No Convergence (Yet): How the Policy Question of the Recreational Uses to be Allowed in the Rural Area and the Practical Question of Whether to Allow Boone Creek Outdoors to Operate Do Not Presently Intersect and How They May Possibly Intersect in the Future
The somewhat long title of this post is more suited to a 19th Century English novel than a 21st Century blog post. Nonetheless, I employ it as a short way to indicate what is explained in detail below: there is an issue generating controversy in the community that involves two sets of activities that are presently functionally separate even though it seems like they should be related, and even though they may be related sometime in the future. The way these activities do and do not affect each other seems to be creating confusion I would like to help dispel.
To be specific, Boone Creek Outdoors has been engaged with various departments and boards of Lexingt-Fayette Urban County Government (LFUCG) over the last few years over their right to operate a canopy tour in a rural area of the county. Presently they are in Circuit Court with an appeal of an LFUCG decision stating that they do not have a right to operate that canopy tour. At the same time, various departments, boards, and a Work Group of Urban County Government have been working toward zoning text amendments that would modify the kinds of activities presently allowed in Agricultural Rural (AR) areas.
In what follows I lay out what has happened so far with Boone Creek Outdoors, where the matter stands, and what happens next. Then I do the same for the work on a proposed zoning text amendment for the Rural Area.
Boone Creek Outdoors
As general background it may be helpful to note that zoning is a device of land-use planning used by local governments to segregate uses that are incompatible and to preserve the character of a community. In Lexington, each zone has principal uses, accessory uses, conditional uses, and prohibited uses as set forth in the zoning code. Applications for a conditional use are approved or denied by the Board of Adjustment (BOA).
The land on which Boone Creek Outdoors is located and the surrounding area is zoned agricultural rural (AR), which allows the principal uses of agricultural and single family homes. While the AR zone prohibits commercial recreational facilities, it does allow, as a conditional use, commercial and non-commercial outdoor recreational facilities so long as they do not include outdoor lighting, loud speakers, retail sales of merchandise, restaurants, or food service.
In 2000, Boone Creek Outdoors applied to the BOA for a conditional use permit to operate a private fishing club on its land. That application was approved. Subsequently, in 2011, they applied for a conditional use permit to operate a 167 acre recreational facility that would include a canopy tour and the related construction of a zipline. Planning staff recommended granting the permit subject to approval of 10 conditions limiting the kinds of activities to be permitted. A public hearing was held on December 16, 2011 and continued to January 27, 2012, at which time the BOA denied the conditional use permit. Boone Creek Outdoors appealed this denial to Circuit Court, where that case is still pending.
In March of 2013, based on complaints that a canopy tour with a related zipline had been installed on the land occupied by Boone Creek Outdoors, a zoning enforcement officer investigated. The officer then determined that the canopy tour and related zipline did not comply with the conditions of the original conditional use permit and ordered Boone Creek to cease operation of the canopy tour. Boone Creek appealed this order to the BOA. On May 31, 2013 the BOA upheld the order. Boone Creek Outdoors then appealed this BOA decision to Circuit Court.
In July of 2013, in response to complaints that Boone Creek continued to operate the canopy tour, LFUCG went to Circuit Court and obtained an injunction ordering Boone Creek Outdoors to cease operations. Boone Creek appealed this injunction.
On August 15, 2013, Circuit Court upheld the injunction. The Court at that time also denied Boone Creek’s appeal of the BOA decision upholding the investigating officer’s order.
What remains before Circuit Court, as stated above, is Boone Creek’s appeal of the BOA’s 2012 denial of a conditional use permit for a recreational facility that would include a canopy tour. (You can find Herald-Leader news articles about the sequence of events here, here, here, and here.)
Recreational ZOTA Work Group
On February 21, 2012, Vice Mayor Linda Gorton created the Recreational Zoning Ordinance Text Amendment (ZOTA) Work Group to provide a coordinated and detailed study of the present AR zoning ordinance with a goal of determining the appropriate opportunities for expanding recreational uses related to tourism in the rural area.
The Work Group met from March 26, 2012 to December 17, 2012 and reviewed recreational uses other communities allow by zone. They also developed agri-tourism and eco-tourism grids for every zone in Fayette County, which enabled the group to consider new uses and to work through its recommendations in a methodical manner. Definitions for each use referred to in the grid would need to be crafted to accompany any related proposed changes to the zoning ordinance.
The Work Group issued its final report on May 14, 2013. The report was given its first and second reading by Council on June 6, 2013 and was approved. At that time the Council directed the Planning Department to prepare zoning text amendments reflecting the recommendations of the Work Group for consideration by the Planning Commission. (While Council may originate a proposed Zoning Text Amendment, it must be reviewed and approved by the Planning Commission before it comes back to Council for review and final approval). The Planning Commission will review the proposed text amendments and hold a public hearing. If approved by the Planning Commission, the text amendments will then be referred to Council, either as originally presented or with modifications made by the Planning Commission. Council can choose to place the text amendments proposed by the Planning Commission directly on its docket for action, or (more likely) it can refer the text amendments to its Planning Committee for further discussion before they are placed on the docket for a Council decision. In either case there will be further opportunities for public input.
How The Two Sets of Activities Do Not Intersect
The only issue currently pending regarding Boone Creek Outdoors is the appeal in Circuit Court regarding the BOA decision in January of 2012 to deny its request for a conditional use permit. At this time there is nothing pending before the Council, or the Planning Commission, or the BOA regarding Boone Creek Outdoors. The policy question and this specific practical question are at this time completely separate.
How The Two Sets of Activities May Possibly Intersect
The Recreational ZOTA Work Group included in its report several recommendations regarding text amendments to the current zoning ordinance that have the potential to impact proposed uses like the uses that Boone Creek Outdoors believes are appropriate for its present setting. The initial recommendations proposed by the Work Group would allow tree canopy tours as a conditional use in an agricultural natural (AN) zone (essentially, land in rural areas unsuited for farming because of topography or other factors), and they would prohibit both ziplines and tree canopy tours in an agricultural rural (AR) zone. When these changes are considered by the Planning Commission and the Council, Boone Creek Outdoors may be cited as a specific example of what should and should not be allowed in either or both the AR and the AN zones. And it is possible that the eventual changes in the zoning text will directly affect the ability of Boone Creek Outdoors to offer canopy tours in its present location.
If you have hung in through all of the above, here are my conclusions. First, it is possible to believe (as many people clearly do) that the facility Boone Creek Outdoors has constructed is wonderful, and at the same time to believe that they presently do not have a right to operate. Second, my understanding of the present status and the procedures that must be followed indicate that the specific issue of the right of Boone Creek Outdoors to offer a canopy tour is out of Council’s hands at this time. Third, also for procedural reasons, the larger policy question of recreational uses in the rural area is out of Council’s hands until Council receives from the Planning Commission a proposal for a Zoning Text Amendment.
I hope this helps.