Fayette County

Controversial zip line owner poised to get final OK from split Lexington council

In this 2013 file photo, Boone Creek owner Burgess Carey, center, talked with zip line tour customers at Boone Creek Outdoors in Lexington. The Lexington council agreed Thursday night to schedule a final vote on the zip line and canopy tour.
In this 2013 file photo, Boone Creek owner Burgess Carey, center, talked with zip line tour customers at Boone Creek Outdoors in Lexington. The Lexington council agreed Thursday night to schedule a final vote on the zip line and canopy tour. mcornelison@herald-leader.com

A zone change for a controversial zip line and canopy tour was tentatively moved forward Thursday night by a divided Urban County Council after a public hearing that lasted more than five hours.

A final vote won’t happen until Tuesday before the council’s work session.

Burgess Carey, the owner of Boone Creek Properties, has pushed for more than five years to operate the commercial zip line tour in an area of Fayette County known as the Kentucky River Palisades. That effort has resulted in multiple lawsuits and prompted the merged government to rewrite its zoning ordinance to address recreation tourism.

The council voted 8 to 5 shortly before midnight Thursday to give first reading to the zone change from an agricultural rural zone to an agricultural natural zone for roughly 40 acres near Old Richmond Road and Durbin Lane. In October, the Urban County Planning Commission unanimously approved the zone change and a conditional-use permit, which would allow Boone Creek Properties to operate its zip line tour.

The council added some restrictions to the zoning change. One restriction was to prohibit some types of businesses, including cemeteries, crematoriums, shooting ranges and quarries. The changes prompted new procedural rounds of voting. But the council put off a final vote.

Dick Murphy, a lawyer who represents Boone Creek, said during Thursday’s hearing that the majority of Carey’s neighbors support the canopy tour, as did several neighborhood associations in the area.

The canopy tour and guided hiking trails on the property, coupled with environmental education, would encourage conservation, Murphy said.

“We want to make this accessible,” Murphy said. “We want to make this accessible for the same reason that you make historical buildings accessible. … You have to make your treasures available to the public for them to appreciate it.”

Murphy said the zip line and canopy tour is safe. The state has passed laws regulating canopy tours and zip line tours. Carey built and operates a zip line tour in Pineville, Murphy said.

Zip line opponents asked the council to impose a host of restrictions.

Don Todd, a lawyer who represents neighbors who oppose the project, asked that a fence be erected around a waterfall that was on a neighboring property.

Dr. Charles Martin, whose property adjoins Boone Creek Properties, said that waterfall has been used in Boone Creek’s promotional material. Martin had his land surveyed and found that part of the waterfall was on his property. Martin said he was worried that the thousands of people who might use the zip line and the trails on the property will get on his land.

“The creek is worthy of protection,” Martin said. “Extra protection is needed to protect the environment.”

Murphy said the planning commission imposed 42 conditions when it approved Boone Creek’s conditional-use permit and zone change.

“We have limitations on our hours,” Murphy said. “We have limitations on the number of guests. We have limitations on overnight guests.”

Some of the additional restrictions opponents sought were contrary to some of the planning commission’s 42 conditions, Murphy said.

Councilwoman Kathy Plomin, whose district includes Boone Creek Properties, made a motion to include all of the opponents’ restrictions. Plomin argued that the land was environmentally sensitive.

After nearly an hour of back and forth, the council eventually voted to strike most of the opponents’ proposed restrictions, including the fence. The only restriction the council eventually agreed to was to limit the types of businesses or land uses.

But other council members said the council should stick with the planning commission’s recommendations. Councilman Bill Farmer Jr. made a motion at the end of the meeting to adjourn. But that motion was not recognized by Vice Mayor Steve Kay, who chaired the meeting. If the council had adjourned without taking a vote, the planning commission’s recommendations would have taken effect without the additional restrictions on types of businesses or uses.

Carey was ordered by a circuit judge in 2013 to shut down his canopy tours. The judge ruled that Carey didn’t 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 didn’t deny Carey’s request, he was allowed to resubmit his zone change and conditional use request last year. In October, the planning commission voted unanimously to grant both.

Beth Musgrave: 859-231-3205, @HLCityhall