Fayette County

Battle over Boone Creek zip line, canopy tour heads to court. Again.

Owner Burgess Carey talked with zip liners at Boone Creek Outdoors in 2013.
Owner Burgess Carey talked with zip liners at Boone Creek Outdoors in 2013. mcornelison@herald-leader.com

Two neighborhood groups have filed a lawsuit challenging the city of Lexington’s approval of a controversial zip line and canopy tour off Interstate 75 and Old Richmond Road.

The Old Richmond Road and Boone Creek neighborhood associations and several individuals filed the lawsuit last week challenging the city’s approval of Boone Creek Properties’ zone change and conditional-use permit to operate the zip line and canopy tour at Old Richmond Road and Durbin Lane. The lawsuit alleges that Fayette County zoning ordinances allow only one “principal structure” on property in the agricultural zone. Moreover, the lawsuit says, the maximum square footage allowed in an agricultural zone is 10,000 square feet.

The suit alleges that Boone Creek’s operation — which is to include a welcome center, canopy tour platforms and a lodge currently used for a fishing club — exceed that maximum.

The lawsuit also alleges that the proposed welcome center and the lodge are both primary structures and should not be allowed.

The lawsuit, filed Feb. 17 in Fayette Circuit Court, also says that some of the zip line platforms are on a neighboring property, so the conditional-use permit was improperly awarded.

“They built a portion of that zip line on land that was not owned by Boone Creek or Burgess Carey,” said Don Todd, a lawyer representing neighbors who have long opposed the zip line.

The neighborhood association wants a judge to send the issue back to the planning commission or order that some of the structures be torn down to comply with zoning regulations. The Urban County Council approved the zone change from agricultural urban to agricultural natural at a Jan. 24 hearing. The council does not approve conditional-use permits.

Named in the lawsuit is the Urban County Government, the council, the planning commission and Boone Creek Properties.

Susan Straub, a spokeswoman for the city of Lexington, said the city doesn’t comment on lawsuits.

Richard Murphy, a lawyer who represents Boone Creek Properties, said Thursday he has not yet seen the lawsuit.

“We are obviously disappointed that they have chosen to appeal,” Murphy said.

In public hearings about Boone Creek’s zone change and conditional use, city planning staff have said the platforms are not considered building structures and that those platforms’ square footage should not be counted toward the 10,000-square-foot maximum.

A survey — paid for by Boone Creek Properties and Carey — of the property’s boundaries will be presented to the Rural Land Management board meeting soon. That survey will show where some of the platforms are. Murphy has previously said that if the platforms were accidentally built on a neighbor’s property, Carey will move them.

But Todd claims that Boone Creek and the city ignored the property boundary issues because both parties wanted the zip line and canopy tour to be approved.

The lawsuit is the latest in a more than six-year battle between Carey and Old Richmond Road neighbors over the opening of the zip line and canopy tour in the environmentally sensitive Boone Creek Gorge.

Carey 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. That rewrite of the zoning ordinance was prompted by the saga over Boone Creek’s push to open the eco-tourism business.

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.

Beth Musgrave: 859-231-3205, @HLCityhall