Will University Heights dispute ever end? Parties exchange threats of future litigation

Despite a judge's long-awaited ruling on the University Heights deed-restriction lawsuit that sided with the developer, Be Kind & Merciful LLC, questions remain regarding what comes next for the controversial project. While an appeal of the judge's decision remains one possibility, behind-the-scenes letters show developers and at least one neighbor threatening further legal action if they don't get their way.

BK&M owns properties on the northwest corner of National Avenue and Sunshine Street and has proposed rezoning the area for commercial development. A group of University Heights residents filed a lawsuit more than a year ago seeking to stop the development of anything but a residential dwelling, citing 100-year-old deed restrictions on neighborhood property.

Greene County Circuit Court Judge Derek Ankrom issued his ruling June 14, months after final arguments. In his order, he noted that the deed restrictions could not be enforced because most of them had already been waived by the residents themselves. He wrote that many of the original plats now were subdivided and included more than one residence, something he interpreted as being prohibited by the restrictions the plaintiffs were trying to enforce.

A letter anonymously shared with the News-Leader shows BK&M attempting to head off future litigation on the matter. The letter, sent June 18 by attorney Bryan Fisher, offers the neighborhood plaintiffs a deal: don't appeal the ruling, don't speak against the development publicly and BK&M won't sue you.

What did the University Heights developers offer?

As the initial neighborhood lawsuit made its way through the courts, BK&M filed counterclaim alleging "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.

BK&M dropped the counterclaim in January in hopes of speeding up the trial process. In his June 18 letter, Fisher said that if the neighborhood plaintiffs continue the lawsuit with an appeal, BK&M will return to this argument, as well as pursuing the neighbors in court for malicious prosecution, or prosecution without probable cause.

Contacted Friday, Fisher refuted the idea that the June 18 contained a threat.

"The offer made by my client was an offer made in a good faith attempt to resolve claims that were voluntarily dismissed so that trial on the underlying issues could proceed more efficiently," Fisher told the News-Leader via email Friday. "Construing the offer made by BK&M as anything other than a good faith attempt is twisting the facts to support a narrative that the losing parties would like the media to report."

The offer to not proceed with an abuse of process lawsuit is also contingent on the all the plaintiffs agreeing to refrain from participating in any future rezoning hearings, the letter said, "including, but not limited to, submission of written comments, public posts, communications with City Council members or Planning and Zoning Commissioners, participation in any way in any referendum petition efforts, etc."

In a phone call, Duda said the Planning and Zoning proceedings are all part of the legal process, hence why they are included as part of the offer.

"Plaintiffs and intervenors knew they could not prevail but sought to use the court to persuade planning and zoning, commissioners and members of city council to view my client’s application for rezoning unfavorably," Fisher told the News-Leader via email. "In fact, at public hearings, the lawsuit was mentioned as a reason why the planning and zoning commission should not recommend approval of my client’s application. That is an abuse of process."

Duda said BK&M are ready to file suit seeking damages, which would reach more than $60,000 according to the letter, for the time and money the situation has already cost them.

"We're absolutely gonna not back down on this," he said.

University Heights residents involved in the case said they remain undeterred by the threat of future lawsuits. In a statement, Susan Robinson, one of the plaintiffs, said they rejected the offer and plan to appeal the judge's decision.

"We will appeal the decision and continue to work together with our neighbors and the University Heights Neighborhood Association with our fight to preserve and protect our over 100-year-old historic residential neighborhood from commercial development," she wrote.

Developer at 'wits end,' cites threats from neighbor

Duda said the letter to neighbors was a way to put an end to the situation, which has been "an absolute nightmare from the get-go."

He said he received threats of litigation himself from the intervenors in the case, Mark and Courtney Fletcher. Duda said the developers were at "wits end" due to the time and money already spent in court and at public hearings, and the letters received from the Fletchers were the last straw.

Duda shared two letters from Mark Fletcher with the News-Leader, one from April and another received just a week before Ankrom's ruling, offering the developer a settlement agreement in which the Fletchers would drop all current and future claims against BK&M if the developer would purchase the Fletchers' home at a premium price. In April, the Fletchers asked for $840,000 while the most recent correspondence lowered the price to $600,000. According to the Fletchers' email, the house recently appraised for $450,000. The correspondence said the proposed sale would avoid another two to three years of litigation.

"I am the only person in University Heights with the willingness, financial resources, knowledge and ability to continue the legal dispute on the enforceability of the deed restriction beyond a trial court ruling," Mark Fletcher wrote in an email to Fisher. "You will note that our neighborhood has not even begun to collect protest petition signatures related to your client's new zoning application; they have raised no money to finance an appeal of any adverse deed restriction lawsuit, much less pay for the expenses incurred at trial ... None of that will happen if I am not involved."

Mark Fletcher is a former attorney who now works in real estate. He was disbarred as an attorney in 2015 after being found "guilty of professional misconduct" by state courts, according to previous News-Leader reporting. Courtney Fletcher works as an attorney at Carnahan Evans Cantwell & Brown.

Duda said he was appalled by the insinuation contained in the Fletchers' offers and described BK&M's offer to the plaintiffs as a way to put an end to a messy situation.

"Enough is enough. This has gone on to too far, and now it's getting ridiculous," he said. "I mean, you can't bribe somebody or extort somebody and say, 'Buy my house $840,000 or I'm gonna sue you for the next three years.' Give me a break ... We're trying to end this peaceably. But I'm absolutely not going to sit in litigation for the next three years because I'm not paying somebody off for their house."

In text message Friday afternoon, Mark Fletcher said he would not comment about "the University Heights matter."

More: Judge sides with developers in University Heights suit, rules restrictions unenforceable

What's planned for the corner of National and Sunshine?

Ahead of the judge's ruling, Duda shared plans for developing the corner property into a food hall with pickleball courts. Now, after hearing the concerns and opposition to the development that would have brought in a lot of traffic, those plans are in flux.

Duda said especially after seeing the impact of the 7 Brew coffee drive-thru that recently opened further west on Sunshine, it was clear that something with a less intense use case would be more desirable. While discussions and planning for future rezoning are still ongoing, Duda said BK&M is considering uses that would result in less daily traffic, such as professional officers or multi-family housing.

Marta Mieze covers local government at the News-Leader. Have feedback, tips or story ideas? Contact her at mmieze@news-leader.com.

This article originally appeared on Springfield News-Leader: Parties in Springfield University Heights lawsuit exchange threats