The operator of a controversial Fayette County canopy and zip line tour lost another bid Thursday to reopen his now-shuttered operation.
After a hearing lasting more than six hours, the Planning Commission voted 5-5, killing Burgess Carey's application for a conditional-use permit for a commercial outdoor recreational area.
Without the permit, Carey's business, Boone Creek Outdoors, cannot reopen. John Park and Dick Murphy, lawyers for Carey and Boone Creek, said Thursday night that they will have to talk to Carey to determine what his next move will be.
Carey has been fighting for three years to operate a zip line and canopy tour on his property off Old Richmond Road and Interstate 75 in the area of the Kentucky River Palisades. The controversy, which has resulted in multiple lawsuits, is one of the most complicated zoning cases in recent years.
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At issue is which activities can be allowed in rural areas and the need to balance the preservation of farmland, the protection of environmentally sensitive areas, and public access.
Opponents have argued that Boone Creek's application was similar to a 2011 application that was denied by the Board of Adjustments. The Planning Commission opted not to hear Boone Creek's application for a zone change and conditional use permit in February, even though city attorneys told the commission that Boone Creek's application was different than the 2011 application. Carey took the issue to court. A Fayette Circuit Court judge sided with Carey and ordered the Planning Commission to hear Carey's request for a zone change and a conditional-use permit.
Further complicating the issue, the city is in the process of making changes to its zoning ordinance that would specifically address recreational activities in rural areas. It's not clear when the new rules will take effect.
The Planning Commission previously voted 10-0 to approve a zoning change for the 22-acre tract from agricultural rural to agricultural natural, and Murphy told the Planning Commission on Thursday that the change was appropriate.
Murphy said that the zip line and canopy tours give people access to Boone Creek and the Kentucky River Palisades.
"We need active recreational activities to attract knowledge-based young professionals," Murphy said. Murphy pointed to emails and testimony from tree experts and environmental experts who said Carey has worked to protect trees and eradicate invasive species.
"If people know what needs to be preserved, that builds support for preserving our natural resources," Murphy argued.
Murphy also said the zip lines have been inspected by third-party inspectors. The state has opted not to regulate zip lines and canopy tours, Murphy said. Murphy pointed to studies that show that more people sustain serious injuries hiking than they do on zip lines.
However, Don Todd, who represents neighbors who have opposed Boone Creek Outdoors, told the commission that Carey has thumbed his nose at county officials by building the zip line and canopy tours despite being told by the Board of Adjustments in 2011 that he could not do so.
Carey opened Boone Creek in 2000 and was granted a conditional-use permit for a fishing club on the property. Carey and his lawyers have long argued that the 2000 conditional-use permit did not prohibit zip lines or canopy tours, and that Carey thought he could operate under the 2000 conditional-use permit. But a Fayette Circuit judge in August 2013 ordered Carey to cease operating his zip lines, and Carey has not operated them since, his lawyers said.
More than a dozen people spoke in opposition.
Some neighbors told the commission that the zip lines are unsafe. Others said that the traffic they would bring to the area would hurt areas that are supposed to be protected. Sandy Shafer, a former Urban County Council member, pointed to several studies that show the area needs to be protected.
But other neighbors said that when Carey's business was open, there was no traffic or noise impact. The area borders I-75. It's always noisy, they said. Many people can't afford land that borders the Kentucky River. But Carey's Boone Creek canopy tours would give everyone a chance to enjoy it, Carey's supporters said.
Planning Commission members were split on the issue. Member Carolyn Plumlee said she would have a difficult time approving the conditional-use permit after Carey had already built the zip line tour.
"I just have a problem with approving something that is already built," Plumlee said.
William Wilson said he could not vote for something that was not regulated by the state or local officials.
But other commission members said that there was no compelling reason not to approve the conditional-use permit. They said Carey met all of the requirements.
"The rationale for approval is stronger than the rationale for denial," commission member David Drake said. Karen Mundy said the canopy tours could be an asset to Fayette County, attracting many visitors.
Ultimately, Mike Owens, chair of the commission, said there were simply too many unanswered questions. For example, the safety plan that Boone Creek submitted to the commission looked like something that could be for "any zip line in the country."
Owens said those questions and others made him uneasy. "We don't have enough information to move forward," he said.
After the commission's tie vote, some members wanted to try a different motion, but Owens opted not to allow it.