Fayette judge orders planning commission to hear request for Boone Creek canopy tours

bmusgrave@herald-leader.comJuly 31, 2014 

A Fayette County canopy tour operator should get a hearing before the city's planning commission, a judge has ruled.

Fayette Circuit Judge James D. Ishmael Jr. said Wednesday that the Urban County Planning Commission must hear the application of Burgess Carey, owner of Boone Creek Outdoors, for a zoning change and a special permit to allow him to resume canopy tours that include zip lines and swinging bridges. The tour operation is on Old Richmond Road near Interstate 75 and the Kentucky River.

John Park, a lawyer for Boone Creek, said he was pleased with the decision and hoped to get on the agenda of the Aug. 24 planning commission meeting.

"It is important to the financial viability of the project that it be heard as soon as possible," Park said. "We've already been through the review process once, and the project has been fully vetted."

The Planning Commission voted 5-4 not to hear Boone Creek's application at its Feb. 27 meeting, despite being told by city attorneys that it should do so.

Opponents of the project have argued that Boone Creek's application was similar to a 2011 application that was denied by the Board of Adjustments and therefore should not be heard. The Board of Adjustment decision to deny Boone Creek's application is on appeal in Fayette Circuit Court.

Ishmael, in his Wednesday ruling, noted that the Planning Commission's lawyer had advised the commission it should hear Boone Creek's application for a special use permit and zoning change because the two applications — the 2011 case before the Board of Adjustment and the 2013 zoning change — were different.

The 2011 application included 220 acres and was for a mountain biking trail and other activities. The 2013 application was for 22 acres and for a canopy tour and a training operation for guides, planning commission attorneys said in written opinions and in public meetings.

Ishmael's decision was the latest development in one of the most complicated zoning cases in recent history. At issue is what types of activities can be allowed in the county's agricultural areas.

Don Todd, who represents neighbors who have long opposed the zip-line tours, said they were disappointed in Ishmael's ruling. Todd and the neighbors say they want Carey to abide by zoning rules and regulations.

"We want everyone to play by the rules," Todd said. Carey built the zip line and canopy tours without having the proper permits, Todd and neighbors say. Now, he is trying to get his application before the commission before a change to the city's zoning ordinances is passed, Todd said.

Carey opened Boone Creek in 2000 and was granted a conditional-use permit for a fishing club on the property.

After his 2011 application before the Board of Adjustment was denied, Carey built the zip-line tour. Last July, the Board of Adjustment ordered Boone Creek to stop its canopy tours and discontinue advertising, alleging Boone Creek had not complied with its 2000 conditional-use permit.

Carey appealed that decision, but a judge ordered Carey to stop his tours. The canopy tour — featuring zip lines and suspended bridges through the forest — has not been operational since the August order. Carey's lawyers have argued repeatedly that the 2000 conditional-use permit did not exclude zip-line and canopy tours and that the operation should continue.

Park said Carey has tried to comply with the rules and has worked with the city.

"For more than a year since the city ordered the Boone Creek Anglers Club to cease operating the canopy tour under its existing permit, Boone Creek Outdoors has been working with the city, going through the process and attempting to address the valid concerns of those in our community who share our values and commitment to preservation, environmental education and accessible greenspace," he said.

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

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