Keep your golf clubs in the trunk for now; the opponents of the Topgolf development at Oxmoor Center Mall have decided to appeal a Jefferson Circuit Court judge’s ruling that the project could go forward.
Steve Porter, the attorney for the plaintiffs who seek to block the entertainment complex, said Monday that the appeal is to be based on “the misinterpretation” of Judge Ann Baily Smith regarding “the responsibilities and duties of the Planning Commission and its staff as compared to the position of the general public and neighbors.”
Porter’s argument in the lawsuit filed to stop the development was that Topgolf International, which is based in the United Kingdom and operates more than 40 Topgolf centers there and in the U.S., improperly filed zoning applications in early 2018, using company names that were not registered with the state of Kentucky.
He believes a state mandate requiring such applications to be “accurate and complete” was violated when the Louisville Metro Planning Commission accepted and approved the application.
“It is not the responsibility of the general public, contrary to the judge’s opinion, to check the accuracy of every detail in a zoning application,” Porter said in his statement Monday, pointing to an assertion in Judge Smith’s decision that such application filings are public records available for review by anyone.
“The only parties are the applicants and the Planning Commission,” Porter continued, “and the Planning Commission is supposed to represent the interests of the public, which it did not do in this case.”
During the city’s review of the applications in 2018, the residents of the nearby Hurstbourne fiercely protested the Topgolf development, which is planned for the former Sears anchor building. They cited concerns about noise, traffic and unwanted light that would come from the golf and gaming business, which would include lit fairways on its driving range.
Topgolf funded traffic and lighting studies to address those concerns, which it said showed the effects would be minimal or nonexistent and were taken into account during reviews by the Planning Commission and the Metro Council.
Porter, in announcing the appeal, said an “outside professor” advised the Planning Commission to seek a local lighting expert to do its own study, but “that staff failed to do so.” Porter argues that should be part of the commission’s responsibility.
He cited “other issues” that would be included in the appellate proceedings.
“If government did not do its job in enforcing the law,” Porter’s statement read, “then the applications should never have been considered or approved. The courts require strict compliance with zoning statutes.”
Two weeks ago, Oxmoor Mall officials announced that construction would proceed as if an appeal would not be filed – or at least that any appeal would be unsuccessful.
In doing so, Oxmoor pledged to be “a good community neighbor.” The hope was to meet with Hurstbourne residents to further address their concerns.
At the time, Porter said that he and his clients had not made a final decision but that “an appeal is likely.”
He also said, regarding a proposed meeting between the plaintiffs and representatives of Topgolf and Oxmoor, “We are always open to talk.” It is unclear if such a meeting ever took place.
Topgolf representatives had not responded to the announcement as of the early afternoon on Monday.
This post will be updated with further comments from Topgolf and Porter.