If you can't, then if you come back in quietly without bloody noses, we will hear your case. We're going to sound the cases here shortly, but before we do that, I would like to all individuals in here who are going to be testifying today, if you would please stand and raise your right hand. Do you swear to tell the truth, the whole truth, and nothing but the truth? So help you. Thank you. We're going to sound the agenda. Those cases who do not have any objectors, the cases will be heard first in order. those cases that have objectors, you will be moved to the or behind the cases that do not have any objections or objectors. We will sound this. Before we start sounding, we will ask the staff if there are any postponements or withdrawals, please. Mr. Chairman, if there are no postponements from the audience, the staff has received a postponement request on two of your cases that are on your agenda today. All right. The first of those would be on page 3 of your agenda, item number 1. That's A, 2011-76 for David Bennett and Lexington Green. We've received an e-mail asking for a one-month postponement from the applicant, and the staff has no problem with this. Do I hear a motion that we accept the recommendation? I thought he asked if there was anybody in the audience that was here for this particular case. Any objection? If not, do I hear a motion from the board to accept a postponement? So moved. Second. Second. All in favor signify by saying aye. Aye. Any opposition? Motion passes. Next. The second request for postponement that we received is on the top of page 4. It's item number 2. A. 2011-80 Crestwood Christian Church. This is an administrative appeal for directional signs. The staff has met with the applicant since your last hearing. Technically, it was continued to today's hearing, but we think we've come across something that will benefit both the applicant and be within the ordinance. They asked for a one-month continuance of this item to the February 24th meeting just until they're absolutely sure that they've gotten the signage that they need on the ground. Is there anyone in here in opposition to this particular case? If not, I'll hear a motion from the Board relative to the postponement until February the 24th. So moved. Do I have a second? Second. All in favor, signify by saying aye. Aye. Any opposed? Passed. That it? From the staff. Any withdrawals? Are there any withdrawals? Any cases in here to be withdrawn? Okay. So we will sound the cases as they are heard, and if you will stand, if you are an objector, we will ask you to stand. If not, then we will go to the next case, and after we finish sounding the cases, then we will take them as they fall in order. Case number 1, V2011-58, James Hickey. James Hickey. Is there anyone here in opposition to James Hickey? We have one in opposition. That case will be moved back. Number 2, V2011-82, Hallmark Student Development Company, LLC. Hallmark. Anyone here representing Hallmark? Aye, Mr. Chairman. Is anyone here in opposition to that particular case? No opposition. Number three, conditional use appeals, C-2011-70 Boone Creek Adventures, LLC. No one here representing Boone Creek, are you? Anyone here in opposition? Let's stand, please. Let's see who all we got here. I'd like the record to reflect that last month we had the change for free while it was 50% full. I'll be noted right back. Well, I think you are a drawing card. That's all I can say. All right. We have case 2011-76 has been postponed. Case 2011-80, Crestwood's postponed. Case A2012-1, quality plus homes. Quality plus homes. Anyone here in opposition to quality plus homes? No opposition. I think that is it. So we will hear the first case, and that case is going to be Hallmark Student Development Company, LLC. Good afternoon, Mr. Chairman. Bruce Simpson on behalf of Hallmark. We're in agreement with the staff's recommendation for approval, and we would ask the board to do likewise. The staff has recommended three conditions. Have you and your client read and understand those conditions? We have, and we do comply with those conditions. We'll comply. Are there any questions from the board regarding this particular case? If not, I'll hear a motion, please. Mr. Chairman, I'll move that the 2011-82 Hallmark Student Development Company appeals for variance to, one, reduce the required front setback from 20 feet to 5 feet in order to accommodate drive aisles and parking, and two, reduce the interior landscape area to less than 5% on a single lot, provided the cumulative total for all lots on the development plan is 5% or greater in a wholesale and warehouse business and an agriculture urban zone proposed for the rezoning to the high-rise apartment zone on a portion of 1200 Red Mile Road and a portion of 843 South Broadway be approved with the conditions as set forth by the staff. Do I have a second? I'll second. All in favor signify by saying aye. Aye. All opposed. Motion passes. Thank you, sir. The next case is going to be Quality Plus Homes. Thank you. Do you agree to abide by the condition? Yes, sir. Are there any questions from the board? If not, I'll hear a motion, please. I have a question. We have a question. We're planning. The condition is that this is going to be reviewed in six months. Is there any vehicle in place that if this property sells and, you know, the kitchen stays, but the karaoke stage may be removed and the area is opened up, it could be amended and changed and more bedrooms could be put in. Is there any vehicle in place to oversee the change of hands, so to speak? Yeah, that's easy to follow that kind of thing when we monitor it. What do you do? Well, the inspector actually goes in the house and makes arrangements with the owner to inspect. We probably also go by and inspect without notice just to see kind of what the indicators are, whether or not that's being used as another resident or dwelling unit or not. So you track it, essentially? Yes, we track it. Okay. Thank you. Are there any other questions, concerns, comments? If not, I will hear a motion, please. Mr. Chair, I move to approve a 2012-1 Quality Plus Homes appeals for an administrative review to allow a second kitchen and a single-family residence in a planned neighborhood residential R3 zone on property located at 2421 Rossini Place in Council District 6 as recommended by staff and subject to the one condition. Do I have a second? I'll second. All in favor signify by saying aye. Aye. All opposed? Good luck, sir. The next case we have is Mr. James Hickey, V2011-58. Mr. Chair, I need to recuse myself on this. We have, all right. Now, the staff here is recommending postponement for this case. We have a legal representative here, I guess, relative to this case, and you're not interested in postponing that. Well, actually, we'd certainly be willing to postpone, but you had continued this from a previous meeting as we're trying to assist us in working out an agreement with our neighbor to the north unfortunately we have not been able to do so although we do have agreements with the neighbors to the south and to the east but not to the north we have been unable to work that out so we're back on your agenda today the staff had indicated they would not be changing the recommendations since nothing had changed since your previous hearing. So we are certainly willing to postpone if you all want to, but on the other hand, we know the opposition wants to, I think, go forward, and so we're willing to go forward as well. Well, let's hear the opposition before we allow you to continue, please. These gentlemen, in the back, would you please come up? Could you give your name, please? Good afternoon. My name is Greg Harris. And you're here in opposition, so we're here to hear you. Okay. We had met here in October with the continuance that was applied until today for us to make whatever negotiations that could possibly be done. There wasn't any negotiations until around the first of the year. It's been trying to be pushed in the last three weeks. It comes down to the property being where it is, and the differences that they want to include on that are unacceptable. The thing is right in my door. It's right in my back door. There's been some things that's been talked about that the neighbor did go ahead and make some changes that I didn't advocate. But in speaking of concerns, he's shown good faith in trying to work some things. The bottom line is that it's just not acceptable to me. to be where it is. I'm not trying to be difficult. Let me ask you a question, please. Is there any possibility that you all can work this thing out peacefully? Oh, I have no problem being peaceful with Jim. He's been a good neighbor. It's just the situation is just untenable. Well, without you all moving in with each other, Is there any way that you can work this thing out where we don't have to see this again? Because it looks like you're going to be moving this to next month. Moving it to next month. I mean, you're standing here in opposition to this. Right. He's going to want to hear the case. And if it doesn't go your way, you're going to be very upset about this. It seems to me like that somewhere along the line that you and your neighbor, as intelligent as both of you seem, could have been able to work this out. I would like to figure out some way to do that, but unfortunately, the property has been put into a place where it's against the variance. It's up against our houses are close together as it begins with. and that variance as it is, three or four feet, has brought it up to the property line. This has been something that's left him with no ability to maintain his property without coming into my yard and it's continued to be a source of deterioration in my yard. It's causing it to wash out with the rain and stuff that comes off the roof. So anything that's done with it sitting like that is still going to leave it up to me to be continually vigilant that it's maintained. And so that's my opposition. Well, we're going to listen to the other side, and you go back and have a seat. And if we need to call you back up, we will. Before you sit down, Mr. Harris, I have a question. Are you up here? Oh, okay. It was coming by. Yeah, it's all right. Sorry. Are you on the north side? I'm looking at the... I believe that would be me, yes. Okay. And so this addition that we're showing on this plat is right up against your property, is that right? Yes. It's up next to the... Actually, the soffit itself, the roof itself will hang all the way up to the... and exceed to the edge of the property line. Any runoff comes off, goes over into the yard before it even makes contact with the ground. So it's into my property. You're on the left side as we're looking at that. On the left side of that picture. Okay. All right. Thank you. All right. Thank you, Mr. Chairman. As I mentioned, I am Dick Murphy. I'm representing Jim Hickey, and Jim is the owner of the property at 3606 Windgate Way in Walden Grove Subdivision. We had offered to mediate this in front of the Fayette County Mediation Center. I know Mr. Harris didn't feel he had enough time, so I guess we're going to have to present it to you. Mr. Hickey has made some changes since your last hearing. He has put up the privacy fence and made some other changes, and we understand we'll have to make some others regardless of how you act today. Other changes will need to be made. If, in fact, the soffit is extending over the property line, that will have to be removed. As you can see from the plat that's been put up in front of you, the this is a actually a survey which was done by a professional surveyor as you can see our building is off of the property line although there's an assertion that there is an overhang over the property line if in fact there is that'll have to be removed and taken away and cut off and something done with that but we are nine inches off the property line on the north property line Over here in the back, we asked for variances on three sides. At our last hearing, I requested an indefinite postponement of this variance in the back. It's because the owner behind us has agreed to convey to Mr. Hickey a strip of land which will eliminate the need for a variance on the back side, back there. So I'm still asking for an indefinite postponement of that matter. We just can't do the consolidation plan until we find out what the result here will be today. On the right side or the south side, this is the deck. The deck is slightly closer than three feet. This neighbor, we have a letter in the file from this neighbor saying he has no opposition to this whatsoever. We also, of course, have the letter from the neighbor in the rear saying he has no opposition to this. We have a letter from the neighbor across the street expressing no opposition and a petition from almost every other neighbor on this portion of Windgate Way saying that they support this and that, in fact, this will increase property values in the area. I understand we have not been able to work out an agreement with Mr. Harris, though, so that's why we're here on the north side of the property. Jim is with me today on the front row, along with Mr. Chas Heights, who's a professional planner. and I'm going to mainly address the one on the north side because the neighbor to the south has no opposition whatsoever and we are remedying the one on the rear but if you all want me to discuss that further at any time you just tell me and I'll discuss them but I'm going to concentrate on the north side we'll do the north side on this the background of this property is that as you all know this is in Walden Grove subdivision which is off of Wilson Downing Road in Lexington. And the Walden Grove was built about 30 years ago by a developer named Dave Walker, who was a very visionary developer here in Lexington. And 30 years ago, before other people were talking about it, he recognized the need for compact lots. He knew we needed to preserve land. But he felt the only way to do that and make a good, livable community would be also to make sure that there's an outdoor orientation to each of these houses. So if you look on page 11 of my handout, we have the Google Earth picture of this property. and you can see there that Mr. Hickey's house is the one with the red car in the driveway on Wingate Way. But you can see how Dave Walker did this. He put the houses very close together and he oriented them all to the back. The fronts are mainly garages on our side of the street because there's a tremendous slope. You can't see it going down from the street to the rear. these are walkout basements plus i mean it's a it's a very big drop off so the garages are in the front they're very close together very close side yards but they all orient to this big green space in the back and it's a wonderful area now this isn't a house if you want to have a garden or you want to have a level space to throw a football or baseball with your child because there's just not any level space there but if you want to be able to enjoy the greenery the outdoors the small wildlife that's there this is the place to be they have wonderful decks and all the decks are along the rear here hunting each other up when this was built uh in the this is the r3 zone which was then at that time the low density apartment zone we now call it the planned neighborhood zone they just changed the name a few years back but at that time you could build with a zero lot line on one lot line of the house so that at the time these houses were built 1983 the zoning ordinance had some provisions for zero lot lines now dave walker when he built these and his his uh lynn cravens i think was his architect didn't put them exactly on the lot lines they put them a little bit off the lot lines but they were close and everybody buying out here here knows they're close to their neighbor. Can you clarify, did you say is it zero on both sides or one? No, just one. It would have been allowed one side to be zero at that time on the other. And the ordinance was later amended to require three feet on both sides on that. And as I said, the addition is on Jim's property. He did have it surveyed. We know there's maybe an overhang issue. If there is, that's going to have to be remedied. Some of that soffit is going to have to be taken off. Some of the guttering is going to have to be removed and relocated so it's not overhanging Mr. Harris' property line whatsoever. Now, how did we get where we are today? Jim, over a year ago, Jim finished off the addition to his house and moved into it. That was over a year ago. It was finished over a year ago. He built his addition over an existing deck. now Jim made an assumption which was wrong but he made an assumption which in my experience is not unusual that if there's something there already you could build on the same footprint of the thing that was there already that was wrong he should have gotten a building permit but that's how I'm explaining how he made his assumption and got where we are it's extremely well constructed it's a very beautiful addition it's probably one of the nicest additions I've ever seen in my life He and his friends built it. That was another issue. He didn't hire a contractor. He built it himself, largely by himself, with a number of friends assisting him, so he didn't have a contractor that would go down and get the building permit. I want to show some pictures of this, if we can, if we can show the first one on here. this is the interior of the property right here this is looking toward the back you can see the sunroom on the other side of the archway that he has added on there if we can have the second picture this is looking north this is the new wall toward Mr. Harris' house Previously, there was a deck right there. That deck was at the same setback as this edition is. It went away. Not there anymore. There it is. But it's at the same setback as this edition is. Now, previously, the deck was sitting there and could look right into Mr. Harris' deck. Right now, what we have is a full wall, no window except this tall window up there, which lets in light to the property. So I think the privacy for the next-door property is enhanced by doing this. And in addition, we're informed that this long, high window may have to be removed and covered up due to fire code issues. When you have a wall within three feet of the neighboring line, you have to have a dry-walled wall there as a firewall. And so it's likely that regardless of what you do, again, we're going to have to make that into a drywall wall and take that window out. So there would be no window in that wall right there if you approve our variance. The next picture is showing the smaller one there. It's just showing a head-on view of the deck just so you can see what it is looking from the back of the deck toward the addition. It's extremely well constructed inside and out. If we can go to the next picture, we're looking from the street again, and I'll show you the diagram of this in a minute, but this is the separation between the house. This is Mr. Hickey's over on the right. Mr. Harris is over on the left. And you can see the addition in the back. But for the next picture, if we can, we show the notching here. We're looking, there's notches on both houses. This is Mr. Harris' here, which is closer here than his goes back. This is Mr. Hickey's looking from the street. He's farther away, then he gets closer on that one. And then the next picture, if we can, is looking back toward the street. This shows, this is Mr. Hickey's house on the left. Mr. Harris' on the right. This is Mr. Hickey's addition here. This is the existing notch in Mr. Harris' house there. And the last one I'll show you is just another shot of the addition with a privacy fence, which has been constructed down there along the line. That's all the pictures, but if you could look in my handout at page 9, which is the layout of this property, you'll see how these things relate to each other, the complementary setbacks they have. One thing, another thing Dave Walker didn't want, it was a lot of long walls. So as you can see from this one, looking from the street, you can see the driveways in the front. These houses at the closest point are 7 feet 10 inches from each other. That's the way they've always been. That's the way they were constructed in 1983. Our addition is in the back here. And even with the addition, the houses are still 11 1⁄2 feet between each other. So there's actually a greater distance between each other in the back than there is in the front here on the property. And the front is the way it has been since 1983. This issue came up. As I mentioned, Jim didn't get a building permit for this. but it was constructed. It took quite a bit of while to build this, and no call was made to City Hall about what was going on in this property, so the building inspectors did not come out here. The call came up when I think there was an issue about a fence, that Mr. Hickey had maybe taken out a section of the fence that needed to be replaced or something, so there was a call about a fence after the after the building addition was totally completed when the issue of the fence came up the sharp-eyed people at the division of building inspection said wait a minute there's a may have a problem with this addition back here so that's how we got to you we didn't get mr hickey didn't wasn't told not to build and he said heck with you i'm going ahead anyway he built it he didn't know there was a problem with it he didn't have a contractor he was building on an existing deck footprint he was building with his friends and he built it only after it was totally built was he made aware there was an issue on this this had been you know obviously it'd be a lot easier to rectify if it had been made when the foundation was made or the first part of the property was put in there. We feel, regardless, the variance is justified. As I've shown you from the photographs, we're still 11 1⁄2 feet between the houses. Our structure is totally on Mr. Hickey's property, although we acknowledge he's going to have to change that window. and if the soffit or eaves or the eaves are overhanging that's going to have to be removed he's he's fully aware he's got to do that the uh question yes removing the eaves is that going to the divert water that may run off of that onto his neighbor's property well in doing that he's going to do a way that it's not going to be putting water on his neighbor's property he's going to have to figure that out and put it we can we can direct it into the back of the property rather than over to the side of the property so you have do you have someone here today that's an expert in doing that or we don't have a guttering expert no well if you if you want to speak you come up here so we can who you are. Stuff out of the way here. Yeah, that's all right. You can stay here. Jim Hickey. Yes, I put a gutter up there recently. I talked to Greg, I don't know, a couple, I guess three weeks ago, and he mentioned about a couple things to do that he would like to get his privacy back because I felt like I needed to do something for him to get that back. So he said when he looks out his back that he sees the deck. So I put a privacy wall up. And then about four days ago he said, well, I can still see some of it. So I extended it all the way. And then I put a gutter up. And so anyway, it will come down. I know I have to cut off the soffit. and put the gutter back up and then just divert it down into the backyard. Thank you. Can I just ask one more question to clarify? Oh, just a moment. Just a moment. She may have a question. I'm not sure if either one of you can answer. So this new addition, there was a deck where the new addition is, so it's exactly in the same place. Right. That's correct. Right. So it used to be a deck in that particular location, and now it's building and a deck behind it. Right. Thank you. And as I was mentioning, if I were the neighbor, my concern would be, is this going to hurt the value of my house? If I were the one to the north, that's what my concern would be. Is it going to hurt the value of my house? In looking at this, I'm not going to read these in, but the letters on the first two pages from our neighbor across the street and directly to the south of this, they both agree with the variance. And the petition is on page 3. And on the petition, which almost everybody else on the street has signed in favor of this, they say not only is this not going to hurt the value of the house, they say Jim's sunroom has added value as a whole to the neighborhood because it was so well constructed and is aesthetically pleasing both inside and out and can only increase our property values. on page 4 I have the letter from Terrace Realty which is the one behind us where they've agreed to allow Mr. Hickey to purchase a strip of land which will eliminate the need for that variance I have the PVA information from this property I just put it in there to show you when these were built back in 83 but if you'll go to page 10 we wanted to talk to a couple experts on this as well because of that issue of valuation. Now Jim himself spoke to Larry Disney, who's the director of the licensing board for appraisers here in Kentucky, and Mr. Disney indicated that an addition like this normally does not negatively impact nearby property values. But we wanted to retain an appraiser to look at it, and we asked Ben Campbell, who is one of the most respected and leading residential appraisers here in Lexington, to come look at this property because we wanted to know the answer, is it going to hurt the value of the property next to us? And I'll read two sentences out of his letter here, which is on page 10. This letter is to serve as an explanation that after viewing your room addition, it is my opinion that it does not adversely affect your neighbor's property value, marketability, or view. Your room addition increases the value of your property and also enhances the value of other properties in the neighborhood. I have included a photo showing the room addition. So, as I said, he is a very experienced, very well-respected residential land appraiser here in Lexington. Now, I'd like Mr. Hickey to maybe address you a little bit more, but I have included some findings on the last page of this handout with you, which would sort of summarize the presentation I've made to you and why we feel the variance is justified. But we think it's based on the layout of the buildings, the topography of the land we have here, the fact that these houses are still more than six feet apart on every point. Every point are over six feet apart. This addition is farther away than the fronts of the two buildings are. We feel it preserves or actually increases the privacy of the property next door. We think it's in keeping with the original concept of Walden Grove subdivision, and it was built on an existing deck, and we feel it absolutely, absolutely will not decrease anybody's property value in this area. Even our neighbors, all but one, recognize that fact. The appraiser does as well. So again, we feel that this is a justified variance. We understand that the situation was there. Jim understands fully he's going to have to cut back the eaves or soffit. He's going to have to bring the guttering down and put water on the rear of his property, not his neighbor's property, and do whatever else it takes on here. He has made some probably eliminate that window if that's a building inspection requirement, which I believe it is. So he's going to have to take some actions here to change this property regardless of what you do. but we feel the addition itself is a positive improvement to the neighborhood. We've got to recognize that mistakes have been made on this thing, but they've been made all the way around. And again, we'd certainly ask you to approve this variance. Jim is here, wants to address you a little bit. Chaz Height, who's an urban planner, I'm asking him to address you shortly, but that's basically what I have for my case here. Thank you. Are there any questions from the board? Any questions? Building, any questions over there or comments relative to this particular case? Who was the gentleman back in opposition? Thank you. The gentleman that was in opposition, do you have any additional comments you want to make? I wanted to bring up that I have no doubt of what he's talked about here being factual to a point, I guess to the point of view that you're looking at this thing. This property here, they're talking about a footprint. I believe you asked about a footprint on there. The fence that was there originally, these houses had original decks. When Jim bought his, it had a small original deck on there. And he went on and put a different deck on this thing probably about five or six years ago, which was down below the level of the fence and what have you. You can't see it up there. So then when he got finished with it, that's when he decided he was going to put something up there and block, I guess block of view, had a corrugated plastic thing with a plastic top on it that was right in the door. As soon as you looked directly to the south, it was there as a block to that. That's the initial, the genesis of the water coming off this. In talking about me not bringing up anything about this, The fact is that Jim, when he built the place, told me that, you know, had talked to me during this period of time and telling me about having inspections going on, ongoing inspections on this, which led me to believe that I had no real say about anything here. It wasn't until probably last April that, as Mr. Murphy said, it was me that brought into question on it because I was looking to try to put a fence up so that I could start getting myself prepared for my yard and what have you for the spring and put a fence up there to kind of block this thing off. I wasn't happy with it, but I didn't know that I had any kind of alternatives with it at that time. I wanted to make sure that I blocked this thing off, and he was going to have to do his maintenance when it was convenient for me to come in my yard and do that sort of thing. at that time at that time in trying to find out what my variance was to put a fence back in against the property line that's when i found out that the variance was that and they questioned i guess after that about a uh about anything else that's happened uh it was me that brought that up it wasn't something that they they randomly found um but the uh um the question that comes into me on this is that the property line being where it is and the the look of this thing at the 11 foot 6 inch mark back here that makes it so that it's farther away from my house i don't see the i don't see how that's material to to anything in regards to outside of maybe a firewall or something like that perhaps but in effect it's moved that's moved back over with my house had my house been over here against this, it would have been obviously the same thing. But your concern, last time we listened to you here a few months ago, was that that piece of property was hanging over your property. That's correct. That piece of property does hang over my property. And they are going to correct that, what I understand. So your concern here seems to me like it's being addressed. and the separation between the houses have not changed other than from off the ground, the roof coming over to your property, over your property line. Now, if that is correct, correct it, and the water is diverted from coming on to your property, what is the issue here? The issue is that Mr. Hickey has built a piece of property over the variance. We understand that, and he did it without permission. And I'm against it. That's the issue on it. I don't prefer to have that thing sitting like that. Had I known that this was like that, I would have been raising my voice at the time. I didn't know that I had an option with that at the time. I don't know that that's – I thought that this thing was being inspected, and my options for saying anything at that time were invalid. Well, I understand your concern from the beginning, but I'm a little lost in your concern right now relative to the fact that if this is corrected and your property is not jeopardized and he can't see in your house and you can't see in his house if the firewall is taken out or extended over from the window, I can't understand. And the distance between your house and his house hasn't changed. It's still 11.5 feet between the two houses, as it always has been when it was constructed. I cannot understand what the deal is here. I know what the deal is. You told us about that in the first meeting. But to me, it just seems like that you guys are throwing fruit at each other, and they're different than apples and oranges in my case. Mr. Harris, you said you didn't know about it when you first started building this. Had you known about it or had you known that you could have objected to it then, would your objection have been the same or would it have been different? My objection would have been the same because I think it's 2005 or 2006. He had put a deck in on his property, which was there, obviously, but the lower level of this deck was not visible from my place. The upper level had a two-level deck thing set up there that came out probably 10 feet. I'm not sure how far it was off the back of his property. And it was not as visible towards that. But then he went in later on and put a structure that roughly the width of the deck back there in the back, corrugated plastic structure that started pouring this water off onto my property. But that's not there any longer? No, he removed that. And at that point when he removed it, he started doing some work over there, asked me sometime around April of 2010 if he could use my yard to do some things. He's going to make some changes over there. And I said I had no problem. I didn't have any problem with him using the yard for a few weeks. He said just a few weeks. And it stretched out for that summer. And during that time, when he had removed that, it wasn't until he started putting walls up and had stuff put back on the floor and the foundation on this thing that I was even aware that it was going to be the size it was. So as I understand your objection is, your objection is that it obstructs your view? Well, my objection is a twofold thing. Number one is that it sits up here so that there's – my house opens towards the back, and his deck's come up here. Now, he's done some things to try to rectify that. He's put a sideways barrier up here and done some things. And then to kind of stop that, because from his deck, you can look directly back into – the way the property drops off, He can look directly back into my house, which, you know, you're in your house. You should have some privacy. And so he's done some things to rectify that because I told him in conversations. But your objection now is that the way it is right now and your objection now and your objection would have been. My objection would have been. That it obstructs your view. My objection is the fact that it's on the property line. If I had known that I had any kind of alternative here, I would have been bringing this up as I was the other piece of property. That's what I'm asking. What is it that you're bringing up? The fact that it's over here up against the property line. It's done damage to my yard now for a number of years. This one here has been there for, this is the second year that it's been there. And I haven't seen gutter on. He testified here a minute ago that he put some gutter up where I haven't seen that, but up until just the last few days, it's been left to continue to wash into my yard. I put stuff in there to block that wash off and try to save that. It's just up there against it. Now, he's talking about putting some gutters in things. He's done that in the past. He's had trees growing out of these gutters. And so my skepticism toward his ability to maintain that after he does what he said is a little bit skeptical. I mean, I'm just a little bit hesitant to buy into that. I think that this thing had been properly built at the time when it was going on within the guidelines and within the law of what you can do on that piece of land according to that neighborhood variance. None of this had been going on. I may not have liked the fact that there's a thing up there that's kind of blocking the view, but that's something that wouldn't be anything I'd have any recourse about. Are there code violations or anything like that in play or anything? Main code violations relate to the structural components of the wall and the windows that have to be upgraded if it's going to remain just nine inches off the property line. So it will have to be upgraded, you're saying? Yes, definitely. Okay. mr harris have you and mr hickey discussed the possibility of as far as his dad his deck looking up into your house and we plantings and and something is some screening in the form of plantings that could help alleviate that problem yeah i believe that uh well first of all first of the the yard on his side is is uh it's like a wilderness it's just his preference is for just let whatever grows grow and uh so the plantings would be on my side and with the washout i'd be continually or whoever would be continuously trying to make sure that that stuff is maintained on my side of the property uh so the planning department now uh jim was uh and talking to him i don't know that he was he give him the benefit of the doubt i don't think that he was recognizing and the fact that it was a privacy issue from his side, looking back, but it was definitely there. And he did go up and make some sort of an angled deck. The way the property sits up here at that angle in the back where the deck is, now he's put something across this way to kind of stop that, and he extended it out so that you can see back in the back back there. it's probably four foot tall that stands on stands on the level of the the deck the deck itself though going beyond that stands higher than the privacy fence and uh so when the yard drops off the deck is is uh you know parallel or flat to the ground going that way it does stand out beyond would you be agreeable to talking to you know a third party so to speak who could come in and give you all some suggestions and rather than have Mr. Hickey solve the problem and you solve the problem, you have an independent third party who comes in and makes some suggestions and then you work out an arrangement about who pays for it? Excuse me for being careful here for just a moment. I'm not trying to, and I've told Mr. Hickey this, I'm not trying to hold anybody up here. My intention is, the same as it was the first time I was before this board, was not to try to have any kind of monetary gain on this. I'm not looking for anything in particular. The thing was put up in a place that is not to my liking. Everyone else has signed off on it. Everyone else wants to see it. They can look straight down the yard and see it sticking out over to the property line. Unless he bites them over, it does not have any bearing on anyone else in the area around there. Had I lived on the other side of the street, I would have said, yeah, I don't feel like fooling with it. That's fine, too. I'm not sure what can be done that's going to change the fact that Mr. Hickey is going to have to maintain it by being inside my yard. And that's the thing that is my whole crux of this for me is that this has been produced in a way that takes my yard to complete it. And that's my whole problem. Anything that's done to block that off, I have no problem with that. I mean, it can block it off the way he's done it. It's not going to bother me in that regard. So that's where the whole crux of this is for me. And it's a situation where it kind of looked to me like he had an idea of what he wanted to do. He does this for a living. I haven't debated the fact it's a beautiful piece of architecture that he's put up on the back of his place. But I have a problem with the fact that he's a contractor, and yet he didn't know anything about barriances. He didn't know anything about this. And I had been talking to him since the first time he tried to put something up there that messed with my property. It's been an ongoing thing, and that's where my opposition comes. Thank you. Yes, sir. Any other comments? Any other questions? If not, I will hear a motion on this case, please. Mr. Chairman, it's unfortunate, I think, that Mr. Hickey and Mr. Harris have not been able to work this out, and I hope in the future they do. But as a board, and based on the evidence that has been presented to us, I would like to move that V2011-58 James Hickey appeals for a variance to reduce the required side yard from 3 feet to 9 feet for retention of a home addition and a variance to reduce the required rear yard from 10 feet to 0 for retention of a deck in a planned neighborhood residential zone on property located at 3606 Windgate Way be approved. I have a second. Before we do that, can I ask Ms. Bolin, do we need to impose the specific conditions that they've said that they would satisfy? That's up to this board. You do have the option of imposing conditions. I did want to note that you are not granting the rear yard variance. That is in indefinite postponement mode because he is working to assure that that is not necessary. and it could not be granted at this point because there was a notification issue. So the rear yard variance is not at issue in this, so that needs to be removed from the motion. It's the side yards. I will remove that, Ms. Vollen, from the motion. With respect to conditions, that's up to the board whether they want to impose those as conditions or just leave it on the record that they have stated that they are going to do those things. Would we have to impose those before we get a second on that motion? It would probably be procedurally easier to do it now if you're going to impose the conditions and then amend the motion prior to a second. I think that given that you have expressly said there are two things that you would satisfy, if Mr. Murphy could write those out and we could include them as conditions, that would be helpful. I think one is they're dealing with the third-party evaluation relative to the changes that you're going to make. And what would be the other one? If I may, the staff at your meeting last fall drafted some conditions in anticipation that you would not continue it today. We'd be glad to put those on the overhead just as a starting point. If you would, please. If you would. I think we've got four up there. Mr. Murphy, can you read those? I think so. I'll be glad to read them very quickly. Gutterings shall be installed on the northern wall of residence within blank feet of the property line. Again, these came from your prior meeting. They were in the file. Who's going to determine the number of feet? Would a building do that or what? I think it will almost be automatic based on what they've told you where they're going to have to remove some of the overhang. Okay. There really won't be much room left inside the property line for that. So we could probably even delete that whole second line on number one. Number two, the property shall be maintained in accordance with the submitted application and site plan. That's a fairly standard condition for any variance. Third, a consolidation plat should be filed with a division of planning to rectify the deck's encroachment over the rear property line. And four, a note regarding action of the board should be placed on that consolidation plan. And then the mentioning, the gentleman that was up here speaking that was in opposition to this made, where a suggestion was made that a third party be used to assist in evaluating this particular situation relative to its development. Would you have any problem with that, Mr. Murphy? No, Mr. Stout, not at all. We talked about maybe hiring an engineer who's a hydrologist, water expert, that Jim would pay for to evaluate this, or if that would be too. He'd split the cost, whatever. He's willing to pay for the whole thing. They can agree among themselves who that would be. We wouldn't be the sole chooser of that person. They'd get together and choose an engineer on that. Now, would the water department have, people from water have any objection to this situation? No. No, I think ultimately, as Mr. Hickey has stated, putting a gutter up and taking it to the rear would be our recommendation for any residential construction. But we wouldn't have any problem with a third party looking at it. The building, you wouldn't have any objection here either? I guess the only remaining issue is future maintenance of all this in terms of avoiding interfering with Mr. Harris's property, which hasn't gotten much attention at this point. Mr. Hickey. It is. Yeah. And I'd hate to be sitting here as chairman and watching you tear all that down. I'd like to see the addition of the independent third party hydrologist or somebody that can evaluate the runoff and plantings if necessary. All right. Agreeable. Yes. Any other questions before we have a second? Let's start. Staff? Mr. Chairman, we just presume that the findings are based on those submitted by Mr. Murphy today versus in the original application. Okay. Thank you. Are we going to have an additional condition about your suggestion? Yeah, they agreed to that. Let's put it on there. Are you going to write it out or are you going to just have a verbal request? We agreed to condition number five, which would say that an independent engineer with experience in hydrology would be retained by Mr. Hickey, but the identity agreed by between the two of them, and he would follow that recommendation as to how the water is treated, to put it that way, the general issue, which would include guttering, where it goes, and all that sort of thing. Yes, sir. I have one question. I wanted to get a clarification on, wasn't sure I understood that correctly, when they're talking about a splitting of the cost. I just want to know what exactly that was so I can get a clarification on the splitting of the cost he was mentioning here in regards to... I thought he mentioned that Mr. Hickey was going to pay for that. That's what I heard. Then I heard something about it or a splitting of the cost. I wanted to find out. I don't think that had anything to do with you, sir. I think he's going to take care of it. Okay. I just want to find out. Thank you. I need to amend my motion. Are we going to ask for the motion to be amended? Yes, Mr. Chairman, I'd like to go ahead and amend my motion to include the five issues as conditions set forth by the staff. And also, as Ms. Bolin indicated, that it would not include the reduced required rear yard from 10 feet to 0 feet for the retention of the deck. And for the reasons recommended on Mr. Murphy's proposal, propose findings and conclusions approving V2011-58. Do I have a second? A second. All in favor signify by saying aye. Aye. All opposed? Motion carries. Thank you. I think we need some lights on, please. Our next case, as soon as I find it here, we'll... C2011-70 Boone Creek Adventures, LLC. Now, before we get started with this case, I'm going to lay some rules, please. I know we have additional individuals who want to speak for and against this particular case. And we're going to cut your time to three minutes. And I'm going to ask one of the staff members over there to time this. I have received, along with the rest of the board members, enough mail over the last couple of weeks to make a fire in my basement. I duly respect that, and I duly understand your concerns, both for and against. but we do want you to understand that this proceeding cannot get out of hand relative to interruptions, and I am going to charge you to respect the individuals who are speaking, and also either for or against, and I want the two legal minds here to understand that you do not have a presentation to make, only a rebuttal. We started, you ended your presentation, I believe, last month. Ah, ah, ah, ah, ah, ah, ah, ah. Please, scratch your back. But the rebuttal will start on this side, that side, and then you will have your final things and pieces to say individually after the rebuttal has ended. At this point in time, we're going to, you may come up and chat with me for a moment. We left last time. We did not have, we had not had an opportunity to speak. It's just a case. And we were still not speaking. Well, no. You were announced closing. We had other people died. Hold on, man. Hold on. Hold on. Let me think. At that time, they had had two hours to present their case. And we had presented an hour and a half. Okay, at that time at 5 o'clock, no, you start at 2 o'clock. Gentlemen, gentlemen, please. In any case, at that point, at 5 o'clock, people had to leave. So I said, well, we still have two people to testify. Sure. And then there's a closing argument, and we continue. So we have two. Thank you. We're going to take a five-minute recess, and when we get back here, we're going to get out into business, please. So we've got five minutes. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. guitar solo guitar solo Those to the board at this time. Thank you. I would like to address the question to the staff before we get started, please, relative to board members receiving letters regarding cases. Is it a possibility that when notification goes out from the office that you can request that letters and comments and whatever they have to see be directed to you all and not to our homes, please? Yes, sir. We'd be glad to put that in the standard letter that goes out with every application. I would appreciate that. Thank you. Because I've received every one of those. Mr. Chairman, I'd kind of like to add to that. I think everybody gets one bite of the apple. I've got the same letters that everybody on the board got. I read them all, but I'm not going to read any others that get sent to my house. I'm in the phone book. My office address is in the phone book. So if they want to send them to the board, I think it's a better idea. I was going to suggest they send them to my business. But I'm not going to read any more letters to get sent to my house. That's not going to say that I'm not going to read letters, but I think everybody gets one warning. Thanks. Thank you. All right. We are over here with Mr. Simpson's side of the room. I'm sorry, sir. Oh, that's right. You've got to finish up. I'm sorry. Mr. Todd. Mr. Chairman, thank you very much. We're proceeding with our case. Our next speaker will be Judge Julie Goodman to address the board in reference to some of the legal questions that have been raised thus far in the case. Mr. Chairman, members of the Board of Adjustment, I am Julie Goodman. Mr. Simpson. I am here today to speak in opposition in the case of C21170 Boone Creek Adventure, LLC, which is before you today. I speak here as a resident of 4998 8th and Spoonsboro Road. I have lived in rural Fayette County most of my 57 years. I am also a member of the Old Richmond Road Neighborhood Association. I am not opposed to this endeavor because I oppose change. I am opposed to this endeavor because to allow it to be present would be to create a situation where the Board of Adjustment would be legislating and would not be complying with the ordinances as they now exist with the Lexington Fayette Urban County government. I know there is a short time period, so I will paraphrase the ordinances that today this board must work within the parameters of. Of course, the first is Article 7-6A, which gives the board a very limited authority to grant conditional uses, only specifically named in this zoning ordinance, and which have not had an adverse influence on existing or future development of the property or its surrounding neighborhoods. You must also work within the parameter of Article 7-6A-2, which mandates that the board in making its decision shall, which is a mandatory term, make a determination that public facilities and services will be adequate, and the Board shall give consideration to the road system, sewage, disposal facilities, utilities, fire, and police protection. There has been substantial evidence so far before this Board that addresses the lack of the ability of the EMTs to be available and be on site. There's also been evidence that's been presented dealing with the road situation. You must also, under the mandates of the rule, look to health and safety. Additionally, it is undisputed that Article 8.1.C.6 prohibits amusement parks in an AR zone. And Article 3.1.F. is very important because it specifically states that when you make your determination, you can permit substantially similar areas or uses if there is one that is agreed upon that it already exists. By negative implication, you also may not be allowed to, you must prohibit substantially reasonable uses that resemble something already prohibited in this area. It is undisputed that an amusement park is a prohibited area in this zone. So when you look at 3.1, if you were to even accept the applicant's argument, which that they resemble or substantially resemble an amusement park or the conditions set forth by the staff that it may resemble an amusement park, under Article 3, you would have to find that it is prohibited. The Department of Agriculture has already established on the record that it sees this to be an amusement park. It does this for safety reasons. You as the board must look to safety, both from a public standpoint as well as from the individuals that will be on the land, as well as you must look at it from a health standpoint. The applicant would say that you don't have to accept the conditions of the Department of Agriculture or its definition. However, I find that to be a non sequitur. You have a situation where in the actual conditions, you say that they must comply with the terms and conditions and the licensing of the Department of Agriculture. Well, the Department of Agriculture only has jurisdictions over amusement parks. So if the applicant is willing to acknowledge in this hearing that it is subject to the licensing and to the regulation of the Department of Transportation, then it has admitted and established on the record that it is an amusement park. The Department of Agriculture does not have the right to just license anything that may resemble an amusement park. its rights and its jurisdiction fall if it is an amusement park. Additionally, Mr. Simpson, for his applicant, has acknowledged that the concern of the Department of Agriculture is safety. You, too, have to be concerned about safety. You must look at the substantial evidence and determine if in an agricultural rural area it is safe to conduct an amusement park and amusement rides that are in and of themselves extremely risky in areas where the land cannot handle it, the EMTs cannot handle it, and the road service cannot handle it. Boone Creek's own waiver and release for liability states specifically in its own document, And these items are already all in the record or are being submitted in the record. This is what a person who goes to Boone Creek to this adventure park must sign. They must say, I further understand that while on the premises of Boone Creek, my activity may be unsupervised for prolonged periods of time, and that contact with third parties by telephone or otherwise may be difficult or impossible at times. During certain periods, weather may make access to and from Boone Creek treacherous or impossible. I understand and agree that the weather is unpredictable and it's impossible to predict the onset of such conditions. The waiver that the 20,000 people have to sign when they come to Boone Creek clearly establishes that there are times that because of this location in an agricultural rural area that they can't get phone service to get help in there if there's been an accident of any type, and that possibly it won't even be accessible. The roads will not be accessible. In making your determination, you must determine the safety and the health factors. It is clear from the substantial evidence at this time and from the evidence that's already been presented that deals with what the fire departments and the EMTs feel, The distance is that it is not acceptable for an amusement park to be in an agricultural rural area. That's the reason it is a prohibited use, because of the safety and the public health issues. There are case law that I will submit into the record, but will not talk a great deal about because of the time issue. Davis v. John L. Richardson, 507 Southwest 2nd, is a conditional use issue where a Board of Adjustment granted a conditional use and just used the basic terms that we find no health and safety issues. It was reversed because the court said very clearly you have to give specific facts and circumstances, and there must be more than just a general statement. We don't see it as a problem. Also, Riffin and People's Council for Baltimore, a 2001 case, is almost the identical facts to this case. It dealt with bungee jumping. It was in a rural area, and it was denied because bungee jumping was found to be a dangerous sport and one that was not allowed in a rural area. The substantial evidence presented here before the board establishes that safety issues absolutely exist for this piece of property if you allow these very risky zip lining and different amusement rides. It also establishes that there are health issues. It is very clear from the own data submitted by the applicant that using the tanks and the type of things that they will be using to allow the 20,000 people to use facilities will absolutely cause a problem and that they won't be able to do it. If you have more than 200 gallons of waste that comes into an area going into a tank under 902KAR 10-085, for health reasons, you cannot go forward and put those tanks in because the government has already determined that it's too much waste to be taken out through either septic tanks or marine tanks or port-a-toilets, and that can only be done for a limit of two years. And if you come forward to the state, because of the health factors dealing with the waste, you have to have a written confirmation from the Lexington-Urban County government that within two years there will be a full sewer line there. So for that health reason, as well as for the safety reasons, it is clear that the Articles of 7.1 cannot be met, that you must follow along. The other issue is that we must not ever overlook the fact that this is an amusement park. While the applicant and the staff are only willing to acknowledge that it resembles an amusement park, if it's a duck, if it quacks like a duck, if it walks like a duck, it's a duck. Additionally, I'd ask you to look to Kentucky Revised Statute 446-080. It says very clearly that in making determinations as to what something means, that the Kentucky Revised Statutes and the courts of law have held that all words and phrases shall be construed according to the common and approved usage and language. You already have precedent that this Lexington Fahey and Urban County government has accepted, in an OAG opinion, that Webster's Dictionary shall define what an amusement park is, and that is that anything under Webster's that is a commercially operated park with various devices for entertainment is an amusement park. Your own Lexington Fayette Urban County government has accepted that definition in OAG opinion, 82-490, when it determined that it would give bonds and revenues to Joyland for certain issues, finding that it was an amusement park. The industry itself defines it as an amusement park. ASTM defines it as an amusement park. The actual company that has been hired by this facility to build the zip lines and the various rides defines it as an amusement park. All of the common usages and all of the common definitions have been accepted and have established that this is an amusement park. We have submitted into the record already the Kentucky Revised Statute that gives the authority to the Department of Agriculture to actually regulate this particular piece of commercial endeavor. We've given you the sites to the ASTM. We've given you all the sites, and I'd ask again that you acknowledge that they have been admitted. Therefore, we come to the situation that you must decide that while all the common usage, while the actual Lexington-Fayette Urban County government has already accepted this as the proper definition, that you will deviate from the definition that is accepted by the Department of Agriculture by the industry itself, by the company that's going to build this, that you will deviate from that definition and find it to be something else. Based on all the evidence I have heard at the last hearing, all the documents I've reviewed that have been submitted by the applicant, I can find no justification to deviate from that definition that this is an amusement park. In fact, if you choose to deviate, the only reason I can find that you would deviate is that you have decided to attempt to circumvent the ordinance as it now exists, which holds that you may not, as the Board of Adjustments, legislate, and you may not put an amusement park in an agricultural rural area. It is at this time prohibited under the law. There are ways to do it, proper ways to do it, but the way to do it now is to deviate from the standard, from what everyone else has held it to be, the government itself, the Department of Agriculture, the industry itself, because the only justification for that, if it is given to a court, would be that you simply wanted to circumvent the existing ordinance that says that an amusement park may not be in an agricultural rural area. Thank you very much. And for those reasons, I would ask that you deny the request. Our next speaker will be Carolyn King. She's a resident, a signature to speak, and she has just a petition just to give you along with the matter. Goodbye. Thank you. Thank you. Where is the... Shut up. Shut up. Get that over. Yeah. My name is Carolyn King, and thank you for letting me speak today. This is a map of the Boone Creek area. And it's self-explanatory. Bing Creek comes down the middle. Kentucky River is at the bottom. Clark County here and Fayette County there. Attached are the signatures representing 50 different tracts of land. The signatures of those property owners or their designated assignees are for nearly 2,000 acres. These properties located on Boone Creek in Clark and Fayette counties are opposed to the Commercial Recreational Facility C-201170, Boone Creek Adventures. This represents the properties on both sides of the creek from the proposed request for over four miles upstream. Also included are additional adjoining properties within the watershed and those adjacent to the request. The properties in opposition to this request are marked on the map in green. The request is outlined in red, and the properties proposed to be leased are outlined or dashed lined in black. I concentrated on the properties located on Boone Creek and the property near the proposal site. This document is our intention to protect and preserve the natural landscape in this area for the benefit of this generation and future generations. These landowners are conservation-minded and want to keep Boone Creek natural and non-commercial. My property, 2470 Grimes Mill Road, with one-half-mile creek frontage, is under a conservation easement with Bluegrass Conservancy. It is in close proximity to other land placed under conservation easements with either Bluegrass Conservancy or PDR. These easements are marked on the maps that I handed out. Also, the landowners want to keep the creek free of charge and open to the public for fishing, hiking, and kayaking. Time. Can I finish? I grew up in Winchester and have spent a lot of time on Boone Creek since the early 60s. In 1973, I purchased my property on Boone Creek. I know from firsthand experience during this time that Boone Creek, from Grimes Mill Road to the Kentucky River, has been free of charge and open to the public. The purpose of the proposal before you today is profit. There are many ways of making money. there's only one Boone Creek. The landowners represented here, and I ask the Board of Adjustment to not adopt the proposal before you today. Thank you. Thank you. Thank you. Mr. Chairman, you can turn the lights on if you wish. Good afternoon, Mr. Chairman and members of the board. My name is Hank Grady, and I'm the attorney for the Old Richmond Neighborhood Association. And I've distributed written comments, and within the written comments are materials that are referenced that other people have presented. And I'm not going to repeat that. I'm going to be respectful of your time and try to identify a few issues that have not been dealt with in much detail heretofore as we close this part of our presentation. Again, we represent Old Richmond Neighborhood Association, which includes many adjoining and nearby property owners. First, the application contains multiple conflicts and contradictions, including inconsistent and conflicting identifications of the actual applicant and vague explanations of how this application would modify the prior conditional use permit previously issued to the Boone Creek Anglers Private Club, which appears to have become open to the public without any approval from this board. These issues are detailed in the letter to you from Mary Diane Hanna, President of the Old Richmond Road Neighborhood Association, which is attached to my letter as attachment one. We ask that you deny this application where it seeks to change the land use in the AR zone property to uses that are especially prohibited in that zone, where it proposes to handle human sewage in a manner that is especially contrary to the law in Kentucky, and where the application is impermissibly vague, essentially asking the Board of Adjustments to give the applicant a blank check to do whatever he wants to do. The applicant asks the Board to ignore your basic statutory duty, which is to make sure that conditional uses do not impair the character and the integrity of the zoning district where they are proposed to be located. On my letter in page 2 and page 3, I cite both Kentucky law concerning conditional uses, which focus on health and safety and general welfare issues, and character and integrity of the existing zone where it is proposed. I want to call your attention to the word specifically. In order to allow a conditional use, the KRS-100-237 requires as a matter of statute that they can only be uses that are specifically named in the ordinance. And here the term, the most specific term is not included in the permitted uses, it's included in the prohibited uses as set forth in my letter and as other speakers have set forth. Pages 3 and 4 of my letter were covered by Judge Goodman and many other speakers, and I'll skip over those. The next couple of pages describe the Boone Creek application, and I think that has been presented to you. I think you're familiar with that. If you will look to page 6, I want to discuss specifically the Board of Adjustments. We ask you to disprove the application for a commercial facility that proposes to use holding tanks to store human sewage where that commercial facility generates more than 200 gallons per day. The Kentucky law governing sewage is clear. holding tanks are not an approved method of handling human sewage for a commercial facility of this size. The applicant has provided you with something called an operational management plan prepared by Sarah Smith. At page 4, the plan states, quote, this management plan is a living document. That language is a euphemism for explaining that this so-called management plan contains no details and no specifics about what they propose to do at this facility. On page 12, the plan anticipates potential for annual usage of 16,000 to 20,000 visitors to the canopy tour. These numbers would appear to exclude children and other visitors who do not choose to take the canopy tour. There is one sentence that we have found in the management plan to address the management of human sewage from these 6,000 to 20,000 annual visitors and overnight guests. At page 10 under section 2.4.3, Protection of Water Resources, the plan states, quote, sanitary waste facilities on the property will be designed as self-contained and will not discharge to the environment. That language describes a holding tank. At Appendix 2, we have attached the Kentucky statute that defines holding tanks at KRS 211-970. Kentucky law defines holding tanks to include portable toilets. Kentucky Administrative Regulations, which we've also attached, 902KAR 10, 085, govern on-site sewage disposal systems, including the use of holding tanks. The regulation requires the use of holding tanks. A holding tank shall be permitted only under the following conditions, and I've omitted the ones that talk about temporary holding tanks, waiting on a sewage line to get to a facility or waiting for a septic system to be properly installed, those temporary holding tanks. The one place that appears to be closest is you can use a holding tank for a commercial or public facility that has a daily waste flow of less than 200 gallons per day. Table 1 of that regulation provides design daily waste flow calculations that are to be used For single-family residences and commercial lodging, like the Angler's Club in this facility, the flow is 120 gallons per bedroom. For tent camping design, it appears to specify 75 gallons per space or platform. For a commercial activity with a visitor center, the design is 5 gallons per visitor. The applicant has proposed visitors approximately 100 per day coming to the visitor centers, which would generate 500 gallons per day. There are at least five bedrooms that we know of generating another 600 gallons per day. And the open platform camps appear to generate over 1,000 gallons per day based upon the design flow. Clearly, this is a commercial facility that will generate an excess of 200 gallons of wastewater per day. Holding tanks are not a permitted method of handling human sewage generated at this facility. The failure of the applicant to address the human sewage generated requires the Board to disapprove the application. The next section of my letter talks about the page in the operation manual that discusses fire safety and emergency response, basically saying we'll take care of that later. And that, too, is an inadequate description of the fire and human health requirements of this facility. The plan states at page 17, an emergency action plan will be established. The Board will recall that in 2000, when this Board approved the Boone Creek Anglers Private Club conditional use application, the Board required an emergency response plan on that occasion. We have been unable to find any written record of such an emergency response plan for that facility. The Board should find that the applicant has failed to make adequate provision for human safety for his 16,000 to 20,000 proposed visitors to this site. The next section in what I've provided you is a lengthy section that I will not go over in detail because you've heard it from many speakers. I've referenced Ms. Martin's exhibits in this section. I also want to reference certain cases, and again, I'm not going to discuss these like Judge Goodman, but one particular case is Keough v. the Woodford County Board of Adjustments. That's attached to my document as Exhibit 6, and this is a statute, a case that I think is very close. There, the Board of Adjustments in Woodford County had to decide what was a tourist home. And in that case, the court looked expressly, and the Board of Adjustments looked expressly at safety laws regarding food safety in Kentucky statutes. There's a close parallel to this situation, and this is authority that would justify your using the authority we provided you from the Department of Agriculture to help define what is an amusement park. From our perspective, the applicant really doesn't have much of a response in opposition. If you look at tab 12 of Mr. Simpson's presentation to you where he attempts to argue this is not an amusement park, if you look carefully at those four pages, all he is saying in those four pages in tab 12 is that Kentucky law does not prevent the lexifated urban county government from writing a legislative definition if it chooses to. That hadn't happened. Clearly, it has not been preempted. One could be written for this community. Louisville has written one. But in this case, there is no definition in the zoning ordinance. Kentucky law is clear. You are required to look to see if that term has been defined in other statutes, if it's acquired a special meeting, and then you're to use the common definition, and that has been provided to you by a number of people. I make reference to the fact that this appears to exceed the lodging requirements. both the private anglers club and the open platform camping that is prohibited in this zoning designation. And finally, I want to call your attention to the fact that all of this area is located in property located on the National Register of Historic Places. This kind of activity, the zip lines and the challenge courses, do nothing to enhance the integrity of property that is listed on the National Register of Historic Places. Those kinds of activities would have to be considered non-contributing activities to properly listed on the National Register of Historic Places. There are a number of other specific objections in my letter, and I would commend those to you, your reading, either before or after this evening is over. At this time, I would like to tender findings of fact and review a few of those findings of fact with you. Thank you. strong support for findings. The third bullet on the first page regarding the comprehensive plan. The fourth bullet regarding the rural land management area. The last bullet on the page regarding the core agricultural conditional uses. Bullets on the next page regarding the sewage handling building limits, the 10,000 square foot limit, the plans for this community, including the comp plan, the Boone Creek Conservation Corridor Plan, the green space plan, and the Boone Creek Special Nature Protection Area, all of which we believe are incompatible with this proposal. I've noted on the third page the amusement park and the septic or the package plant, I'm sorry, the holding tank prohibition, the national register nomination, and a number of other findings that we believe require that you find that this should be disapproved. Thank you for the opportunity to comment. I join with the other speakers in opposition to ask that you disapprove this as a clear violation of the integrity of the AR zone in Fayette County. Thank you. Thank you, sir. Mr. Chairman, that's our witnesses for the opposition. And at this point in time, we'll be happy to give closing argument if you choose. Should we wait until ... Thank you, Mr. Chairman. I'm Bruce Simpson. I'm here on behalf of Burgess Carey and Boone Creek Adventures. and in response to the arguments that have been just tendered to this body and documents that have just been handed out. Let me, of course, when you practice these kinds of cases, you have to be prepared for just about anything that might come your way. There's no discovery, really. We tendered a number of documents in advance of this hearing last time and submitted our case-in-chief last time. I will have to say I'm troubled by a significant portion of the applicant's case, particularly as regards the introduction of Julie Goodman as a judge, as if her testimony should carry more weight because she is a judge. It was referenced by two attorneys in this case, Mr. Todd and Mr. Gratty, in the hopes of persuading you that because she is a judge that you should pay more attention to her than you should pay to any other witness. And I object to that. That's improper. That's inappropriate to do before any tribunal. In this instance, Julie Goodman is a witness. She is a district court judge. She presides over misdemeanors and civil cases of less than $4,000. She is not a circuit judge. Her testimony carries no more weight or influence than any other lawyer or witness who's testified in this case. and I would respectfully ask you all not to do so. I will deal directly with Ms. Goodman's comments to you shortly, but I am troubled by it. As a lawyer, I'm troubled by it. It's just not appropriate to put a witness with a label of judge and repeatedly reference that before a quasi-judicial proceeding like this. It's improper. Now, I would dare say that in the course of your service on the Board of Adjustment, that one of the questions that you probably never thought you would hear so much testimony about was what constitutes an amusement park. I would dare say if you were to take part in a survey before you got involved in this case and someone asked you what was an amusement park and gave you a description of what we proposed in this 167-acre recreational project and you were given multiple choice responses as to what it was, a commercial recreational area or an amusement park, without hearing any evidence at all, my speculation is you would not choose an amusement park. Nevertheless, they have orchestrated every single witness to come before you to proclaim that it's amusement park. And even Ms. Goodman has said, if it walks like a duck and quacks like a duck, it must be a duck, and therefore it must be an amusement park. Now, I've heard a lot of non-sequitur arguments in my life. I've made some real stretches of arguments in my life. But I'm here to tell you that it would be straining my professional credibility to come into this chamber and to try to convince you that what we're proposing, based upon the evidence, is another King's Island, a Disney World, and the like. And I'm not going to debate it that much because I don't believe it deserves that much attention. Last hearing we had, your all's general counsel advised you that you have to make a decision. What does this most resemble? A commercial recreational facility with the walking trails, the mountain biking, the canoeing, the kayaking, the rock climbing walls, the canopy tour, and those kinds of activities, the educational component of all the historical resources that are going to be highlighted, does that resemble King's Island? Does that resemble Disney World? She said you all have to make the call. Now I'm going to try to assist you in that determination very briefly. I have prepared a written memorandum of law that I tendered to the body a month ago. Under tab number five, much of the evidence last time came from Ms. Martin's explanation of amusement parks. And she used the Internet, obviously, and did a Google to find what amusement parks were. And it's been said that Webster's is a good source of information about what an amusement park is. And there it is. An amusement park is an area with several mechanized fun rides, usually accompanied by a variety of other attractions, including shows, games, and eating and drinking facilities. Amusement parks usually charge an admission fee for entry. On the next page, you have more definitions of what constitutes an amusement park. and so you have to make a determination. Is this an amusement park? Is this a commercially operated park, according to Webster's, having various devices for entertainment as a merry-go-round and a roller coaster and usually booze for the sale of food and drink? Have you heard any description like that in connection with our application? It's interesting because after the Webster's definition, when I did my internet research a question, a little bubble popped up and it said, what made you want to look up amusement park? And I thought, you know that's a pretty good question. So the next thing I did to help give a make sure that I wasn't transferred to another planet or something when it came to what I believed an amusement park was I thought I knew pretty well before I came into this case, is I put amusement park in the Internet, Google clicked on image. What does an amusement park look like? It printed up 25,800,000 images. I'm not going to share all of those with you. I've shared about 30, and none of them looks at all like what we've been producing in terms of evidence in connection with this case. under tab number six. Under tab number seven, I said, well, let me apply amusement parks to Lexington. Maybe I'm missing something in my own hometown. And so what the Internet revealed about amusement parks was, as you can see under tab number seven, Gaddy Town is listed as an amusement park. Six Flags, the equestrian events at the horse park is listed as an amusement park. Kentucky Game Exchange, Carmichael Music and Vending, Fan Outfitters. On the next page, Kids Place, and then Tiger Kim's Taekwondo Academy is listed as an amusement park. But my research didn't end there. Fortunately, John Park, who, if you recall, lives right next to this proposed recreational area. John's a neighbor, and he testified he was skeptical and concerned when Burgess first approached, and then once he understood all of the different details associated with it, he was on board and vouched for it quite specifically. But after listening to the presentation about amusement parks, he wondered if he was being represented correctly. He filed an open records request with the Department of Agriculture. I'm under tab number 8. He filed an open records request to see, well, let me see what kind of amusement parks are being regulated in connection with Lexington as regards this statute that they keep referring to, which gives the Department of Agriculture the exclusive authority to regulate safety in connection with a ride such as a canopy tour or a zip line. And what came back from the Department of Agriculture yesterday was, and the email on the front describes it, the subject, active amusement ride companies in Fayette County, from Chad Halsey with the Department of Agriculture. This was submitted by Dorothy Herzl, administrative specialist there. amusement ride companies. We've got 28, in case you didn't know, in Lexington. 28. We have one at the Crossroads Christian Church on Todd's Road. We have one at the Mini Express Train Company on Memory Lane. We have the University of Kentucky Athletics Office at the Joseph Craft Center in Commonwealth Stadium, apparently is an amusement park. Chick-fil-A at Hamburg is listed as an amusement park. Chick-fil-A on Harageburg Road, Chick-fil-A on Nicholasville, Chuck E. Cheese, Gaddy Town, Hamburg Shell. 1907 plotted plays according to the Department of Agriculture. Their source for defining an amusement park. Hamburg Shell is an amusement park. McDonald's, Urban Active, Southland Pool, Tate's Creek Pool. Now you all have to make it clearly a threshold determination that if you believe this is an amusement park based upon what we have described to you, what you have seen in terms of the evidence of what we've represented, regardless of what they want to call it, If you believe that virtually 1% of the use of this 167 acres, which is going to be used in connection with the zip line, if that is an amusement park, then this case is over. This case is over. We don't need to go any further. But I believe that would be such a totally unreasonable conclusion that what we're proposing here with all these outdoor uses and recreational components is so far afield of being an amusement park in the ordinary common sense understanding of that word that we've wasted way too much of your time trying to make something out of nothing. simply because every witness comes before you proclaiming it to be an amusement park. Tab number nine. They apparently believe that we're so totally isolated from local fire and emergency services that we shouldn't even consider, you shouldn't even consider, any kind of proposed conditional use for this property. They didn't bring anybody from the fire department in. They didn't introduce any written evidence of any fire service deficiencies or problems. No emails or letters or expert testimony. We had one gentleman come last time, he talked to people at fire station 18 about what he thought they told him. And then Ms. Goodman has latched on to that and her argument and Mr. Grady and Mr. Todd and everybody else. But where is the credible evidence that we have some deficiency? If it's that bad, we've got 55,000 cars a day going on I-75. If we're in that bad a shape in terms of being able to respond to an emergency, they ought to reroute 75 back to Tennessee because they're in a danger zone if they're coming up here in terms of fire and emergency services. Now, the truth of the matter is I do have some documentation, and I've cited to the sources in the fire department about how long it would take to get an emergency vehicle to this site. We talked to Alan Case, Division of Water Control, the Lexington Fire Department, and Brian Wainscott of the Lexington Fire Department about how long would it take to get to this particular location from the various fire stations that are close to it. Of course, fire station 18 is a little over 2 miles away, 4 minutes. Fire stations 21, 9, and 16 are further away, 11 miles, 4 minutes to 8 minutes, depending upon the traffic. You're going to put the sirens on, get on I-75, get off on exit 99, and be there. Or they can go down Old Richmond Road, which is classified as a minor arterial. That's a significant road, a significant improved road, compared to Jack's Creek Pike, where Ravens Run Park is. Why is that significant? Well, Ravens Run is an outdoor recreational kind of park. You walk around and tour and so forth. It doesn't have access to the river, which I'll get into in a moment, but it has a lot of people. And it is about 2.7 miles from this site in the same part of Fayette County. Much less accessible. You know how many people a year go to Ravens Run? 32,300. I've got it from the Parks Department in an email. Mr. Simpson, it looks like these other three fire stations are 12 miles away, and you're thinking that an emergency vehicle can get there in four to eight minutes. That's flying. That's what they told me, that their response time. Can I calculate the speed, the miles per hour? It's fast. Well, you know, if it's an emergency, they're going to be fast. Thank you. You know, you don't want them to be going slow. This is the only documentation I've seen. Okay. Okay? Fair enough? Two months, I'm the only one who produced it. Incited to the people that I talked to. I submit that that's more credible. And if Ravens Run, which you can see on my handout, which is 2.7 miles on the site, it's got 33,000 people a year, do you think the Parks Department would put that many people at risk? It's even more inaccessible than I-75? No, no. And let's get the numbers straight in terms of context. Mr. Carey has estimated that the high point of attendance would be approximately 20,000 people a year. Now, the arguments and positions I've heard is that this is like 20,000 people a day. The truth of the matter is, it's 55 people a day if it's 365 days a year. It's 66 people a day if it's 300 days a year. 66 people. We're talking about 66 people at this site. 66 people. That is a lot of impact to have to consider. 66? I don't think so. Now, I've got some other comments to address in terms of what the guiding principles of the Comprehensive Plan and the Green Space Plan and the Rural Land Use Management Plan provide in connection with Ural's decision in this case. But they have thrown up a lot of arguments that really amount to red herrings when it comes to this case. Chief among those is the sewage issue. We're going to respond to maybe 66 people a day, plus the staff. And the reality of it is this. You all have no jurisdiction over sewage. We could come in here and argue about what we're proposing to do about sewage treatment for hours, but you know what? You don't have any authority to pass on it. That is, within the exclusive province of the Fayette County Health Department. And that's why in every one of these cases, every single one of these cases, one of the conditions is you have to receive the appropriate approval from the Lexington Fayette-Urban County Health Department because they're the ones with the expertise. They're the ones that have to give you the permit. they're the ones that have to judge what you're proposing to do with respect to on-site treatment of human waste, whether that's acceptable or not. And the Board of Adjustments staff doesn't want people coming down here and spending four hours talking about how we're going to deal with human waste when it's not within your office province to make that call. That's a deferred call. And you know what? It's subject to open records, and those that oppose this application can go to the health department when we submit our application for approval in terms of how you treat human waste and they can challenge all of that. But that's the forum, that's the body, and this is not the forum. This is not the time to get into all of that level of detail. You simply don't hear it. The same thing is true with an emergency plan with the fire department. We've already had the fire department down twice to look at access. We've given them the additional emergency exits on our site plan that they wanted. We're going to provide a four-wheel vehicle that they wanted. We have right now on site 10,000 gallons of water stored on this site. 10,000 gallons already in place. So when you all make a decision on a conditional use like this, you make it subject to approval of a number of conditions, one of which is approval by the health department, one of which is approval by the fire department on fire safety, one of which is approval by the Division of Engineering in terms of any road access. Why? That's their expertise. And there is right to challenge those decisions, each and every one, before the appropriate form and the appropriate body if they're not doing what they're supposed to do. But this isn't the form, which is why we don't make a lot of presentations, because this case could take two weeks. The question you have to decide is this. is this a commercial recreational application for a conditional use permit, number one. We believe that based upon what it most looks like, what it most resembles, as your general counsel advised you the last time, is what you ought to do. We believe the facts are that walking trails and mountain biking and rock climbing and canoeing and kayaking and the canopy tour and the educational ecosystem tours and the camping, that that's more like an outdoor commercial recreational space, number one. Now the next question you have to decide is, are we going to have an adverse impact on anybody? That's the next question. Now, we've heard from a lot of people that are a little bit far removed from this site that they have a great fear that we're going to do them harm. There is no requirement that any applicant come before you and spend the kind of money that Mr. Carey has spent to come up with a preliminary assessment of the area he wants to put this commercial recreational area in. He's done so. Smith Management Group is probably the most preeminent environmental consulting group in the Commonwealth of Kentucky. They helped get McConnell Springs going. They do a lot of work for municipalities all over the state of Kentucky. That's why we chose them, because they've got credibility with governmental officials who will evaluate their testimony, have evaluated their testimony over a period of time and found it to be not only believable but compelling. They shoot straight and based on the facts. So what did we do? Came up with about a 200-page preliminary assessment, documented history, historical, significant resources, environmental resources, management issues that need to be dealt with to make sure that this very pristine area that Mr. Carey sees to open up to the public, and I'll get to that in a moment, is properly taken care of. He does not want to destroy the thing that is the centerpiece of what he wants to do, to show, to educate, to have people become aware of in Fayette County because we don't have anything. We've got Raven's Run. We have Floracliff, which you need a private appointment to get into. And despite all the provisions in the green space plan, the comprehensive plan about making these areas in these historic and scenic areas available to the public, up until Mr. Carey, no one has chosen to do it. No one, not a single person. Why? No one has the passion. No one has the interest. No one has the history in these kinds of projects which you've all witnessed when you went out there and you observed him guide you through this property. How committed he is to taking care of it. You know, in life, and particularly as I grow older, opportunities come along fleeting. Government is not going to create one of these wonderful parks. Government doesn't have the resources to go down there and help restore a mill that was built in 1803. Government is not going to go down there and take care of these invasive species that are eating that property alive, eating the endangered species alive. Government's not going to do it. Now, some future purchaser that's not as attentive, they can come in and cut the timber, strip it bare and there's no law to the contrary. They can do it with impunity. It's a very scenic resource piece of property and we're fortunate the community is fortunate to have someone who's willing to spend two million dollars investing in this project to take care of it, to take care of the invasive species to make it special and to make it available for the public in a proper, carefully managed way with safeguards that don't impact the adjoining neighbors. You know, what I found most compelling of all the evidence in this case, I've been doing these cases since 1988. I have represented more neighborhoods than I've represented applicants. And one thing is a given. The people that come to hire me to fight a case, the leaders, the people that are most upset, without exception, until this case, are the people that live right next to the thing that they fear the most. This change, this site, shopping center, neighborhood, apartment complex, industrial development. But what did you hear during our case in chief? John Park is the chairman of the Green Space Commission. he wasn't here to testify on behalf of the Green Space Commission but just to give you a sense of his values and commitment to the environment, he's the chairman of that I'm going to give you the same time sir I don't have anywhere to go until 10 o'clock I think he objected because he didn't like what I had to say because he knew it was true He knows it's true. He knows the people closest ought to fear it the most. John Park didn't fear it. He sits on the board of directors of the forklift right down the road. He didn't want to have some nuisance next to him. Bill Mead? No, sir. The Ashbrooks? No, sir. the Ashbrooks sent a letter. They own more property to the north, and if you look under tab number 14, those were the people in support of this property. Under tab number 14, all the people in blue. surrounding the proposed site, Boone Creek Outdoors. All that property in blue are people that own property right next to this site. And they're all in favor. And the Ashbrooks have 168 acres. They own most of the property to the north. And this is what they said. This letter is to address Burgess Carey's conditional use request for Boone Creek Adventures. We own the farm in Clark County that is bound by the Kentucky River and Boone Creek and shares the property line with Burgess. We have owned the farm since 1998. In 1999, Burgess approached us with his idea of sharing this spectacular area with others through the formation of the Boone Creek Anglers Club. From the beginning, Burgess was open to our ideas and addressed all our concerns as neighbors regarding this project. We were very pleased to say today that since his opening in 2000, not only have we had no adverse issues, but the Boone Creek Gorge is cleaner and our previous problems with trespassers and the litter they leave behind seems resolved. Early this summer, Burgess approached us again to discuss his concept of an environmentally responsible way to expand the opportunities for others to experience this place through education and adventure. As landowners who confront the limitations of agricultural opportunities on this steep, rocky land, we feel Burgess has found a viable way to use this land while keeping its integrity. Based on our 11-year history with Burgess and his management of the Boone Creek Anglers Club, we support his request for a conditional use permit. we feel that this canopy tour and the educational facility would be a positive addition to the area. Sincerely, Kevin and Preston Ospro. The people most impacted are the people most in support. Now, I'm going to have to deal with the human waste issue. It's never pleasant to deal with that, but it's been discussed about a lot today, not by any experts in the area. A lot of arguments, people making copies of papers from Texas and foreign cases and so forth. I told you that the Health Department has exclusive jurisdiction on this matter, but I want to have Sarah Smith come up. She's the president of Smith Management Group to respond to Mr. Grady's comments relative to holding tanks and the like. And again, I want to make it clear that at this early stage, in terms of specifically, are we going to have marine toilets? Are we going to have some other kind of suitable, approvable facility for on-site human waste treatment? That's a determination that we get into and spend a lot of money on if we get your all's approval and authorization to go forward. And the health department makes that call because they have the expertise. And if someone objects to what the health department has done, they can appeal it and ask for a hearing. So anyway, Sarah, if you come up. Is she one of the two? Is she one of the two? Yes. She knows or understands what she's under. Yeah. Thank you. Sarah, if you would just explain to the board your response generally to two things. Number one, what happens if nothing is done on this property and it's left in its current state? and number two, respond briefly to the waste treatment issue in terms of how that will be processed and what the options are as to this site as you understand it, and you would recommend to Mr. Carey if the board were to approve the conditional use request. You've got three minutes. Okay. First, on the waste, again, the health department is the entity in charge. There is a septic system up at the building that will be the Welcome Center. That will be evaluated. It will be, according to the comments by the staff, enlarged if it will support enlargement and should handle most of the traffic there. Please keep in mind that Raven Run, which sees as much or more traffic than this facility will, has human waste facilities at the Welcome Center and nowhere else. We don't expect there to be any need for human waste facilities. on the hiking or biking trails. There will be a place where there's a remote staff person down near the river there specifically to watch for trespassers, and it's a safety issue, and there will be a remote waste facility there. It's going to be a lot closer to a chamber pot than anything that would produce large volumes. When we're talking about a marine toilet, we're talking about something that is basically a dry type. that gets ported out of there on an ATV and gotten rid of. It's not something that's going to produce 200 gallons. Just can't. With regard to the camping facility, same type of approach, all of which has to be approved by the health department. And if it doesn't fit within their guidelines, it will be redesigned. Primarily, you're going to be supported by the existing septic system, which will be expanded only if it will support that. I'm not a fan of septic. In karst topography, I don't like it. We use it all the time, especially in rural areas, but we have to do it very carefully. What happens if this project doesn't go forward? There's a lot of things I can't predict, but I can tell you that the threatened and endangered species, particularly the plant life that's there, will continue to be threatened and killed off by the invasive species. The particular ones are Winter Creeper, which is a green, low-growing ground cover that kills off wildflowers, especially in the forest, and Bush Honeysuckle, which is a massive invader. I have it in my backyard and can't get rid of it. The only way to get rid of it is physical labor. You cannot do a widespread herbicide that's too damaging to the environment. So that will happen. The property right now is used for agriculture as it is appropriately used. It's used for cattle. The heavy animals are creating erosion. They are also accessing the creek reasonably, but they're impacting the creek as well, both from sediment and from nutrient exposure. The one thing I can't tell you is going to happen is what's going to happen to the historic resources. The historic resources on this property are remarkable. They are also very... Time? She could finish, Mr. Chairman. She's almost done. You've got 20 seconds. You've got it. There's nothing that prevents somebody from coming up Boone Creek where they have the right to be, walking up to that mill, and taking the keystone out of that arch. Nothing prevents that. There's nobody on site. There's nobody managing it. There's nobody curating this site. We have a historic district, and we have very little access to what's really beneficial about it. Thank you. Thanks, sir. I'd also like to call Barry Grimes. Barry's on the list, and that's chairman. I understand. I was speaking to the man behind you, sir. He was wrestling in his seat, and so I said, you have, too. Yes, sir. Barry? Barry, if you would state your name and your address, number one for the record. My name is Barry Grimes, and I live in Richmond, Kentucky. All right. Barry, share a little bit about your experience with Boone Creek, how familiar you are with it, your background in terms of being an outdoorsman, and your experience in this particular area as regards the invasive species and your concerns that you have about trying to preserve this area. I have a prepared statement. If I may, I'll try to read it very quickly. for the two minutes. Three minutes. You've got three minutes, sir. Okay. I want to thank you for allowing me to speak to you today and share with you why I think this project is one that merits your approval. I love Boone Creek and have been finding my inner Daniel Boone there for over 40 years. As an experienced whitewater kayaker, I am one of the very few members of the public who have the legal right to visit Boone Creek. I boat the section from the Christian camp to the Kentucky River on a regular basis. So I understand intimately what non-point source pollution is and where it comes from. There is no question it's coming from the people who live along Boone Creek and are practicing so-called traditional agriculture. Between the animal waste, silt from erosion, collapsing banks, and fertilizer runoff from crops, it's hard to miss the pollution when you're surfing in it. I like this canopy tour idea because, unlike the neighbors who are upstream, it will not pollute the creek at all. I've learned that a canopy tour is a lot like whitewater rafting. Both activities allow thousands of people to experience a very special place without polluting or leaving any trace of their passing. People floating down a river are like people flying and hiking through the treetops on a canopy tour. Nobody is trampling the vegetation or even staying in one place for very long. Rafting and canopy tours are so environmentally low impact that they are allowed in national parks. Canopy tours are abundant in Costa Rica, where biologists first pioneered tree-based cable suspension techniques to study the fragile jungle ecosystems. Today, modern and safe canopy systems continue to preserve sensitive habitat and open up remote areas to the public without harming them, creating jobs and attracting ecotourism dollars in the process. How can this possibly be a bad thing for Fayette County? It's easy to understand the not-in-my-backyard crowd. Their opposition to this Canopy Tour is open and obvious. What I can't understand, however, is the uncompromising, almost willfully uninformed opposition of an organization like the Fayette Alliance, who heralds sustainability, but when faced with a project that literally defines sustainable growth, they come out against it. When I first heard of the Canopy Tour idea, I was sure that the various associations, boards, commissions, and committees organized and championed by Boone Creek landowner Mrs. Gloria Martin would be natural allies of this highly sustainable, non-polluting concept. One would think that the well-meaning, environmentally concerned opponents of the Canopy Tour would be heartily embracing it and welcoming it to the struggle to take care of Boone Creek. Instead, they are spreading disinformation and dismissing it as an amusement park. Canopy Tours rely only on human power and gravity to operate. They are non-polluting, and this one, if allowed to go forward, will help save the rapidly disappearing native Boone Creek ecosystem from its greatest threat, the encroaching menace of bush honeysuckle and winter creeper vine. I just have a little bit more. You've got 20 seconds, sir. The onslaught of these plants constitutes nothing short of a quiet, slow-motion environmental genocide that remains largely unopposed by the self-proclaimed protectors of Boone Creek. Just this past weekend, I happened to be in Boone Creek and was hiking near Mrs. Martin's property and found it as choked and unchecked with Winter Creeper and Honeysuckle as any other. This area is so sensitive that the only way to combat these alien invasive plants is with expensive and unending manual labor. For those landowners with unlimited personal funds, this may not be a problem, but for others it is just not an option. As for the existing efforts against these insidious plants allegedly taking place, they're clearly not effective enough, not by a long shot. Burgess Carey and the owners of this can of pittura have pledged to contribute significant money and labor to immediately begin the battle in earnest against the honeysuckle and winter creeper. And well they should, as it's clearly an ecotourism business, best interest to maintain and enhance the natural environment where they operate. People will not spend money to visit a ruined bush and vine strangled park. I urge you to approve this permit. Thank you. Thank you. Sarah Carey, Mr. Chairman Sarah, if you'd come up Sarah, if you'd state your name and address and address the commission with respect to your all's interest in doing this property responsibly and not adversely impacting your neighbors Yes, sir. I am Sarah Carey. We live at 324 Queensway that's in Lexington and the reason I don't live at 8291 Richmond Road there are two but Burgess and I have always believed that that's a piece of property that should be shared and not not just for our personal use and enjoyment of our family in the past 10 years when people come to the house and come to the lodge they always say especially if they've ever been to our house they always say why do you live here? I would never leave. And I use two statements to explain why we don't use that house as our own private place. Everyone in this room is passionate about that area, and if you've been there a lot, you can understand why on both sides. There's something very unique and very special about those Palisade walls. You could almost say that they suck you in. Both Burgess and I have lived at the house at different times over the years, and something starts to happen to you when you're there a lot and you really want to protect it and a sort of territorialism comes over you. And when that started to happen to us personally, we decided we made a pact together that we could never live there, we don't want to live there, because we want to share it with other people. We're not asking other people to share their property. This is our personal belief. It's different from some. We're not asking anyone else to share their property. We just want the right to share ours. This has been Burgess's mission since he bought the property many years ago. He didn't purchase the land in 1996 with any specific or premeditated plans. He knew it was special and it needed to be taken care of, and that's what he's done. It wasn't until he was hosting his stepfather, who was near his mid-70s, on a little fishing and hiking trip, and Dr. Level was catching little baby brook trout and Burgess caught this picture of him and he was so happy and he had such a wonderful day and Burgess thought, I have to share this. This is what I have to do. And that's how the idea for the Anglers Club was born. It was that organic. It was a private yet personal way to share the creek with others. And we've had the same aha moment happened with this canopy tour. Our middle daughter was away at summer camp. She's six. She was at a Y camp, and they offer you, they'll take pictures of your kids at camp, and they send them to you and pictures. And one afternoon in the email inbox came a picture of my Grace on a harness up and enjoying the outdoors. And the second picture, she was on what they call the Burma Bridge, and she was walking with her hands above her head, this big grin on her face and the confidence she built. I forwarded the pictures on to Burgess with a statement, who's going to build one at Boone Creek? I had no idea this would happen. He didn't even tell me for months. He was midway through the process of planning before he said, do you want to hear what I'm working on? At our house, you don't know how to answer that question always. But he didn't even tell me. And in the past several years, we've hosted scouting groups, school groups, watercolor painting clinics, wildflower hikes, or just hanging out on the creek. And one of our last get-togethers with some new friends that the girls have met at school, one of the fathers looked at me and said thanks for inviting us but why do you do this time sorry i need my response was you had a nice day right why wouldn't i that's a few more items to cover in the materials that i provided for you under tab number 10, Mr. Chairman. There's been a great deal of discussion and apparent concern about how much square footage is going to exist on the proposed commercial recreational area that we've been describing. And we have set out in this tab, under tab 10, the square footage for the existing campground, the private fish camp, which is 4,570 square feet. That does not include the 1,500 square feet that was previously a part of the fish camp because that's going to be now the welcoming center. That's that little house that you all witnessed when you pulled in the parking lot to conduct your tour. That's going to be the welcoming center. So the existing square footage of the fish camp is 4,570 square feet. The proposed square footage of structures to be built in the Boone Creek outdoors is 7,925 square feet, and we've broken that down by the type of structure that we're talking about. We're under the 10,000 square foot minimum, not in excess of it. Under the next five minutes of discussion from me, under tabs number 11, 12, and 13, Those are important guiding documents because when I have heard the opposition object to what we're proposing, they've objected on the basis that it doesn't comply with the comprehensive plan. Now, this is not a zone change, so that's really not that relevant, but it is worthy of considering, certainly. And I say that because we're in compliance with the comprehensive plan. I have highlighted for you the goals and objectives which we, in particular, comply with, particularly as regards to developing and implementing a green space system that preserves the urban and rural identity of Fayette County and provides a framework for regional and local planning. As I said, this is an opportunity that doesn't come along that often. And if Burgess is not the one to take care of this property, it's doubtful that someone like Burgess will step up to the plate and spend the kind of money to deal with the invasive species and preserve the old mill, the Daniel Boone Caves, provide the ecosystems tour, enlighten young people in Fayette County and surrounding counties about our rich cultural and natural heritage in this area. And for those of you who went on the tours down there, I'm sure you concluded as I did, I didn't even know this was in Fayette County. It is special. It is unique. And what sets this application apart from all the others, it's intended to be shared, as Ms. Carey just mentioned. We are in compliance with the goals and objectives of the comprehensive plan. We're in compliance with very important policy provisions of the Rural Land Use Management Plan that talk about tourism. and in particular the green space plan, which has been so often referenced in this case, Mr. Chairman, the green space plan, which was done in 1994, which is still part of our comprehensive plan in terms of referencing because it was intensely studied, what does it say about this area? What does it say? What does it say 17 years ago about this area? What it says is recreation and tourism in a rural area. This plan envisions an increased tourism and recreation in keeping with traditional rural public access opportunities and in balance with the need to preserve security and privacy for farmers and residents. Increased public recreation, in turn, will build public support for the Rural Green Space Plan. We have to educate people about why is this important. Why is it that we just saw what we saw as a result of Mr. Carey's application? because it's been basically shielded away from the public. Only the people that own that property have been able to witness it. Now we have an opportunity. You all have an opportunity to open it up for the public. And you all have such incredible power as a body in terms of land use planning decisions, more so than the Planning Commission, more so than the Urban County Council. You have the power to give this opportunity a start. And you have continuing jurisdiction to monitor it along the way. Planning Commission doesn't have that. The Irby County Council doesn't have that. We've submitted plans and guidelines, update them. It's a part of our commitment. If we're not doing our job, you can revoke those plans. You can modify those plans. If we don't live up to what we say, he's prepared to invest a lot of money in compliance with these goals and objectives and plans of the Green Space Commission. And you all have the power to give him that life, and you have the power to monitor it along the way. You are the chief stewards of this project. It is the first in Lexington in our history. In particular, if you move over to page 16, encourage tourism. Tourism, one of the fastest-growing industries in Kentucky and the United States, holds considerable promise for economic diversification and green space. It is the veritable goose that lays the golden egg. The green space plan will not only protect the bluegrass identity, it will also encourage appropriate development of heritage tourism, attractions, and businesses. We have an 1803 meal. We have the first industrial site on the Kentucky River back in 1920. Bert just will show you a picture of that in a moment. If you flip on over in the documents, I've highlighted a number of them. We get into page 30, recreation and tourism in the rural area, green space, linkages, and sites. the need for increased rural recreation access. Throughout this entire document, it talks about access to the public. Access to the public. Up to now, it's all been preservation for private property owners, and the public has not been allowed access because no one like Mr. Carey has stepped up that has attempted to do what he's doing in connection with this case. Under page 31, trails, What does it say about this area? Off-road biking, bicycling, and horse trails should be created with community consent and voluntary owner participation and should be designed to ensure security of the surrounding farming operations. Our management plan does that. All our neighbors agree with our management plan. That's why they support this application. He goes on to say, because there are few places where off-road trails are feasible, These trails should be pursued in an area in the county where appropriate opportunities exist. We have that opportunity, Mr. Chairman. Finally, on page 32, most important on 32 and 33, this plan looked at 17 years ago what are called focus areas, Areas of special historical and cultural and ecological concentrations in Fayette County, of which there are five, and Loon Creek is one. What does the plan say? What did it say 17 years ago? These areas should be the focus of further examination and development of strategies to enhance their long-term protection. These investigations should consider opportunities for increased public recreation in the rural area, increased public recreation in the rural area. These areas were selected by outlining the rural resource concentrations of the highest value and that are located within the geographic areas and landscape types that were identified as lacking in sufficient public recreational access. Lacking in sufficient public recreational access. They talk about Raven's Run, great sanctuary but has limited access to the Kentucky River and the Kentucky River Palisades. And then it makes this telling statement, which I think is really critical for you all's consideration. At the bottom of page 32, ways to manage public access. Although large areas are identified in the plan as focus groups. In the Boone Creek area, we're talking 4,000 acres. There is no intention that there should be public access throughout these areas, throughout the 4,000 acres, certainly not. But there would be limited locations for public recreational areas in these sites. They're talking about this application. Limited access off I-75 on a piece of property that is going downhill, and but for Mr. Carey's intervention, it's not going to be preserved. The public is not going to have the benefit of observing and getting educated about it. Another generation will be lost in terms of even knowing that this property is down there and how important that is as we look at Lexington's redevelopment, our growing in our cities upward, preserving a rural area. We have to educate and play it forward, play it forward in terms of appreciation of my children and their children and their children's children of why is this important to preserve? And why is it important to have someone willing to step up to the plate and invest their money and submit a management plan to this level of detail, knowing they haven't got any approval, spending a whole lot of money, to say, give me a chance. Just give me a chance to do this. You can review me. I know, based upon the level of opposition, I'm going to be under heightened scrutiny. every step of the way. But Burgess Carey said, I'm prepared to do that. I'm prepared to open and be transparent as we met with the neighbors many, many hours to try to accommodate their interest. And we made many accommodations to their concerns. It is an opportunity. It is provided for in the goals and objectives of the plan. It is encouraged as part of this document that I just read from to create public opportunities. Now, it doesn't come along often. In fact, it hasn't come along before. I'm going to have Burgess Carey come up and address the final rebuttal of the contention that this is all about money. And I had to think when that was being mentioned time and time again, almost as much as this being an amusement park, it's all about the money. If he wasn't a good businessman, if it wasn't a good business model, If it wasn't going to generate enough money to take care of this land and preserve it, he would have been criticized as being foolish. But he has a business plan. It will be successful. He will take care of it. And we've got the best marriage we could possibly have, a motivated, interested pursuer of something that's tremendous, terrific, in a part of Fayette County none of you have ever seen before. and he's got a business plan that will make it successful. Burgess, I want you to share with the members of the board about that plan and about your response to the charge that this is some kind of selfish proprietary pursuit. Thank you, everyone, who's turned out for this hearing. If nothing else, the showing of interested people willing to take time out of their day to support the Boone Creek area speaks to the spectacular beauty and rich history to be found there. Professionally, I am a developer. It's who I am and it's how I was raised. I was able to become a developer with my background in construction and environmental remediation and recycling. But to me, being a developer has always meant helping develop businesses and projects to their fullest potential. My favorite thing about being a developer is when I get to turn a negative into a positive. I'm also an avid outdoor lover and user and participant in outdoor recreation, which has been my passion for my entire life. I'm a skier, a snowboarder, a mountain biker, a paraglider, a whitewater kayaker, a rock climber, a hiker, a mountain climber, a scuba diver, a birder, and a general lover of all things outdoors. I was a history major in college, and I loved to learn about our environment. I'm a lifelong resident of Lexington, and this project brings together all of my skills, contacts, and experience, and could be the very best I have to offer this community. In developing this project, which has been a work in progress for almost 17 years, I've always sought the highest and best use for this spectacular property that I have been so privileged to own since my friend John Park showed it to me while fishing Boone Creek in the early 1990s. Since discovering this area for myself, I've always felt that the highest and best use was not the old gas station to be found at the top of the hill, but the scenic beauty to be found below, in the gorge. And my mission has been to share it. This project did not happen overnight, and the careful planning, including lengthy and intensive discussions with neighbors and other interested stakeholders, has been inclusive and comprehensive. I stand before you today with a dramatically altered plan and, in my mind, diluted project, made so in the interests of compromise and working with my apparent opposition. We removed the agricultural market and reduced the amenities available for overnight guests in order to best suit all stakeholders' input. My planning as a developer, however, has caused me to consider with highest priority the goals and objectives of the citizens of Fayette County, as set forth in the most recent 2007 comprehensive plan. Some of those responsible for developing that plan and the entities that dedicate their resources to fulfilling that plan are my close friends. More importantly, even, is that my neighbors on this property are also my close, and in some cases, lifelong friends. But with regards to the city plan, I felt this project would address those principles better than any that I could imagine. Bruce has already pointed some of those things out, so I'll spare you that detail. So here we are, asking the city to grant a conditional use permit in the ag rural zone. for a recreational park. And the time has come for the city to step up. Are we going to be a city that talks about what it wants and does nothing? Ecotourism, as it has been defined, does not exist in this county, with the exception of publicly funded projects. Agritourism certainly does, with the horse park and the many jewels to be found in the rural areas surrounding the city. We have horse farm tours, wineries, and a corn maze. But recreation demands participation, and this project, which is inherently rural in nature, demands participation and activity. We have recently been called out as being the laziest city in America. This project will highlight the opportunities we have as a community to combat that. We must change. While I applaud and respect those preservationists, some in this room, responsible for making the first inroads into conserving what we value most about the rural character of our community, this first step has done nothing to allow exposure and interactivity with this valuable resource. Much like museums, once charged with preserving our heritage by protecting artifacts, are now becoming more interactive, putting those artifacts and treasures to use. In order to connect with future generations, so must the land use planners and stakeholders promote interactivity and enjoyment of those resources if we can hope that future generations will continue our legacy of conservation and celebration of our community's natural and cultural resources. Finally, I'd like to leave you with a statement. from the 1992 Kentucky River Basin Study done for the Kentucky River Authority, using Boone Creek as an example. On the final paragraph of page two, it reads, Increased recreational use of the river corridor will stimulate greater interest in the quality of the river ecosystem. This establishes a self-perpetuating cycle. As the resource improves, so does the recreational experience. Through greater use, there will be greater interest in resource protection. Finally, we have a short video I'd like to show. Before you leave, could I ask you a quick question? Here. Yes. Yes. Do you plan to sell T-shirts? Online. Okay. Not on the place. And how about food? Are you going to sell food there? No. Are you going to provide any outdoor lights for the camping? No. We're already well lit from the interstate. So you are aware of the, if you're going for the outdoor recreational facility, that you can't sell food, merchandise, and have outdoor lighting. Or have any other outdoor music, loud music, and that's part of our application. How long is this video? Three minutes. Sound. Cool, clear water and the magnificence of nature. Towering limestone palisades. Ancient waterfalls, giant trees and rare wildflowers. You'd expect this from a visit to state and national parks, but this is right here in Fayette County in the Boone Creek Gorge at the Kentucky River. But this corner of Fayette County has suffered from years of significant decline. It's not sustainable for agriculture or desirable for industrial use, and the beauty of the area is virtually unknown. The proposal to create Boone Creek Outdoors brings the best practices of environmental protection and ecotourism together for a better quality of life, economy, and the environment. Now, through careful management, Boone Creek Outdoors returns the Boone Creek area to environmentally responsible and sustainable use, providing much-needed new opportunities for residents and visitors to enjoy our great Kentucky outdoors. The proposed bike and hiking trails, wildflower walks, and fishing and boating are non-polluting healthy outdoor activities. The unique guided canopy tours will offer a glimpse of the history of the area, including the remains of a pioneer cabin and an 1803 grist mill in an area where Daniel Boone and his family established Boone Station near the beautiful creek that now bears his name. All this is located only 15 minutes from Lexington. Boone Creek Outdoors provides these incentives for the area. Trespassing will be reduced with planned control of access to the creek. Natural flora and fauna will be protected and replaced, while invasive plants will be removed. Jobs will be created in an area lacking in employment opportunity. Safety will be enhanced through careful management. Our city will be strengthened through innovative development. And visitors to Fayette County will have a year-round opportunity to experience a national park-like setting just 15 minutes from downtown. So when you think of Boone Creek outdoors, imagine a national park-like setting, with carefully managed education, recreation, and ecotourism programs under controlled access. This proposal allows our residents and visitors to be aware of these resources and experience hands-on the beauty and history of the Boone Creek Gorge, one of the most ruggedly beautiful landscapes in central Kentucky. Thank you. Thank you. Mr. Todd. Do you want to take five minutes, Jed? Do you want to take five minutes? You have five minutes. I thought you all would like to take five minutes. I need an hour and a half. Okay. Thank you. Thank you. guitar solo guitar solo Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Mr. Chairman, I'm missing two people. Let's wait a couple minutes till I remember you. The Fade Alliance, Knox Van Noggle, introduced a letter. Todd Clark from the Farm Bureau. Joan Mayer, who was the lady from Clark County who testified about their process over there and how they were not part of that, and she introduced some records in reference to the National Registry of Historic Places. We introduced, through Ms. Martin, the statutes dealing with amusement park. Ann Graff testified about Navitat. Navitat is the zip line park in North Carolina. Austin Kerr testified in reference to the 10,000 square foot limit and those documents Let's close an argument Mr. Todd, if you do your rebuttal I'm in process of giving my closing argument All right. In addition to that record, we also want to make sure that Jim Lorton testified, and Jim testified in reference to the fire department and the inadequate EMT facilities that were available, as you may recall. Dr. Andy Roberts, veterinarian, testified about agricultural tourism. Linda Carroll also mentioned and gave documents in reference to the National Historic Registry. And in addition to that, the memorandums of law by Judge Goodman and also by counsel should be admitted as part of the record, although legal documentation is normally submitted anyway. Okay. Mr. Chairman, in closing argument, I don't want to take the position of arguing. I just want to talk to you for a minute. I understand that Mr. Carey has a project that he is convinced is a wonderful project. And it may be at some point, but he's going about it the wrong way. This particular application to you is spot zoning. He is asking for a spot zone. This is not truly a conditional use permit. I noticed in Bruce's comments that he mentioned that these are people that are not in my backyard types, our neighborhood, the people surrounding this particular proposal. They're in favor of it. Everyone else is against it. And I ask you to use some common sense. The three or four landowners that are adjacent to the property, all of whom will benefit financially from this proposal. The 2,000 acres or 50 other individuals in opposition have no pecuniary interest in this whatsoever, other than to preserve, protect, and enhance what has been a truly gorgeous area for, well, before mankind walked upon the earth. It hasn't changed much. That arch they're talking about somebody removing has been there for 200 years. I don't see the immediacy of their concern. I want to talk to you about these people that live in the neighborhood, the old Richmond Road that Hank Ratty represents, Neighborhood Association. I represent the Boone Creek. These are people who do not sit back and, you know, watch television and then come down and object periodically. These folks have been involved in this process for over 30 years. The very plans that you are looking at and considering as part of your determination were formulated by them. We've all been involved in this process in developing not only the comprehensive plan every five years. I myself have sat on the plan committee twice. Many of the other people who are here today in the last 20 years have sat on various update committees. We drafted and formulated the preservation plans at UC, the green space plan, the rural land management plan. All of those plans took time and months and hundreds of hours. It's not something that we sat down in a corner and wrote one day and said, let's pass this. We literally went through this entire county, and that's one of the points that you have to remember, is that this particular issue will impact the entire county. We inventoried every piece of property, took pictures, took view sheds, historical property significance, soil types. We did all the soil type management. All of these issues were put into a comprehensive plan, incorporated by reference in a comprehensive plan, so that the bluegrass legacy that you have, the most unique area of land in this state, is preserved and adds to the enhancement of the agricultural community and adds to tourism. Trust me, tourism on this particular area existed long before Burgess's zip lines. Tourism is a huge economic generator. So I ask you to think about the context from which these people came from when they present themselves in opposition to this proposal. This is not the right way to do it. Now, let's talk a little bit about amusement parks. Bruce spent half his rebuttal saying it is not an amusement park. Well, it is. He knows it, and he can't get around it, and he's stuck. And that's just the way it is. The statute clearly says, KRS 247, any mechanized device or combination devices which carry passengers along, around, over a fixed or restricted course for the purpose of giving its passengers amusement, pleasure, or entertainment, that's an amusement ride. Well, if you look in Webster's and all the other dictionaries, a zip line is a mechanical system of wires and pulleys over a restricted course at speeds of 45 miles an hour for the express purpose of thrills, chills, or excitement. Now, that's an amusement ride, period, cut and dry. He has 167 acres. I thought it was 165 acres. He has three zip lines, two zip lines, possibly a third. They have challenge courses, rock climbing, platforms, and 11 primitive shelters that have no sanitary sewer facilities. That is more than just an ecotourism opportunity such as Raven Run or Floracliff. Raven Run and Floracliff operate only during the day. They don't have overnight people, and they don't pay that much, if any, except contributions to use it. They take only pictures and leave only footprints. There is a marked contrast between these two proposals. This zip line facility, and trust me, the zip line is the key to this whole deal. If there were no zip lines, he wouldn't be here knocking on your door. Eighty-five bucks a person, 20,000 people, a million and two a year. This is a commercial venture. And he admits it. He even labels his plan a commercial venture. Well, you can't have a commercial venture in a rural area unless you've already gotten the zoning for it. You can't have an amusement park for sure. The first prohibited use in that ordinance is the amusement park. That's why. Because it's a service eater. It has a high traffic of people. It requires all the police, fire protection, transportation systems. And this is the worst possible place in light of those issues to locate this particular amusement park. Now, I want to hasten to you and point out to you that the most obvious place to put this is in an industrial zone or a business zone. And they'd have to get a conditional use from you just as well in those zones. In fact, if you look at most other communities in this country, they're in those particular locations. Or they have taken the time legislatively to create a tourism category in their particular zoning ordinances. And they've taken the time to sit back, not looking at a site-specific application, but they've looked at ways in which to establish an ordinance with appropriate regulation, with appropriate oversight, appropriate taxation, so as to provide those services. Now think about taxes for a minute. He wants to put this thing out in the rural area in the farthest corner, yet he wants you to provide police and fire. He wants you to provide improved roads. What kind of taxes is he going to pay? He's in a rural service area. Think about that for a minute. You know, this urban service concept is a wonderful concept. not only does it give us the opportunity to preserve, protect what we have and hold dear, but it also saves us money, and it also gives us organization and regulation. It provides order, and that's what government's supposed to do. And I've sat on council meetings, and I've sat in boards of adjustment hearings over the years, and I've been involved in all this planning process, and that's one of the most important issues to those of us who have other interests. Economy, good service, order, consistency. He doesn't meet any of those particular instances. I was amused at Bruce's stretch to try and tell you that, well, we've got three fire stations. I think one of them could get here in, what, eight minutes or 12 minutes or whatever it was. It didn't tell you how long it would take you to get to the site, the site where the individual is injured. Sure, to get up there on the road, you might get there in 12 minutes if you're going 80 miles an hour. How long does it take them to get down to that bully and get that person out? Well, lo and behold, look at here. Ms. Wilson, a resident out there, had a friend, a good friend. Just like these folks interested in kayaking and hiking. He asked if he could go down and walk through the creek. And she said, sure. Well, he fell and broke his ankle. His calcaneus bone, actually his heel bone. And so they had to call the EMS. Well, it just so happened he fell on the Clark County side of the creek. And so they called the EMS. Now these photographs in sequence shows you what happens. Go ahead, Bill. they get to the site, and there's not a good transportation system. So they're checking out first, and they go back to the truck and find a clear pathway down. They find the gentleman. They put him on a gurney, and they have to hand carry him out, six people. Next slide. Then they've got an AT vehicle, ATV. So they load him on the back of the ATV, and they have to carry him from that point, I guess where the opening first occurs in the pasture there. and they have to haul him from that point up to the road. Now how long do you think it took them to get from that particular roadway down to the site to retrieve that individual and haul him out? Good part of an hour, in my opinion. And that's the key issue here. It's not just how fast you can get from the fire station to the road, but how long does it take you to get down there and find that poor soul and bring him out? And that's what Bruce didn't tell you about. And that's the key to this particular issue as far as safety is concerned. It's really a challenge to your first responders to get in there and pull those folks out. And that's a liability question. And that raises another point. If this is a campsite, why do you need to have people sign a release? Burgess has a release on his webpage. and J.D. is going to give you a copy of it. If this is the campsite where you're sitting around the campfire and cooking hot dogs, having a good time, why does the man need you to sign a release? It's because this is inherently dangerous activity. These people are suspended 45 feet above ground, riding with vests on cables. Everything happens and breaks. And they're in an area where there's sometimes no cell phone access. They're in situations where injuries happen. Or you have these people spending the night, and they're in these primitive huts with their marine toilets next to them. And they're deciding that they've had a few beers, or they want to go down and look at the creek or walk around. somebody falls and breaks their ankle. What happens at night? He says the lights from I-75 are shining on them. It's like the eyes of Texas are upon you. That's not true. They couldn't find that guy. They have to have search lights and have to radios. They'd be forever trying to find somebody. And they'd have to drag him out in night, at nighttime, the same way that was illustrated here in those photographs. So I'm telling you, this is maybe a good idea, But this is the wrong place. Okay. Bruce talked to you for about five or ten minutes about the sewer issue. He says, you don't have anything to do with sewers. Of course you do. You plan these things. You get to make decisions about whether or not these things are appropriate. That's why these people put restrictions on. Now, if there really was no issue to the sewer, Bruce would have had that fellow from the health department right down here front center because he has the burden of proof in the case. And that fellow from the health department would have said, no problem. So what did we do? We went and talked to the people of the health department. They pointed out the statutes to us. They pointed out the regulations. And we've already... I've seen you put before. I know you can read that. Okay. That Hank Grady has already introduced that into evidence. but those are the regs those are the regs those are the regs These are the regs that are promulgated by the state and followed by every health department. A holding tank shall be permitted only under the following conditions. Now, we went through this argument earlier, and I'm not going to do it again, but they're talking about holding tanks. Written official verification is submitted to the Cabinet that a municipal sewer system will be available within two years. Commercial usage can only have holding tanks when a sewer is going to be available within two years. It's a commercial recreational venture. That's the state regulation. A commercial or public facility has a daily wastewater flow of less than 200 gallons per day. Now, I dispute what they've said about the number of gallonage for the reason that the Cabinet also, or the Health Department through the Cabinet, has produced a guideline showing all the various usages and how much gallonage they develop or produce each debtor. And we've highlighted those for you, and I think Hank has introduced those and given those to you to review. And they're part of the record. Exhibit 2. Exhibit 2, he tells us. So clearly, using their land projected usages, they not only exceed the gallonage available or allowed, but there's no way on God's green earth that they're ever going to put a sewer down that place in two years' time. I'll guarantee you that. We can't afford it. We'd never do it anyway. Commercial usage. That's what the regulation says. Another issue has come up, and I don't want to, I'm not going to be polite. I'm not going to pick on Mr. Kerry. But you may recall, and we've introduced him to the record, that he came before this body in 2000 and asked for an angler's club. And he agreed to certain conditions. Since that point in time, he's not necessarily adhered to those conditions. What turned out to be a club where you had to pay a membership kind of grew into a party facility. Next thing you know, he's on the webpage and he's advertising nationally for all kinds of groups. I mean, to have corporate ventures there and have other kinds of facilities. So he kind of fudged on those conditions. But now he's back before you and saying, well, I've got this one condition to use, my angler's club, and I want to kind of merge that into my second conditional use, which is, he calls it canopy turf. It's zip lines. It's an amusement park. And oh, by the way, it wasn't too long ago he had the third phase three where he wanted to put that marketplace in there. You see what's happening. This is a progression for a zone change. This is a B6P and an interchange. Flat and simple, this is a zone change request, and it's back door in the system. Might have a nice idea, but this is the wrong way to do it. Okay. What is the right way, by the way? The right way is to go back and let the council, let the planning commission, staff, and everybody in the neighborhood do their job. It's what they did before when we did the green space plan. It's what we did before when we did the rural land management plan. It's what we do every five years with a comp plan. Go back, plan this thing for a tourism zone, if you want to call it that, but plan it not with a site-specific proposal in mind, plan it from a community-wide basis because that's the way it's supposed to be done. you have to remember that the people on Georgetown Pike, Parrish Pike, Versailles Road, Military Pike, Keene Road, they have an interest in this issue too. Because what you do here, if you were to approve this and grant a zone change, everybody else in the rural community is going, uh-oh, all those years we spent to do this, and here's what you're doing. You're back doing 30 years of work with a zone change, a spot zone. Don't do it. Please don't. There's a right way to do something. There's a wrong way. And Bruce says, you only get one chance comes along every once in a while. He says, you know, these are opportunities that knock only once in a while. That's right. You make a mistake, we can't go back. Do it the right way. We spent 30 years, piece by piece by piece, putting together a solid court-tested process that gives you your rights. We put in place a purchase of development program. We've looked out for people. We've had all the economic development. We've had farmer's markets, which, by the way, is downtown where it should be. We've had the Horse Park, Keeneland, all those other areas. We've worked to develop not only to be beautiful but coexist with its neighbors and not hurt anybody and at the same time provide economic encouragement and economic engine for this community. Now, I know I'm talking long here. Let's not be quick. All right, Mr. Chairman. I won't take much more time. I've mentioned to you at some length about the plan, and we've introduced into evidence our findings of fact which cover all those particular plans and how they apply here. But the thing that Bruce didn't mention, and I was hoping he would, is this area is specifically delineated, specifically illustrated in the plans as a natural area that should be preserved. Common sense says why. Because you have shallow soils, steep banks, historical areas, wonderful tree growth, pristine environment with both the creek and the river. What the comprehensive plan, because about six of the people in this room sat on that committee are on the rural land management plan and the green space plan. This was an area that needed to be preserved because of its uniqueness. There's nothing like this in Fayette County. Bruce is right. There's nothing like it. And it shouldn't be commercialized with 20,000 people trampling through there on zip lines, which are amusement rides, without sanitary facilities, just the hope to have a holding tank. Don't know where we're going to take it yet. Don't know how we're going to get them out of there without spilling them. Not sure if we meet the regs. We haven't checked that out. That's what they're asking you to approve. They're asking you to give them a zone change. A couple comments were made about, well, he's going to preserve the area because the farmers in the area don't take care of it. There's honeysuckle and weeds growing. Well, the only people that we know of, and we did a poll, that have any cattle along the river are the Snyders. And these are people who are applying for it. And what about this honeysuckle? You can tell these people aren't rural people because there's the WIP program. And the WIP program is their federal funds to help you cut honeysuckle and invasive species. The government will give you money to do it, and the farmers are doing it. So, I mean, it just tells you that that wildlife incentive program called WIP is there in place, and the money is available. So I don't think that issue carries any water. All right. I think we've tested your resolve. We've given you all the information we possibly can. We've addressed the issues that I think are pertinent, that you should think are pertinent. But most importantly, as a reflection of the community, which you are, you are representatives, you weigh in one hand an economic opportunity for one particular person to make a significant amount of money. On the other hand, you're weighing the time and effort of an entire community. not just those people living down that river or on that creek, but this entire rural community. And we've come together through our organizations to express our concern to you and ask that you weigh very carefully this decision because the impact is far-reaching beyond this particular issue. It impacts every plan we've worked on, and it impacts our planning process. Nice young man. Nothing personal. he's got an idea and I like thinkers wrong idea, wrong place might be a great idea in an I-1 zone might be a great idea, you know what Louisville's got there zip lines underground in the quarries gotta think a little bit more we can be winners in two we can be winners in two particular areas okay I appreciate your time. I appreciate your indulgence. And I want you to understand one other thing. And I'm a little disappointed in Bruce commenting about the judge. I didn't think I was that funny. Judge Goodman, I referred to her as Judge Goodman out of respect. She's an officer of the court. And I wouldn't call her by her first name and don't in public. And I wasn't trying to gain any favor, and he knows that. And he doesn't go to district court. He doesn't know that they also do civil cases in their jurisdictions, 5,000, not 4,000. He doesn't even know that. See, he doesn't go up there, so he's not worried about her jumping in his case. So be polite. Thank you all very much. Thank you, sir. Mr. Simpson, do you have anything else you want to say? This is your closing remarks, Mr. Simpson, I gather. It is indeed, Mr. Chairman, and I am sure that you all are quite relieved by that. I would be if I were you. I'm going to make one final comment about this amusement park. A golf cart is a mechanized device that transports people around a fixed course for pleasure and amusement. Hence, all golf courses are amusement parks. I really don't believe that you believe that we're proposing an amusement park. I know they're desperately trying to contend that it is, but I'm not going to give any more credibility by talking about it. What I would suggest to you, if I were you, they have three lawyers, four lawyers arguing for them. If I were you, I would contact my staff. They have nothing in this case, no vested interest. Their job, as it is in every single case that you have to decide, is to review it based upon their professional experience and their education and make a fair and reasoned judgment based upon the facts of a given application as it conforms with the law as they understand it to be. And they knew this was a controversial case. And my experience in dealing with this staff and other staffs in cases like this, historically is, the staffs know they're going to make somebody mad, and so they better get it right. Whatever they offer as a recommendation, whatever they offer as a condition of approval, that they better get it right because they know people are going to get lawyered up and they're apt to get pot shots taken at them. Now, if I'm a member of the Board of Adjustment or the Planning Commission or the Council or the Board of Architectural Review, I want to know, what does the staff say? They're not being paid by Burgess Carey or Gloria Martin or Dr. Martin or anybody. They're public servants. Public servants who've rendered an opinion after thorough research and review, collectively. They do it collectively. Twenty or thirty people look at cases, bounce things off of them, look at the historical interpretation of things. And what have they decided in this case early, early on? That we comply with a valid conditional use application. That's what they said. A valid conditional use application, which means this is not an amusement park. Then they have said, after evaluating the proposal, to the board, to each one of you, we are putting our professional reputation, our history with this agency, and coming out in public subject to being criticized, which they have, editorial writer of the Herald-Leader, letters that I've received from opposition people chastising the staff for their professional, unbiased opinion. And the recommendation is unequivocally that this is a recommendation that should be approved, Mr. Chairman. It should be approved subject to conditions with which we agree. We would suggest a couple of minor adjustments, and the staff has no objection to those minor adjustments, and I've set those forth in the last two tabs in my handout. To me, as a board member, I want to know what does a neutral professional have to say. Because, you know, I'm an advocate. I'm down here to be an advocate for Burgess Carey and his family. And Don Todd and Hank Grady and the rest of the lawyers are down here to be advocates to defeat him. That's fair. Your lawyer and your planning staff are not advocates for anybody except for the best interest of this application as it relates to the community and the decision-making that will be evaluated in connection with your decision on this case, what's the best thing to do? They've recommended approval. To me, that's the most compelling evidence in this case, because it comes from a neutral party, unbiased and unpaid by any particular side. Don mentioned to you many times about all the hard work that's been done on the Green Space Plan and there was a lot of hard work done and it's been on the books since 1994 and if you look through the material that I've highlighted and elsewhere in the Comprehensive Plan, the Rural Land Use Management Plan, and the Green Space Plan, you will see 22 times. We recommend access, public access, to these kinds of historical, unique, and special areas. Since 1994, going on 18 years, there's not been one project that's provided public access. Now you can ride on the road, Old Richmond Road, and look over there. You won't see anything. You won't see what those of you saw that went down there. So you have a plan that recommends public access, Mr. Chairman, and where is it? Where does the public get the benefit of saying, my gosh, what an incredibly wonderful thing this is. How come we haven't seen this before? Are all these comprehensive plans and green space plans, etc., are they designed to keep these vistas just for the benefit of the few people that own those properties? Is that what we finally come about after all these many years? Spending taxpayer money to benefit a few? To preserve these vistas for a few? to preserve the cultural heritage for a few. When it says 22 times public access, these are important. Let's preserve them. Let's maintain them. And today, at this moment, you have an opportunity to give this man an opportunity to go forward, to do this, under your watchful eye, from now on. You are the law in this case. You are the power to give it breath and opportunity, and you can nurture it. And you can say, Mr. Carey, report back to us in six months. You've made representations. We're going to hold you accountable. That's fair. That's absolutely fair. And he's going to face criticism and complaints from the neighbors, and that's fair. Own up to them. Come in here and show you're in compliance with the conditions that we've proposed, that the staff has proposed with which we agree. That's fair. These opportunities don't come along that often. And you have the first time, Mr. Chairman, in 17 years since that plan was adopted to open up this property for the public. He wants to do it. He's putting up the money to do it. He's got a business plan that will be successful to take care of it. I ask you, on behalf of the Cary family, and the many people who want the opportunity to see what we all saw, to give them a chance. Thank you. Thank you, Mr. Simpson. This case has been one like no other that I have seen recently and have witnessed recently. And I am pleased to know that we have people in this community that are excited about where they live, what goes on around where they live from a positive standpoint, and I'm excited about those folks who find themselves at times in non-supportive things that they think that are not according to the book. I'm excited about both of those. be it that this board sets in a position where we have to listen we have to understand what the regulations are and we have to make decisions not particularly as the staff directs sometimes we have to make decisions as the the way we see these cases presented and view the facts as they are presented to us and then make a determination. That's what we'll have to do today. It's going to make some people happy. It's going to make some people not so happy. And I know we have questions from some of our board members that they want to address, and they may address them to either you, Mr. Simpson, or you, Mr. Todd. And so comments and questions? Thank you, Mr. Chairman. I would like to make some comments about what I've heard. I've sat here through, I can't say two months, I'll say two hearings on this issue. And first of all, let me say something about this board of adjustment. This is a volunteer board. It serves without compensation, without advocacy, and it volunteers its time, efforts, and interest in trying to do the right thing. We have no agenda. We have no axe to grind and no client to represent other than the community and the people of the community. I've sat here and tried to keep an open mind, have no preconceived opinions about the testimony I've heard. And as with probably the other people on the board, when I'm listening to one witness, I'm persuaded until I hear the next witness or lawyer. I have heard all the testimony. I've read all the mail. I've read most of the documents that have been submitted and provided. I think we are listening to concerned and responsible stewards or proposed stewards of this land who are interested in preserving the unique geological area, which is this Boone Creek area. From what I understand, if we deny the application, the area will continue to be degraded. It could be clear-cut. It could be strip-mined. Who knows what will happen to it if we don't do something. If we approve the application, then we are subject to destroying a pristine area that's worthy of our concern. So everybody has their point of view and their perspective on what our decision is going to be. I'm not sure that we have to make a legal decision. We are a board of adjustment that really all we do is approve or deny an application for a conditional use permit. It's up to the lawyers and the courts perhaps later to determine if we're doing the right thing. As I said, I've sat here and listened to everybody, And I believe that both the applicant and the opposition share a common vision or purpose to recognize this Boone Creek as a special area. And so each one of us take our responsibility serious. As the chairman says, we're going to probably displease somebody without decision. And I don't know how anybody is going to vote on this board except perhaps Jim. But I have listened to the testimony and the argument, and I think I'm persuaded that this plan is a good idea. and all we have to decide is whether to approve the application. The reason I think it's a good idea is not because it's my vision or what I would do if I were the landowner, but I take some comfort in the fact that the staff has proposed ten amended conditions for their recommendation for approval, and they're the ten recommendations that they sent to us. And they are, in short order, that it has to be established in accordance with the application and the site plan of December 9th. Number two, it has to get all necessary permits. I guess that means state permits as well. A CO obtained from the Division of Building has to get all appropriate licenses and construction operation permits from Kentucky for the zip lines, catwalks, and suspension bridges, and any other aspect of the project that may resemble an amusement park facility or otherwise be under state jurisdiction as applicable. So that means that we're not making the final decision. These folks have to go get permission from other people as well. The parking area is considered by the Division of Traffic. Landscaping is specified in the zoning ordinance. New accesses. Number six talks about an emergency response plan shall be implemented to be approved by the City-County Fire Prevention Office prior to an occupancy permit. The plan shall include at a minimum provisions for handling emergencies in areas of the property not accessible by emergency response vehicles, which I think is direct response to what Mr. Todd's concern was. was about. Interesting, I don't think Daniel Boone had access to any EMS four-wheel drive vehicles when he was walking through here the first time. Public restrooms provided at the Welcome Center to be approved by the Health Department. Provisions for handling garbage and sewage at all locations comply with the Health Department. Management of historical and cultural resources on the site in conjunction with the Kentucky Heritage Council to ensure that they are consistent with the listing of the Boone Creek and the National Register of Historic Places. Suspension bridges shall not be constructed or undertaken in Clark County until such time that all necessary conditional use permits or other needed approvals are obtained from Winchester-Clark County Board of Zoning or other applicable arm of that local government. These are no small restrictions that are placed on this application. And this certainly isn't the last stop for this applicant before this idea can possibly be implemented. So as I see our decision, we're simply deciding with these conditions whether or not the application for Boone Creek Adventures for a conditional use permit should be constructed to operate an outdoor recreational facility in an AR zone. I don't think this area is pristine. I think it's unique. I think it is special. I don't think it's suitable for farming, timbering, mining, or any other purpose. I like the idea that somebody cares about it enough to not only propose a plan for using this area responsibly, but also that the other side showed up to offer their concerns about dangers that might be associated with misuse of the area. I don't think there's going to be any use of this area without the watchful eye of more than half of the people that are concerned about this area. So, Mr. Chairman, those are my thoughts. Thank you. I think we have a couple other people who have questions or comments relative to this. I guess I have to begin by saying I actually feel constrained to follow the law for strange reasons. But I think if you look at the language of the ordinance, it allows, as a conditional use, a commercial outdoor recreational facility does not allow an amusement park. And I think an amusement ride is not an amusement park you may have. I think back last month when somebody said the Louisville Zoo had a zip line, I don't think the Louisville Zoo is an amusement park. So to me, I think it can be the question is whether or not we allow it. So I think it is a commercial outdoor recreational facility. I've been assured that there's not going to be outdoor lighting, loudspeakers, retail sales and merchandise, restaurant, food service, or the like. So to me, the question ultimately becomes, in approving a conditional use permit, says the board shall find that the public facilities and services that will be needed are or will soon be adequate to serve the proposed use. The board shall give consideration to the road system, sewage disposal facilities, utilities, fire, and police protection. And so I know that the staff has recommended it, but all I want to ask the staff for legal counsel is, in light of the discussion of the sewage facilities and the holding tanks, Do you still believe that this satisfies that requirement that public facilities and services are or will be adequate to serve the proposed use? If you're asking me, I think the condition specifically notes that the health department is going to have to find that the septic system at the welcoming center is going to be sufficient, whether in its current state or as a result of subsequent upgrades to support its use. Their expertise lies in that area. And we are clearly pointing out to the applicant that this use may still not be possible if the facilities for waste disposal are found by the health department to be inadequate. And that the same goes with respect to any temporary storage-type facilities, which, of course, campgrounds are also an outdoor recreational use in the AR zone, and clearly they are going to use those types of facilities. And the health department, I think, should certainly have the expertise to determine that it is being safely done. The health department may say you can't have ten sites. You can only have five, seven, whatever. Or they may say this is perfectly fine with the plan that you've made. But the point is they are going to supervise and make sure it is handled in a way that addresses public safety. That is, in essence, what the staff feels by putting that condition on there. And if Jimmy and Bill have anything to add, please do. Planning staff would agree with those comments. We felt that this does meet the adequate public facilities, and we are conditions 7 and 8 specifically referred to the Board of Health for their expertise, as Rochelle had mentioned. Mr. Chairman, I just have a couple comments I'd like to make. I think this is a very exciting project. I certainly admire the work that Mr. Carey and his very sincere effort to establish this commercial outdoor facility. The problem, the concerns that I have is that I don't think that this request is appropriate for a conditional use permit. And I think it presents to me, anyway, as a major zoning change in this area. And as Mr. Glover alluded to, we're a volunteer body. I've sat on this board for six years. We receive no compensation. We give our time of our efforts, and at the end of the day, yes, we do. We listen to our planning office. We listen to the recommendations. and we generally agree with them. But if we agreed with everything and we didn't present our convictions, then why is there a board of adjustment? You can just go to the planning office and they can approve it. You know, Mr. Simpson, I think you and Mr. Carey have done an excellent job in presenting this case. However, I don't think that we should ignore land use planning to approve it. I'd like to see the planning commission. I'd like to see the council weigh in. I'd like to see the staff work with Mr. Carey and others to establish a park, which I think this community needs, but that doesn't jeopardize the environment, Kentucky wildlife, surrounding farmland, and the resolution of what I think are major issues regarding health and safety. I think this case is very, extremely significant and important because it sets a precedent. And if approved, could violate Kentucky revised statutes, the comprehensive use plan, the agricultural rural zone, and other planning ordinances if we grant this request. Thank you. Anyone else? I agree with Mr. Stumbo. I am not convinced by the argument for the applicant. It's a gray area for me. Is it a recreational facility or is it an amusement park? And I went to, this was the question that I had when I went home last month, and I went to the dictionary because that was a good starting point for me. And I looked up amusement park, and it's defined in the dictionary I pulled off the shelf, a commercially operated park with various devices for entertainment. And then I went to the word amuse. And one of the synonyms for amuse is entertain. And it says that the definition stated, entertain suggests the activity of supplying amusement or diversion by specially prepared or contrived methods. I see a zip line as a contrived method. And I find it interesting that we haven't had a lot of discussion about that today in the presentation. We've heard it. We've talked about the canopy tour. And quite frankly, that's very appealing to me. I've been on a canopy tour in Australia, and it was absolutely wonderful. I think this case has merit, but I also think that it needs to go through the proper channels. And I agree wholeheartedly that this is something that needs a text amendment. We're being asked for zoning change, and I, in good conscience, cannot support this. I think it would be very short-sighted for us to grant this proposal before us today. I'll just say I agree wholeheartedly with Mr. Stumbo and Jan. I feel like it's a zone change and out of our area of jurisdiction. I will tell you that I have been in the middle of this since last month, and I have discussed this situation at home, and I am still in the middle. I think the idea is wonderful. Whether it's legal by us approving it or not is another issue. I think, and I'm going to use this term, and it can be part of the record if it wants to be, I think this board has somewhat been rope-a-doped into taking this case prior to it going into the proper channels. You know, I wondered why it was not submitted for zoning change in the beginning, or why a tax amendment wasn't requested in the beginning. But as I told you before, it comes before us without those type of things and those procedures followed, and we have to make the decision. And right now, you know, if I had to vote to break a tie, I don't know how I would vote. I really don't. And that's the tough part about it. That's the tough part about being on this board. And ladies and gentlemen, as these attorneys will tell you, I've served on this board for an awful long time. And this is a toughie. It's a toughie. So I will make my decision when it comes time for me to say yay or nay. Any other questions or comments down there to you, Jimmy? Do you have any questions? I think Tommy Glover read me pretty well. Well, then if there was no other questions and no other statements, then we will call for a motion. Mr. Chair. And then I'm going to call for a hand raise on the vote, yea or nay, please. Yes, sir. Mr. Chair, I'd like to move that we deny C2011-70 Boone Creek Adventures' appeal for conditional use permit to construct and operate an agricultural market, an outdoor recreational facility, and accessory camping facilities in the agricultural AR zone on property located at 8291 and 8385 Olderton Road and 8385 Durban Lane. based on the findings of fact, I'd rather use these. Based on the findings of facts supplied by the opposition and was put into the record earlier. Do I have a second? Second. All in favor signify by saying aye. Raise your hands, please. All opposed? Motion fails. Four to three, wasn't it? Motion carries. Motion carries. Four to three, yes, excuse me. Motion carries. Repetition fails. Thank you. Thank you. Thank you. Thank you. I think we've got a couple other things on the agenda here we need to take care of. Mr. Chairman, that does complete all of the applications. However, there is a couple of board items still on your agenda on page 4. We have a couple of other things on the agenda here that we need to take care of. We've got an election of officers. This is the time that we do the elections of officers. Are there any nominations for... Mr. Chairman, I would like to make a motion to reelect you as chair, Catherine Moore as vice chair, and Jim Griggs as secretary. Are there any other nominations? Are there any other, are there pleased any other nominations? Alright, we have no other nominations, so all in favor of other recommendations, we need a second please. All in favor signify by saying aye. Aye. Any opposed? All right. B, in the past, the duties of the secretary have been delegated to the planning manager. So we have Jimmy Griggs again. Is that right? Okay. So that's all three of us in the package. Are you willing to delegate? That was in the package. And I'm going to turn. Ordinarily, Mr. Chairman, the board does vote on item B to delegate the duties. There is a motion and a vote. Is there a motion on that delegation? So much. Second. Second. All in favor signify by saying aye. Aye. And I want to thank the staff. This was not an easy situation for any of us. And I definitely want to thank this board. It's tough sitting up here sometimes. But I thank you. We are a board that does the right things at the right time. And I appreciate all of you. And thank you very much. We appreciate you. Thank you. Thank you. We'll see. Thank you.