Peggy L. Barber v. Topgolf USA Louisville. LLC ( 2020 )

RENDERED: DECEMBER 18, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1112-MR
PEGGY L. & BRYAN C. BARBER;
GERALD J. & HELEN M. NICOLAS; AND
SHEILA M. & DAVID J. MCLAUGHLIN APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANN BAILEY SMITH, JUDGE
ACTION NOS. 18-CI-006708 AND 19-CI-000019
TOPGOLF USA LOUISVILLE, LLC;
TANNER MICHELI; GGP, INC.;
CHARLES TAPIA; WMB 2, LLC;
TWB OXMOOR 2, LLC; HOCKER
OXMOOR, LLC; LOUISVILLE AND
METRO PLANNING COMMISSION;
LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT; AND THE
LEGISLATIVE COUNCIL OF
LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: This is a land use appeal involving a map amendment,
conditional use permit, and several variances to allow a golfing and entertainment
complex in an abandoned portion of Oxmoor Center in Louisville, Kentucky. The
appellants are nearby residents of the area, and they filed suit versus the
Louisville/Jefferson County Planning Commission (Planning Commission) and
Louisville/Jefferson County Metro Council (Metro Council), challenging the
actions of those entities, in Jefferson Circuit Court. The circuit court affirmed the
decisions of the Planning Commission and Metro Council and dismissed the
residents’ appeals. We affirm.
We shall rely upon the statement of the facts and procedural history as
set forth in the circuit court’s June 20, 2019, opinion and order:
Topgolf operates in cities nationwide and bills
itself as a “family friendly entertainment venue that
features fun and accessible golf games for all ages and
ability levels.” “Topgolf features multi-level, climate-
controlled driving bays, complete with HDTVs, a popular
music playlist, a carefully crafted food menu, and full bar
service.” The site for the proposed venture is in the
space in Oxmoor Center that a Sears store abandoned
since October of 2017. “The Topgolf development will
be one part of a broader redevelopment of the southern
section of Oxmoor Center that will include three new
restaurants, an open plaza area and Topgolf.” The
defendants claim that “Topgolf will bring hundreds of
new jobs and will induce further economic development
to the area.”
-2-
Topgolf began the process that led to the instant
appeal on February 19, 2018, when it requested a change
in zoning of the proposed site by filing a “Change in
Zoning/Form District Pre-Application” with the Planning
Commission. The name placed on the form, in the
column titled “Applicant” and in the space designated
“Name,” was “Tanner Micheli”; in the space
immediately beneath the “Name” space titled
“Company,” was placed the name “Topgolf USA
Louisville, LLC,” with an address in Dallas, Texas.1 Mr.
Micheli is the Director of Real Estate for Topgolf
International, Inc. and operated as the point person for
the Louisville development with the press and at hearings
before the Commission and Metro Council. Topgolf
USA Louisville, LLC, however, was not formed as an
LLC at the time of filing the pre-application and did not
legally exist in any form until November 29, 2018, when
Topgolf representatives filed it as an assumed name of
Topgolf USA KY1, LLC, a Delaware LLC that was
registered with the Kentucky Secretary of State on
December 19, 2017. Topgolf’s counsel stated at the
hearing before the Court on May 23, 2019 that “Topgolf
USA Louisville, LLC” was listed on the pre-application
as a result of a miscommunication between him and his
client. In any event, the error was repeated in the
subsequently filed Change in Zoning Application, two
Conditional Use Permit Applications, several Variance
Applications, and two General Waiver Applications.
“Topgolf USA Louisville, LLC” was also formally and
informally referred to as “the applicant” in documents
and materials issued by the Commission and the parties.
In the “Change in Zoning Application” filed on
June 7, 2018—a form virtually identical to the pre-
application filed the previous February—in addition to
Micheli and Topgolf USA Louisville, LLC, on a separate
page, also listed under the “Applicant” column in the
“Name” blank was “Charles Tapia” with the name “GGP
1
8750 Central Expressway, Suite 1200, 75231 which is Topgolf USA’s corporate headquarters.
-3-
Inc.” listed below as the “Company,” with an address in
Chicago, Illinois. GGP, Inc., however, was not
registered as a corporation at all relevant times. Its
counsel stated in answer to the complaint and at oral
arguments that GGP, Inc. was once the name of a
Delaware entity known as New GGP, Inc., and as of
August 27, 2018, became known as Brookfield Property
REIT Inc.; counsel also claimed that at all relevant times
Brookfield Property REIT Inc. “indirectly owned” an
entity that owns Oxmoor Center, Hocker Oxmoor, LLC.
Along with Topgolf USA Louisville, LLC, GGP Inc.
remained listed beneath Tapia’s name on all applications
that followed the pre-application.
While pre-application staff within the Louisville
Metro Division of Planning and Design Services
requested more information and studies, it preliminarily
approved of locating Topgolf at the Oxmoor site to the
extent it is “of a moderate to high intensity consistent
with the high intensity uses found in the Regional Center
Form District as the C-2 zoning district allows for a wide
range of regional goods and services . . .” On March 12,
2018, Topgolf representatives met with nearby property
owners to listen to their concerns regarding the
development. As a result of the hearing, Topgolf decided
to move its proposed facility 200 feet farther away from
the City of Hurstbourne and also set about performing
studies to determine the impact of the development on
the light, sound and traffic environment in the area.
Pharis Engineering conducted a lighting study that
concluded that Topgolf’s partially shielded LED light
fixtures would result in “zero light trespass past the
property” and “give less light output and less glare” than
the existing parking light fixtures at the site. According
to Pharis’ report, the site fixtures accomplish this because
they “have tightly controlled optical light patterns that
are designed to light the field with a high degree of
accuracy.” HMB Professional Engineers conducted a
sound study that concluded that “for most of the time
-4-
analyzed during typical weekend hours the existing
[sound] levels combined with the noise generated by
Topgolf do not result in even a perceptible change in
noise.” Diane B. Zimmerman Traffic Engineering, LLC,
conducted a traffic study examining the impact of the
Topgolf development on the adjacent streets, comparing
the trip generation data of Oxmoor Center when the Sears
store was open for business. Zimmerman concluded that
Topgolf would generate 4.4% less traffic on the typical
day and for the year 2020, overall the “delays
experienced in the area will increase within acceptable
limits, thus no improvements to the roadway system are
recommended.”
After Topgolf publicized the studies on a website
and invited nearby residents to review them, it filed the
necessary applications with the Planning Commission to
have the site rezoned and have the necessary waivers and
variances issued. On August 9, 2018, the Land
Development and Transportation Committee of the
Planning Commission heard testimony from Topgolf,
from Joel Dock of the Metro Office of Planning and
Design Services, and from those opposed to the
development. Notably, the Committee heard that open
property located between Oxmoor and Hurstbourne,
currently used as soccer fields, was to be developed in
the near future and would act as a buffer between
Topgolf and residential properties. Topgolf presented
expert testimony and other evidence of the above light,
sound, and traffic studies. The plaintiffs neither cross-
examined the experts nor presented any expert testimony
or evidence to rebut them. Joel Dock testified that
Topgolf’s application was complete and the matter was
ready to be scheduled for a public hearing.
The Planning Commission held the first public
hearing on October 1, 2018, at the University of
Louisville Shelby Campus, within minutes of the
neighborhood of those residents close to the proposed
Topgolf development. Before this hearing, Metro
-5-
Planning and Design Services released a “Change in
Zoning Pre-Application Staff Report” that reiterated its
earlier conclusion that Topgolf was suited to the Oxmoor
location and, further, that “the proposal does not
constitute a non-residential expansion into an existing
residential area as the proposal utilizes the land of an
existing regional commercial center to allow for the
development of additional regional services.” The
Commission, Topgolf representatives, and 31 citizens
presented five hours of testimony at this hearing. Joel
Dock, the Case Manager on the project, testified on
behalf of the Commission and summarized the findings
he and the staff made in the Staff Report. Counsel for
Topgolf, Cliff Ashburner, presented a summary in favor
of the development and introduced Keith Pharis, who
presented testimony regarding the lighting, Mitchell
Green, who testified regarding the sound studies, Dianne
Zimmerman, who testified regarding her traffic study,
Kendall Merrick, the general manager of Oxmoor Center,
who testified regarding the positive impact Topgolf will
have on the mall specifically and the community
generally, and, finally, Tanner Micheli of Topgolf.
The plaintiffs, through counsel Stephen Porter,
then cross-examined some of these witnesses. Mr. Porter
took issue with Mr. Dock’s testimony that there were no
residential uses within 500 feet of Topgolf’s playing
field; this is relevant because Land Development Code
(“LDC”) 4.1.3.B.6.a.ii prohibits outdoor illumination of
“any playing field . . . within 500 feet of any residential
use” after 11:00 p.m., and Topgolf’s proposed facility
will close at 1:00 a.m. One of the supposed “residential
uses” Mr. Porter claimed was within the prohibited 500
feet was the driveway of a nursing facility. Mr. Dock
rightly responded that a nursing facility is not defined as
a residential use under the LDC. See LDC 1.2.2,
Definitions.2 The second supposed residential use within
2
“Residential Use” is Uses associated with permanent residential occupancy in the form of a
dwelling unit (permanent means for at least 30 days in duration). Specific uses such as bed and
-6-
the prohibited distance was the vacant parcel to the east
of the development, which is zoned R-6 for multi-family
use but is currently used as soccer fields. Mr. Dock
conceded that if this parcel is ever developed with a
residential use, Topgolf will be non-conforming and will
have to close by 11:00 p.m. The third supposed
residential use Mr. Porter focused on was what he
referred to as the “Oxmoor farm property” and the
“Bullitt house property” to the south of the proposed
development. Mr. Dock’s response was not at all clear
on the recording, though it is clear that he referred Mr.
Porter to the Staff Report. While the plaintiffs now claim
that the Commission and its staff “completely
disregarded . . . [t]his situation,” a map in the record
shows that the staff performed several measurements of
500 feet from different points of the proposed
development. Assuming the outer edge of where
Topgolf’s “Southwest building” will be located can be
construed as a “playing field” within the meaning of
LDC 4.1.3.B.6.a.ii, the measurement indicates that this
point is almost exactly 500 feet from the extreme
southwestern boundary of what Mr. Porter referred to as
“the Bullitt house property.” Another measurement from
the “southeast pole” of the playing field extends about
100-125 feet into the middle of a large field of what Mr.
Porter referred to as the “Oxmoor Farm property.” Later
in the evening, during Mr. Porter’s presentation he
showed an aerial photograph with an overlay of the
proposed facility and, again, claimed the development
was within 500 feet of residential uses on the two
Oxmoor properties. The aerial photo shows that the large
field on the farm property is either cultivated or plowed
for cultivation, and there are structures to the southeast
that appear to be barns or other types of utility buildings
but are perhaps residential; Mr. Porter presented no
evidence on the nature of the structures or any evidence
regarding their distances from the proposed development.
breakfasts, boarding and lodging houses, hotels, motels and extended stay facilities where stays
can be less than 30 days in duration shall be considered commercial uses.” (Emphasis added).”
-7-
Whatever these structures are, they are clearly farther
away from the proposed playing field than 500 feet. The
dwelling situated on the parcel that Mr. Porter referred to
as the “Bullitt house property” is not visible on the aerial
photo and is undoubtedly substantially more than 500
feet away from the proposed playing field.
Mr. Porter also cross-examined Mr. Pharis on the
lighting issues. After Mr. Pharis confirmed his opinion
that the 16 [x] 58,000 lumen field lights would not
violate the LDC because they are highly directional, he
admitted that he had never been to a Topgolf facility to
view the lights firsthand. Mr. Pharis nonetheless stood
by his opinion. Mr. Porter then gave a power point
presentation that included nighttime photographs of
Topgolf facilities that he took in Huntsville, Alabama;
Chesterfield, Missouri; Dallas, Texas; and Orlando,
Florida. According to Mr. Porter, these photographs
prove that light from the proposed development will
trespass beyond the playing field and onto neighboring
residences. After Mr. Porter finished his presentation,
eight citizens testified in opposition to the development
before Commission Chair Vince Jarboe continued the
hearing to October 15, 2018.
Before the second hearing occurred, Topgolf filed
an application for a waiver from LDC 4.1.3.B.2.c, saying
it was impossible for an outdoor athletic facility to
comply with the Code’s requirement that outdoor lighting
that emits more than 3,500 lumens be fully shielded,
meaning the luminaire must be pointed downward and
have a flat, horizontal lens/diffuser. Joel Dock of the
Metro Office of Planning and Design Services consulted
with an independent lighting expert, Jennifer A. Brons, a
professional consultant and adjunct professor at the
Lighting Research Center of Rensselaer Polytechnic
Institute in Troy, New York. After Dock described the
LDC shielding requirements to Brons in an email, she
confirmed that “it doesn’t seem practical for outdoor
athletic complexes to be lit with fully shielded lights.”
-8-
Brons stated that Dock “may need” to hire a local light
designer to determine the extent to which the proposed
lighting system would become “a nuisance” and to
review and evaluate Pharis Engineering’s report. While
Topgolf continued to stand behind the conclusion in
Pharis’ lighting study that none of its lighting will pollute
residential properties and will present less glare than
what existed when the Sears store was in operation,
Topgolf agreed to add a landscape buffer consisting of
three tree lines between the City of Hurstbourne and
Topgolf that will ultimately grow to a height of 60 feet.
At the second hearing on October 15, Dock
testified to his consultation with Brons and presented his
amended staff report approving the lighting waiver
application. He testified that all evidence indicated that
the lights would be aimed and focused on the field and
that light trespass and glare will be highly controlled.
Topgolf’s lighting expert, Pharis, testified that the
existing parking lot lighting at Oxmoor, on the southeast
side nearest residences, consisted of non-shielded, non-
glare-controlled lights mounted on 50 feet-high poles that
emit 240,000-300,000 lumens each, for a total of
3,675,000 lumens. In contrast, he said, the lighting on
the Topgolf site will be shielded, highly directional and
will emit only 2,544,000 lumens. Pharis explained the
science and math behind his lighting calculations and
stated conclusively that there would be no light trespass
from the proposed complex onto the property of any
residence. Nick Page, a representative of Qualite Sports
Lighting, the manufacturer of the field lights at Topgolf
Facilities—called the Gamechanger LED Luminaries—
also testified. He stressed that the lights facing the
residential neighborhoods were highly directional and the
beams’ focus will be aimed in a gradually slanted
downward pattern, below the sight line so as not to
trespass on the residential properties in Hurstbourne.
Tanner Micheli, a representative of Topgolf, Kendall
Merrick, General Manager of Oxmoor Center, and
several community members all testified in support of the
-9-
Topgolf development. Plaintiffs’ counsel cross-
examined the lighting experts, and other community
members spoke up against the project.
On October 18, 2018, the Planning Commission
conducted a third and final meeting and after reviewing
the record, with one member not present the Commission
issued thirty pages of detailed findings that, in summary,
concluded that Oxmoor Center was the best location for
the Topgolf development, that the development would
benefit the region economically, that it is appropriate in
light of Oxmoor’s designation as the Regional Center
Form District and that the development would not
adversely affect the nearby neighborhoods from the
perspectives of sound, lighting and traffic. Some of the
more relevant findings are as follows:
▪ [T]he proposal meets the intent of Guideline
1: Community Form because the proposal is
of moderate to high intensity consistent with
the high density uses found in Regional
Center Form District as the C-2 zoning
district allows for a wide range of regional
goods and services that are not available in
lower intensity which offer neighborhood
goods and services.
▪ The proposal contributes to the identity of
the regional center as a focal point for transit
from homes and workplaces as the proposed
C-2 district allows by way of conditional use
permit for the incorporation of a regional
attraction and destination point for
entertainment in an area of current vacancy.
▪ The Traffic Impact Study made no
recommendation for further improvements
to the existing vehicular network serving the
site.
-10-
▪ [T]he proposal meets the intent of Guideline
2: Centers because the proposal will not
create a new center.
▪ Residential development is not currently
proposed on the subject site, but adjacent
sites are zoned appropriately for a high
density development.
▪ [T]he proposal meets the intents of
Guideline 3: Compatibility because the
proposed building materials are consistent
with materials found on current retail and
entertainment development in the general
vicinity and throughout Louisville Metro.
▪ The netting and poles of the driving range
are necessary to maintain public safety.
▪ There will be a manageable impact to the
existing highway network, with Levels of
Service remaining in acceptable limits.
▪ The proposal mitigates adverse impacts of
its lighting on nearby properties and on the
night sky as the proposed user is a
recreational use and lighting is provided and
necessary to light the outfield of the golf
driving range in the evening.
▪ Since the original design for the property
was made public, the applicant has made a
number of refinements to the design to
address neighborhood concerns about noise,
traffic and lighting. The three-story
structure and driving range outfield have
been moved 200 feet to the west and closer
to Interstate 264 to reduce noise and lighting
impacts and reduce traffic flow. The nearest
residential uses will now be more than a
-11-
quarter of a mile away from the proposed
redevelopment. More than ninety percent of
the nearby City of Hurstbourne homes will
be a half mile or farther from the subject
property. The applicant has proposed to
install LED lighting below the roof line of
the building to reduce light impacts. The
applicant has also agreed to paint the net
poles around the driving range to better
blend with the surroundings and reduce
visual impacts.
▪ The lighting study demonstrates that the
proposed redevelopment will both comply
with the LDC’s requirement regarding light
trespass and improve over the existing
situation.
▪ Waiver of LDC, section 4.1.3 to not provide
fully shielded lighting for golf driving range
. . . will not adversely affect adjacent
property owners as the lighting report
indicates that the proposed lighting fixtures
are aimed and focused on the outfield of the
golf driving range for the purpose of lighting
the field and light trespass and glare beyond
the field perimeter will be highly controlled
and minimized. There are no residential
uses or other sensitive uses such as churches
or schools within 500’ and the nearest
residential dwelling is over 1200’ from the
proposed fixtures.
▪ The lighting report indicates that the field
lighting will have virtually no light trespass
beyond the field perimeter and the golf
driving range is encompassed by a parking
lot. The distance from the golf driving
range bays housing the proposed fixtures to
the pavement of the nearest public road is
-12-
roughly 900’ and the nearest dwelling unit is
over 1200 feet from the fixtures. The
lighting plan indicates that the fixtures can
be highly controlled and landscaping is
proposed at the east end of the field
perimeter to further mitigate any potential
adverse impacts of glare.
▪ As shown in the lighting report performed
by Keith Pharis, PE, the proposed lighting
plan for Topgolf and updated parking lot
lighting at Oxmoor Center will produce less
up-light, spill-light and glare than the
parking lot lighting currently in place at
Oxmoor Center.
▪ In fact, the revised lighting, including
Topgolf, will result in a net lumen reduction
on the east side of the former Sears building
of over 1,100,000 lumens. . . . All in all, the
proposed redevelopment will result in a
dramatic improvement in lighting
conditions.
Based on these and many other findings, the
Commission unanimously approved the requested
waivers and variances and the requested Revised
Detailed District Development Plan and recommended
that Metro Council approve the map amendment, the
conditional use permit, and the requested variances. The
plaintiffs appealed the Commission’s actions on
November 19, 2018. On November 29, 2019, the Metro
Council voted 20-3 to approve the recommendations of
the Planning Commission and the plaintiffs also appealed
that determination.
(Emphasis original) (citations to record omitted).
-13-
The circuit court, after reciting the applicable standard of review and
considering the neighborhood residents’ arguments, affirmed the actions of the
Planning Commission and Metro Council. On appeal, the residents contend that
the applicants were not legally in existence and, thus, could not participate in the
litigation; that the factual determinations were arbitrary and capricious; that the
actions failed to comply with the relevant requirements of the Comprehensive Plan
and the Land Development Code; and that the residents were wrongfully required
“to perform the duties of the staff of the Planning Commission.”
Our review is guided by the following principles:
Circuit Court review of the zoning decisions of
legislative bodies is specifically authorized by statute at
KRS [Kentucky Revised Statute] 100.347. Judicial
review of administrative action by such bodies is
“concerned with the question of arbitrariness.”
American Beauty Homes Corporation v. Louisville and
Jefferson County Planning and Zoning Commission, 379
S.W.2d 450, 456 (Ky. 1964) (emphasis in original). An
administrative ruling is arbitrary, and therefore clearly
erroneous, if it is not supported by substantial evidence.
Fritz v. Lexington-Fayette Urban County Government,
986 S.W.2d 456, 458-459 (Ky. App. 1998) (internal
citation omitted). Reviewing courts may not disturb
factual findings made by an administrative agency if
those findings are supported by substantial evidence. In
other words, “[a] reviewing court is not free to substitute
its judgment for that of an agency on a factual issue
unless the agency’s decision is arbitrary and capricious.”
McManus v. Kentucky Retirement Systems, 124 S.W.3d
454, 458 (Ky. App. 2003) (internal citation omitted). On
determinations of fact “[t]he administrative agency’s
findings will be upheld even though there exists evidence
-14-
to the contrary in the record.” Kentucky Unemployment
Insurance Commission v. Landmark Community
Newspapers, 91 S.W.3d 575, 578 (Ky. 2002) (internal
citation omitted).
Danville-Boyle County Planning Comm’n v. Centre Estates, 190 S.W.3d 354, 359
(Ky. App. 2006).
[U]nder the McManus standard, a court cannot substitute
its judgment on those contested issues of fact but if the
appealing party has not met his burden of proof with the
fact-finder, the court can properly, indeed must, consider
whether that party’s proof was so compelling that no
reasonable person could have failed to be persuaded. If
this high standard is met, so is KRS 13B.150(2)(d) which
allows for reversal when a final order is “[a]rbitrary,
capricious, or characterized by an abuse of discretion.”
Simply put, the second part of the McManus
standard allows for court intervention, reversal, where the
evidence favoring the party with the burden of proof is so
compelling that the agency’s decision is properly seen as
arbitrary or capricious or reflecting an abuse of
discretion. Stated differently, the McManus standard
captures how courts properly assess arbitrariness,
capriciousness or abuse of discretion by the agency fact-
finder in cases where the party with the burden of proof
has lost.
Kentucky Retirement Systems v. Ashcraft, 559 S.W.3d 812, 820 (Ky. 2018)
(footnote omitted).
The residents argue that the application was illegal ab initio because
applicants Topgolf and GGP, Inc., had not registered with the Kentucky Secretary
of State. See KRS 14A.9-010(1). Therefore, as so-called non-existent
-15-
corporations, the “entire proceedings” were fraught with “fraud and deceit.” Thus,
the residents contend, the circuit court improperly affirmed the map amendment,
conditional use permit, and variances to Topgolf.
We disagree with the residents that the circuit court acted erroneously.
“[T]he purpose of the assumed name statute is to inform members of the public,
including appellants, of the identity of persons doing business under an assumed
name. It could not be disputed that for lawful use, including litigation, the statute
imposes a duty to provide such information.” Munday v. Mayfair Diagnostic
Laboratory, 831 S.W.2d 912, 915 (Ky. 1992). In Munday, however, the Court
held that “appellees’ failure to file the certificate denied appellants information
which was essential to the commencement of litigation.” Id. (emphasis added).
That is not the argument here, and, even if it were, the residents fell short in their
burden of proving that Topgolf and GGP, Inc., actively concealed their true
identities to cause the residents to file their appeals out of time. Cf., Emberton v.
GMRI, Inc., 299 S.W.3d 565, 575 (Ky. 2009). In fact, the residents were unaware
of the lack of compliance with KRS 14A.9-010(1) and did not argue this issue
before the administrative bodies. Accordingly, the circuit court held that the
residents forfeited this argument on appeal to the circuit court because it was not a
preserved issue. See City of Louisville v. Kavanaugh, 495 S.W.2d 502, 505 (Ky.
1973). Topgolf has since cured its defect. GGP, Inc., is now known as Brookfield
-16-
Property REIT, Inc. It, too, had complied with the statute prior to the circuit court
hearing.
We hold that the failure, if any, of Topgolf and GGP, Inc., to register
their corporate names with the Secretary of State’s office resulted in no harm to the
residents, either in fact or in procedure. The nature of the agencies’ decisions and
the residents’ appeals therefrom were not affected in any way by the late
compliance with the Business Entity Filing Act. The record reflects that the
residents had knowledge of the actual applicants from the outset of this litigation.
The residents can demonstrate no prejudice, and we again repeat the circuit court’s
language, namely:
Plaintiffs [residents] fail to point to any statute or
case that can be reasonably construed as requiring the
Court to nullify the proceedings below due to the naming
errors in the applications. Even if the Court were to find
that the plaintiffs did not waive the objection—a finding
that would be clearly erroneous under the abundance of
case law to the contrary—a review of the statutory law
that governs naming and registration errors mandates a
finding that no authority exists to support the plaintiffs’
position. Plaintiffs’ final fallback argument seems to be
that affirming the actions of the Commission and Metro
Council will encourage future applicants to falsify their
names on applications before the Commission. This
public policy argument, however, ignores the safety
valve built into every circuit court review of actions that
administrative bodies take in Kentucky—i.e., that any
administrative action can be reversed when it was
affected by “fraud or misconduct.” City of Louisville v.
Kavanaugh, supra, 495 S.W.2d at 505. Plaintiffs cannot
deny and have not denied that they have had ample
-17-
opportunity to investigate the true identities of the
applicants to the Topgolf development, both before and
after the applications were approved. As noted, not only
have the plaintiffs provided the Court with no evidence
that the defendants [applicants] committed fraud or
engaged in any misconduct during the application
process, but they have provided no evidence that the
naming errors affected the proceedings in any manner at
all. This being so, the only goal the plaintiffs would
achieve in having the Court invalidate the actions of the
Commission and Metro Council would be that of
unnecessary delay of the Topgolf development, a result
that is manifestly unjust.
(Footnote omitted).
We next address the allegations of “arbitrary and capricious conduct”
by “the Planning Commission, its staff, and the Metro Council.” The residents
first take issue with the lighting: they contend that the agencies should have
required the proposed light fixtures to be fully shielded to minimize the impact on
nearby neighborhoods. Furthermore, the residents aver, the agencies placed undue
reliance on the lighting report of Pharis despite his admission that he had not
personally viewed any existing Topgolf facilities.
We are limited in our review to whether the administrative ruling is
supported by substantial evidence. Danville-Boyle County Planning Comm’n,
supra. We have examined the record in its entirety, including the videotaped
testimony of the hearings and hold that the evidence supports the agencies’ rulings.
Although the residents were able to offer some evidence to contradict the report of
-18-
Pharis Engineering, it was not “so compelling that the agency’s decision is
properly seen as arbitrary or capricious or reflecting an abuse of discretion.”
Ashcraft, 559 S.W.3d at 820. We are thus compelled to affirm that aspect of the
circuit court’s ruling.
We have similarly examined the record in review of the residents’
allegations regarding the traffic study. And, again, we decline to disturb the
rulings of the agencies, as affirmed by the circuit court. Id.
The residents next claim that the Planning Commission, Metro
Council, and circuit court “confused ‘residential use’ with an actual residential
building,” thus ignoring the LDC requirement that the light fixtures be located
beyond 500 feet of residential uses. The map in the record, as well as the
residents’ failure to address the distances demonstrated there, speaks for itself.
Hence, we affirm the circuit court’s rejection of this argument by the residents.
The next assertion of error is that the approvals fail to comply with the
Comprehensive Plan and LDC. In support of this argument, the residents merely
cite to the video transcript and six pages in the record. We have examined the
laundry list of alleged instances of noncompliance and decline to disturb the circuit
court’s ruling in that regard.
The residents lastly maintain that they are “merely members of the
public and nearby neighbors” who suffered injury by the administrative agencies’
-19-
failure to scrutinize the applications, failure to verify and evaluate the reports paid
for and submitted by the applicants, and the “final arbitrary and capricious actions”
in the agencies’ approval of the applications. In this vein, they urge that they were
inappropriately required to analyze the applicants’ submissions and present their
own evidence. The professionals, the residents assert, did nothing more than
“collect paper and pass it on.”
The question is whether the residents received due process, which
they did:
The fundamental requirement of procedural due
process is simply that all affected parties be given “the
opportunity to be heard at a meaningful time and in a
meaningful manner.” Mathews v. Eldridge, 424 U.S.
319, 333, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18 (1976)
(internal citation and quotation omitted). Procedural due
process in the administrative or legislative setting has
widely been understood to encompass “a hearing, the
taking and weighing of evidence if such is offered, a
finding of fact based upon a consideration of the
evidence, the making of an order supported by substantial
evidence, and, where the party’s constitutional rights are
involved, a judicial review of the administrative action.”
Morris v. City of Catlettsburg, 437 S.W.2d 753, 755 (Ky.
1969), see also Kaelin v. City of Louisville, 643 S.W.2d
590, 591 (Ky. 1982); Wyatt v. Transportation Cabinet,
796 S.W.2d 872, 873-74 (Ky. App. 1990). The “right to
an impartial tribunal” is nowhere to be found within this
list, and rightfully so, since the right, as it is commonly
conceived within the judicial context, cannot be
guaranteed (nor need it be) in the administrative or
legislative setting.
-20-
Hilltop Basic Resources, Inc. v. County of Boone, 180 S.W.3d 464, 469 (Ky.
2005). The residents can point to nothing in the proceedings that indicates
otherwise.
Accordingly, the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
-21-
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES TOPGOLF
USA LOUISVILLE, LLC; and
Stephen T. Porter TANNER MICHELI:
Louisville, Kentucky
Clifford H. Ashburner
Paige N. Johnson
Phillip M. Longmeyer
Louisville, Kentucky
BRIEF FOR APPELLEES TWB
OXMOOR 2, LLC; and WMB 2,
LLC:
Cornelius E. Coryell, II
Louisville, Kentucky
BRIEF FOR APPELLEES CHARLES
TAPIA, HOCKER OXMOOR, LLC;
and GGP, INC.:
Timothy W. Martin
Peter Cummins
Louisville, Kentucky
BRIEF FOR APPELLEES
LOUISVILLE AND METRO
PLANNING COMMISSION; and
THE LEGISLATIVE COUNCIL OF
LOUISVILLE/JEFFERSON
COUNTY METRO GOVERNMENT:
Michael J. O’Connell
Laura M. Ferguson
Louisville, Kentucky
-22-