University Heights: Here's what happened as the case on deed restrictions went to trial

The year-long legal battle to enforce century-old deed restrictions on property in the University Heights neighborhood came to a head in a bench trial Thursday. As attorneys shuffled through multiple large binders, evidence and testimony were presented in front of Circuit Court Judge Derek Ankrom over eight hours in court. No ruling was made by the end of the day.

The lawsuit was filed by a group of University Heights residents seeking to prevent the developers at Be Kind & Merciful, LLC from converting residential property on the northwest corner of National Avenue and Sunshine Street to commercial use. The plaintiffs claim deed covenants dating to the neighborhood's initial development in 1925 prohibit construction of anything but a residential dwelling.

BK&M had applied with the city to rezone the property from single family residential to general retail. Throughout the application process Ralph Duda, developer with BK&M, presented several plans of what the development could entail. Last week, the rezoning application was withdrawn, and Duda said the company will instead pursue rezoning as a Planned Development, which is more stringent and requires site plans to which the developer must adhere to if approved.

Here's a recap of what happened at the long-awaited trial Thursday:

BK&M drops its counterclaim against plaintiffs

Representing BK&M, attorney Bryan Fisher dismissed the developer's counterclaim ahead of testimony Thursday morning. He had initially filed the counterclaim alleging an "abuse of process," arguing that the plaintiffs were using the legal system as a way to influence the rezoning application at the city rather than to receive relief from the judicial system.

The counterclaim was going to be heard along with the overall lawsuit. Fisher in his dismissal said the decision was made in hopes of speeding up the trial process.

Fisher later entered a motion for a directed verdict that the judge will consider with the case, claiming that in order for deed restrictions to be valid and enforceable there needs to be a common plan with a common grantor at the time the neighborhood was platted. Fisher said there is no common grantor — some of the original deeds were granted by Eloise Mackey and some by the State Savings Trust Company in a trustee's deed, which did not include any restrictions.

Expert takes the stand

Richard Crabtree, a realtor and former University Heights Neighborhood Association president, was called to the witness stand as an expert on the history and significance of the neighborhood. Crabtree has done extensive research on University Heights as well as other historic neighborhoods in Springfield and specializes in selling historic homes. He no longer resides in the neighborhood.

In his testimony, Crabtree covered the history of the neighborhood, character of the homes built by prominent architects like Carl Bissman and the marketing of the neighborhood as one that is restricted to residential use. He noted that the marketing of the neighborhood as "residentially restricted" contained a bundle of restrictions, including prohibitions aimed at preventing members of racial minorities from living or owning property in the neighborhood, as was common in the nation at the time. But the building restrictions, he said, were the ones most explicitly used in marketing.

A question about how deed restrictions apply to originally platted lots versus subdivided halves of the lots loomed over a portion of the trial. Most homes in the neighborhood now sit on east or west halves of the originally platted lots. As a result, some of the 156 originally platted lots now have two or more houses sitting on them.

When questioned by Ankrom, Crabtree said this kind of subdivision was common and there was nothing that would require anyone to purchase whole lots instead of halves. Evidence was later presented where Mackey herself had sold half lots, albeit after original deeds had been granted. Crabtree alluded to the restrictions applying to each subdivided lot once they were divided.

Fisher, representing BK&M, questioned Crabtree's authority to speak on the matter since most of his knowledge was based on archived newspaper clippings and documents rather than first-hand experience. Crabtree said he has sold multiple homes in University Heights, the values of which have continued to increase over the years especially as the inventory of historic homes in Springfield has diminished.

University Heights residents talk restrictions, lack thereof

Five of the eleven plaintiffs, all of whom reside in the neighborhood, took the stand and spoke about their lives in University Heights and their properties. All of the witnesses testified about their own deeds, which all include restrictions prohibiting the construction of anything other than a private single-family residence. Most of the witnesses' properties abut those owned by BK&M.

Fisher noted that not all the lots in the University Heights neighborhood have original deeds that include restrictions, particularly those restricting them to residential construction. In their petition, the plaintiffs ask the court to uphold that the restrictions are enforceable for all lots in the neighborhood. Fisher questioned why this would be the case when not all lots included restrictions originally. All lots owned by BK&M had original deeds with restrictions.

More: Developer withdraws University Heights rezoning application, pursues planned development

Crabtree during his testimony said he assumed the lack of restrictions in some of the original deeds was a typo. Despite some of the lots not including restrictions on original deeds, neighbor Mark Fletcher, who has intervened in the case, noted subsequent deeds that had added the same restrictions on construction of anything but a private residence.

Other restrictions?

The argument that "nothing" but residential homes is allowed to be built on the lots was also a focal point at trial, as the parties debated the existence of detached sheds, garages and other outbuildings on some properties.

In addition to prohibiting non-residential construction, the University Heights deed restrictions also included requirements regarding brick, stone, stucco and other building materials. Fisher highlighted multiple homes and sheds in University Heights using siding, which in his view would be prohibited by the restrictions on materials.

Prior to going to trial, Ankrom considered whether to dismiss the case on the grounds that it was not "ripe," meaning he was being asked to rule based on hypotheticals and speculation about what could happen in the future. Ankrom released his decision last week — dismissing only a part of the case which sought to block rezoning while moving forward to trial to consider whether deed restrictions on the properties exist and are enforceable.

The trial had been scheduled to continue Friday but both parties concluded their arguments Thursday. Ankrom did not rule on the case and said he would allow all involved two weeks to submit proposed findings of fact and summaries to take into account as he deliberates on a final decision.

"No one is ever going to agree with me entirely," Ankrom said at the start of the trial, noting his goal is to take in all of the evidence presented to arrive at the right decision.

Marta Mieze covers local government at the News-Leader. Contact her with tips and story ideas at mmieze@news-leader.com.

This article originally appeared on Springfield News-Leader: University Heights deed restriction lawsuit trial awaits judges rule