Topgolf case could test Kentucky law on appeal bonds - WDRB

LOUISVILLE, Ky. (WDRB) – A Kentucky law that created a new hurdle for zoning appeals could get its first high-profile test as Hurstbourne residents weigh whether to challenge last week’s Topgolf ruling.

The 2017 law lets the winning side in local planning and zoning lawsuits request that losing parties post a bond up to $250,000 if they want to appeal the case further.

In her ruling last Thursday, Jefferson Circuit Judge Ann Bailey Smith upheld decisions by Louisville’s planning commission and Metro Council that rezoned land for Topgolf’s Oxmoor Center project and granted other permits and waivers. Six residents of nearby Hurstbourne filed lawsuits seeking to nullify those approvals.

The residents have 30 days to appeal. If that happens, Topgolf or Louisville Metro government could ask the circuit court to impose a monetary bond and hold a hearing to determine if the challenge is “presumptively frivolous,” based on what kind of ruling is being appealed and whether there is a “reasoned interpretation” that supports the residents’ position.

A bond for an appeal that’s presumed to be frivolous could be as high as $250,000; a judge could still assess a bond up to $100,000 for the appeal, even if it’s deemed to have merit. A judge also could set no bond.

The extra step is the result of a bill the Kentucky General Assembly approved in 2017. That measure was “designed to put a price tag on delay,” said state Rep. Jerry Miller, the bill’s main sponsor, a Republican who represents parts of Jefferson and Oldham counties. “And I believe this will deter them from pursuing it because it is frivolous.”

Steve Porter, an attorney representing the Hurstbourne neighbors, said Monday that no decision has been made on whether to appeal.

But he said the Kentucky law created by House Bill 72 wouldn’t play a factor in those deliberations because he believes it’s unconstitutional.  

“If we decide to file an appeal or not file an appeal, it will be based on the case and not that House bill,” Porter said. His clients would challenge any bond effort, he added.

The Kentucky Constitution allows for at least one appeal to another court, with rules that require those appeals to be “expeditious and inexpensive.” 

“This obviously wouldn’t be inexpensive,” Porter said. “It would be expensive to put up a bond.”

House Bill 72 divided lawmakers when it was approved, passing 51-39 in the House of Representatives and 21-17 in the Senate.

Critics like Kentuckians for the Commonwealth and the Kentucky Resources Council fought the legislation that they argued limits citizens’ ability to challenge land-use decisions by creating a “financial barrier.”   

Greater Louisville Inc., the metro area chamber of commerce, supported the bill, which was in line with a legislative agenda that “planning and zoning laws should be modified to make it more difficult to delay redevelopment projects through endless appeals.”

Some had dubbed the legislation the “Walmart bill,” because Miller cited the retailer’s decision to abandon a western Louisville store in 2016 as the state appeals court mulled a lawsuit brought by groups represented by Porter.

The law requires the bond to be paid upfront. If the plaintiffs ultimately lose, a circuit court judge would decide the amount of attorneys’ fees and other damages must be paid from that amount.

Porter said he’s heard of one case since the law took effect in which a judge established a “small figure” bond.

But in another case, Porter represents residents who sued in 2018 in an effort to overturn the City of Bowling Green’s decision to rezone 34 acres for an apartment project, according to online court records. The city commissioners had reversed the local planning commission’s recommendation.

The developer and the property owners had asked a Warren Circuit Court judge to set an appeals bond of $250,000, saying in their request that the residents were using the appeals process as “nothing more than a tool to delay development” and described it as “without merit and frivolous.”

The request for a bond was later withdrawn. An attorney for the developer did not immediately return a phone message seeking comment Monday. The case is pending before the Kentucky Court of Appeals.

Miller, the state legislator, said he’s not aware of any case in Kentucky since the law changed that has resulted in a bond.

“No one has taken it that far,” he said. “So it’s really going to be up to Porter if his plaintiffs want to roll the dice.”

Reach reporter Marcus Green at 502-585-0825, mgreen@wdrb.com, on Twitter or on Facebook. Copyright 2019 WDRB Media. All rights reserved.

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