LOUISVILLE, Ky. (WDRB) – In a win for Louisville’s Topgolf proposal, the Kentucky Court of Appeals unanimously ruled Friday that a lower court acted properly when it turned back a challenge brought by Hurstbourne neighbors.
The decision comes more than 16 months after the residents appealed a ruling from Jefferson Circuit Court, where a judge determined that Metro government’s land-use approvals for the planned golf-and-entertainment complex at Oxmoor Center were proper.
The three-judge appeals court repeatedly deferred to Jefferson Circuit Judge Ann Bailey Smith's June 2019 ruling, saying in their 22-page opinion that Bailey Smith correctly settled concerns about traffic, lighting, due process and even over whether the Topgolf development companies were registered to do business in Kentucky.
"The nature of the agencies’ decisions and the residents’ appeals therefrom were not affected in any way by the late compliance with the Business Entity Filing Act," the opinion says. "The record reflects that the residents had knowledge of the actual applicants from the outset of this litigation."
The Hurstbourne residents received due process and "can point to nothing in the proceedings that indicates otherwise," the judges wrote.
Steve Porter, an attorney representing the Hurstbourne neighbors, said in a telephone interview Friday morning that he had not yet seen the opinion. He said he would comment on any possible next steps once he read it.
Two possible legal avenues remain: Ask the appeals court to reconsider its ruling, or appeal to the Kentucky Supreme Court.
The neighbors have 30 days to appeal the ruling.
Topgolf did not immediately comment Friday. But a spokesman said in late October that the company, which has merged with golf equipment manufacturer Calloway, hadn’t changed its plans for Louisville.
Sarah Davasher-Wisdom, president and CEO of the Greater Louisville Inc. chamber of commerce, said the struggle to make Topgolf a reality has become something of a mantra.
"I often hear business leaders say things like, 'We can't even get a Topgolf here,'" she said.
She said she hopes the community's mindset on development will change.
"As we get over this pandemic and recover from this long term, it's really important now more than ever that we embrace new development opportunities so that we can preserve and grow our economy," she said.
Topgolf has proposed a three-story, 62,103-square-foot building and outdoor driving range at the site of the former Sears department store and into the mall’s parking lot. It would have more than 100 climate-controlled outdoor hitting bays, a bar, dining area and roof terrace.
The city’s planning commission and Metro Council allowed the project to move forward in late 2018, capping a series of packed and lengthy public meetings with supporters and opponents alike. The council voted 20-3 to rezone 22 acres of land at Oxmoor Center, allow a permit for a driving range and give other exemptions from land-use rules, such as 175-foot-tall poles that would anchor Topgolf nets.
After neighbors sued over the council’s action, Bailey Smith ruled in 2019 that Louisville Metro government’s approvals were valid. The Hurstbourne residents subsequently appealed.
Porter had pushed for oral arguments in front of the appeals panel, but the judges denied that request.
Among other things, Porter argued that the entities representing Topgolf and Oxmoor weren’t registered to do business with the Kentucky Secretary of State when they filed applications in 2018 to rezone land at the Shelbyville Road mall.
Bailey Smith had determined the neighbors had the duty to note problems with those companies’ statuses and didn’t do so. Porter called that a “misinterpretation of Kentucky law and court decisions and places an unfair and unreasonable burden on the general public to check land use applications for accuracy and completeness.”
Hurstbourne, a suburban city of about 4,400 people, formally opposed the Topgolf proposal and spent thousands of dollars trying to defeat it. Julie Raque Adams, a Kentucky state Senator who represents Hurstbourne, suggested in a 2018 letter that other “nonresidential” locations should be pursued.
Topgolf officials insisted that if the project couldn’t be built at Oxmoor, it would exit the Louisville market altogether.
This story may be updated.
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