Businessman plans to move forward with Boone Creek canopy tours

bfortune@herald-leader.comFebruary 26, 2013 

Businessman Burgess Carey is moving forward with plans for canopy tours in the Boone Creek area in southeast Fayette County, even though the city says he could be in violation of Lexington's zoning regulations.

Carey is adding canopy tours, which use short zip lines between wooden platforms in trees, to his private fishing club on 26 acres along Boone Creek in Fayette County.

Carey said he got a letter two weeks ago from Jim Marx in the city's planning department requesting clarification on his plans and asking that Carey suspend work at Boone Creek until the matter was resolved.

"He didn't cite any authority" such as a specific zoning ordinance or state statute in asking that work be stopped, and work is continuing, Carey said.

Also, about two weeks ago, the city's Building Inspection office sent an inspector to look at the zip lines and wooden platforms. Carey said the inspector told him that he did not see anything being built that would typically be inspected by his office because there are no structures touching the ground. Carey said the platforms he is building are similar to tree stands used by deer hunters.

Neighbors have complained, and the city's planning staff is concerned about what Carey is doing. "The Division of Planning has opened an official investigation of potential zoning violations," said Chris King, the city director of planning.

King said the city has asked Carey to "cease any additional construction activity while the investigation is in process." King said he will send another staff member to Carey's property to see whether work had stopped.

If work has continued, King said the next step would be to issue an official notice of violation, similar to a traffic ticket. If that does not put an end to it, King's office would work with the county attorney to file a criminal complaint.

"The complaint goes to court, and they usually send the case to mediation," King said.

Carey says the city gave him a conditional use permit 10 years ago, which allowed him to establish private fishing and outdoor recreation clubs. He thinks that permit allows him to build the infrastructure to create canopy tours in the Boone Creek Gorge area.

In 2011, Carey had grand plans to expand the activities at Boone Creek located off Old Richmond Road. He went back to the Board of Adjustment to request a second conditional use permit to open the area — 200 acres in Fayette County and 200 acres in Clark County — for a new recreational facility that would include hiking, kayaking, mountain biking and camping. The main attractions would be zip lines and canopy tours.

When Carey took his plans for Boone Creek Adventures to the Board of Adjustment in 2011, he faced opposition from several residents in the Old Richmond Road and Grimes Mill Road area.

Some opponents said the Boone Creek's remoteness could limit access by police, fire and emergency medical vehicles. Others argued that activities such as zip lines and challenge courses are inspected and regulated by the state as amusement rides, and amusement rides are prohibited in rural areas of Fayette County.

John Park, Carey's attorney, said the state has never regulated zip lines as amusement rides. Instead zip lines and canopy tours are considered recreational and educational activities.

The Board of Adjustment turned down Carey's Boone Creek Adventures' request in January 2012. He filed an appeal with the administrative board that hears complaints against planning and zoning decisions. That appeal is pending.

Carey has greatly scaled back his plans from 2011. Now, he just wants to add canopy tours on his original 26 acres of land. People would be able to buy one-day memberships to take the tours.

All canopy tours will be guided, Carey said. Guides will talk about the history of the Boone Creek area and the negative environment impact of invasive species, such as bush honeysuckle and winter creeper that are crowding out native wildflowers and hardwood trees.

"It will be very much of an educational and cultural activity," attorney Park said.

Because he has scaled back his grand plans, Carey thinks he is covered by the initial conditional use permit.

Still, Carey has opponents.

Mary Diane Hanna, president of the Old Richmond Road Neighborhood Association, says what Carey is doing is illegal. Local zoning regulations do not permit a private club in an agricultural zone to operate as a for-profit business, which Carey's would be, she said.

"A canopy-tour system for commercial purpose is not one of the conditional uses permitted in an agricultural zoned areas of Fayette County," Hanna said.

Regardless, Carey plans to move forward.

Carey said he hopes to open the canopy tours in the spring. "I can't wait to open," he said. "The most beneficial thing is this is a way to share the property in a controlled, non-impactful way with other people."

Beverly Fortune: (859) 231-3251.Twitter: @BFortune2010

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