further.
This article originally appeared on Springfield News-Leader: University Heights deed restrictions case will go to trial in January
