Boone Creek Outdoors Zone Change Update: A Winding Path

There are times when what looks like a simple action by Council has taken so many twists and turns that it becomes hard to figure out what actually happened and why. Council’s approval of a zone change for Boone Creek Outdoors is one of those times. What follows is a condensed but still rather lengthy explanation of the path to the final outcome. I share it, and I encourage you to take the time to read it through,  because I believe it is important to understand the context as well as the outcome. This is likely the first of numerous applications to increase appropriate activities in our rural area.

In the first step in this process, Council passed the Rural Recreational Zoning Ordinance Text Amendment (ZOTA) in July of 2016.  The ZOTA provided updates to the code of ordinances to better accommodate recreational tourism and other uses.  For additional information about the long path to approval of this ZOTA, see my related blog posts here.

Following the adoption of the ZOTA, Boone Creek Outdoors submitted to the Planning Commission an application for a zone change from Agricultural Rural (AR) to Agricultural Natural (AN). They also submitted a request for a conditional use permit for a canopy tour with zip lines, one of the conditional uses included in the AN zone. Ordinarily, requests for conditional use are made to the Board of Adjustment, but a special provision allows for developers to combine a zone change request with an associated conditional use request. The Planning Commission then acts in lieu of the Board of Adjustment in considering the conditional use request. Council must approve, disapprove, or modify Planning Commission zone change decisions, but Planning Commission actions on conditional use at the time of a zone change are treated the same as Board of Adjustment decisions, with any appeal going to Circuit Court.

The Planning Commission approved both the zone change and the conditional use permit, as well as a preliminary development plan.  You can view associated documents here.

The zone change received first reading before Council on December 1, 2016 (legislation requires a first and second reading to become law).  Councilmember Plomin moved at the November 29, 2016 Work Session to schedule a zone change hearing to further review the ordinance.  You can view that hearing, held on January 19, 2017, by clicking here.  Much of Council’s discussion at the lengthy hearing focused on changing some conditional uses to prohibited uses for this parcel of land.  At the conclusion of the hearing, Council voted to prohibit the following uses as part of the approval of the zone change:

  1. Cemeteries, crematories, columbariums, and mausoleums.
  2. Churches, Sunday Schools, and parish houses.
  3. Non-service facilities of public utilities and common carriers by rail, including office, garage and warehouse space.
  4. Outdoor rifle and other firearm ranges and outdoor rodeos.
  5. Mining and/or quarrying of non-metallic minerals.
  6. Radio, telephone, and/or television transmitting or relay facilities.
  7. Youth Camps.

Here is where questions of procedure arose.  Adding these restrictions resulted in a “material change” to the ordinance, which in turn required a new first and second reading of the ordinance.  Due to some related procedural issues, Council had to schedule the final reading of the ordinance at a Special Meeting on January 24, 2017.  You can view the Special Meeting by clicking here.  At that meeting, Council voted to remove two prohibited uses from the original list so that the final prohibited uses include only the following:

  1. Cemeteries, crematories, columbariums, and mausoleums.
  2. Non-service facilities of public utilities and common carriers by rail, including office, garage and warehouse space.
  3. Outdoor rifle and other firearm ranges and outdoor rodeos.
  4. Mining and/or quarrying of non-metallic minerals.
  5. Radio, telephone, and/or television transmitting or relay facilities.

Council then approved the zone change as modified. The complete ordinance can be read here.

Now, for future reference and for clarity, here are the factors related to the complexity of this particular process.

The hearing had a couple of conditions that made Council’s deliberation and process unusual. First, as stated above, the Planning Commission reviewed the conditional use permit application simultaneously with the zone change request, a relatively new practice for the Planning Commission.  Given this dual action, it was not clear if Council had the legal authority to prohibited uses in the ordinance that conflicted with the Planning Commission’s permitted uses.

Second, by regulation, if  Council fails to take action within ninety days the Planning Commission’s decision stands. In this case, the ninety day period overlapped with the nearly six weeks of Council winter recess.  Council’s deadline for review was January 25, 2017.  Therefore Council had an unusually short window in which to act.  This short window was compounded by a procedural issue—the need for ten votes to suspend the rules and give second reading of an ordinance at the same meeting as the first reading.  In this instance what this meant in practice is that while there were nine votes to approve the ordinance, there were not ten votes to suspend the rules and give the ordinance a second reading.  Council’s best option in these circumstances was to schedule a Special Meeting on January 24, 2017, at which the ordinance received second reading.  You can view that meeting here.

The circumstances surrounding this zone change represented unique challenges, but the precedents set by this zone change made Council’s diligence on this issue crucial.  I appreciate all stakeholders, staff, and my colleagues on Council for working carefully through a complex process to reach a thoughtful and consequential decision.

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