Lexington's Board of Adjustment refused Friday to overturn an order forcing the owner of an outdoor recreation center to dismantle the zip lines in his canopy tour.
The board voted 4-0 to deny Boone Creek Outdoors' appeal after a three-hour hearing in which residents spoke in favor of and against Boone and owner Burgess Carey.
The four members opposing Boone were Barry Stumbo, Janice Meyer, James Griggs and Joseph Smith. Three members were absent.
"I think if we had granted this appeal it would have set a very dangerous precedent," Stumbo said immediately after the ruling was made.
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Boone Creek Outdoors and Carey have been on a long ride with city officials over the past year or so about whether the property's zoning allows for a canopy tour, which features short zip lines and an elevated walkway through the forest located off Old Richmond Road.
Carey's land is currently zoned agricultural rural, which means that the land's principal uses, according to the Lexington zoning ordinance, are limited to agricultural or single-family homes.
The city can allow certain exceptions. The Board of Adjustment approved a 600-member private club at the Boone Creek site in 2000.
Boone Creek started Anglers Club, and members paid yearly dues to fish on the land.
In January of 2012, the Board of Adjustment rejected Carey's plans for Boone Creek Adventures, a 167-acre recreation facility that also included a canopy tour.
Carey downsized his plans and built the canopy tour without pursuing any other zoning changes. In March, the Planning Commission ordered Carey to remove the zip lines from the tour, and Carey appealed to the Board of Adjustment.
John Park, Carey's attorney, argued the current canopy trail is legal because the 2000 ruling didn't explicitly exclude such a tour.
"There is no distinction in the ordinance that suggests that once they get the permit for outdoor recreation center that they have to come back and get another permit every time they put in a new activity," Park said.
However, Chris King, the director of the planning staff and zoning enforcement officer, repeated the staff's finding that the zip line is illegal.
"Clearly, they did not come to you for this specific zip line and request this conditional use permanently," King said. "It is their contention that it is legal. It is our contention that it is not."
Don Todd, who spoke on behalf of the Old Richmond Road Neighborhood Association, intensely argued that Boone Creek Outdoors had taken shortcut after shortcut, and not followed the proper legal path when building the canopy tour.
"That's the problem here, they want to sell you an ecological experience," Todd said. "They want to talk about the environment, but they never once talk about the zoning ordinances."
He claimed Carey and company are really in it "for money," which prompted snickers and jeers from Boone Creek Outdoor supporters.
Todd also spoke extensively about the risk posed by allowing the zip lines to remain. Others may be encouraged to circumvent the city's rules, he said.
"I think it is really important to stress to you the time and effort the last fifty years that everyone has put into the development of our existing laws, that we have an existing agricultural area that we are keen on protecting," Todd said.
A board of adjustment member from 2000, when the Anglers Club was approved, also spoke at the hearing.
"It has gone way above what was requested and what was granted at that time," said Martha Jenkins.
Some of the people at Friday's hearing supported Carey. Erin Rouse, who is a member of the Boone Creek Anglers Club, said that what Carey has done with the land is remarkable, and that the board should not punish him for that.
"He is trying to share a treasure with us that he has found," Rouse said.
Boone Creek canopy tour guides, including Sarah Steele, defended their employer.
"Burgess has made the best possible use of the land, opening it up to the public so it can be appreciated and better understood by all," Steele said. "This is good work we are doing."
After hearing rebuttal statements from Park and King, the board ultimately made the decision to vote down the appeal.
Meyer, a member of the Board of Adjustment, sympathized with Carey about the difficulties that the zoning process can present, but said that the laws had to be enforced.
"I think the broader issue here is that we have zoning ordinances and we have rules that have to be abided by," Meyer said.
The board agreed to have its legal and planning teams meet on how to enforce the ruling, and to report back at the next Board of Adjustment meeting. At the same time, city officials are reviewing a work group's recommendation to allow canopy tours and zip lines in limited areas in the county. The group reviewed potential outdoor recreational opportunities in the county.
Prior to the vote, Carey apologized for the spectacle that the zip line conflict has turned into.
"It was never my intent to alienate so many of you. I'd like to provide each and all of you to come see and take the tour as my guest, to see it for yourself," Carey said. "I am truly sorry for the controversy this project has caused."