Topgolf’s zoning applications were approved by the city last November, but a group of opponents still hopes to block the development. The case will go before a judge on Thursday, May 23. | Courtesy of Topgolf

Louisville will soon be a little closer to knowing whether it will be able to tee off at Oxmoor Center.

That’s because the hotly debated Topgolf sports and entertainment complex proposed for Oxmoor goes before a judge Thursday, May 23. Judge Ann Bailey Smith will hear a summary of the cases from each side in Jefferson Circuit Court Div. 13, although it’s unlikely a decision will be announced at the hearing.

The hearing is public and scheduled to begin at 1:30 p.m.

It’s been a hazard-filled fairway since February 2018, when Topgolf filed applications for plans that would allow the company to build a signature golf and gaming operation in the former Sears building that once anchored Oxmoor Center. The company has about 40 such complexes in the U.S. and U.K., including one in Cincinnati, and hopes to open one in Louisville.

The proposed three-story, 62,000-square-foot structure would include 102 climate-controlled hitting bays where customers could sharpen their swings by driving micro-chipped golf balls onto a field, proposed for the seldom-used empty parking lot behind Oxmoor.

Oxmoor Center neighbors have been active in opposing the proposed Topgolf development. | Photo by Caitlin Bowling

But East End residents who live nearby have cited several concerns, such as noise, increased traffic and unwanted light coming from the facility at night. They showed up at public hearings in bunches, carrying red signs that read, “We oppose Topgolf.”

Topgolf representatives made adjustments in the plans, consulted experts and paid for studies to determine the expected impact the complex would have on the area, ultimately arguing based on their finding that the opposition’s concerns were unfounded. Once the Metro Planning Commission felt satisfied Topgolf had made its case, the zoning requests were approved and moved along to Metro Council for final approval.

Topgolf ultimately received that approval, but six residents, named as Peggy and Bryan Barber, Gerald and Helen Nicolas, and Sheila and David McLaughlin, and represented by the attorney Steve Porter, filed a lawsuit in circuit court saying the Planning Commission’s decision was “capricious and arbitrary,” and asserting that the plaintiffs would lose the ability to enjoy their property.

The Topgolf attorney Clifford Ashburner quickly filed a response asking the judge to dismiss the case, saying the plaintiffs wrongfully using the court system to delay the decision. But after Metro Council approved zoning for the development on Nov. 29, a second lawsuit was filed challenging that decision as well. In January, the court combined the two suits into one. The court hearing was set for May 23.

It didn’t end with that, however, as Porter and the Oxmoor residents on March 24 filed a motion stating that Topgolf did not file the initial applications properly, citing “failures and frauds” on the part of both Topgolf and the city, asserting in the motion that the application filings by Topgolf violated a state law requiring that “a foreign entity shall not transact business in this Commonwealth until it obtains a certificate of authority from the Secretary of State.”

Porter argued Topgolf had filed under company names that weren’t certified and asked for a summary judgment, which was placed under consideration by the court.

In early April, Ashburner filed a motion disputing Porter’s claims and asking the court to uphold the decision of Metro Planning and Zoning and Metro Council. Earlier this month, Ashburner then filed a brief citing statutory precedent to argue that Porter’s claims were untrue.

Another brief reasserting the argument and noting expert testimony validates the decisions by both the zoning commission and the council was filed last week. The brief states that the applications “were examined and debated more thoroughly than any set of zoning applications in at least a decade.”

“Given these facts and in light of legal precedent, the court should affirm the unanimous action of the Planning Commission and the nearly unanimous action of the Metro Council approving Topgolf at Oxmoor Center,” Ashburner said in April through a media statement. “We look forward to prevailing in court.”

Porter feels differently, telling Insider this week he still believes the court will rule that the applications were filed improperly, defying the state statute. If Judge Smith agrees, Porter said, Topgolf would essentially be back to square one.

“It is vitally important for the Planning Commission, the Metro Council and the general public to know exactly who is applying for and taking responsibility for these applications,” Porter said. “Therefore, we believe the court will overturn the approvals. If Topgolf and Oxmoor want to reapply with legitimate applicants, that is up to them. My clients will still oppose locating Topgolf near anybody’s residences.”

Kevin Gibson
Kevin Gibson tackles the 3Rs — retail, restaurants, real estate — plus, economic development. He loves bacon, loathes cucumbers and once interviewed Yoko Ono. Check out his books, “Louisville Beer: Derby City History on Draft” and “100 Things to do in Louisville Before You Die.” He has won numerous awards for his work but doesn’t know where most of them are now. In his spare time, he plays in a band called the Uncommon Houseflies.Email Kevin at [email protected]