Topgolf Fence at Oxmoor

Proposed Topgolf site at Oxmoor Center

LOUISVILLE, Ky. (WDRB) – Topgolf's plan for Louisville will need at least one extra hole.

A group of Hurstbourne residents plan to appeal challenging a June court ruling in favor of the golf-and-entertainment complex at Oxmoor Center, their attorney said in an email.

"This appeal will be based on the misinterpretation by the Circuit Court Judge of the responsibilities and duties of the Planning Commission and its staff as compared to the position of the general public and neighbors," attorney Steve Porter wrote in an email to reporters Monday.

"The Kentucky statutes require a zoning application to be 'accurate and complete.' That was not true in this case."

The decision extends the legal battle over whether Louisville's planning commission and Metro Council followed the city's land-use rules last fall when they overwhelmingly sided with Topgolf's proposal for the mall. The council voted 20-3 in November to rezone land at Oxmoor and grant other approvals.

Oxmoor began preparing the Topgolf site -- the mall's former Sears building -- for demolition earlier this month. General manager Kendall Merrick told WDRB News at the time that research by Topgolf and Oxmoor found that zoning appeals haven’t succeeded in cases that cleared the Louisville Metro Planning Commission and Metro Council. 

“We believe the outcome is inevitable and will support us in going forward with Topgolf,” Merrick said.

Topgolf declined to comment Monday and did not answer questions submitted in writing, including whether it would start construction if the site is cleared but an appeal hasn't been resolved.

It also declined to say if it plans to ask for an appeals bond -- a move allowed under a 2017 law, letting the winning side in local planning and zoning lawsuits request that losing parties post a bond up to $250,000 if they want to appeal the case further.

Porter said Monday that a bond would be unconstitutional and he would challenge that. He estimated resolving that issue alone could take up to a year.

The notice of appeal was filed Monday afternoon, according to the Jefferson Circuit clerk's office.

The six neighbors who live across Christian Way from Oxmoor contended in lawsuits that the council relied on "insufficient and inaccurate evidence." They also claimed rezoning applications were flawed because some of the project's developers didn't use their real names or weren't properly registered to do business in Kentucky.

Jefferson Circuit Judge Ann Bailey Smith ruled June 20 that the Topgolf approvals were proper and said the residents couldn't cite any law or previous case to support nullifying the entire process just because of a "naming error."

"The only goal the plaintiffs would achieve in having the court invalidate the actions of the Commission and the Metro Council would be that of unnecessary delay of the Topgolf development, a result that is manifestly unjust," Smith wrote.

In his email, Porter suggests that the planning commission failed to represent the public interest by checking all details in Topgolf's application for a zoning change and other permissions. 

"If government did not do its job in enforcing the law, then the applications should never have been considered or approved," he wrote. "The courts require strict compliance with zoning statutes."

Reach reporter Marcus Green at 502-585-0825, mgreen@wdrb.com, on Twitter or on Facebook. Copyright 2019 WDRB Media. All rights reserved.

Digital Reporter

Marcus Green joined WDRB News in 2013 after 12 years as a staff writer at the Louisville Courier-Journal. He reports on transportation, development and local and state government.