Judge hears arguments in Topgolf lawsuit, sets Feb. 5 deadline

Feb. 5 could be the date of a decision about the fate of Topgolf’s planned St. Petersburg facility, a project that has drawn fierce opposition from a group called Concerned Residents of Carillon, so named for the northern St. Pete office and residential area where Topgolf wants to build. 

Pinellas County Circuit Court Judge Thomas Ramsberger on Tuesday heard arguments from lawyers representing co-defendants Topgolf, landowner FL St. Petersburg Carillon LLC and the City of St. Petersburg, as well as plaintiff Concerned Residents of Carillon, a group that has sued for an injunction that would prevent the project from moving forward. Tuesday’s session was called in response to a motion for summary judgment filed by the co-defendants. 

Assistant city attorney Michael Dema argued that the plaintiff is merely expressing “a difference of opinion” regarding City of St. Petersburg Planning Director Elizabeth Abernethy’s interpretation of what was allowed in the site plan for 570 Carillon Parkway N., the property where Topgolf wants to build a 67,000-square-foot driving range and restaurant complex. “That’s not enough,” Dema said, arguing that a Topgolf facility meets the definition of a proper accessory use for the premises and doesn’t alter the primary use, which is office space. 

Robert Chapman of Weber, Crabb & Wein P.A., representing the plaintiff, pushed back, arguing that a Topgolf facility would constitute an “extreme change in use.” Citing city code, he said a standalone driving range is a use that’s expressly prohibited in Carillon’s type of zoning district. He also attempted to dismantle the defendants’ argument that, because the site plan calls for a second phase of an office complex that has yet to be built, the property will, at some point in the future, be mostly devoted to office space and not entertainment and recreation. 

“There can be no doubt” that Topgolf changes the basic intent of the site, Chapman told the judge. “It was always supposed to be an office building. A portion of the principal use has been modified.” 

Dema — along with Jordan Miller, representing Topgolf, and Robert Johnson representing FL St. Petersburg Carillon LLC — stuck to process-oriented arguments, claiming that the plaintiff failed to appeal a September 2019 development order for the site within the allotted 10 days. Instead, they challenged a May 2019 order, which Dema argued was superseded by the September 2019 order, thus rendering their complaint moot. 

“We admit that this is a modification,” Dema said, but the plaintiffs “painted themselves into a corner” when they failed to appeal the September 2019 order. “They did not do the one thing they needed to do, and now they’re left with just a judicial Hail Mary.” 

Jason Liu, an attorney who leads the Concerned Residents of Carillon group, said in an interview with the Catalyst that all he and his neighbors want is to be heard.

“They continue to refuse to want to meet with us and hear our concerns,” he said, adding that a November 2020 attempt at mediation led almost immediately to an impasse. And prior to that, in September 2019, Topgolf held a public meeting that Liu claims was badly publicized and offered no attempt at opening a productive dialogue about the future of the site. 

“If they had just come to us and said, ‘Look, we’re thinking about doing a Topgolf project here, and we want to get your support. We don’t want to come in and … cause your enjoyment of your property and the neighborhood to be diminished,’ that would be a very different approach than the one that they have taken,” Liu said. “They’re saying, ‘We’re here, whether you like it or not, and it doesn’t matter what you do or what your concerns are, we’re going to do what we want.’ That’s the message that the neighbors, the residents, have heard.”

The two sides now have until Feb. 5 to submit proposed orders to Judge Ramsberger. The judge will use those documents as a basis for his order to either deny or grant the defendants’ motion for summary judgment. His order could come on Feb. 5 or afterward. 

Liu, speaking with the Catalyst, expressed confidence that the judge would allow his group to continue to press their case against Topgolf and the city. 

“The reality is if you have the facts on your side, you would argue the facts,” he said. “So being that you don’t, you argue the process. So the process is we somehow didn’t meet the 10-day administrative deadline on something that we never got notice for.”