The empty husk of a building that once was a thriving Sears department store is now surrounded by fencing. A single banner depicts an aerial rendering of what the lot is primed to become sometime next year: a Topgolf entertainment complex.
Oxmoor Center Mall General Manager Kendall Merrick told Insider Monday that RFPs had been sent out for bids to demolish the former Sears to make way for Topgolf. Building permit applications are filed, and Oxmoor and Topgolf are proceeding as if the opponents of the project, who filed a lawsuit in an attempt to stop what they see as a neighborhood nuisance, won’t appeal — or at least won’t win an appeal.
Merrick said Oxmoor was pleased with Judge Ann Bailey Smith’s “definitive ruling” that Topgolf followed proper procedures in filing plan applications and that the city was right to approve the applications as submitted.
An appeal would have to be filed by July 22 to make it inside the 30-day mandatory legal window.
Merrick told Insider the hope is to meet with Hurstbourne residents to try to quell any further fears they may have regarding the impact Topgolf will have on the neighborhood. Just as importantly, she said, they want to avoid further litigation, which would be expensive and time-consuming by causing further delays.
She said the decision to proceed before the appeal window closes is based in part on precedent she cited showing that in every Jefferson County case in which the Metro Council and Metro Planning Commission were in agreement, none have been overturned via an appeal.
Steve Porter, who represents the Hurstbourne neighborhood residents who sued to stop Topgolf, on Monday told Insider, “We have not made a final decision, but an appeal is likely.”
He added that he has been made aware of Oxmoor and Topgolf’s wish to meet. “We are always open to talk,” Porter said.
The 26-page decision handed down by Judge Ann Baily Smith doesn’t leave much room for interpretation, as she shot down basically every major argument in the opposition’s lawsuit, which was filed in January.
The judgment points out key findings that validate the Metro Planning Commission’s and Metro Council’s decisions to approve Topgolf’s plan applications, specifically relating to the opponents’ insistence that the original plan applications were filed under an unregistered entity name.
Judge Smith, in her review of the case, ruled that the name on the application filings had no effect on the merits of the applications and that there was no legal proof of Topgolf’s intention to mislead or proceed illegally.
“Not only have the plaintiffs provided the court with no evidence that the defendants committed fraud or engaged in any misconduct during the application process,” Judge Smith wrote in her decision, “but they have provided no evidence that the naming errors affected the proceedings in any manner at all.”
She added, “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.”
The judge also supported the commission’s decision to approve Topgolf’s applications based in part on a study of the lighting Topgolf would generate. Opponents of the complex believe the necessary lights for using the driving range at night would generate a nuisance, but a professional study recounted in testimony by a consultant, Keith Pharis, had concluded Topgolf would actually produce less light than currently created by the lights in the Oxmoor Center parking lots.
One argument the plaintiffs made was that Porter visited several Topgolf facilities and reported to the court that the lights would not be in compliance, even outside the required 500-foot buffer for such a development. But Judge Smith would not accept those visits as an evidentiary rebuttal to the expert testimony on behalf of Topgolf. In fact, she refused to even consider it.
“It is irrelevant whether the Court would deem the eyewitness evidence simply more persuasive than Mr. Pharis’ expert opinion evidence, and the Court has made no effort to make the determination,” the decision stated.
In addition, the judge dismissed opponents’ assertion that the Planning Commission disregarded evidence there were residential homes located within the required 500-foot buffer.
“This claim is demonstrably false because there is a map in the record that proves the Commission and staff considered this issue,” the ruling stated.
Judge Smith also cast aside assertions that the commission was “capricious and arbitrary” in its decision to approve Topgolf’s applications, citing a failure to fully prove that to be the case, which by law was the responsibility of the plaintiffs. She made similar decisions against other accusations, including assertions that Topgolf would cause traffic headaches, which also were refuted by a professional study.
Topgolf, which is based in the United Kingdom, filed its applications in February 2018 to build a three-story, 62,000-square-foot structure that would include 102 climate-controlled hitting bays where customers could sharpen their swings by driving micro-chipped golf balls onto a field. Topgolf has about 40 such complexes in the U.S. and U.K., including one in Cincinnati.
A Louisville location is in the offing, and Merrick told Insider that, while the opposition to Topgolf locating at Oxmoor has been widely publicized, the response by the community at large has been overwhelmingly positive.
And while there is no definitive timeline for construction yet, she hopes that developing a conversation with the opposing neighbors could go a long way toward moving forward in an emotional sense.
“We’re hoping to give the neighbors some peace of mind,” Merrick said. “We are committed to being a good community neighbor.”