Owner of Boone Creek Outdoors files another suit to try to get approval of zip-line canopy tour

As they neared a  platform riders applied the brakes during a zip-line tour last March at Boone Creek Outdoors. The tour has been closed since August because of zoning issues.
As they neared a platform riders applied the brakes during a zip-line tour last March at Boone Creek Outdoors. The tour has been closed since August because of zoning issues. Herald-Leader

The owner of a controversial canopy tour has appealed to Fayette Circuit Court to try to overturn the Urban County Planning Commission's decision not to hear his case.

Lawyers for Burgess Carey, owner of Boone Creek Outdoors, filed the lawsuit Friday. It asks that the court grant Carey's application for a conditional use permit that would allow him to reopen his shuttered canopy tour operation because the Planning Commission did not grant the application in 90 days as is required by law.

"Because the planning commission failed to act within the time allowed, the permit should be issued," said John Park, a lawyer who represents Boone Creek.

In the alternative, the lawsuit asks that the court require the planning commission to issue a conditional use permit or conduct a hearing on whether a conditional use permit should be granted. The lawsuit also asks for unspecified damages.

Carey filed an application for a zoning change and a conditional use permit in November, according to the lawsuit.

During a Feb. 27 meeting, the planning commission opted not to hear his application for the conditional use permit. The planning commission decided the application was similar to an application that had been denied in 2012 by the Board of Adjustment and was part of an ongoing court case. That case is pending in Fayette Circuit Court.

But lawyers for Carey and the planning commission said the two applications were different. The 2012 application included 200 acres and was for an outdoor recreational area. The application before the planning commission was for less than 22 acres and was only for the canopy tours.

At a planning commission meeting last week, Richard Murphy, a lawyer for Boone Creek, asked the planning commission to reverse its previous decision and hear the conditional use permit application. The commission voted Thursday to stick to its earlier decision, even though its lawyers though its lawyers advised the panel to hear the case. The application for a zoning change was delayed indefinitely at the Thursday meeting.

Murphy said after the meeting that the zoning change was useless without the conditional use permit.

The legal action filed Friday is the latest twist in one of the most complicated zoning cases in recent years. Carey opened Boone Creek in 2000 and was granted a conditional use permit for a fishing club on the property.

After his 2012 application before the Board of Adjustment was denied, Carey built the zip-line tour on his property. Last July, the Board of Adjustment ordered that Boone Creek stop its canopy tours and discontinue advertising, alleging Boone Creek had not complied with its 2000 conditional use permit.

Carey appealed that decision, but a judge ordered Carey to stop his tours. The canopy tour — featuring zip lines and suspended bridges through the forest — has not been operational since the August order. His lawyers have argued that the 2000 conditional use permit did not exclude zip-line and canopy tours.

Neighbors of Carey say he has thumbed his nose consistently at zoning rules and is trying to do an end-game around enforcement efforts.

"He has made this a complicated case," Don Todd, a lawyer who represents Carey's neighbors, said after Thursday's planning commission meeting. Instead of complying with previous denials, Carey has tried to get the project approved first through the courts and then by the planning commission, Todd said.

Carey's camp has argued that he has tried to comply with zoning laws and that it's his opponents who have tried to use the system to thwart the project.

"It is the opponents who have misused the process to deny Mr. Carey a hearing," Park said. "Ever since the court ordered Mr. Carey to stop, we have been trying to work with the city to bring this wonderful asset to the community."

Susan Straub, a spokeswoman for city, said the city had no comment on the lawsuit.

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