Attorney: Owner will resume canopy tours at Boone Creek unless a judge tells him to stop

raretakis@herald-leader.comJuly 23, 2013 

An attorney for Burgess Carey said Tuesday there are no plans to halt canopy tours at Boone Creek Outdoors.

In a 2-year-old dispute with the outdoor recreation center, Lexington's Board of Adjustment filed for an injunction last Thursday requesting that Boone Creek stop its canopy tours and discontinue advertising until the dispute is resolved.

"Unless a judge tells him to stop, he is going to continue to operate," said John Park, Carey's attorney.

According to the motion for injunction, Boone Creek Outdoors is violating its conditional-use permit for its property on Old Richmond Road, which has been zoned agricultural rural since 2000.

Boone Creek offers canopy tours featuring zip lines and suspended bridges through the forest, as well as hiking, fly fishing and lodging, among other activities.

The property, which is located near Interstate 75 and the Kentucky River, was originally approved to operate as a private 60-member fishing club. The 2000 zoning permit limits its uses to agricultural or single-family homes.

Boone Creek now offers one-day membership to guests. According to its website, the 2000 permit was for an "outdoor recreation and environmental education club," and visitors "technically must become a 'day member' to participate in the canopy tour."

But the original permit never discussed platforms, zip lines, trails or canopy tours that Boone Creek now operates, according to court documents.

In the motion for injunction filed July 18, the city asked for both a temporary and permanent injunction until final hearing of the case, stating Boone Creek is "now engaging in additional violations."

In March, the Planning Commission ordered Carey to remove the zip lines after it received a complaint he had illegally built the zip lines and platforms.

Carey appealed to the Board of Adjustment, but the board unanimously denied his appeal in May.

Some board members cited his repeated violations and refusal to take the proper legal path, while supporters said he had made good use of the land and shouldn't be punished.

Boone Creek complied with the order and announced June 20 it would halt tours. But the company later resumed its canopy tours, saying it could not ignore its responsibilities to members and staff.

"The Board made it clear that it wanted no part in trying to reach a compromise on the canopy tour," a statement on the company's website said.

Carey and the city have disputed the zoning ordinance since 2011, when Carey applied for a second conditional-use permit requesting a broader use for the property.

He had plans for Boone Creek Adventures, a 167-acre recreation facility, but the Board of Adjustment denied the application in January 2012. Currently, the application is pending on appeal to the Fayette Circuit Court.

At the time, people expressed concerns regarding traffic, safety and impact on the environment.

Carey then downsized his plans and built the canopy tour without pursuing any other zoning changes.

As recently as July 13 and 14, court documents state the company continued to advertise on its website and Facebook.

"A view of the actual property shows a sign just off Old Richmond Road advertising zip-line tours," documents said.

For an injunction, Park said, the city needs proof of irreparable injury. In this case, the only injury he sees is the harm to Boone Creek employees who will be out of work.

A hearing is scheduled for Friday morning in Fayette Circuit Court.

Rachel Aretakis: (859) 231-3197. Twitter: @heraldleader

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