Zipline in Boone Creek Gorge approved, but suit could still stop it

Lexington’s Urban County Council voted Tuesday to approve a zone change for a controversial zipline and canopy tour in the environmentally sensitive Boone Creek Gorge off Old Richmond Road near Interstate 75.

The council voted 9 to 1 in a special meeting to give the zone change a second reading, or final approval. The council held a public hearing on Boone Creek Properties’ zone change application Thursday night. That meeting concluded shortly before midnight. But the council did not have enough votes to give the zone change a second reading. That’s why another meeting was necessary.

The council added some restrictions with the zone change, including excluding some types of businesses from locating on the land. Businesses or types of uses prohibited on the land include rock quarries, garage and warehouse space, outdoor firearm ranges, and radio and television facilities. The zone change is from agricultural rural to agricultural natural for roughly 40 acres of land at Old Richmond Road and Durbin Lane, near the Kentucky River.

Councilwoman Susan Lamb was the only council member to vote against the zone change. Lamb wanted the council to put more restrictions on the zone change, saying additional protections were needed in an environmentally sensitive area.

Don Todd, a lawyer who represents neighbors opposed to the tour, said after Tuesday’s vote that his clients were going to file a lawsuit to attempt to stop Boone Creek Properties and owner Burgess Carey from moving forward. Todd said there already is a conditional-use permit allowing a fishing club on that property.

Those opponents have already pressured the Rural Land Management Board to investigate whether some of the platforms used on the canopy tour are on a neighbor’s property. That property is part of the Purchase of Development Rights program, which buys development rights from landowners. In this case, the neighbor, John Park, donated his land into the program.

Dick Murphy, a lawyer for Carey, has said Carey is paying for a survey of his land boundary. Carey hopes the survey will be ready for a Rural Land Management Board meeting in February. Carey thinks that the platforms are on his land and not Park’s. But Carey has said if parts of the platforms are on Park’s land he will move them.

Carey has been pushing for more than five years to open the canopy and zipline tour. That push has led to multiple lawsuits and a rewriting of the county’s zoning ordinance to address recreation and tourism-related businesses.

“We are very pleased with the council vote,” Carey said afterward. “We hope to open this year. I don’t know if that’s going to happen because we will have to see how things play out.”

A lawsuit could either delay or stop the re-opening depending on the lawsuit’s outcome.

In October, the Urban County Planning Commission voted unanimously to approve the zone change and a conditional-use permit, which would allow for the zipline and canopy tour.

The council only has to approve the zone change.

Carey had applied in 2014 for a similar zone change and conditional use. The commission approved the zone change but deadlocked 5-5 on the conditional-use permit. Because the planning commission did not deny the conditional-use permit, Carey was allowed to apply again.

Carey applied last year after the council had approved changes to its zoning ordinance to address recreation and tourism-related businesses.

But the case goes back much further than that. 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.

This story was originally published January 24, 2017 at 4:47 PM with the headline "Zipline in Boone Creek Gorge approved, but suit could still stop it."