Topgolf opponents respond to motion for summary judgment

Ahead of a hearing set for Tuesday morning in Pinellas County Circuit Court, a group opposed to the construction of a Topgolf facility in the Carillon area of northern St. Petersburg has fired back against the city and Topgolf’s development company. 

Concerned Residents of Carillon, led by Jason Liu, on Friday filed a response to the city’s motion for summary judgment in a case that dates back to October 2019. The group seeks a permanent injunction that will prevent the construction of the 67,000-square-foot driving range and restaurant facility, which it claims would be a violation of the site plan for 570 Carillon Parkway North, a parcel surrounded by office, hotel and residential buildings. 

The property was originally supposed to be the site of a 250,000-square-foot office building for an insurance company. Western Reserve Life Insurance submitted a site plan in 2001 but never commenced work on the project. It submitted another site plan application in 2012, ostensibly to prevent the expiration of the 2001 site plan, but again did not move forward with the project as planned.

In February 2019, Western Reserve, which is a division of insurance giant Aegon, submitted a request to modify the 2012 site plan to allow for construction of a Topgolf facility. In May that year, the city’s approval of the modified site plan led Liu and the Concerned Residents of Carillon group to file a lawsuit.

“Even setting aside the obvious and drastic change from an office building to a massive luxury outdoor driving range and entertainment destination, the planning director admitted the ‘principal use was modified’ and that the basic intent of the site was not identical after the administrative approval,” the plaintiffs write in their Jan. 22 response. 

In June 2019, the property was sold for $11 million to FL St. Petersburg Carillon LLC and PI Commercial Properties LLC in Greenville, S.C. In early 2020, the property owners and Topgolf challenged the standing of Liu’s group and asked Pinellas County Judge Thomas Ramsberger to dismiss the case. That request was denied. 

The case took another turn in October 2020, when Topgolf was acquired by golf industry giant Callaway (NYSE:ELY) in a deal valued at $2 billion. In December, the City of St. Petersburg filed for a motion for summary judgment, a legal maneuver — often made by a defendant — that says there are no facts at issue and thus application of the law will result in the case being decided in favor of the party bringing the motion.

The plaintiffs, in their Jan. 22 response, reject that characterization of the case, arguing that, in sworn testimony, City of St. Petersburg Planning Director Elizabeth Abernethy admitted that the site’s “principal use was modified” after administrative approval was given — a violation of city code, the plaintiffs allege. 

“The site plan was not identical,” Abernethy is quoted as testifying. “Is the intent identical? I — the code certainly doesn’t mandate that it be identical. What is the definition of identical? Exactly the same. They were not — the definition of identical is exactly the same. They weren’t exactly the same because the site plan changed.” 

Abernethy, in her testimony, added, “A portion of the principal use was modified to allow an accessory use, which is the commercial recreational facility.”

The plaintiffs take issue with the Topgolf project being characterized as an accessory use for the site. City code, they argue, “requires accessory use be subordinate and incidental to the particular building or premises on the site, not an accessory to Carillon Business Park as a whole.” They also argue that driving ranges are not listed as accessory uses under city code’s definition of outdoor recreation, and thus require special exceptions to be built in a zoning district such as Carillon.

“The vast majority of the site will be consumed by a large driving range approximately twice the size of a football field,” the plaintiffs write. “‘Golf’ is in the name Topgolf. While offering music, entertainment, alcohol and food (late into the night), the entire destination screams of a luxury driving range. Nevertheless, the city failed to consider whether a driving range is acceptable in an EC-1 zoning district.”

Judge Ramsberger will consider the motion for summary judgment in a telephonic hearing set for 9:30 a.m. on Tuesday. To listen in, call 425-436-6303 and use access code 141878#.