The Jan. 20 Herald-Leader editorial chastising Boone Creek Adventure's proposal to build a world class canopy tour, extensive trail system for hiking and biking, eco educational/historical tours, canoeing, kayaking, fishing and similar outdoor recreational activities reflects a glaring misunderstanding of land-use law.
Boone Creek Adventures has complied with Kentucky law by applying for a conditional use permit to construct its innovative outdoor recreational facility. This is an allowed conditional use in the agricultural zone for the subject property.
Moreover, the professional planning staff of the Lexington Fayette County Government after months of review not only determined that the application of Boone Creek Adventures complied with the governing law but the staff also recommended that the Board of Adjustment approve the request.
As with every approval of a conditional request, the Board of Adjustment always follows the recommendations of its staff by imposing certain conditions. The purpose of these conditions is to ensure that the requested land use will be properly managed.
Boone Creek Adventures has agreed to the 10 conditions of approval offered by the staff, plus it has offered to also be bound by six additional conditions. One of these conditions is that Boone Creek Adventures will comply with a best-management practices plan already developed by highly qualified environmental engineers for the purpose of guiding initial construction and future maintenance.
Importantly, the law governing Board of Adjustment decisions allows the board to periodically review compliance with the conditions of approval and to impose new ones if necessary. Further, the Board of Adjustment is empowered to revoke its approval of the conditional use permit if it finds the conditions are not being met. Boone Creek Adventures has offered to have its operations reviewed every six months.
The Herald-Leader fails to appreciate the distinction between a state statute that allows the Department of Agriculture to regulate and inspect certain devices including zip lines to ensure pubic safety and local zoning ordinances that regulate land use in the different zones.
The two regulatory frameworks are entirely separate and independent in purpose, function and origin.
The Department of Agriculture has no authority to control land-use decisions in Lexington. Lexington derives its zoning power from a completely different, autonomous set of statutes that gives exclusive power to local governments to enact zoning regulations that control land use within their borders.
If the Board of Adjustment approves Boone Creek Adventures' application, the state will be able to dictate the safety of the zip lines but the land uses permitted under the conditional use permit will be under the exclusive control and authority of the Board of Adjustment through its granted powers to regulate outdoor recreational uses as a conditional use in the A-R zone.
Many well-informed citizens and environmental organizations have urged approval of the Boone Creek Adventure application, including the Lexington Environmental Commission, the Lexington Convention and Visitors Bureau, the Kentucky Riverkeeper and the American Whitewater Association.
Boone Creek Adventures offers the citizens of Fayette County and its visitors a unique opportunity to experience a part of Fayette County's cultural and historic landscape which otherwise would only be made available to a select few. This application is exactly where the law requires it to be and there is certainly compelling evidence to justify its approval.