University Heights resident to file lawsuit to stop development
The same week one of University Heights’ most notable homes was torn down, a neighboring couple sent letters of demand to the property’s developers – threatening to sue century-old restrictions on deeds that, in their view, impede 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 ventures with lofts above. Negative neighborhood reaction to the project has been fierce – with opposition coalescing in University Heights against a commercial rezoning of the lots.
Mark and Courtney Fletcher are University Heights residents who have been extremely vocal in their efforts to stop development. Letters sent to BK&M, a bank that provided them with a loan for the development, and the Planning and Zoning Commission allege that the only legal purpose of these lots is a single-family residence.
They point to restrictions on deeds from the 1920s, as many homes in University Heights were first sold.
According to the Fletchers, these covenants on file with the city provide that each of the lots owned by BK&M indicate either “nothing will be erected on it except a private residence of brick, stone, or stucco…” or “nothing to be erected on it. erect except a private dwelling.”
Additionally, they claim in their formal notice that each original deed of these lots also contains a setback requirement that 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 would stop BK&M and Duda from developing commercial property in the neighborhood and demolishing other company-owned homes.
“Duda just doesn’t care about the neighborhood. It’s just an intimidation tactic. He’s just a gentleman who I think is used to doing what he wants and has a lot of money And he thinks our neighborhood will eventually crumble and he’ll find it doesn’t,” Fletcher said.
“We strongly believe that we have the absolute right to enforce these restrictions. And we are going to take this to court and get these restrictions validated at the court level and we are going to stop this.”
Contacted for comment, developer Ralph Duda declined to address specific claims made by the letter of demand.
“Do you know who Mark Fletcher is? I have no further comment,” Duda wrote in a text to the News-Leader. “This is all ridiculous… Truth and reason will prevail.”
This comment may refer to Mark Fletcher being disbarred as an attorney in 2015. According to online documents, Fletcher was found “guilty of professional misconduct” by state courts and was disbarred. Courtney Fletcher is also a lawyer and Mark Fletcher now works in real estate.
Fletcher declined to comment on his disbarment or past legal issues – saying they weren’t relevant to the current case.
Inside the courtroom, my path is irrelevant. His past will no longer matter. I’m not going to be distracted by his smokescreen, it reeks of desperation…” Mark Fletcher told the News-Leader. “I’ve heard of the developer’s personal attacks and threats before and fully suspect that this is just the beginning of his desperate attempt to wriggle his way out of the legal consequences of act restrictions.”
The University Heights Neighborhood Association, which opposes the development, is not involved in the Fletchers’ potential litigation.
“Council is not currently considering legal action against BK&M. We believe that as a city-recognized neighborhood association, we should follow the city’s process for protesting rezoning requests and we are actively preparing for the public hearing scheduled for November 17,” UHNA President Jan Peterson told the News-Leader.
“If the single-family zoning restrictions discovered by the Fletchers in the original summaries bring this dispute to an end before the scheduled court date, I believe the entire city will hear University Heights’ collective sigh of relief.”
In their formal notice, the Fletchers further allege that there is “substantial evidence” that the restrictions would “work in perpetuity” even 100 years later.
“The wording of the restriction ‘nothing shall be erected thereon except a private residence….’ is clear, absolute and contains no limitation as to time or any other condition,” Fletcher told the News- Leader.
He also pointed to an ad from 100 years ago that advertised the deed restrictions as a selling point for the neighborhood.
“The neighborhood was specifically marketed as a strictly restricted community and that was meant to appeal to people. So everyone here, whether they knew about the restriction or not, paid more for their home because the community was created with a specific type of development that we have here and everyone 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 claim that Duda and his partners were aware of the restrictions before purchasing the properties and requesting a commercial rezoning of the city. They point to a pre-development meeting with the city where the restrictions were discussed. City documents say city staff found no evidence that the deed restriction existed.
“During the pre-development meeting, a city staff member mentioned a deed restriction prohibiting commercial zoning of this property. I researched after the meeting and determined that the deed restriction the act was only rumor, and city staff never received verification of such a restriction,” read city staff’s comments on the development.
“I would recommend investigating this on your end as part of the purchase process, but the staff have no reason to believe the deed restriction actually exists.”
Comments also said staff were “generally supportive” of rezoning if it included a conditional overlay district, which prohibits certain uses that are inconsistent with the location.
Since those review comments, the Fletchers have sent the Planning and Zoning Commission the deeds in question and asked them to put the rezoning process on hold while their case is in court.
“The Commission is not designed to resolve legal issues…The Commission should direct the plaintiff to challenge the restrictions in Greene County Circuit Court before this matter proceeds,” the couple’s letter read. to the Commission.
The rezoning of the case had already been postponed at the request of the developer until the November planning and zoning meeting.
“At this point, it is only a matter of time until BK&M, LLC is forced to drop its rezoning request. Additionally, no future development will ever be permitted 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 [email protected]