After five years and multiple lawsuits, a Fayette County zipline operator finally won approval late Thursday to reopen his shuttered zipline and canopy tour in the area of Fayette County known as the Kentucky River Palisades.
The Fayette County Urban County Planning Commission voted unanimously to approve a zone change from an agricultural rural zone to an agricultural natural zone for roughly 40 acres located near Old Richmond Road and Durbin Lane. It also approved a conditional-use permit that would allow for the operation of the canopy tour.
But Burgess Carey, the owner of Boone Creek Properties, can’t open for business yet.
The zone change now goes to the Lexington Urban County Council for final approval. The council has 90 days to vote on the zone change. Another public hearing can also be held in front of the council.
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The Thursday public hearing took several hours.
Richard Murphy, a lawyer who represents Boone Creek, said if the council approves the zone change, Boone Creek hopes to reopen in late spring. Besides council approval, it also must have its ziplines inspected by a third-party inspector, one of more than 20 conditions it must meet before re-opening.
“It’s the first eco-tourism business approved in Fayette County and it’s the first canopy tour opened to the public,” Murphy said.
Carey’s efforts to open the canopy tour have spawned multiple lawsuits and changes to Fayette County’s zoning ordinance. Some of Carey’s neighbors have vehemently opposed the canopy tour. Some said Carey has thumbed his nose at zoning regulations in the past. Other concerns include traffic and the impact in an environmentally sensitive area.
Carey was ordered to shut down his canopy tours by a Fayette Circuit Court judge in 2013. The judge ruled Carey did not have the appropriate sign-offs to operate a canopy tour. Carey applied in September 2014 for a zoning change and a conditional-use permit. The commission then approved the zoning change but deadlocked 5-5 on the conditional-use permit.
Because the commission did not deny Carey’s request, he was allowed to reapply.
Don Todd, a lawyer who represents those who oppose Boone Creek’s application, said his clients believe that some of the zipline platforms are not on Carey’s property. In addition, there are other issues that the group feels could also be raised on an appeal to Fayette Circuit Court. Todd said they did not oppose the zone change. It’s the conditional-use permit that’s in question.
“We haven’t decided yet if we will wait for the zoning change to go through the council first or just file the appeal,” Todd said. He said Lexington’s GIS department maps raise questions about whose property some of those platforms are located on.
Murphy said the platforms are on Carey’s land. A city planning lawyer said during Thursday’s meeting that the issue of whose property those platforms were on had been investigated and it was determined they were on Carey’s land.
Over the past several years, the merged government made changes to its zoning ordinance to make it clear where adventure and recreation businesses could locate.
Carey’s application followed all the new zoning rules, Murphy said.
There are currently seven ziplines on the property. Plans call for eight ziplines. There will be a children’s area with rope courses that are lower to the ground for kids who aren’t big enough for the canopy tours. There will also be a hiking tour and an area from which kayaks and canoes can launch.
Carey has operated other canopy tours in the state after the Fayette County operation was shut down, Murphy said.
“He’s experienced,” Murphy said. “He is operating the canopy tour at Pine Mountain State Park. He constructed it and gave it to the city of Pineville but it’s on state park property. He built it and is operating it.”