University Heights resident to file lawsuit in attempt to stop commercial development

The same week one of the most notable University Heights homes was demolished, a nearby couple has sent demand letters to the property's developers — threatening to sue over hundred-year-old deed restrictions they claim prevents commercial development.

Development company Be Kind & Merciful hopes to develop the demolished lot at the corner of Sunshine and National as well as several others along the street into commercial businesses with lofts above. Negative neighborhood reaction to the project has been fierce — with opposition coalescing in University Heights against a commercial rezoning for the lots.

Mark and Courtney Fletcher are University Heights residents that have been extremely vocal in the effort to stop the development. Letters sent to BK&M, a bank that gave them a loan for the development, and the Planning & Zoning Commission allege the only legal purpose of those lots is a single-family residence.

They point to deed restrictions from the 1920s as many of the houses in University Heights were first being sold.

According to the Fletchers, these covenants archived by the city provide that each of the lots owned by BK&M either state "nothing will be erected thereon excepting a private residence of brick, stone, or stucco construction…" or "nothing to be erected thereon except a private dwelling."

Additionally they claim in their demand letter each original deed to these lots also contains a setback requirement which makes the potential placement of a commercial building incompatible.

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In an interview with the News-Leader, Mark Fletcher said he and his wife will stop BK&M and Duda from developing a commercial property in the neighborhood and from demolishing any more of the homes the company owns.

"Duda simply does not care about the neighborhood. It's just bullying tactics. This is just a gentleman that I think is used to getting his way and has a lot of money. And he thinks that our neighborhood will eventually buckle under and he will find out that is not the case," Fletcher said.

"We're firmly convinced that we have the absolute right to enforce these restrictions. And we're going to take that to a court and obtain validation of those restrictions at the court level and we're going to stop this."

Reached for comment, developer Ralph Duda declined to address the specific claims made by the demand letter.

"Do you know who Mark Fletcher is? I have no further comments," Duda wrote in a text to the News-Leader. "This whole thing is ridiculous... Truth and reason will eventually prevail."

That comment may refer to Mark Fletcher's disbarment as an attorney in 2015. According to online filings, Fletcher was found "guilty of professional misconduct" by state courts and was disbarred. Courtney Fletcher is also an attorney and Mark Fletcher now works in real estate.

Fletcher declined to comment on his disbarment or his past legal issues — claiming they are irrelevant to the case at hand.

Inside the courtroom my path isn't relevant. His past is gonna be irrelevant. I'm not going to be distracted by his smokescreen, that that reeks of desperation..." Mark Fletcher told the News-Leader. "I've already heard of the developer's personal attacks and threats and I fully suspect this is only the start of his desperate attempt to bully his way out of legal consequences of the deed restrictions."

The University Heights Neighborhood Association, which is opposed to the development, is not involved with the Fletchers' potential litigation.

"The board currently is not considering legal action against BK&M. We feel as a city-recognized neighborhood association, we need to follow the city's process for protesting rezoning requests and are actively preparing for the scheduled Nov. 17 public hearing," UHNA President Jan Peterson told the News-Leader.

"If the single-family zoning restrictions the Fletchers discovered in original abstracts put an end to this dispute before the scheduled hearing date, I think the entire city will hear University Heights' collective sigh of relief."

In their demand letter, the Fletchers further allege there is "substantial evidence" that the restrictions would "run in perpetuity" even 100 years later.

"The language of the restriction “nothing to be erected thereon excepting a private residence ….” is clear, absolute and contains no limitations as to time or any other condition," Fletcher told the News-Leader.

He also pointed to an advertisement from 100 years ago that advertised the deed restrictions as a selling point for the neighborhood.

"The neighborhood was specifically marketed as an absolute restricted community and that was intended to appeal to people. So everybody here whether they knew the restriction or not, they paid more for their home because the community was created with a specific type of development that we have here and everybody here has a contractual right to that ... University Heights was designed as a permanently restricted community," Fletcher told the News-Leader.

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The demand letters also claims Duda and his partners were aware of the restrictions before purchasing the properties and applying for a commercial rezoning from the city. They point to a pre-development meeting with the city where the restrictions were addressed. City documents claim city staff found no evidence of the deed restriction's existence.

"At the pre-development meeting, a city staff member mentioned a deed restriction prohibiting commercial zoning of this property. I did some research after the meeting and determined the deed restriction was only ever rumored, and City Staff never received verification of such a restriction," read city staff's review comments on the development.

"I would recommend looking further into this on your end as part of the purchasing process, but staff has no reason to believe the deed restriction actually exists."

The comments also stated staff is "generally supportive" of the rezoning if it included a Conditional Overlay District, which prohibits some uses incompatible with the location.

Since those review comments, the Fletchers sent the Planning & Zoning Commission the deeds in question and asked they pause the rezoning process while their case goes through the courts.

"The Commission is not designed to resolve legal issues… The Commission should direct the applicant to challenge the restrictions in Greene County Circuit Court before this matter proceeds any further," reads the couple's letter to the Commission.

Rezoning for the case had previously been postponed at the developer's request until Planning and Zoning's November meeting.

"At this point, it is only a question of time until BK&M, LLC is forced to abandon their rezoning request. Additionally, no future development will ever be allowed to take place in University Heights, including along the North side of the Sunshine corridor," Mark Fletcher told the News-Leader.

Andrew Sullender is the local government reporter for the Springfield News-Leader. Follow him on Twitter @andrewsullender. Email tips and story ideas to asullender@gannett.com.

This article originally appeared on Springfield News-Leader: University Heights resident to file lawsuit to stop development