Canopy tour owner still cannot operate ziplines near Fayette County line

bmusgrave@herald-leader.comMarch 27, 2014 

A rider applied the brakes as he neared the zip line platform at Boone Creek Outdoors in March.

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The owner of a controversial canopy tour and zipline operation was dealt another blow by the Urban County Planning Commission on Thursday and still cannot operate his shuttered business.

Burgess Carey, the owner of Boone Creek Outdoors, did not comment after the Planning Commission voted Thursday to stick with a February decision not to hear part of his application.

Richard Murphy, Carey's attorney, said the Boone Creek Outdoors canopy tours and ziplines might not be shuttered indefinitely. There are still two pending court decisions regarding the operation of the zipline tour. Murphy said that Carey could also appeal the Planning Commission's decision not to hear his application.

Neighbors have fought for years to keep Carey from operating the zipline tour, arguing that Carey has thumbed his nose at zoning requirements and that he illegally constructed the canopy tour at his property off of Interstate 75 and Old Richmond Road. The property abuts the Kentucky River.

"This is a victory for the zoning process and existing rules and regulations," said Don Todd, a lawyer who represents neighbors of Boone Creek Outdoors.

Carey's fight to operate the zipline tour near the Fayette County line has taken more than three years, including the two pending court cases.

Todd had argued that Carey's current application filed in January was similar to an application that Carey filed before the Board of Adjustment in 2012 and was denied. Carey's lawyers argued that the January application for a zoning change and a conditional use permit was different. The application before the Planning Commission only included the canopy tours. The previous application included nearly 200 acres, Murphy said.

Planning Commission Attorney Tracy Jones had advised the Planning Commission that the case should be heard because it was different than the 2012 case that was on appeal. But the Planning Commission ultimately voted in February to not hear the conditional use permit application. Murphy asked the board to reconsider its February decision during Thursday's meeting. But the board voted Thursday 9-1 not to reconsider.

On Thursday, the zoning change application from an "agriculture rural" to an "agricultural natural area" was on the group's agenda. But when the group ultimately decided not to reverse its previous decision not to hear the conditional use permit, Murphy asked that the zoning change be indefinitely delayed. Murphy said the zoning change was useless without the conditional use permit.

In August, a Fayette Circuit Court judge ordered Boone Creek to quit offering the canopy tours, saying the company had to comply with a conditional-use permit the city issued the property in 2000. Boone Creek originally opened as a fishing club in 2000. The court decision came after the Board of Adjustment filed an injunction in July against Boone Creek ordering it to stop its canopy tours and discontinue advertising.

City officials argued that the 2000 conditional use permit issued to Boone Creek never mentioned platforms, ziplines, trails or canopy tours, which Boone Creek operated.

In 2012, the Board of Adjustment rejected plans for Carey to expand his operations to include a 167-acre recreation facility that also included a canopy tour. Carey later downsized his plans and built the canopy tour without pursuing any other zoning changes.

His lawyers have argued that the 2000 conditional use permit did not prohibit canopy tours.

Carey has appealed the Board of Adjustment decision to deny his plans. He has also appealed the Board of Adjustment's decision to issue an injunction.

Boone Creek has consistently tried to operate without proper zoning, Todd said. Lawyers for Carey say he has tried to comply with the zoning laws and has tried to work with planning commission officials to figure out what is the appropriate zoning for the canopy tour.

Murphy said that Boone Creek will likely decide in the next week what its next move will be.

Beth Musgrave: (859) 231-3205. Twitter: @HLCityhall.

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