This post has been updated with additional background and comment from Steve Porter.
The attorney representing Topgolf has accused six Louisville residents of wrongfully using the court system to delay a Planning Commission decision and has asked the judge to dismiss the case with prejudice, according to a Monday court filing.
The residents filed a lawsuit in November saying the Planning Commission’s decision to approve plans for a 62,103-square-foot indoor golfing and entertainment center, Topgolf, at Oxmoor Center was “capricious and arbitrary.” In a response filed Monday, attorney Clifford Ashburner, who represents Topgolf and its director of real estate development Tanner Micheli, wrote that the residents were given ample chance to present their case against the development to the Planning Commission, which is also a defendant in the lawsuit.
The Planning Commission’s decision “is legal, valid, and supported by substantial evidence in the record — a record that includes two public hearings, 11 hours of public comments, and testimony from experts in the areas of lighting, traffic, and noise,” the response states.
It notes that the residents had that chance to offer up their own expert testimony to contradict the experts hired by Topgolf but did not.
“The record shows that Plaintiffs were afforded due process of law,” the response says.
Steve Porter, the attorney representing the six residents who want to stop the project from moving forward, noted in a late-night email that requests to dismiss are typical in cases such as this and reiterated some of the arguments made in the complaint.
“Despite the statement of the defendants, the plaintiffs have an absolute right under Kentucky law to appeal a decision they regard as arbitrary and capricious. The Court will decide who is right, not the defendants,” he said in the email.
Porter has said previously that his clients don’t want to prevent Topgolf from coming to Louisville, but they oppose it being constructed at Oxmoor Center.Topgolf representatives meanwhile have said that Oxmoor Center is the only location that works.
In the complaint Porter filed, he asserted that the Planning Commission violated the city’s comprehensive plan and made an argument for why the city should not have accepted Topgolf’s application in the first place. It took issues specifically with the approved lighting plan and waiver for the controversial project.
“They will lose the ability to enjoy their property in the way they are entitled because of the bright lighting from the Topgolf light fixtures. In addition, the value of their properties will diminish substantially,” the lawsuit states.
The judge in the case is Ann Bailey Smith of Division 13 of the Jefferson County Circuit Court. Other defendants named in the case are Louisville Metro Government and the owners of Oxmoor Center.
An additional lawsuit also could be in the works after Louisville Metro Council approved the development plans for Topgolf in a 20-to-3 vote. Porter told the media that his clients are considering a second lawsuit related that decision.