The attorneys for Topgolf this week offered statutory precedent in arguing that assertions by those opposing the entertainment complex of improper filing don’t hold water.
Steve Porter, the attorney representing nearby residents who oppose Topgolf opening in Oxmoor Center, filed a pair of lawsuits in late 2018 to appeal the city’s approval of Topgolf’s plans to bring the sports and entertainment complex to Oxmoor Center; those lawsuits were merged into one in January.
Then, in March, he filed a summary judgment motion asserting that Topgolf had filed zoning applications with the city improperly and that the city should not have approved, or even accepted, the applications. At the time, Topgolf attorney Cliff Ashburner called the claims “meritless.”
This week’s brief filed in Jefferson Circuit Court backs up Ashburner’s defense with legal precedent, accusing Porter and the plaintiffs of “asking the Court to side with unsupported argument and hyperbole over sound scientific study and analysis that fills the evidentiary record upon which the Court must decide this appeal.”
Topgolf hopes to build a 62,103-square-foot indoor golfing and entertainment center with bar and food service in the former spot of Sears at Oxmoor Center.
Topgolf insists the approval for the project was given by the city because the company had filed properly and satisfied the concerns over lighting, noise, traffic and other potential issues raised by the neighborhood with extensive studies and expert testimony.
In part, Topgolf’s brief argues that the plaintiffs asked for the judgment over a technicality when it claimed Topgolf was “transacting business” when it filed development applications under a name that hadn’t yet been established with the Kentucky Secretary of State. The motion defends that “no Kentucky court has interpreted the phrase ‘transact business’ to including filing or being listed on a zoning application.”
The brief also cites Kentucky statute as saying that, even if such an application filing could be arguably as transacting business, “the failure of a foreign entity to obtain a certificate of authority shall not impair the validity of the acts of the foreign entity.”
Specifically, a penalty in such a situation wouldn’t negate the filings, but would at most bring a civil fine.
“Plaintiffs’ emphasis on this issue is unfounded and serves only to hide the deficiencies in their substantive arguments,” the court document reads.
It notes that the plaintiffs were asking the court to rule that the Planning Commission and Metro Council acted arbitrarily when they weighed the testimony of multiple experts in the scientific fields of lighting, sound, and traffic analysis against the conclusory, unsupported statements of their attorney, and then approved the Topgolf applications.
“This argument,” the document concludes, “is unpersuasive and unsupported and cannot serve to overturn the well-reasoned and detailed findings of the respective administrative bodies. The unanimous action of the Planning Commission and the nearly unanimous action of Metro Council were supported by overwhelming and substantial evidence and should be affirmed by this Court.”
Porter didn’t immediately answer e-mail messages requesting comment. The case is scheduled to go before a judge on May 23.