Topgolf’s plan for Oxmoor stays on fairway, but lawsuit looms

LOUISVILLE, Ky. (WDRB) – Topgolf’s pitch for a driving range complex at Oxmoor Center cleared its first hurdle at the Metro Council on Tuesday.

The council’s planning, zoning and annexation committee voted 6-1 to rezone 22 acres at Oxmoor for the three-story venue that would also include a bar and restaurant. The proposal now heads to the full council on November 29.

But in the meantime, a group of Hurstbourne residents plans to file a lawsuit over Topgolf’s lighting plan.

Three couples who live in the small suburban city in eastern Louisville will sue on Wednesday, objecting to waivers the city planning commission granted for lights at the facility, said their attorney, Steve Porter. Concern over light pollution is among the main concerns cited by neighbors.

The lawsuit will claim the planning commission’s decision was “arbitrary and capricious,” he said.

“They listened to so-called experts who were bought and paid for by the applicants,” Porter told WDRB News. “(Planning) staff even admitted that they did no crosschecking. They didn’t do any analysis of it. They just bought what was being said by their experts.”

He declined to give the names of the plaintiffs, but said they and “lots of friends” in Hurstbourne are paying for the legal action. He couldn’t say if those donors will be disclosed.

Porter said his clients plan to ask the city of Hurstbourne to help cover the costs of the lawsuit, which he said is being filed now because the Metro Council doesn’t review the waivers that already have been approved.

But at a regular Hurstbourne City Commission meeting on Tuesday, several residents urged the city not to spend public funds on any lawsuits, while one man said residents’ last hope is the courts system. Another told the commission that Oxmoor Center is the “enemy” and suggested a Black Friday boycott of the mall.

The city commission took no action on Topgolf. But in an interview after the meeting, Hurstbourne Mary Schneider Masick said she has been flooded with pleas not to spend additional city funds on any litigation.

Hurstbourne previously allocated $3,000 for Porter’s retainer. Schneider Masick, who won re-election last week, said she has recently received a “tremendous amount of emails in opposition to funding anything, any more tax dollars from our city, primarily because (Topgolf) is outside our city.”

“It’s just not the way our residents want the money spent, at least the ones that reached out to me today and the other commissioners,” she said.

The debate over Topgolf at the city's planning commission stretched over two public hearings in October -- nearly 11 hours in all -- before sending their recommendation to the Louisville Metro Council. That body has the final say.

But on Tuesday, Metro Council members spent nearly 50 minutes discussing Topgolf’s request before taking its action. As is standard practice, there was no citizen comment allowed.

"Our role in this is the make a decision based on the record that was heard in front of the planning commission and all letters and information that was submitted both by the applicant and by the citizens of Louisville Metro," said council member Madonna Flood, the committee's chair.

Council member Marilyn Parker, who represents the area, urged her colleagues to add an extra protection to the proposal, requiring Topgolf to remove its 175-foot-tall poles and nets within six months if the facility closes or goes out of business.

A motion to approve such a “binding element” failed by a 3-3 vote. Assistant Jefferson County Attorney Paul Whitty said Topgolf representatives did not favor the plan, which would have required a bond that may have cost $400,000.

"Today is the first that we have heard of that, and I'm sure there will be further discussion on that topic," Oxmoor general manager Kendall Merrick told reporters after the meeting.

Parker was the only council member to vote against the rezoning request.

In remarks to the committee, she echoed many of the issues raised by Hurstbourne residents and other opponents who claimed Topgolf will bring noise, traffic and light problems and isn't compatible with the city's land-use rules.

"I think it will change the face of the mall. Instead of it being a shopping area, I think it will become more of an entertainment district," she said. "And we're not really sure what that will envision. That might be a good thing; it might not."

Speaking after the meeting, and before the Hurstbourne meeting, Porter said residents would consider filing a broader lawsuit if the full council approves the rezoning.

Porter argued before the planning commission last month that the Topgolf proposal violates the city's comprehensive plan, which strives to have “compatible” relationships between commercial areas and neighborhoods. He contended the driving range doesn't belong near residences.

He said previously an appeal would note multiple violations by the planning commission in its decision.

The commission determined the Topgolf plan fits within the allowed uses at Oxmoor, which is already zoned for commercial buildings and meant to handle "high-intensity" development.

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