An anguished Urban County Council turned down a rezoning request Tuesday for land near Harrodsburg that includes a 300-year-old bur oak tree.
Council members said they were concerned about whether the big tree could be protected as 190 townhouses were built nearby.
They also worried about putting too much traffic onto a connecting neighborhood street, the possible effects of blasting, and about a process that had put developers and neighbors on a collision course, and pitted the council against the Fayette County Planning Commission.
"I guess there's no way we can vote 'Maybe,' and that's where I am right now," Councilman Julian Beard said four hours into what would be a 4 1/2 hour zoning hearing.
In the end, Beard went along with majority, which voted 9-2 to overrule the planning commission's August approval of a zone change.
Bill Lear, an attorney for developer Kevin Crouse, said after the vote that his client had been "whip-sawed by government about as bad as anybody I've ever seen."
He said no decision had been made about whether to appeal the council's decision in Fayette Circuit Court or to come back with a new development plan and zone change request.
At one point in the hearing, he challenged neighbors who say they're worried about the tree or traffic to be honest about their motives, holding up a flier that said their main concern was "property values."
Fred Wohlstein, an officer in the nearby Dogwood Trace Neighborhood Association, approached Lear shortly after the vote and said the neighbors want to continue talking to the developer.
"It's a small victory in a very long process," Wohlstein told the Herald-Leader. "But it's not really a victory; it's a temporary solution."
Several council members said that developer Crouse had done nothing wrong, but was caught by conflicting rules that appeared to require destruction of the old oak to make way for a street.
One rule called for a "collector street" that would carry traffic through the development, and another called for street of that kind to meet Harrodsburg Road at Military Pike, right where the tree stands.
After the planning commission approved the zone change but expressed concerns about specifics of the development plan, Crouse met state highway officials and sold them on moving a street away from the oak.
But council members, and neighbors, said they were concerned that traffic from the new development would end up on Agape Drive, which runs through Dogwood Trace, a neighborhood of mostly single-family homes.
Crouse had applied for a planned unit development. The zoning category calls for "innovative" solutions to deal with natural and man-made features. It is so rare this is only the second time it has been tried in 25 years.
Lear defended the proposed development as a good example of infill in a developed part of town, which protects rural areas from sprawl.
As a final vote on the zoning neared after hours of debate, Vice Mayor Jim Gray spoke of the desire to bring together the council, planners, developers and neighbors to promote infill.
"We're still not getting very far with that," he said.