Welcome to the May meeting of the Board of Adjustment. I'd like to ask anybody to please turn off any cell phones. If you need to take a call, please do so outside. Anyone who's going to testify today, would you please stand and raise your right hand? Do you agree to tell the truth and nothing but the truth? I do. Thank you. You can have a seat. Before I read the agenda, Mr. Emmons, are there any withdrawals? Mr. Chairman, the staff did receive one letter requesting postponement for the first item on your agenda. If you'll turn to item number one on page one, it's V-2013-31, Michael Childers. The staff did receive a letter from Mr. Childers asking for a one-month postponement, and that would be to your June 28th Board of Adjustment hearing. The staff has no problem with the requested postponement, and the applicant did actually submit today a revised application. That would be the reason for the postponement. Very good. Thank you, Mr. Irons. Anybody in opposition to this case? the chair will obtain a motion to postpone so moved second all in favor aye thank you I'll go ahead and sound the agenda I generally have done that after I've sounded the agenda item 2 Burlington Heights condominiums item 20-13-32 is the applicant here Very good. Is there any opposition to Burlington Heights condominiums? Very good. Item B. 2013-33, Elizabeth and Price Bell as the applicant here. Very good. Is there anyone in opposition? Item B. 2013-34, Philip Kent as the applicant here. Is there anyone in opposition to Mr. Kent? Pennington Associates, item 2013, is the applicant here? Is there anyone in opposition? Bluegrass Marlins, I see the applicant here. Anyone in opposition to item CV 2013-30? Okay. Highlands Baptist Church Applicants here Anyone in opposition to Highlands Baptist Church? No opposition Okay Bryce and Daniel Droz Droz Mr. Droz Any opposition to Mr. Droz? I know Boone Creek Adventures The applicant is here And I know we'll be hearing from the staff A little bit later on that The Luridan Anderson-Holmes for rent, is the applicant here? Is there anyone in opposition? Okay. Very good. Mr. Chairman, if I can, the staff would like to point out that all of the items on the agenda that required a sign to be posted have been posted, and all of the required notice letters have gone out for all of the applications on your agenda today. Okay. Thank you, Mr. Emmons. We also, our first item of business, you have before you the minutes of the Board of Adjustment meeting from April 26th. If the Board has had a chance to read them and agree with them, the Chair will entertain a motion to approve. So moved. Second? Second. All in favor? Aye. Aye. Thank you. Reading the first case, Mr. Childers is postponed. Burlington Heights Condominiums. Would the applicant please step forward? Mr. Chairman, as the applicant is coming forward, the staff did receive three letters from the three adjacent property owners to this project, and they are all in agreement with the requested variance that's before you today. I'll pass that out to the board. Very good. State your name for the record. I'm Rory Cayley. I'm with the EA Partners here on behalf of Burlington Heights Condominiums. Very good. The staff has recommended approval subject to two conditions. Have you read those conditions and do you agree to them? Yes. Is there any questions from the board? If not, we'll entertain a motion. Mr. Chair, I move we approve V201332 Burlington Heights Condominium's appeal for two variances to reduce the width of the required zone-to-zone screening from 15 to 6 feet and to eliminate the 6-foot privacy fence requirements in favor of a mix of landscape and 4-to-5-foot privacy panels along the rear of the patios in a high-density apartment zone at 313 Burley Avenue, based on the staff's recommendations and subject to the two conditions. Very good. Do I have a second? Second. Mr. Smith, all in favor say aye. Aye. Aye. Any opposed? Very good. Thank you. Good luck. Elizabeth and Price Bell. State your name for the record, please. Elizabeth Bell. Price Bell. Very good. The staff has recommended approval. It was subject to one condition. Have you read that condition, and do you agree to it? Yes. Very good. Does the board have any questions for the applicant? If not, we'll entertain a motion. Mr. Chair, I move to approve V2013-33 Elizabeth and Price Bell's appeal for a variance to reduce the required side yard from 8 feet to 6 feet in order to construct an addition to an existing residence in a single-family residential neighborhood character design overlay zone at 319 Ridgeway Road as recommended by staff and subject to the one condition. Thank you, Ms. Meyer. Do I hear a second? Second. All in favor, signify by saying aye. Aye. Aye. Thank you very much. Good luck. Thank you. The next application, Philip Kent. State your name for the record, sir. Philip Kent. Very good. Mr. Kent, once again, the staff is recommending approval and subject to one condition. Do you agree to abide by that condition? Agreed. Very good. Does the board have any questions for Mr. Kent? If not, we'll entertain a motion. Mr. Chairperson, I agree that V2013-35 Pillington Associates, LP, appeal for two variances to reduce the required setback for two identification signs from 20 feet to 7 feet, and two to increase the allowable... I'm sorry. Mr. Chair. Yes. We want to go back to Phillip. I'm sorry. I'm sorry. Excuse me. Mr. Chairman, I recommend approval of V2013-34, Phillip Kent, appeal for a variance to reduce the required side yard from 3 feet to 0 feet in order to construct a 6-foot privacy fence in a planned neighborhood residential zoned at 2737 Mabel Lane, Council District 2, with staff recommendation and the one recommended approval. Very good. Do we have a second? Second. All in favor, sign by saying aye. Aye. Thank you. Thank you, Mr. Kent. Good luck. Pennington and Associates. Your name, sir? Joey Svek with Bayer Partners, representing Pennington Associates. Very good. Thank you. The staff has recommended approval subject to two conditions. Have you read those conditions? We have, yes. And you agree to abide by them? We do. Does the Board have any questions? If not, the Chair will entertain a motion. Mr. Chair, I move we approve the 2013-35 Pennington Associates' appeal for two variances to reduce the required setback for two identification signs from 20 feet to 7 feet and to increase the allowable fence wall height in the front yard from 4 feet to 8 feet in a planned neighborhood residential zone at 205, 215, and 245 Codell Drive, based on the staff's recommendation and subject to the two conditions. Very good. Do we hear a second? Second. All in favor, say aye. Aye. Any opposed? Thank you. Good luck. Bluegrass Marlins. Mr. Chairman, as the applicant is coming to the podium, the staff has received four letters, one letter in opposition and three letters in support for this application. I'll pass that out to the board now. Okay. If you would, your name, please. Roger Kurt. Roger, give us just a second to look at these letters. so Thank you. Thank you. All right. We have received a recommendation for the approval of the conditional use permit subject to two conditions. Do you agree to abide by those conditions? Yes, sir. Does the board have any questions? I have a question. And this one letter in opposition is concerned about noise levels because there's a professional office close by. Can you comment on that? I don't think that noise is going to be an issue. There's people coming and going on that street right there, walking through the day, and the time of day that we would be in use, I do not believe would cause any noise distractions for anybody in that area. and for the offices, those places are bricked and they're across the street. I don't think that we would make any more noise than the trucks that would go up to that Kroger or anybody else that uses that development center. How is this swimming pool used now? I'm not very familiar with it. It's used like any other outdoor pool right now. But is it part of a subdivision? Yes, sir. So we're talking about adding your swim team there on a regular basis? Correct. Seems like it would be even quieter in the winter when it's covered. So we're really just talking about the additional use. That is correct. We believe that it will be actually much quieter when we're in use in the winter than it would be without a cover. Yes, sir. I'm good with it. Very good. Thank you, Mr. Griggs. Any other questions? If not, we'll entertain a motion. Mr. Chair, I move to approve V2013-30 Bluegrass Marlins' appeal for a conditional use permit for a community center and a variance to reduce the required 25-foot setback from the floodplain to zero feet in order to place a cover over an in-ground pool on a split-zoned property, planned neighborhood residential slash planned shopping center and R3 slash B6P zone at 730 Mill Pond Road as recommended by staff and subject to the two conditions outlined by staff. Very good. Do we have a second? Second. All in favor say aye. Aye. Thank you very much. Good luck. Thank you. Highlands Baptist Church, item C, 2013-27. State your name for the record. Larry Chow, the trustee of Highlands Baptist Church. Thank you, Mr. Chow. The staff has recommended approval subject to six conditions. Have you been able to look over those conditions? Yes. Do you agree to abide by them? Yes. Very good. I'll ask the board if they have any questions. I'm okay. Very good. If not, the chair will entertain a motion. Mr. Chair, I move we approve C-2013-27, Highlands Baptist Church, appeal for a conditional use permit to construct a three-bay detached garage for storage of church vehicles in an AU zone at 2032 Parallel Road based on the staff's recommendation of approval and subject to the six conditions. Very good. Do I have a second? Second. All in favor? Aye. Aye. Thank you. Good luck. The next case, C-2013-29, Bryson Daniel Droz. Or Droz. Droz, Mr. Droz. Sorry. Your name for the record? Bryson Daniel Droz. Thank you, Mr. Droz. The staff has recommended approval subject to two conditions. Have you looked over those conditions? Yes. Are you ready to abide by them? Yes, sir. Very good. Anybody from the board have any questions? No. Very good. If not, the chair will entertain a motion. Mr. Chair, I move to approve C-2013-29, Brian, Bryce and Daniel Droz appeal for a conditional use permit to establish an athletic club personal training facility in a light industrial I-1 zone at 441 Heyman Avenue, Suite C, as recommended by staff and subject to the two conditions outlined by staff. Very good. Do we have a second? I'll second. All in favor? Aye. Thank you very much. Thank you. We have two other items on the agenda. both administrative reviews. I know that they're probably going to go as quickly as the first seven or eight items did on the agenda. What we'd like to do, since we're going to hear from the staff regarding Boone Creek Adventures, and there is opposition, there is no opposition to Luridane and Anderson Homes for Rent, and I'd like to, as an administrative appeal, I'd like to hear from the staff, and then Mr. Murphy will hear from you. Thank you. Thank you. your meeting agenda this afternoon. This is Case A, 2013-28, an administrative appeal application that's been filed by Luridane, LLC, and Anderson Homes for Rent, LLC, appealing a decision of the Division of Planning's interpretation that two lots were consolidated by virtue of past experiences for properties with an address of 1316 and 1318, Stanley Avenue, and 1322 and 1324 Camden Place. The staff exhibit is at the very back of your notebook. That and the ten exhibits that the staff has presented to you this afternoon will form the basis of our presentation to you today. At tab one of the exhibit packet is the map that's also on the overhead. This identifies the two subject properties. Perhaps we could orient that about 90 degrees. Thank you, Chris. The subject property, so it might be best if I come over here, is very near the end of American Avenue. very near the end of American Avenue, in the vicinity of Manowar Place, Waller Avenue, which is just off this drawing to the south. And both properties are at the very end of Camden Avenue and Stanley Avenue. Excuse me, Mr. Salee. Can we darken that up a little bit? That's a little hard for us to see. That's a little bit clearer right there. Thank you. This is the property on Camden Avenue at the very end and Stanley Avenue. These properties are immediately west of the main north-south rail line through the community, operated by Norfolk Southern. University of Kentucky is a fairly short distance across the railroad tracks in that direction. You are looking at here a tax map from the 1980s that identified the subject properties. The appellant wishes to construct four single-family detached houses on these properties. They're currently zoned R1D. That is a single-family residential zone, generally with a minimum lot size of 6,000 square feet. The R1D zone means that only one detached dwelling can be constructed on each lot in that zone. At tab 2, we have some aerial photos, again, to help orient the board to the location of these properties. Chris, I'll apologize in advance. The orientation on these is back and forth because of our copiers. This is looking to the east. Again, the rail line I mentioned earlier is here. Waller Avenue is just out of the slide on the right. This is Stanley Avenue, and this is Camden Avenue. at the end of American Avenue. I'd ask you to look at three particular land features in this photo. The parking lot is here. These serve office buildings that are accessed from Waller Avenue, very near the railroad crossing, the at-grade crossing at Waller. I would ask you to locate the railroad and also the utility substation that's here, directly across American Avenue from Camden. Again, this... I'm having trouble following your laser pointer. I'm just having trouble seeing it. I'm sorry, I will use it a little more judiciously. The substation there, the railroad here, and the parking lot here. The two subject properties... Let me go over here. I think this will work better. Okay. Let me try it right here. Again, the subject properties of this appeal, this is the property on Camden, pardon me, Stanley Avenue, and this one is on Stanley, Camden. Got them mixed up. Next one. This is a closer view of the property on Stanley Avenue. It's immediately adjacent to the parking lot and backs up to the railroad track. There is evidence here of former residents that will be in some of the other staff exhibits. And then finally, a view of the property on Camden Avenue here. These are 2010 pictometry photographs available to the urban county government. The parking lot I asked you to remember in the photo is immediately adjacent here. We have some older photographs of the subject property as well because the history of these properties is very central to the appeal that's before you. Again, property at the end of Camden and 1316 Stanley Avenue here. Both of these are from 1976 and show single-family dwellings on these two properties. This is a little more recent aerial photo. Again, at the end of Camden and the end of Stanley. also showing single-family dwellings on the subject lots. As I mentioned, the subject properties are currently zoned R1D, but they have not always had that zoning designation. On the overhead now is the zoning map from 1969, which identifies both of these properties in an R2 zone. R2 was a two-family residential zone, and the property held this designation until the late 1960s. A more recent zoning map, this one from around 1990, shows that the properties are zoned now R1D. The R2 zoning is no longer in place in this neighborhood. That was part of adoption of a new zoning atlas in 1969. And again, these properties are shown there before you today. And then finally, the zoning map from 2010, much more recent. It shows the existing condition on the property, the property at the end of Camden with a single-family dwelling and an accessory structure, and the property on Stanley that's mostly vacant, also with the accessory structure. Thanks, Chris. In the 1970s, local building officials here would allow properties to be developed where buildings would cross platted lot lines. This particular area was platted before we had a planning commission in a series of generally 25-foot wide lots. This is not uncommon, as I will mention later in the presentation. Purchasers would then have an option as to whether they would buy one, two, three, or even more combinations of lots and then were allowed to construct their dwellings and their structures over these lots. This is not unique to residential zones. We also have commercial zones where this very same thing has happened, especially in the New Circle Road corridor. However, the officials ruled that that action had the effect of combining the properties, and that is significant because even in those times there were building codes and zoning requirements that had minimum setbacks from structures to lot lines. So by the determination of an applicant purchasing multiple tracks, They did not have to get variances. They did not have to seek rezoning. They were considered unsubdivided parcels for building purposes. And again, this practice was continual up until the 1970s. In the R1D zone, it's important to note that single lots cannot be used for more than one dwelling. That is a provision of the R1D zone since its inception in 1969. The lots in question are not nonconforming lots. They meet the requirements of the zoning ordinance. And at tab 5 in the staff's exhibits, we have the provisions of the ordinance. Nonconforming lots are defined in our ordinance, and if you look at the last sentence there, they do not include those which are in the defined infill and redevelopment area, which this is, that are smaller than the required lot size of the zone, provided they meet the requirements of the small lot provisions contained in the zoning ordinance. Those provisions are on the next page for R1D. In the R1D zone, in order to implement a directive of the comprehensive plan to promote development and redevelopment in our infill and redevelopment area, which is generally the 10 square miles most central to the community. New lot, yard, and height requirements were adopted in 2002 for lots that were less than 60 feet wide, 60 feet being the minimum frontage allowable in R1D prior to that time. And on the very last page of that tab, you'll see that a set of standards exist for lots that are 50 feet or greater. where the minimum lot frontage is required to be 50 feet. That's significant in this particular application because the properties that are before you today are 50 feet or wider in frontage. So they meet these provisions. In order to document that they had this condition in 2002, the staff under tab number 6 provided the PVA information for these two properties. We've got the legal description of those lots identified, and at the bottom you can see the transfer history for the properties with a highlighted entry in each. For the first one, at 1322 Camden Avenue, you can tell the transfers in 1957 and 2005 and 2009 were for a single property. However, by flipping the page, you can see that in 2012 a new entry was made with the same legal description but an address of 1324 Camden Avenue. So until that time, they had been historically transferred and sold a number of times as a single property. Furthermore, the property at 1316 Stanley Avenue, which is the next page, had a similar history, although far fewer transfers. In 1974, it was transferred as a single property up until 2012, when again on the next page you can see a new entry was made, even with the same legal description but with a separate address of 1318 Stanley Avenue. So historically, from the time these dwellings were constructed, they were on one piece of property that had been taxed and transferred that way for decades. This is not an unusual occurrence in our community, and I will get to that in just a moment. But we think this information clearly demonstrates that these two properties did exist in 2002. They were occupied by single-family detached dwellings, and they involved single properties as accounted for in their individual deeds, and thus they meet the provisions of the R1D zone, the small lot provisions the staff often calls them, for infill lots. At tab number 7, the staff got some supporting information to this conclusion, and I'd ask you to look at the very last drawing. Hopefully we can get that on the overhead as well. That involved a road closure proposed in the area of the parking lot that I asked the Board to focus on during the photographs. This is the ordinance that actually closed that road, a memorandum from the law department that accompanied that in June of 1982. And the exhibit showed that adjacent to that parking lot, there was a 20-foot alleyway, an approximately 50-foot wide single piece of property at the time owned by Fitzpatrick, and then the adjacent property. So there was even recognition by others at that time that that was a single piece of property. The zoning administrator, which made the decision that's being appealed today, determined that the IR regulations that we have in the zoning ordinance were not intended to allow raising of homes and to allow, by right, the construction of additional homes on those properties where individual homes had existed for decades. And at tab number 8, you can see a map that the GIS department has supplied to the planning staff that shows a number of subdivisions that exist in very similar fashion. And I say similar fashion. These were areas that were platted originally very narrowly and where property transfers were done perhaps sometimes by individual lots, but more often than not by a collection of multiple lots. and I understand from the GIS department this is not an extensive map of the list that exists for such subdivisions. This is representative. At tab 9, we have illustrated that this situation is not new and that it has been understood over the years, and we have included at that tab the staff report that was done not quite 10 years ago to allow a new type of minor subdivision plat. We've highlighted portions of that report for the Board's review. The report states that many deeds describe land which has been problematic for building inspection and where they had required consolidation plats prior to permitting. This particular amendment to the land subdivision regulations was intended to alleviate that problem, and it recognized that without parcel boundaries changing, only technical information was needed to recognize the fact that properties had transferred prior to the 1960s in a fashion that did not match their original lotting. If you look on the second page of that report, this type of plat would allow a simplified process, and this was done to help nonprofit builders with title problems and to alleviate delays experienced by housing providers here in the community. This minor plaque category was intended to help describe tracts that had consistently been described as pieces and parts of former subdivision lots. and then also we've included consolidation plats and retracement plats just for the record as the other part of that particular tab. At tab 10, it's mentioned in our report that the IR regulations were intended to help facilitate housing development in the central 10 square miles of our community and we've had three rounds of text amendments to accomplish that. We've highlighted pages 10 and 14 of the Planning Commission minutes where they held a public hearing on those text amendments with language that says they're to make fair, cost-effective development, to allow collaboration and development decisions, and to ensure neighborhood compatibility with infill and redevelopment. The staff is certain that these text amendments have spared the Board numerous applications for dimensional variances. We have no doubt from our experience in over ten years that that is the case. Finally, in concluding our staff report, we believe that the appellants have other means available to them to attempt to develop these two properties for four single-family detached homes. They could ask for a zoning category that would permit lots as small as 25 feet, where each lot then could have one single-family dwelling associated with them. In conclusion, the staff has recommended disapproval of the appeal that's before you this afternoon for four reasons. I believe that I have covered those in my presentation. I'll not elaborate on them, but I'll be glad to answer any questions from the Board about our report or our recommendation to you this afternoon. Thank you. Mr. Salim, what we'd like to do is we'd like to hear from the applicant, and as we do in most administrative hearings, we'll save our questions after the applicant has an opportunity to respond. Mr. Murphy? Thank you. John Dower, who's in the third row with me, and Wade Rose, his partner. Laura Dane, by the way, the name of it is named after their wives, Laura and Dana, Laura Dane. So that's how we get Laura Dane. And Anderson Homes for Rent, John Strom is here with me, in-house counsel for Anderson Communities. Chas Height is with me today, a professional planner. And I did have some questions for Mr. Salis. Shall I incorporate those into just my presentation, or I can ask him now? Why don't you go ahead with your presentation, Mr. Murphy, and then you can... Maybe at the end I'll ask those questions. I appreciate your hearing us today. We do have some exhibits as well. I handed out a set of exhibits, and I'm probably going to be following through those to tell you about it. The issue here today is that these were historically, on each of these cases, the Anderson case came in after the Lourdain case, and it had exactly the same issues. So we decided to put these in one case to spare you from hearing the same thing twice. So sort of the lead case here is the Lourdain case, but the exact same circumstances apply to the Anderson case. Lourdain owns two lots on Stanley Avenue, Lot 107 and 108, which are 1318 and 1316 Stanley Avenue. and Anderson owns two lots on Camden Place, Lot 71 and 72, 1322 and 1324 Camden Place. If you could put the plaid up on the overhead, page one of my handout. The issue here is, going back to the historic plaid on this, this was not in the staff handout to you, but this is the original plaid. This is a plat called Parish Subdivision, which was planted in 1921. And this is still the lot, the plat at the Fayette County Clerk's Office has not been amended as to these lots. Never been amended. Now, Mr. Selle gave you the location of these. It's the neighborhood of American Avenue, Burley Avenue, south of Virginia Avenue, west of the tracks, east of Broadway, and north of Waller Avenue. And the direction on this north is facing down. That's the way it is in Fayette County Clerk's Office. Here's Stanley Avenue. Here's the railroad tracks. These are the two lots that Lourdain owns. Lot 107 right here. I've got the star on it. And Lot 108. Both of those are 25 feet wide. They're about 130 feet deep. You can see they've got an angle at the back. Now, Anderson owns two lots. This is Camden Avenue here. Lot 71 and 72. 72 is 25 feet wide. 71 is a little wider because it's got an angle there, too, but essentially the same thing. As a point of reference, the pathway that Mr. Sully showed you is here. The closing he showed you and the lot he showed you is this one, 104. And the pathway at one time was closed next to 104. It's never been closed next to us. So what he showed you did not pertain to any of the properties which is the subject of this appeal. The pathway has only been closed from this point over to the left for this lot 104. It has not been closed from this point over to the right, which is one of the lots in question. So each of these lots are about 25 feet wide, about 130 or 135 feet deep. And they meet today the small lot regulations in the zone because they have regulations if you're between, what, 14 or 25 and 35 feet or whatever. You have certain setbacks, certain other lot requirements which we meet, which I'll tell you about in a minute. The second page of my handout is just the second page of that plot. I only put it in there to show you that this was recorded in 1921. And going on to the next page, the assertion had been made in the staff report that because these lots had been included in a single deed at some point, that they were somehow merged together. Now, there's no legal doctrine. You can convey as many lots as you want in one deed. I've had many closings where ten lots have been conveyed in one deed. That doesn't mean the lots are merged together into one lot. It just means you're putting them in one deed. Why do you put them in one deed? Because you only have to pay one recording fee, and you save your client money the more lots you can put in one deed. So the fact that these may have been in one deed previously does not have any significance. But I wanted to point out to you that starting on page 3, each of these lots are in separate deeds. The page 3 to 6 is the deed for Lot 71, which is Anderson Burley, LLC. Excuse me, that's not Lot 72, which is Anderson Burley, LLC. At page 7 to 11 is the lot for Anderson Burley, LLC, which is Lot 71, separate deed from Lot 72. And at page 12 is Luridane deed. This is from Mr. and Mrs. Dower. They deeded into Luridane, Lot 107, which is 1318 Stanley. and at page 16 we have the deed for Lot 108, which is 1316 Stanley, which deeded in to Luridane from Mr. and Mrs. Rose. So I'm putting those in just to show you that these are separate deeds. These were recorded by the Fayette County Clerk as separate deeds. I've got the recording information here on each one of them. So these are deeded presently as single-family lots, separate lots. On page 20 is the PVA record. As the staff had stated in its staff report, that these were taxed as individual lots. And at the time, going back to this plant, we had a, in the past, there was a house built over the property line between 107 and 108. there was a house built over the property line on lot 71 and 72. That's the crux of this issue. Does the fact that there was once a house there mean that these lots are forever one lot, or are they two lots in each case? Staff said that, well, they're taxed as one lot. Well, what happened was after the PVA was informed that the house was removed from the property, in both cases they said, okay, now you've got two tax bills. Now you've got two tax accounts, and you can see on page 20 this is the list of tax accounts on Camden. Down at the bottom I've put the arrow toward Anderson Homes for Rents, Anderson Burley on 1322 and 1324. Following those on page 21 and 22, I have the details of those two accounts. They're separate accounts, one for each lot. On 23, similar for the Lourdain lots on Stanley, this is the list of all the accounts on Stanley. Lot 1316 and 1318 are owned by Lourdain. They have two separate accounts. On page 24 and 25, those are the two separate accounts. Now, there's the fact that in the past, when there was one house on these lots, when the deeds were conveyed, sometimes they said, okay, this deed is all, we're conveying lot 107 and 108 to you. Were they ever described as one lot? Or were they described as two lots in those deeds? So I asked Mr. Strom, who did the title work on the Anderson properties, also to check not only the Anderson properties, but the Lourdain properties. He has gone back. He's an attorney here in Kentucky. He has gone back, checked every deed from when these lots were created in 19, what did I say, 23, 21 is the recording of the deed, from 21 on. And in every deed, every deed referred to the property as Lot 71 and Lot 72 or Lot 107 and Lot 108. They did not come in and do what we call a meets and bounds description. A meets and bounds description is where you go around the lot on the outside and say, well, this is a lot starting, say, at Stanley Avenue, going up 50 feet, going back 135, going down 50, and going back 130 there. That would be a meets and downs description of one lot. Never in those deeds were they ever described as one lot. They were always described as two lots. And Mr. Strom's affidavit is there, and he's here to testify as well. Next, I have the plot plans that builders use to build houses on lots to make sure they get them situated right. I have the ones for Stanley, Lourdain, and Camden Anderson on pages 27 and 28. I put those in for one reason, and I put them in to show you that these lots can have houses which conform to all the small lot requirements in this zone. They meet the setback requirement. They meet the side yard requirement of three feet on each side. They meet the lot coverage. They meet the open space. They meet the height. They meet everything else. Now, what kind of house is this going to be which is built here? This is an existing house in this neighborhood, which has been constructed on a 25-foot lot by Anderson Communities. And it is the type of house that will be built on these properties. These will not be all renter-occupied. The one on the Anderson properties, it will be owner-occupied. A lady who lives in this neighborhood in a house that had some repair maintenance issues has traded with Dennis, and Dennis is building her a new house, two-bedroom house, and trading for the lot that she had before. So that's going to be on the Camden Avenue property. but this is sort of a typical facade of the front view of what will be built on each of these four lots, and that is a house that conforms to all the small lot provisions in this R1D zone. So I put those in to show that this can be met. The assertion has been made that I know in the staff report they said that if you approve us, this would result in chaos in the neighborhoods. They used the word chaos. We strongly object to that, and I feel strongly about this. I know the staff has their position sincerely, and I'm not questioning that at all. But I feel strongly about this, and the reason for that is this, because I was aware of these amendments that came through five or seven years ago, and at that time I was working with an organization called Faith Community Housing Foundation, It was a faith-based nonprofit that was trying to address low-income housing needs, and they were addressing a niche that was a little different from Habitat. Faith Community Housing Foundation was headed by Bill Embry. You may remember, one of the retired owners of Embry's department store. And Bill was a real go-getter. I think he went out every afternoon driving this community looking for vacant lots, on which he could buy for Faith Community Housing Foundation, which they could build. And one of the problems Bill ran into was this rule that these old lots, if they'd ever had a house built over them, the staff said you could only build one house rather than two. He was trying to build affordable houses, ones in keeping with the character of the neighborhood they were in, and he needed to do them on the original individual lots. When we saw the amendments come down, and I think they originally came out in 2007 and were finally adopted in 2009, we read the amendments, especially, and I'll show you in a minute the ones to, I think it's 4-5C, which says that if you've ever had a house built over a property line, if you've ever had a house built over a property line, if you meet the small lot requirements you're in, you can use each individual lot to build upon. And I remember that because I was so happy. I was so happy when I saw that because we said the city has finally responded to some of these issues and made it easier to come up with affordable housing by doing this. They have finally recognized this unwritten administrative shortcut, and they've said it does not apply if you're in the infill and redevelopment area and you meet the small lot provisions, which we do. We were so happy about that. And I remember that quite vividly when we saw this. So no comments were ever made on the draft because we thought the ordinance meant what it said. And the reason I feel strongly about this is because I think the position the staff is advocating now is 180 degrees different from what the ordinance says. It is now saying, no, you can't. If you've ever had a house built over a line, you can never build two houses back, one on each lot again. And I think the ordinance says the exact opposite thing. And I'll get to the ordinance in a minute, but I wanted to point out on page 29 and page 30, we are doing what has been advocated in this community for at least the last decade. How many times have you heard the saying, Lexington, let's build in, not out? Sometimes it's let's build up, not out. Sometimes it's Lexington, let's build in, not out. The recognition we've had throughout this community in the last ten years that we have to put increased density around our downtown area in order to preserve our urban service boundary line. And the recognition was we had to increase density. Now, I'm not going to put you to sleep any more than you already are by reading everything on page 29 to you here. But I'll just point out a couple to you. All these advocate building in and out. On six, what I've got labeled six, goal eight, object one, encourage infill and redevelopment in locations where adequate urban services and infrastructures are in place or planned. They're already here. Eight, provide housing opportunities to meet the needs of all citizens. That means in all price categories. We're doing that. Nine, provide land for residential uses of all types in sufficient amounts and locations within the urban service area to adequately meet the projected population growth of Fayette County. We're still growing. We're not growing our land, but we're still a growing population. I won't read the other 11 of these things. I've got excerpts, but they all go to the same thing. On the next page, on page 30, I have the excerpts from the 2012 goals and objectives of the comp plan. And even though there's four, I won't read all those to you either, just the top two. Number one, plan for housing that addresses the market needs for all of Lexington and Fayette County's residents, including but not limited to mixed use and housing near employment and commercial areas. We're right next to UK. I'll show you in a minute. Two, support infill and redevelopment throughout the urban service area as a strategic component of growth. And the other two make the same point. Again, what we're doing here, we are going back to the original pattern of this neighborhood. We're not increasing the number of lots. We're using the same lots as were approved 92 years ago when this plat was approved. this is a neighborhood which is in transition it's in transition for a couple reasons main one being its proximity to UK this is a copy of UK's plan which it took from the newspaper a few weeks ago So this is the railroad tracks down here. This is the neighborhood we're talking about. UK, if you weren't aware of it, this shows on their plans, plans on coming down to touch the railroad tracks, which we back up to. They're coming closer. And UK's movement over here, especially through the new medical building, which is wonderful, has brought UK closer to this neighborhood. And if you've been in the neighborhood, you know that a lot of U.K. students now live in this neighborhood. It's much different than it was 10 years ago because of the influx of U.K. students. There's still some owner-occupiers there. The other reason is that as U.K. has moved over here, this neighborhood, I call it the newspaper neighborhood, Gazette, Transcript, and Leader, that area, has been predominantly brought up by U.K. and UK has removed a great deal of housing in that area, so it has increased the demand over on this side of the railroad track. So those two trends have changed the nature of this area. On page 31, I have the layout of this neighborhood. My color didn't work too good on the handout. Here is the handout you can see on Stanley Avenue. We've got orange is non-owner-occupied, green is owner-occupied, and blue is institutional like churches and Kentucky utilities and that sort of thing. You can see on Stanley Avenue, Stanley Avenue is entirely non-owner occupied at this point. That's a fact. On Camden Avenue, there are 19 houses on Camden. Six of them are owner occupied and 13 are non-owner occupied. Overall in this neighborhood, we're about 76% non-owner occupied, about 18% owner occupied, and about 5% institutional. I'm just pointing out to that to tell you that this area has changed. If you've been out through the area, you've noticed that half the houses are older houses. Some of them have code issues. Probably half of them are new houses that people have built within the last five years, say, and many of them are student housing. In these four lots we have, as I said, we don't know who's going to be in them, but on one of them we know they'll be owner-occupied. We don't think what I'm saying here, we don't think what we're doing is out of character with this neighborhood at all. As I showed you from the picture of the house we want to build on here, that is an existing house in a neighborhood like many others. And we think very strongly this is consistent with what is going on with this neighborhood today. None of us can move the clock back 10 to 15 years to what the neighborhood was at that point. But we feel strongly we're consistent with what the neighborhood is today in this area. I need to talk about the ordinance a little bit. The ordinance, as I've got on page 32, is the R1D regulations, and we've put the special provisions in there where we comply with the provisions for lots 24 feet to 35 feet wide. And I know they say in there, as of December 5, 2002, this was an ordinance done in the early 2000s. I'll address that in a minute. We feel we fully comply with that. These properties existed on 1921, and they have existed in the future on that. And it's my understanding, and Bill, you correct me if I'm wrong, I was told in my discussion of this that if these lots had not had a house built over them previously, we would be eligible to build individual houses on each lot. They can think about that while I'm making my presentation here. That's my understanding, though. If there had never been a house here, these still would be individual lots. Now, let's look at the ordinances. On page 33, Nonconforming Lots, 4-1-C, it says, Nonconforming Lots do not include those within the defined infill and redevelopment areas that may be smaller than the required lot size of the zone, provided those lots meet the requirement of the small lot provisions contained in each residential zoning category. We meet that. These 25-foot lots meet every requirement. To me, under 401c, that's the end of the inquiry. We are not nonconforming. We are conforming. We are a separate lot. We're entitled to a building permit. Staff's going to say, well, wait a minute. Back on the other one, you have to be a lot as of December 5, 2002. Now, the 2009 ordinance, later than the 2002 one, is printed at the bottom of the page. Approved in 2009. and they finally talked about this administrative shortcut that had allowed houses to encroach over property lines in 2009. By the way, that's what this is. This is an encroachment. When you have a house hanging over a property line, it's an encroachment. In doing real estate closings, when you encounter that, you give the buyer three choices. You say, number one, your house is hanging over the line. We've got to do something about this. You've either got to get an encroachment permit from your neighbor saying, it's okay for your house to encroach over my line. And by the way, usually when we write those up, we say, and if you ever tear your house down, it better stay on your property, your side of the line. Number two, you can go in and buy the other lot. So you won't object to the house going over the line. Number three, you can tear down part of your house, the part that's hanging over the property. What we have done here is, number three, we've torn down the encroachment. There is no longer an encroachment. Now, we can say this was a policy or whatever. This was never an ordinance in this city about building over a property line meets it consolidated. It was an administrative shortcut to avoid having to do a consolidation plan, but it was never an ordinance. Okay, so the first time this has ever been mentioned in the ordinance is 2009, where we get to this ordinance at the bottom of the page. Now, this talks about when you're going to be considered in two separate parcels. You have to meet three things. One, if two or more lots have ever, ever had a structure built over the property line or residential zone. It doesn't say since some date in 2002. It says ever. And I think the definition of ever is from the beginning of time. If they've ever had a structure built over a property line, a residential zone, which we have clearly. Now the second part I don't think matters. But if any of the lots are non-conforming in size and frontage, the land shall be considered to be an undivided parcel. So it says if you're conforming, you're two parcels. If you're conforming, I think we're conforming. But if you're nonconforming, it will be considered an undivided parcel. So let's say we're nonconforming. Staff says we're conforming, but let's say we're nonconforming. Then you're an undivided parcel. But, read the next clause, except those complying with the small lot provisions in each zone, which we do on each of these four lots. We comply with the small lot provisions in each zone. and down at the bottom says a lot that does not meet the size requirements for the zone in which it is located may still be developed according to the special provisions for small lots contained in each residential zoning category, which is exactly what we're doing. I think you can see why I got so happy when I saw this back in 2008 or whenever it came out, because I said, in these old subdivisions, my folks would be able to use those lots now despite the fact that a house had been built over the lines. We thought this was specifically put in to cure the problem, and that's because it does cure the problem the way it's written. The only way you can be disqualified and have to keep these lots as one separate lot is if you have had a house built over the line and you're nonconforming and you do not comply with the small lot provisions of the zone you're located in. That's the only way you can not comply. Everybody else complies under this ordinance. I think it's clear the way the ordinance is written. I know it doesn't read the way the staff wants it to read. And I know the staff is going to say, well, it doesn't apply because you were merged together. Well, this ordinance says if you've ever, ever had a house built over the property lines, this is what applies. And we have ever had a house built over the property lines, and that's why we say this complies and we can build a house over. Now, I looked at the law on this, too. As you know, administrative shortcuts are not laws. They're not ordinances. They're not statutes. The only people who get to make laws are the state legislature and the Kentucky appeals courts. Now, the Attorney General had to look at something like this back when Governor Beshear was Attorney General back in 1983. In 34, 35, 36, 37, I have two Attorney General opinions in there. And these came from communities which had adopted planning and zoning. and in each case they had an old plant that had been planted prior to adoption of planning and zoning. The planning staff in those communities said, we don't want to honor those. Even though they're recorded, we don't want to honor them because they happened before planning and zoning. In at least one of these cases, no houses had ever been built. There was a plant filed in the clerk's office, no house has ever been built. They said, do we have to honor them? Attorney General said, yes, you've got to honor them. And you can see from this first one, they say that zoning has prospective effect only and are not retroactive. Can't go back and change things before. They cite Lambton v. Panera, one of the leading cases in Kentucky, which, by the way, says that developers have to build infrastructure. They have to build streets and utilities and that sort of thing. But it also says this. We have no quarrel with the general proposition that zoning changes as to lot size, which occur after a subdivision plat is recorded and approved and development begun, should not be allowed to interfere with the development of the property according to the original plat. So they said in both these cases, you have to honor the original plat, even though you don't want to, it doesn't meet your requirements, you have to honor it. In the other Attorney General opinion, they quoted the same Kentucky case and said that further, a retroactive operation will not be given a statute interfering with antecedent rights unless such is the manifest intention of the legislature, unless the statute clearly contains a declaration of retroactivity. Unless you say you're being retroactive, you can't affect that plat that was recorded before. The last thing I have in the handout before the findings is the Kentucky case on this, which is Hamner v. Best. This expressed, again, ambiguities in zoning ordinance. I think this ordinance is clear about what it says, saying that in this instance in particular, you can have individual building permits on individual lots, just like there have been in other parts of this area, of this community. On page 40 in Hamner v. Best, they talk about, well, what if you do think there's an ambiguity in this ordinance? What do you do if you think it's not clear? It says, zoning resolutions are a derogation of the common law and deprive a property owner of certain uses of his land and as such must be strictly construed. The next sentence down there, any restrictions contained in zoning regulations may not be extended by the courts to include limitations not clearly prescribed. and it's clear that these are not clearly prescribed in this ordinance except I think it's clearly written the way I'm asking for it but I think it's by no means clear that we're saying that even if you meet 4-5-C and you've had a house built over and you meet our exemption in there that you comply with the small lot requirements you still can't have a permit even though the ordinance says you can if you think it that way it's not clear at all and the courts clearly say that the ambiguities must be resolved in favor of the landowner's use of his property. Now I know there's a concern staff raise a concern well what about other neighborhoods What happens if you do this and then somebody in one of the other neighborhoods tears down their house and has two lots and wants to come in and build two houses on it? Well, first thing I'll point out, some of those neighborhoods on there in the historic zone have limitations on demolition. But if it is an issue, staff revises this infill ordinance every couple of years. It's under continuous review. And if they feel that this doctrine, which I feel is pretty clear allowing us to do this, if they feel it's wrong and we don't want to encourage invil and increase density, they can request this ordinance be changed to affect other neighborhoods or whatever they want to do. This is continually under review. But I think the ordinance clearly allows us to do this. And as I said, since this first came out, I was very thankful for this ordinance, that it would allow things like this. Now, my clients today are private entities. They're not nonprofit entities, but this applies to all. And this is supplying a type of housing which is consistent with the neighborhood in which we're located. I've gone off my script. I just want to make sure I've mentioned everything I need to mention to you, Mr. Chairman. I did have that question for the staff, which I had mentioned to you. Again, my understanding is that if this had never had a house built over the line, we could build one house on each lot. Had you all had a chance to look at that? Yes, thank you for the time. Let me put this on the overhead. I'm going to also refer to the page in Mr. Murphy's handout, which is page 32. It's the same item, just not highlighted in yellow. These special provisions are for single-family detached dwellings in the defined infill and redevelopment areas, as they existed on lots as of December 5, 2002. So, in the instance Mr. Murphy is referencing, where there was no structure there, there is no existing single-family detached dwelling. Thus, Section A would have been applicable. If you go then to the next section, then these standards apply. So are you saying that if no house had been built over, we could have had a permit for each of the two lots in these cases? I don't know about a building permit. We could have built a house. Planning doesn't issue building permits. But planning issues opinions as to whether permits can be issued or not, and building inspection follows them. So would you issue an opinion saying that, yes, a single-family house meeting the small lot requirements could be built on each of these lots if there had never been a house built over the property line? I'm not sure that building inspection would have issued two permits on these properties as they existed as of that day. There was one deed for the property. They may have required a subdivision plat or some other instrument at that point. If these had been in separate ownership for the last 92 years, I think there would be no question that they could get an individual permit. Is that right? I would think so. Okay. Okay. I guess my point is this, is that the staff agrees that there is a circumstance under which an individual permit could be issued for each lot, and that is if they were in individual ownership for all these years and had been vacant for all these years. If you had four different owners on these four lots, you could get four permits for it. Now, I think their interpretation is if we, I was told the only reason we can't get permits for these lots is that we had a house built over the property line. Now, my observation is, then, we are not causing chaos in this neighborhood because under those circumstances, for each of these two sets of properties, we'd be going from zero houses to two houses. Now, under what we're doing, we're going from one house to two houses. Now, I don't think we can say it's chaos to go from one house to two houses when it's allowed, under some circumstances at least, to go from zero houses to two houses. Again, when we go back and look at Section 4.5.C, it talks about, and this is the latest ordinance, when there's a conflict between this 2002 date in there and the latest one, the later ordinance prevails, the more specific ordinance prevails, which we are. Now, again, if we look at that ordinance and it says if there's ever, ever been a house built over a property line, this is the rules you go by. We have had a house built over a property line. We are asking to build houses consistent with houses which are in this neighborhood. We're being consistent with the layout of the neighborhood. There is no coherent prohibition in this ordinance against us getting permits on each of these. And again, again, if it's going to be a problem, the infill and redevelopment ordinance is under continuous review. I don't think it is, because I think this was a choice the city council made to help organizations build on lots like this appropriately in the neighborhood to provide housing, to provide safe and sanitary new housing to citizens of this community. Mr. Chair, I do have findings at the back of this if you choose to support our action. I have seven or eight reasons listed in there. To be honest about it, really almost any one of them would support an action to approve us to be able to get permits for each of these individual lots. You don't have to adopt all those findings if you don't agree with all of them. I think there's two or three ways under the ordinance that we're allowed to have building permits for each of these lots. You don't have to adopt all of those reasons if you don't agree with all those reasons. Now I have also, and I don't know if you want to hear, John Strom is here who has done the title research, And yes, these lots were conveyed in one deed. And the fact that multiple properties were conveyed in one deed has no legal significance whatsoever. The significance in those deeds is that they were always referred to as lots 107 and 108 and lot 71 and lot 72. they were never referred to as one lot. They were always referred to as two lots. The plat I showed you at the beginning from 1923 is the plat of record today. It is still the plat for this neighborhood today. It has not been amended for these properties. Again, we feel very strongly, and I personally feel very strongly, that this ordinance was passed in order to allow this type of situation to take place where we allow neighborhoods to be built as they are originally planned and consistent with the rest of the neighborhood. Chaz Haidt is here, who's a professional planner, who can talk to you about the appropriateness that we feel it's appropriate, especially in this area, that it's in agreement with the comprehensive plan about what we're going to do here. I don't know if you want to hear them or not. I'll leave that up to you. But I think the issue is pretty squarely cast in front of you on here. And again, if there's any doubt in your mind, I think the statute and the ordinance, the state law declared by the Kentucky courts, and as you all know, courts declare law, is that if there's ambiguity of any ordinance, It has to be resolved in favor of the property owner. And, as mentioned in the Kentucky Attorney General's opinions, preexisting plats do have to be respected the way they're filed. So I'm going to sit down at this point. There's lots more we could tell you about this. Mr. Murphy, before you have a seat, I'd like to open up to the board if they've got any questions for you. Mr. Griggs? I've got a question. This might just be a bookkeeping thing, but on the PVA sites for these new, smaller 25-foot lots, 1322 Camden and then 1324 Camden, your pages 21 and 22, the legal description looks like it's the same. They're both described as lot 71 and 72, I wonder, and it's the same way with the other pair. Does that seem right? Well, what I have on 21, down on, if you could put that up on the screen there, page 21 on my handout, I'll tell you what I'm looking at, which is, if you can get 21 up there. Right below where you've circled the address. Oh, there, okay. See the legal description? But here's where, if you could move it over a little bit to the other way. Here's where it's lot 72 on there, and down here frontage 25 feet. That's what it's out of. So do you think that legal description is correct? No, down here. It's lot 20. The account is for lot 72 alone. I know I'm just looking at the legal description right there. Do you think that's correct? That's where they list the plat. Usually in that line they list the plat. And they say the plat's recorded at plat cabinet E, slide 256, William Parrish, and the plat shows lot 71, 72. This account is for lot 72. Second question. Mr. Murphy. Do you know who advised the applicant to proceed with these new deeds before maybe getting an opinion from the city on whether they could do it or not? That was discussed among myself and Mr. Strom on that. Now, we have not obtained any building permits. No, but I was just wondering why you decided to go so far forward without getting an opinion by the city. Well, to be honest about it, we knew that there would be an issue raised about having these on one tax account and on one deed. Now, as I said, the fact that it's one deed has no legal significance, although people in some offices think it does have significance. So these were bought and conveyed off to separate entities. Some of it was for corporate purposes. I mean, Mr. Anderson owns these in two separate corporate entities. Laura Dane, one lot was owned by one couple, and the other lot was owned by the other couple, and then they deeded them into Laura Dane, into the same owner. But no permits were requested or no construction started without going through all channels and doing the way we're supposed to do. But we wanted to make sure we felt that, and I was tangentially involved in this, but we felt that if the PVA wouldn't separate these out into two accounts, why go through this exercise with the staff? Why don't we find that out first before we spend all these resources on asking the staff about this? because at that point we had an inkling of the issues that would be raised here. The last question I've got I don't think we can answer right now, but it seems like it comes down between the part of the zoning code under tab 5 in the staff's exhibit and this page 33 in your exhibit. And we might have to go over that one more time to see how it is that you feel like your section of the zoning ordinances are the more powerful rule as compared to their tab five. It was just up on the board a minute ago. Okay, yeah. Because I'm a little bit lost on that. I was really trying to stay with both you guys, but I need to hear it again. Well, I think looking at the staff's issue is under Tab 5 where they have Section 8-80 special provisions. They're saying that you get to use these special provisions if you had existing lots as of December 5, 2002. Now, I have two responses to that. One is we are an existing lot. We've been an existing lot since 1921, and we were certainly an existing lot in 2002. And the Attorney General says that planning agencies have to respect plats that were recorded before planning and zoning, even if they do not agree with current restrictions. So I say, first response is, we are an existing lot as of December 5, 2002, and we're entitled to use those. Now, on top of that, I'm saying, after that ordinance came through, which I assume was in 2002, at that time there was no mention in the ordinance whatsoever about houses being built over lines. It was not dealt with by ordinance at all. It was just an administrative shortcut, as I said, so they didn't have to deal with amending plats and stuff like that. After that, so in 2009, the council amends the ordinance, and for the first time we talk about what happens if you have a house built over a property line. Very first one, 2009. And that's the one where it says if you've ever had a house built over a property line, ever, you can build on each individual lot unless you're nonconforming, and you don't comply with the small lot provisions in each cell. And we do comply with the small lot provisions, and we comply with that. So I'm saying that even if you feel, like the staff apparently does, that this wasn't an existing lot as of 2002, even though it was a platter lot, even if you feel that way, then the council came back and said, well, we're dealing with all these situations. If you've ever had it, it did say if you've had one since 2002. It says if you've ever had a house built over the line, this is what controls. I think I understand your perspective of it now. Before we're done, maybe Bill will explain to me his one more time. Thank you. Very good. Does anyone have any other questions for Mr. Murphy? Mr. Salee, would you like to respond? Thank you, Mr. Salee. I do have a few points that I would like to address with the board. First, I'm going to put side by side this exhibit and then the previous page for Mr. Murphy's exhibit here. I think one of the key issues with this decision for the Board is which set of provisions under the infill and redevelopment regulations are applicable for the two properties that you're reviewing today. Mr. Murphy is saying that the ones under item A are applicable where the staff has concluded item number C is applicable. That, I believe, is the main thrust of the difference of opinion. From the staff perspective, as I mentioned in my earlier remarks, we viewed this property as an existing lot with each one having 50 or more feet of frontage as of 2002, and so that those set of requirements should apply to both properties and not the ones that were designed for lots 24 to 35 feet as of that date. That's because these regulations were for single-family detached dwellings in this central 10-square-mile area. These regulations were designed to make a balance of two competing interests. One was to help facilitate vacant properties redevelopment by lessening most of the yard requirements for the smaller lots in these areas, while at the same time ensuring that stability can be maintained in neighborhoods and to prevent a loss of character in the neighborhoods. So those were the competing interests when these were done. In looking at both of these lists under A and C, there is no mention of lot size in either of these sets of restrictions. And that takes me to the second point I'd like to make with the Board. Looking at Mr. Murphy's exhibit on page 34, the staff's position is not inconsistent with this AOG opinion. there were no changes made to the lot size requirements in 2002 under either Section A or Section C. And secondly, there certainly was no interference with the development of the properties that were covered under these two sections. In fact, these regulations helped the development of these properties. So the staff position is not at all contrary to those provisions. There is one more item in the packet I would like to address. I think the staff and Mr. Murphy both gave you these sections. the title of article 4-1 is non-conforming lots that's the definition and then the title of 4-5 is the regulation of non-conforming lots it's the staff's position that these are not non-conforming lots If there were very many nonconformities with them, they were greatly relieved with the text amendment that was adopted in 2002, including the frontage provisions. They both meet, as they did at that time, the minimum size requirements of the zone. They are conforming lots. They are not nonconforming lots. So these provisions are applicable for nonconforming lots. Thank you. Thank you, Mr. Salee. Mr. Murphy, do you have anything else to add? I have a question for Mr. Salee. I'm wondering if there's, have we had this accomplished before in Lexington, this subdivision of a lot that had a house built over it? And then also, could you speak to the chaos that you were mentioning in the staff report? Well, I think that paragraph in the staff report echoes our strong recommendation to you on this appeal. What is consistent in the timeline that's been presented to you today is that the history of these properties have never involved an action by the Board of Adjustment or by the Planning Commission. And so all the actions have been done by people building houses, tearing down houses, transferring property, and so forth. How the staff concludes our report is by saying there are other remedies for the applicant if they wish to build four houses on the property. And that really is the difference of opinion. The staff has no issue with the house that's proposed. It's the number of houses on these properties. I think I addressed that part of it. Also, the staff pointed out in our report that under Section 1.5 of the ordinance, if regulations are deemed to be in conflict, the more restrictive apply. And that's the position that the zoning administrator made in making this determination that's subject of the appeal. I may have missed the first part of your question, Mr. Greggs. I'm sorry. Had this happened other places? Yes. I'm certain we have had subdivision plats in the infill and redevelopment area. I am not sure if we've had it in this particular zone. I can't recall any specifically, but it's possible. I meant if it had happened by right, like they're suggesting. Again, until very recently, the planning staff was not involved with zoning enforcement, and rarely have we been involved with issuance of single building permits. So I just don't have the background, really, to honestly answer your question. Thank you. Does anybody else, any other board members have a question for Mr. Saleh? Mr. Murphy? Just a couple things in response. On the Attorney General opinion on page 34 of my handout, I want to point out that the Attorney General said zoning ordinances which occur after a subdivision plat is recorded, which we have here and approved, and development begun, should not be allowed to interfere with the development of the property according to the original plat. That's the property that's left out. The original plat is the same plat we have today, 1921, according to the original plat. On page 33, I know the staff feels that 4-5-C just doesn't apply at all. They feel that somehow the plat was magically amended by an administrative shortcut, and these lots were erased at some point, and they're gone forever. Well, that's not the case. There was no consolidation here. This is still the original plan. And the biggest thing is this. If what the staff is advocating for you is right, this Section 45C, which was put in there specifically to deal with this situation in which a house has ever been built over property line, This would never apply. There would be no case that this 4-5-C would address because under the staff's interpretation, there is every time you build a house over a line, you've consolidated in here. There's nothing in the infill area that would be allowed for this, and the ordinance specifically says you can do it in the infill area. But under their interpretation, this ordinance would never kick in whatsoever. Mr. Murphy, I'd like to hear Bill Sally respond to that. I'm still on the fence. I hardly know where to go with this. We were discussing whether 4.5C was meant to apply any time that a house had been built over a property line, and we're not sure that that's the case. This section deals with non-conforming lots, and not every situation where a house is built over a property line is a non-conforming lot. I'm not sure that this does apply every single time prior to the 1960s or even the 70s, a house was built over a lot. But it says without, that's my point. It says it applies to all of them. For non-conforming lots. That's, again, another difference. Section titles of ordinances are not part of the ordinance. They're put in for convenience. It's the wording in the ordinance which must be followed. Section titles are not defining items in ordinances. It's the text of the ordinance itself. I can put that on the overhead. Thank you. I'm trying to focus on is 4-5. Our nonconforming lives shall be permitted to continue and shall be regulated as follows. Thank you, Mr. Saleh. Mr. Murphy? I'm saying 4-5 doesn't apply because we're not nonconforming. If we're not nonconforming, we're entitled to permits. the reason they say they're not non-conforming is because this thing that happened that they said amended our plan now can't have it sort of have it both ways on that if we're not non-conforming and 4-5 doesn't apply then our lots are conforming and we're entitled to a permit for each one of them if we are non-conforming 4-5 applies and under that one we're entitled to permits because we meet the infill requirements for these 25-foot lots. I mean, that's the maddening thing about this, because we're running around between ordinances, but the thing is, either we're conforming or we're not. If we're conforming, we get our permits for all four of these lots. If we're non-conforming and we have ever had a house built over, we're entitled to it because we're in the infill area. I mean, that's the thing I guess I've been banging my head against the wall on, on this all along. They're switching us. At some point we were conforming and some were not, and for some instances we're conforming and some not. Well, what I do know is that what the original Platt said, and what I do know is that we did ever at one point have a house built over the line, and we're entitled to that exception because we're in the small lot positions. Thank you, Mr. Murphy. Ms. Myers, did you have a question? I would like to meet with council. Right ahead. Mr. Salee, let me ask you a question that Mr. Murphy had posed and talked about. If these were four individual owners that owned each of these lots, would they be allowed to build a single dwelling on each of them? I'm sorry, sir. I didn't hear all your questions. I said Mr. Murphy had brought up the point about if four different owners owned the four lots, would they be allowed to build a single-family dwelling on each of the four if they were separate property owners? Well, I think I answered his earlier question. If they had each had separate ownership and no homes on them, I don't know what would have prevented them from each getting a building permit on their lot. even before the infill and redevelopment ordinances were passed, a nonconforming lot could have a structure built on them. Thank you. Mr. Murphy, anything else? If these had been in individual ownership, each would be eligible to get a permit. I agree with that. and we are doing, as we sit there today, it's really physically no different from that situation. We've got four vacant lots. If there had never been anything built on them, we'd have four vacant lots. If they'd been in individual ownership, you could have four houses from zero, and we're asking for four houses. We had two there before. We don't think the impact on the neighborhood would be any different, and I think it's obvious it's not. And, again, we feel we comply with the ordinance. Mr. Griggs? I would like to make a statement, and I think we're ready for a motion. Yes. I'm a little spooked by the paragraph in the staff report about the chaos that this could create, and especially with the number of dots in the map that shows like zoning around the city. And for that reason, I'm going to make a motion to disapprove A20-1328 Laura Dane and Anderson Homes for rent, their appeal for the Division of Planning's determination that two lots were consolidated into one by virtue of the previous existence of the residence in two separate locations, each in a single-family residential zone at 1316 and 1318 Stanley and 1322 and 1324 Camden Place, based on the staff's findings for disapproval. Thank you, Mr. Griggs. Is there a second? Mr. Griggs, I'm afraid that we do not have a second. Well, I'll withdraw that motion then. Thank you. Thank you very much. Is there another motion? I need to... I think there's my case. They propose, okay, based upon the evidence presented in the hearing held, this board grants the appeal, a move to approve the appeal in case A, 2013-28, Luridane, LLC, and Anderson Homes for Rent, LLC, for the following reasons. Number one, these lots were platted in 1921 prior to zoning regulations, and the four lots in question are each at least 25 feet wide. Number two, although a house was constructed over the lot lines between lots 107 and 108 and also on Lots 71 and 72, apparently in violation of regulations requiring side yard setbacks. In each of these cases, the house has been removed. There is no provision in the zoning ordinance that states that in the infill and redevelopment area, lots are somehow consolidated if a house has been built, which encroaches a side yard line. and if two or more lots have ever had a structure built over the property line and if any of the lots are nonconforming, the land shall be considered to be an undivided parcel except those complying with the small lot provisions of each zone. This ordinance does not apply to these properties because the lots all comply with the small lot provisions of each zone. Number three, in the past, two lots have been conveyed in the same recorded deed. However, in all such deeds, reference was made to two lots instead of a meets and bounds description of one lot. The fact that two lots are mentioned in the same deed does not serve to consolidate two lots into one lot. At the present time, all four lots are contained in four separate deeds, which have also each of the four lots, which have, I'm sorry, which have, I've lost something. Okay. At the present time, all four lots are contained in four separate deeds, and each of the four lots has its own account with the PVA, the Poverty Value Administrator. And number four, granting building permits for each of these four lots will encourage greater density inside the urban service area to reduce pressure on expansion of the urban service area boundary and to promote infill and redevelopment. Thank you, Ms. Myers. Is there a second? Second. All in favor say aye. Aye. Aye. Any opposed? Aye. Mr. Griggs opposes. Your appeal for the planning determination at two lots were consolidated into one by virtue of the previous existence. Mr. Murphy has been approved. Thank you very much. Before we begin our last case, I'd like for us to take a 10-minute break. and then we will proceed. Thank you. Thank you. Thank you. Thank you. guitar solo guitar solo guitar solo Thank you. I'm sorry. Thank you. I'm out. If I could ask your attention, please. I'd like to reconvene the Board of Adjustment. In the beginning of the meeting, I did ask for withdrawals from Mr. Emmons, but I did not ask for postponements. And I wanted to ask if there are anything. Mr. Parker, I understand that you have a... Thank you, Mr. Chair. I'm John Park. I'm counsel for Boone Creek Properties, which is the appellant before you today. Earlier in this hearing, Mr. Chair, you inadvertently referred to it as Boone Creek Adventures. That's a separate company. We would like to request a postponement of this appeal in order to file an application to amend our permit. We've always known that would be necessary. We disagree with staff that that was necessary to install a canopy tour course, but we do know there are some aspects we'd like to update of our existing current valid permit. In the notice of violation, the planning division said that Boone Creek Properties could not submit an application to amend its permit unless a separate entity, Boone Creek Adventures, agreed to dismiss its appeal of the prior decision to deny it a permit. We don't think that's appropriate because Boone Creek Adventures, number one, is a separate company. There's additional interest implicated in that. That was a much larger project. It involves the Snyder family. It's not fair to the Snyder family to make them give up that appeal in order for Boone Creek Properties to exercise its right to request an amendment of its existing permit. So for that reason, we are fully prepared to go ahead today and establish that installing the canopy tour course was within the existing permit. But if the board would permit it, we would prefer to work with the city and seek to amend the permit. Thank you, Mr. Park. It looks like all parties are ready to proceed, but obviously if there's a postponement, I'd like to ask the board their preference. I'm prepared to proceed as planned today. Very good. I think that we need a motion to do so. I move that we proceed as planned today. Do we have a second? I second. All in favor, aye. Aye. Aye. Any opposed? We are going to proceed. Before we get started, I would like to lay a couple ground rules. And, you know, one of the things is that this is an administrative appeal. This is not an appeal to revise the conditional use permit that was denied back in January of 2012. Well, you know, the purpose of this meeting is to ultimately decide whether or not the Division of Planning was correct in issuing a notice of violation regarding the property at 8921 Old Richmond Road and enforce the current zoning laws. We have already been through a conditional use hearing, and I just wanted to add that as the presiding officer, I will limit or exclude testimony that is either repetitious or that is not germane to what we're here for today. And I want to make that very clear to staff, to the applicant, and to the opposition. And we're going to stick to the issue at hand, and we're not going to vary away from it. and if we do, I'm going to stop you. And I'll do the same thing. We're not here to limit any speech, but if we start hearing things that are repetitious, we even thought about doing a time limit for our speakers today. But I generally do not like that practice. But I generally want to make that statement before we begin that we are going to stick to the subject. And I appreciate the cooperation on all sides. Before we begin, I also want to advise the Board and those present that I receive a letter from the applicant's legal counsel, Mr. Park, who expressed a deep concern about prejudgment bias displayed by our Board member, James Griggs, at a work group chaired by Vice Mayor Gordon. Prejudgment bias undetermines the due process right to a fair hearing, and they have respectfully asked Mr. Griggs to recuse himself. For your information, the Board of Adjustments nor the staff has the authority to ask Mr. Griggs to recuse himself, and I've been informed that Mr. Griggs has a statement that he'd like to make before we begin. Regarding a perceived bias against Mr. Carey and his venture, I'd like to make the following statement. I have been on this board for ten years, appointed to serve by three mayors. I read the staff reports, I visit the sites, and I listen to all sides. I make my decisions based on the law. I am not a member of the old Richmond Road Neighborhood Association or of the Boone Creek Neighborhood Association. I do not listen to lobbyists before a hearing. I live miles away from the subject property, far outside the notification area. I have no direct or indirect financial interest in this case. and I intend to participate. Thank you, Mr. Griggs. As mentioned at the last administrative appeal, we will hear the presentation, the summary of facts from the planning staff. Then we will hear the presentation of the applicant, the opening statement, and their presentation of evidence. We will then hear any presentation from the opponents to the application. and then we'll hear public comments, those that are supporting and those that are opposing the appeal of the notice of violation. And again, I'm not putting time limits on it, but I just want to caution you that, again, we want to stick to the subject at hand. And then obviously there will be rebuttal by the appellant, any rebuttal by the planning staff, and I would ask the Board of Adjustment if they would hold their questions until the end. after all the staff, the appellant, and the presentation and others have made their comments. We'd like to go ahead and begin then. Mr. King, I think, is representing the staff. Mr. King, we'd like for you to come up and state your name for the record, please. Thank you, Mr. Chairman, board members, and interested citizens from the community who are here today. For the record, my name is Chris King, and my position with the Urban County Government is the Director of Planning for the Lexington and Fayette Urban County Government. And as of January in 2012, along with that title, came the designation as the Zoning Enforcement Officer and Zoning Administrator for Lexington and Fayette County. prior to January 1st of 2012. That duty was a part of the responsibilities of the Division of Building Inspection, but Council changed the laws and designated me as that. So today, very much as the Chairman noted, it's about me. My wife always says it's not about you, Chris, but today it really is, and it's about the notice of violation that was issued by me, by our office, for activities that are ongoing and were going and continue to go at 8921 Old Richmond Road. So before I actually start into the presentation, I want to make sure that a few things are in the record. There is a large notebook that was prepared by the staff and was distributed to the board members and also a council of record for both sides in this matter. And that involves a number of exhibits, not every one of which I will specifically refer to, but are all relevant and germane to this matter. One book contains the information that was submitted for the record by the appellant. The other staff exhibits on a couple of those are actually the same document. It's a bit of information, but all of that I want into the record. Also into the record is the book, a notebook, which has been provided by council representing neighbors in the area who are opposed to the appeal and support the position of the staff, and that has been distributed as well to the same entities. Again, I want to, maybe since we have a lot of folks here today who typically don't and aren't involved in these legalistic type of proceedings for an administrative appeal, just comment a little bit about what is going on here today, as the Chair has already said. This is an appeal of a specific notice of violation that was issued by our office based upon investigations involving a complaint that was made about activities going on at 82, excuse me, 91 Old Richmond Road. The role of the zoning enforcement officer as charged by the ordinance is to investigate, to the best of our knowledge and ability, apply the applicable laws, and make a decision as to whether the activity that is going on is in compliance with the ordinance or not. So, again, that is, as the Chair has already said, the focus of this hearing. Did we, as we investigated this situation as a staff, use all our best judgment and ability to gather facts, to review the laws applicable to the property, zoning-wise, and then making a determination, did we do so properly and did we interpret those rules and laws correctly? And that is, what is the question here today? First, I think I'd like to also just get a couple of things in the record regarding the site and the general situation regarding that site. We have a map that shows the location of 8291 Old Richmond Road, an aerial photograph. It's the area outlined in blue on this aerial photograph, located in the extreme southeastern portion of the county. The site consists of approximately 22 acres, and this site is zoned AR, Agricultural Rural, a zoning category which encompasses most of the rural service area of Fayette County and is regulated specifically under Article 8, 8-1, specifically, of the zoning ordinance in terms of the uses that are allowed within that zoning category. In this case, this property is also subject to a conditional use permit that was granted by this Board in the year 2000. So as we go on with our presentation, I will talk more about that and elaborate how all of that figured into the staff's review of this situation and the deliberations before we issued the NOV and also the NOV itself. I'd like now to refer to an event timeline that was provided in your notebooks. It's tab one of the staff exhibit. This part of the story will actually start around February 15th of 2013, when the Commissioner of the Department of Planning, Preservation, and Development, Commissioner Derek Paulson, received and forwarded immediately to the Division of Planning a packet of complaint alleging that a zipline amusement operation had been illegally constructed, was beginning to be constructed, was under construction at the subject property, and request that we investigate and proceed to, it alleged was a violation, and to proceed to enforce against it. Staff immediately went out, observed the site, observed this construction that was going on, and observed that what appeared to be a zipline facility at that point had no wires. They were actually platforms. Very elaborate structures were being built on those locations. On February 20th, we sent a letter to Burgess Carey, who's listed as the owner of the property and associated with Boone Creek Properties, LLC, advising of the complaint and requesting that any information they wish to provide be received by us no later than February 27th as we consider this potential violation. We also requested that activity cease until we could make that determination. On February 27th, we received a written response from John Park, attorney for Boon Creek Properties, and he indicated his position, why he felt that there were no laws being violated. We took all of that under advisement. Our staff met again on the site based upon being told that the activity had not ceased. In fact, our staff verified it had been going on, had continued, and that more had been done. and probably I think by about that time the lines, or at least some of them, had started to be constructed to connect these various parts of the unit. I've got to say at this point, it's a little hard to know what to call this facility. I have heard it called a canopy tour course. I've heard it called a zip line. I've heard it called an amusement ride. My point is I think in this case, no matter what it's called, everybody's in agreement. with what it is. They are out there, they are constructed, and there really is no dispute that no matter what you call it, these facilities are out there. And I'm going to just for convenience refer to it as a zipline facility. We reviewed and considered what was going on and also reviewed We also reviewed web-based materials that we deemed to be advertising, advertising the public to come and participate in this facility. So it was obvious that this was being offered to the public generally. The web location was not specifically aimed at Fayette County or others, but encouraged others to come, and we documented that material. Based upon review of all this and careful consideration, which I will get into in a little bit in detail in a moment, we issued on March 8, 2013, a notice of violation to Boone Creek properties requiring, among other things, that the wire component of the zipline facility be removed within 30 days, therefore rendering it non-operational. Since that time, a lot of other things have happened, and I can talk about that a little bit. As you know, the appellant contested the notice of violation, as is their right, and that's why we're here today, and that's how we got here today. But I must say that the event timeline documents a lot of other things that have happened. Clearly, the facility was put into operation. Clearly, there have been a number of events, and clearly, in the staff's opinion, there have been other activities that occurred in association with that, which also are violations, in our opinion, and for which we considered issuing additional notices of violation. But in the end, as all those activities were adjunct to the core question, we decided to withhold those until the Board had ruled on the threshold question as to whether this facility is in fact a violation of the zoning ordinance. I want to get that on the record now. So what did the staff look at? What did we consider? And why did we issue a NOSA violation? First of all, the zoning ordinance says that all lands must be used in compliance with the requirements of the zone that it's in. That's just an inherent part of the zoning ordinance, which, Tracy, correct me if I'm wrong, is of record automatically for this hearing, as is KRS Chapter 100. Statutes of that, are those automatically of record in the hearing? I don't need to enter those separately or anything. Thank you. So when it comes to allowable uses relative to zoning, there are, as you know, provisions in the zone as to principle permitted uses, accessory uses, and conditional uses. And so the staff, with great deliberation and a great amount of discussion and review, analyzed this situation that we were presented to see whether we felt that it was compliant with the zone or was in fact a violation. So first we looked at the AR zoning and the principal permitted uses. And I did not bring my zoning ordinance up here with me, but I will paraphrase. To paraphrase, the principal uses in the AR zone are agriculture and uses as defined under KRS Chapter 100 and a single-family residential house. Those are the principal permitted uses in the AR zone. Clearly, this facility, in our opinion, was not in and of itself an agricultural use. They're not growing anything on these zip lines. This is not a farm activity. Secondly, it's not a single-family house. So check. It did not meet those. So then we went to number two, to the accessory uses. Was, in fact, or is this, in fact, the uses accessory to agriculture that is going on the property? And if you're familiar with state law, the definition of agriculture is pretty flawed. So rather than get into debate whether the trees and silviculture and things like that, which I do believe are generally accepted in Kentucky statute as being agricultural uses, we looked at is this zip line facility an accessory use. Well, the first charge and in the definition of what an accessory use is, it says that the use must be clearly and customarily accessory to a principal use. So clearly, to qualify as a condition of use in the first place, the use would have to be something that is clearly and customarily accessory to one of the permitted uses. When we reviewed this, we could not, in good faith, say that this was an accessory to agriculture. I can think of no other location in Fayette County or maybe other places where a zip-line facility at this site would customarily be considered an adjunct accessory use to an agricultural. So after reviewing those accessory uses, staff came to the conclusion that no, this was not an accessory use, and therefore box number two checked. It did not comply. Then we went to number three. In the agricultural rural zone, you have conditional uses. And as I already mentioned, this site is subject to an existing conditional use permit. And also, as this Board is well aware, you grant conditional use permits. So this is the third way in which this particular facility could be found to be legal, would be does it comply with a conditional use permit. Well, clearly, they did not come to you for this specific zip-blind facility and request a conditional use permit. So the staff's review was the existing 2000 conditional use permit. So we extensively reviewed the record, which is in your notebook, I think provided by both sides, of the year 2000 application for the private anglers club that was granted by this board in 2000, and conditional use permit under which they operate. Without getting into all the details, because I suspect you're going to hear a lot about it, and this, that, and the other here today, we extensively reviewed the application, the minutes of the hearing, the staff report, and the certificate of land use restriction conditions, all placed by the Board on that. After reviewing all of those, which of course, as one of your normal standard conditions said, the use must be operated in agreement with the application and the site plan that accompanied that application and the certificate of land use restriction conditions placed by the Board, We, after a great deal of review and discussion, felt that the zipline facility did not comply with that conditional use permit. We did and will acknowledge that there was more allowed by the board in that conditional use permit than simply the angler's club. There was some discussion of some environmental education. There was some discussion of hiking, tours. but clearly it was limited to be and described to be a low-intensity operation, a limit of 60 members that would be members of this club, and other restrictions related to the use. And as we reviewed the site plan in that application, there was nothing contained in that that led the staff to believe that the board in year 2000 envisioned anything like the zip line facility as a part of this. So in conjunction with all of that, we basically tried to look at also what would be other indicators that might indicate the legality in the Board's intent. As has been known, as everyone has put on the record, and we can't deny it, in the year 2011, a conditional use permit was applied for this board for this property and an adjoining property by a different entity, Boone Creek Adventures, Boone Creek Properties, that included a very large-scale, I will call it, ecotourism operation in an agricultural market, involved sleeping facilities, involved zipline tours as a part of that, and this board had lengthy hearings over two dates on that, and in the end the board denied that. In looking at what was considered by the board in 2000 versus what was considered by the board and denied in 2012, clearly zip-line facilities were specifically part of one. They were not a part of the one in 2000 under which this property operates. Does that mean conclusively one thing or another? No, but it was very much clearly an indicator to the staff of what had been intended and what the use was. So we felt very comfortable that when we looked at the evidence and what had been approved and what hadn't, that a zipline facility had been denied by the board on this property. And we don't agree with the notion that even though that was a different entity, was a larger application involved a lot more things, but to build one small part of that would be allowable going back to the 2000 conditional use permit. So in the end, again, as I mentioned, the staff did issue a notice of violation. We were trying to get out ahead of this. At this point in time, what had gone on was the construction. They had not begun to operate that facility and invite the public and actually hold events, But that has happened subsequently, and they've been very open about that. Their contention is that they're legal, so our contention is that they are not. I want to go on record as my last thing of saying is that it's important to note that not a single permit was sought, opinion requested, whether it was required, for any of this activity that began this past winter on this property. The building permits, whether they're required or not, and there's some debate, discussion, I think, about that. The building official, I am not the building official, I am the zoning official. The building official reviewed this extensively and determined that there was not a building permit. They are here to answer the questions as to why they came to that ruling if it comes to that. But again, no zoning compliance permit for any activity has been granted. No signed permits have been granted for any activities or any other permit has been sought from the urban county government for this, and I think it's very important that the record note that. So everything that's going on is to say that everything that has been going on there is permitted under the 2,000 conditional use permit. That's the only way, in the staff's opinion, that could be found to be legal, even though you will hear, I think, the appellant state that they believe it's an acceptable accessory and or principal use in the agricultural zone. The staff disagrees with that very intensely, and I just want to go on record on saying that. At this point in time, I would request the chair that that basically concludes the staff presentation. Clearly, the appellant has made a written statement and alleges a number of things in terms of disagreement with the staff's notice of violation. rather than try to respond to those before they have presented those, I would request the board allow us to come back as a staff and to speak to any and all points made in disagreement with the staff's position by the appellant at one time because there are certainly some here. There may be others that are made in their presentation. And again, rather than try to bifurcate that and try to fully anticipate those arguments, I would request the Board to allow us to handle all of that at rebuttal. I think that would be acceptable. Mr. King, does that conclude? Yes, that would conclude the staff's presentation, Chief. Thank you very much. We'd like to have the applicant presentation. Mr. Park. Thank you, Mr. Chair. First, I would request that the affidavit that was submitted with the recusal request be entered in the record, if that's okay. Thank you. I'm John Park, and I'm attorney for the appellant Boone Creek Properties. This is my first appearance working a case before the Board of Adjustments, so I apologize in advance if I'm not aware of all your procedures and you need to nudge me a certain way. I serve for over two terms on the Greenspace Commission, so I know what sort of time commitment you all make for this and for that. I want to express my appreciation. Greenspace Commission would make recommendations and decisions of a general nature where you all's decisions obviously impact very real people, and that's a lot of responsibility, which I acknowledge and I appreciate. Mr. King correctly stated, I thought very well, what is before, as you did, Mr. Chair, as well, what is before the board here today. It is the notice of violation issued March 8, 2013. In the notice of violation, the planning division found that it was in violation of the existing permit because a canopy tour was not discussed in the 2000 application process by which the permit was granted. The city also found it was in noncompliance because of the membership issue of a private club. I think it's important to consider what's not in the notice of violation as well. There's no claim in the notice of violation that the canopy tour course that's on the private recreation club is having any impact on any neighbors, on any other property. In fact, there was no allegation in the written complaint about that, so I think that's important to point out. The notice of violation also does not cite any specific provision of the zoning ordinance as having been violated. It's focused on the permit. The notice of violation does not claim that the canopy tour is an amusement park use. I think that's very important, just that it does not comply with the permit. And the notice of violation does not claim that it was installed without a requisite building permit. In fact, no building permit was required. I've got five main points, the first of which is I want to stress that this canopy tour course on the club property is not part of the much larger 2011 adventure sport and recreation complex for which a permit was sought. Although a canopy tour was a component of that, it was much, much more. It covered 167 acres, over 150 of which had no permit, whereas the club clearly does have a permit. It was going to include not only a much larger canopy tour, and we'll point this out, but it was going to have camping platforms, overnight lodging, ropes challenge courses, rock climbing, hiking and biking trails were going to be constructed, a children's activity area, multiple bridges over Boone Creek, which would have foundations, one even strong enough for an emergency vehicle. It was going to have a canoe livery. It was going to have a trout hatchery, rappelling, and a substantially larger and more intensive project. I want to point out on the map over here, in green, that was the 2011 project in Mount Property of Cutter. The canopy floor went all the way here on Faith County and also included over here in Clark County. This is the club property, and everything is contained up on the club property. Concerns raised about the 2011 project simply don't apply to the club use of a canopy tour of its property. There's no issue of septic container or being kept in containers for the overnight stays. Everything on this canopy tour is guided. Nobody's getting off. There's no danger of trespass. And as I mentioned earlier, the proposal was made by a separate legal entity. That application in 2011, at that time, the 2000 permit was still in existence. There's no way that 2011 application and its denial by this board can have any effect on the permit that was already in existence at the time. Moreover, I want to note there has been a recent Kentucky appeals decision which holds that rulings of the Board of Adjustment, because it's not a court, they don't have preclusive or residue kind of effect. It doesn't prevent the Board from totally changing its mind. What's before you today is a totally different situation than what was before you in 2011. My next point is that since the Board's ruling on the 2011 application, there's been a number of developments at the national, state, and local level to make clear that a canopy tour is a recreational use with an educational component. The first of these was taken by the United States Congress. In November of 2011, Congress passed an amendment to the Ski Area Permits Act. And this is the provision of federal law which allows private companies to operate ski resorts on national forest property. The Senate passed this amendment by unanimous consent, so obviously it was not controversial at all, and that hardly ever happens. What the amendment to the federal law did was allow ski permit holders to offer recreational opportunities in the summer that are nature-based and sustainable and low-impact. And they specifically designated zip lines and ropes challenge courses as included within the nature-based outdoor recreation that would now be permissible on national forest land. And they specifically excluded amusement parks. So they recognized the distinction. because back in 2011 there was uncertainty about how zip lines and canopy tours would be treated. There was an understanding by many that they would be regulated as amusement rides, and I think that the next change was at the state level, and it was an amendment of the state amusement ride licensing regulation to specifically exclude canopy tours, zip lines, challenge courses, tree platforms from the definition of amusement ride. The State Department of Agriculture did this specifically because they found that canopy tours and these other things have an educational component which removes them from the orbit of the amusement ride statute. The state regulation or the perceived state regulation of multiple elements of the 2011 application was really, I think, a basis of a lot of people's conclusion that this was a prohibited amusement park use. I'd like to, if possible, is the procedure just to hand something over here for the projector? Sure. As you can see, the Department of Agriculture specifically exempted from the definition of amusement. Let's see. Do I operate that? Can we get it on the screen also? As you can see, the Department of Agriculture specifically excluded certain activities from the definition of amusement ride. And this came out, I want to tell the Board, it was published in the summer after the Board's ruling, so the Board did not have the benefit of this before it. In any event, an amusement ride shall not include self or manual blade rappelling equipment, mobile and permanent zip lines, rope courses, canopy tours, tree platforms. I think those are all involved in a typical canopy tour. So that's the development at the state level, which gave us confidence that a canopy tour was a recreational activity with an educational component. At the local level, we discovered a number of things. There are already a bunch of zip lines in Lexington. There's a zip line at the Bluegrass Christian Camp on Boone Creek on Athens Boonesboro Road. There's a ropes course with a zip line at the YMCA Bar Y Camp out on Versailles Road. And there's a ropes course at the Girl Scout Camp out Tates Creek Road, although I think that's on Jessupon County property. The city itself had a mobile zip line feature at the July 4th celebration down at Centerpoint. Driving home the other day, I noticed some neighborhood kids had strung up a zipline in an island on Fontaine Road. I know private people had been putting up ziplines as part of an outdoor recreation. Also, the City of Lexington, City of Parks and Recreation, contacted the company that installed the Boone Creek Properties Canopy Tour Course and asked for proposals to install a canopy tour course at Raven Run, the city-owned natural area park. They also asked for a proposal to install a zip line at Jacobson Park's Camp Kearney. So the city is obviously recognizing the recreational potential of these things. Unfortunately, the city pulled back on a proposal, I think, due to perhaps some of the controversy, and I think that's really unfortunate for the campers at Camp Kearney. Also, after the Board's ruling on the 2011 application, application, I think in recognition of how vague and ambiguous our current ordinance's definition of outdoor recreational facilities, in recognition of how vague that is, the Vice Mayor appointed a work group to study proposed and recommended changes to the ordinance to provide more specificity. I know Ms. Meyer served on that and really put a lot of work into it. It's been all last year looking at individual tourism, agritourism, recreational uses, and trying to figure out which zones they appropriately are in. My point is they haven't done that yet. That is the way to cure an ambiguity. But until that's cured, as Mr. Murphy mentioned, any ambiguity has to be resolved in favor of the private property owner. And as part of the recommendations, the Zota Workgroup voted to recommend that canopy tours be allowed in the Palisades area, The Ag Natural Area. Now, a zone change would be required for that, and that's who knows how many years away. But nonetheless, that work group recognized that a canopy tour is appropriate nature-based outdoor recreation. As Mr. King said, Boone Creek Properties does have a valid existing conditional use permit for a private club for outdoor recreation. It was granted in 2000 under Article 81D, and I think the number may have changed, but it's 81D11 now, and I do want to put this up on. Article 81D lists 28 separate uses that can be permitted as a conditional use upon the Board's approval. The permit was awarded to the club under what is now 8.1.D. 11, commercial and non-commercial outdoor recreational facilities. And then it gives a number of examples and provides that a club can also engage in this usage. No distinction is made between commercial and non-commercial. Also, there's nothing in the ordinance that would suggest that once someone's obtained a permit for commercial or non-commercial outdoor recreational facilities that they'd have to come back and get another permit if they added a new recreational activity. There's nothing in the zoning ordinance that suggests that requirement, so it's our contention that that requirement cannot be created by implication or interpretation. Again, that would be something for the council to do if there's any ambiguity in this, and we think there is. As noted by Mr. King, there was discussion at the time that the 2000 permit was granted of additional outdoor recreational activities in addition to the fishing. Looking at the minutes, the staff recommended approval. Private club for outdoor recreation is permitted as a conditional use in the ag rural zone with Board of Adjustment approval. The educational component is acceptable in an incidental subordinate use of the property. It also, the minutes, reflect some of the discussions. Specifically, it talks about activities in addition to fishing, managed activities, such as hiking, environmental education, and wilderness skills seminars. It's very general. I will grant you that. There's no mention of a canopy tour here. But again, there's nothing in the permit that says you can only engage in these certain outdoor recreational activities. That was not a condition imposed by the board. And I do not think a condition can be implied, because again, that's going to hurt my client's private property rights. Though in the hearing on the 2000 application, it was noted that this is located in an area where our city's planning documents want to promote recreation and tourism. Also discussed was the fact that this was similar to a nature preserve with hiking trails, scenic overlooks, scenic outlooks rather. In reviewing the record, I did find something from the 1996 comprehensive plan that was introduced, which I want to show the board because it clearly shows that observation platforms were contemplated. And basically, witnesses are going to describe it much better than I will. The canopy tour course that has been installed is really a series of observation platforms in the trees, no sides, connected by various features, either zip line, bridge, ladder, in one case you have to repel. It's really quite varied. out of the two, two and a half hour course you probably spend less than three minutes on zip lines. So that should tell you something. They're an integral part of it. That's one way you get from observation platform to observation platform. But most of the time is spent on the platforms. Listening to programming, learning about the canopy learning about the birds that are there learning about the history of the gorge and again I hope my witnesses will be able to tell you more about that than I am. And I think what Mr. Murphy talked about in the appeal prior to this one is very, very important. The principle of strict construction from Hamler v. Best. A corollary of that rule, as I've mentioned, is that because zoning restrictions take away private property rights, they must be strictly construed. They cannot be extended by implication or interpretation. they have to be clear and express. If they're not clear and express, the default is to rule in favor of the free exercise of property rights. There's been a recent law review article that framed it this way. In case of zoning ambiguities or ambiguities in the zoning ordinance or permit, the tie goes to the landowner. I've been reading a biography of Justice Kennedy, and he sums up his judicial philosophy by saying, I vote for freedom, and that's when there's a clash between government interests and the citizen, and it's not exactly clear we should always default to the citizen. As I mentioned, Boone Creek's property does not limit the type of outdoor recreational activities the club can offer, and indeed since 2000 they've offered an extremely wide range of activities that are all nature-based, recreation, environmental education, many of them using the same equipment that you use to do the canopy tour, rappelling, rock climbing. Even back in 2000, could you get that map that shows the ropes course? Even back in 2000, he has a site plan. We didn't find it in the record of the Board of Adjustment proceeding, but it clearly shows ropes courses, and that is very analogous to a canopy tour. I believe we also submitted some materials from Boone Creek Outdoors. The club goes under several trade names, Boone Creek Anglers Club and Boone Creek Outdoors. Boone Creek Properties typically does not appear in the name. In Boone Creek Outdoors, we submitted promotional materials that show people dressed up in the ropes courses. This is clearly something that's been envisioned. Activities have been broad and wide, and Mr. Carey has brought a great deal of benefit to our community by making this resource available. The conditional use permit also does not address or restrict the type of memberships the club can offer. There's no restriction on day memberships, none at all. If the board had wanted to do that, it certainly could have imposed that condition, but there's just no restrictions at all on day memberships. There are several other local clubs that offer day passes, country clubs that offer day rates. So because the permit does not specifically limit the type of memberships that the club can offer, you can't interpret it to create such a restriction. That's our position. Also, since the club has opened, Mr. Carey has invited guests, have provided day memberships. That's just how he's operated the club for 13 years. It's also a position that Boone Creek Properties installed the canopy tour not only in compliance with its permit, but all other existing law. We have been operating in good faith, and contrary to what some people have said, it was no intent to act in defiance of the board. once the state regulation was amended to make clear canopy tours are not amusement park rides we started looking at the issue of that sort of undercuts one of the basis of the 2011 decisions so we started exploring and in fact we met informally with planning staff at one point and even got to looking at the amended regulation and it gave us the idea well this outdoor recreational activity with an educational component, that fits exactly the permit he's got. An outdoor recreational facilities permit with an educational component. That's precisely the type of permit he's got. We bounced that off of staff informally, and there was no outrage expressed. We certainly did not seek a formal opinion, but we did divulge our thoughts on that. We also informed the Fade Alliance before we started construction. and we didn't get any pushback from them. We confirmed that no amusement ride license was needed. We wait until that regulation was final. Mr. Carey is a builder, and he knows if something is not permanently attached to the ground, it's not a structure, you don't need a building permit. Building inspections subsequently confirmed that three times. There's been no appeal of that. Somebody agreed by that decision could have appealed that decision to this board, and they did not. We met with city planning officials after the notice of violation was issued about applying for an amendment of the existing club permit to address issues that we wanted to do, like parking and conversion of a preexisting nonconforming use, which was the old Jolly Rogers truck stop, from a residential rental property into a welcome center that could be used by the club. We were advised not to file an application of that but to wait until after the appeal. But it's always been our intent, and I hope Mr. Carey will show some of the plans we've prepared intending to submit them to you, but we were discouraged from doing so because of the pendency of this appeal. And that's part of the reason I asked at the beginning if the board would consider a new application. Finally, there's the matter of farm tours. Other rural properties are allowed to have commercial tours, commercial tour guides come in and use their property for commercial purposes to tour the farm, to tour a racetrack. And, you know, tourism is not an agricultural activity either. So we're also looking at the fact that how can a horse farm have a tour and somebody's on that property charging people for the tour and another property owner would not be treated the same way. We think that raises issues of selective enforcement. Should the Board reject this appeal, we will consider our options, but certainly, as I mentioned at the beginning of this hearing of this appeal, our preference is to work with the city. Our preference is to come to some amendment of the permit that will satisfy the Board and will come through the proper process. But we do think that Boone Creek Properties was acting within the spirit of its 2000 permit. We looked at all the possible permits we were supposed to obtain and concluded that the course could be constructed without a building permit or without an amusement ride license. Thank you. Mr. Park, thank you very much. Mr. Stummel, one more thing. I believe most of my witnesses had not arrived by the time you swore the witnesses in, so I don't know if you want to swear the amen before this. Sure. If someone would like to testify, would you please stand up and raise your right hand? Do you agree to tell the truth and nothing but the truth? Thank you. And I might also say to the witnesses, too, I made this comment at the beginning, that this hearing is simple in the fact that this is an administrative appeal. This is not an appeal for conditional use permit. This is not a revocation hearing. The purpose of this meeting is to make a decision whether or not the Division of Planning was correct in issuing a notice of violation. And I want to be able to stick to the issue at hand, And because certainly as a presiding officer, I will limit testimony that's not germane to this issue pressing today. Mr. Todd. Mr. Chair, I just have a point to clarify. Just for me. When Mr. Park says he has witnesses, I don't know if he means that those are witnesses that he intends to call himself in support of his appeal, or these are just people that he knows are either going to make public comment in favor of or against. If they're persons that you've specifically got testimony as part of his appeal, they probably should give that testimony at this time. But if they're just going to make public comment, then it could be at a later time. Mr. Park, I assume that they were going to be making public comments along with the others. Okay. Well, we'll hear them after, during the time. public comment. Is that acceptable? I'm sorry? What I was trying to say is if there are actually witnesses that he is presenting to testify as to specific issues addressed in the appeal, they probably should be they probably should come forth now in support of his arguments as to the appeal. If they're just people who are here to make public comment, then that can all be handled at the same time at the end. I agree. Very good. Very good. Thank you, Mr. Todd. We'll allow that. If you have someone, the witness, that would like to come up, please do. State your name for the record, please. Thank you, Mr. Chair. My name is Burgess Carey. I live at 8039 Old Richmond Road. Oops. Bear with me, I'm sorry. I'm truly blessed to have the responsibility of caring for a spectacular section of the lower Boone Creek Gorge. I need to thank all of the supporters and even the skeptics for their care and concern for this unique part of our county. I'm also fortunate to be the one to hopefully figure out a way to sustainably share this little known resource with a broader audience of citizens. Ever since I first stumbled onto this property in the mid-1990s and discovered that it was an abandoned gas station and commercial site that had some of Fayette County's most interesting history, geology, and natural features, I've been trying to figure out the best model for a sustainable use. and to maintain and share this property with others. It's not appropriate for a single-family dwelling, and in my opinion, much more valuable for the resource in its backyard than its traditional use as a commercial location in front. I've searched for the right way to balance access with impact and economics on this property. Much like a small farmer, I've tried to sustainably utilize the resource of the land to support itself. In 1999, I thought I had a model that would work, because trout were on Boone Creek. A rarity in Kentucky, I thought that fishing could help subsidize the operation and maintenance of a facility that could then offer other activities that were seasonal and not traditionally revenue generators. My initial interest in opening an outdoor recreational facility was discouraged then by one of my primary opponents represented here today. She encouraged me instead to apply for a private club, which she told me I could run however I wanted to. Of course, without disturbing the neighbors. because my appeal to her was that information and access and active management would discourage the illegal access that had caused problems in the past in the gorge along the creek. We discussed my mission to provide a model for ecotourism and to show a side of central Kentucky to people who had no idea such terrain existed here. So it was decided a private club was the way to go, even though I never liked the sound of that. and Boone Creek Anglers Club and Boone Creek Outdoors was born. It was always my intent to have a fishing and lodge to help subsidize other outdoor recreation and environmental education at the site, and we have done that since the beginning, providing access by annual and short-term membership as well as guest use in accordance with my permit. Just a minute, please. I'd like to show a little background of that. This is a sample of the calendar from 2002. Kind of difficult to read, but you'll notice the calendar of activities include wildflower walks, a reservation of the lodge by members, a photography walk, a Kentucky River Keeper fundraiser, and the sorts of activities that were always my intent to provide at this location. Bill, if you could show the next. Example of a group on a hike contained within our property. This, I believe, was a group of Girl Scouts several years ago. The next one. We've also provided a takeout access for the Boone Creek whitewater enthusiasts and have always supported the boating community here. Bill, could you show the original one that I gave you? Before that, yeah. And these are pictures from the Boone Creek Outdoors section of the webpage, which has been the original webpage, which functioned from 2000 until approximately 2010, when I began to revise the webpage in anticipation of adding activities. Since 2000, I have invested and subsidized the operation of this club with hundreds of thousands of dollars of my money, never for a profit. A few years ago, I thought I had found a plan to not only take better care of my property by making it my family's primary livelihood, but a much larger parcel that was in decline next door. That project with a new entity would need to get a new conditional use permit for the nearly 200 acres that that expansion would use. As we all know, Boone Creek Adventures lost that application. I felt that my project had been misunderstood. However, I understood and respect many of my opponents' concerns. Soon after, I set about trying to work with all concerned parties to hopefully revive that project in the future. and those efforts will continue for as long as I am able. But after clarification of a confusing state law regarding canopy tours, which Mr. Park has already shown, that Bill, it was our understanding that this use was by right as agritourism. The core of the business model that I hope to use to provide additional access and to sustain this property, and after reviewing my permit for a fishing club, which included outdoor recreation and environmental activities, and even checking with planning staff to see if our logic was sound, I decided to build a canopy tour on the 23 acres that I already owned and was permitted, I thought, appropriately. And as a side note, Mr. King, and I'm sure it's just an oversight, the lines for the canopy tour were run in the fall of 2012. They were up during those inspections. The platforms and bridges were not entirely complete, just to clarify. That's the most difficult part of the canopy tour construction. and is one of the reasons why it was impossible for me to comply with your request to take them down. Last year, my family and I moved to a neighboring small farm where old wagon roads connect to my club along the creek, and my family and I are able to live and work on our land. We've been more active than ever on the project and have been able, by virtue of being there, to provide better management, oversight, and more activity. We have always had a volunteer program for access at Boone Creek, as a private club membership is not within the means of all of those that we would like to share this property with. However, as a result of the publicity that this project has received and the publicity of the previous application, our demand for volunteers has skyrocketed, and the benefits on the property are clear and obvious. This area of the Palisades is under assault by invasive species that are currently choking the hardwoods of our Palisades. and within no less than a few dozen years, if unchecked, many of our hardwood species will be gone. The pictures up on the screen right now are the work of one all-star, unbelievable volunteer intern that took place over this past winter. And you can see the bluffs of the Palisades to the left prior to his work and to the right afterwards. The guides and volunteers at Boone Creek Outdoors have saved dozens of trees by clearing the winter creeper from them and preventing them from being choked to death. We have increased the ability to provide sustainable access and management of this resource for which we are responsible. We want to be good neighbors. and we want to fit within the eco and agritourism corridor along old Richmond Road, which now includes a corn maze, a goat tower, a botanical garden, a riding arena, at least two wineries, a tasting room, and a restaurant. To that end, unfortunately, because of the challenges financially in developing this tour, we haven't been able to complete all of our mission. The gas station and non-conforming building that has been most recently used as a single-family dwelling is planned to be renovated if possible. And as Mr. Park mentioned, it was our intention to come to the building to planning and zoning and ask for permission to not only renovate that building, We wouldn't be adding any additional openings. The bathroom facilities are oversized for our demand. They were originally designed for a restaurant. The parking lot that was formerly used by the gas station provides us with adequate parking, with handicap accessibility, and with even access for large school buses. We have the support of the Clay's Ferry Neighborhood Association, which was specifically formed last year to address the unique needs of the properties in the Palisades area around Exit 99. We are heavily impacted by the sound and lights from the interstate, as well as the traffic and sometimes trespassing, but we also have unique opportunities in this area on smaller and nonconforming parcels to develop and continue to promote an ecotourism industry in Fayette County. What we have built is beautiful, and it perfectly balances the need to minimize impact while allowing maximum access. Canopy tours are a fun, engaging activity appropriate for entire families, young and old alike. The revenue generated supports labor that can manage and care for a property whose resources desperately need it and hopefully provide the means by which a small Fayette County family can sustainably provide for their own. For those of you concerned about the trees, noted arborist Dave Leonard has inspected our course and certified the health of our trees. Our platforms are built so that the trees are not harmed and can grow unfettered for up to 30 years without major adjustments. As I mentioned earlier, our guides and volunteers have already saved all of the trees that were threatened on or near the course from the winter creeper invasion, and it will be in our continued best interest to improve the health and condition of the forest. I represent that I moved forward with the plans on my club, understanding that what I was doing was legal and was within my rights. I have been ably represented by my attorney and do not want to take up too much time, but I think enough have been said about this project already. I would like to reiterate these four points. The canopy tour on club property is not part of the large adventure, sport, and recreation complex proposed in late 2011. In the past year, developments at the national, state, and local level have made it clear that a tree canopy tour is a nature-based outdoor recreation activity with an educational component. Boone Creek Properties has a valid existing conditional use permit for a private club for outdoor recreation and environmental education. Boone Creek Properties' existing permit does not limit the type of outdoor recreation activities the club can offer. it does not limit the type of memberships it can offer or the guests it can have on site. It does not prohibit the club from charging fees for activities. Boone Creek Properties installed the Canopy Tour course in compliance with its existing permit and applicable law. I will answer any questions you may have, but I want to make a final comment. It was never my intent to alienate so many people. I'd like to invite each and all of you to come see and take the tour as my guest, to see it for yourself. I am truly sorry for the controversy this project has caused. Thank you. Thank you, Mr. Carey. Mr. Parton, do you have other witnesses that you wanted to bring forth? We have one. Your Honor, this witness may be able to shed some light between the difference between a canopy tour. Mr. Park, do you want to address the microphone? No. Your Honor, my next witness may be able to provide some guidance about the difference between a canopy tour with an educational component and a zipline thrill ride. Sir, come up to the microphone and state your name, please. Thank you, Mr. Chair. Excuse me. Thank you, Mr. Chair. My name is Hakan Shepciolo. You can just call me Hakan or Han if that makes everyone happy. I'm Turkish-American and spent about 20 years in tourism industry. Last 10 years, I launched and started five zipline canopy adventure course. Three in Alaska, one in South Carolina, and one here in Boone Creek. As a general manager of the Boone Creek Outdoors, my main responsibility is to create a culture and establish procedures that ensures the safety and enjoyment of all participants. And I take that job very, very seriously. This is my livelihood, this is my career, and it's something I'm very proud of operating. I've been, I was, I'm not very familiar with the hearings like this, so I was here the first time on Wednesday listening to some of the reports. put out and I realized that there is this controversy about a zip line and canopy. What is a zip line and what is canopy? I'd like to explain that a little bit as someone who has been in this industry about 10 years by now. The zip line is basically an element of a challenge course. A challenge course has more than one component such as suspended sky bridges, a repel station, the other components that's very important with the canopy is the education component we just don't take people through the zip line from A to B without talking to them it's a fully guided tour so I think the reason zip line kind of embedded into the psyche is it's a catchy name but it's simply an element of a larger product that allows people to go up on the trees and go from platform to platform with the guidance of the guides, train for this, and explore that beautiful forest canopy. Throughout this experience, they overcome their fear of heights and they reconnect with Mother Earth and reestablish that love we all have for nature. this argument about zipline and canopy is not new even the challenge course industry has been tackling with this for about 7-8 years because the canopy tour become very popular especially in Alaska with the cruise ship passengers there was concerns while this is kind of steering away from the rope course industry which is more camp design and all that and at the end Over the five years, the challenge course industry has self-counted the conclusion that the canopy tour is a great adventure that emphasizes the use of zip lines and other components in an educational and nature-based approach. That's what a canopy tour is. But if I was a salesman coming over here and trying to explain, would you like to do a canopy course? You might think that I'm trying to sell some awning to you. And so the people use in the industry zip line a lot because of a catchy phrase. But what a canopy tour is, it's combinations of zip lines, sky bridges, rappel, and most importantly, the interpretation. And helping out the folks. You know, when you come to canopy tours, you'll see people a little timid. I'm going up with 15, 20 feet off the ground. How am I going to deal with that? We all have a fear. I've been on this for 10 years. I'm scared when I go up there. All these guys have to have some fear factor in them. We don't want anybody overconfident. So that's always there. At the beginning, you'll see people hugging tree. We call it tree huggers. And then eventually, people move on and overcome those fears. I've seen people come as a group from the office setting who was at each other every day, becoming a good friend at the end. Because it really helps to bring people together. There's all that component. It's not just educational component. There's a psychological component to it that most people may not see. So I would like to repeat what Burgess earlier said. Zipline is a very unique product, and that's maybe why this controversy kind of expanded. It is difficult to express it with few words. Sometimes the best way to do it is to experience yourself, and then you'll have your own opinion. So we would like to extend that invitation again for you folks to come out and take a canopy tour with us, and you see it for yourself. Thank you very much. Thank you. We'd like to hear from the opposition. Mr. Todd. Thank you, Mr. Chairman. Don Todd, I'm here on behalf of the Boone Creek Neighborhood Association and the Old Richmond Road Neighborhood Association. I'd like to say that I have listened to and support the staff's comments to you, their findings, their recommendations, and I fully understand and appreciate the structure with which we're here today, the framework that we're supposed to address. So I will limit my comments to the issue of whether or not the notice of violation was appropriately issued, whether or not the applicant but the appellant is in violation. And then I'm going to ask you for you to take specific steps in light of our zoning ordinances for reasons that this is a very crucial case. This is extremely important, as you know. I mean, there's an editorial in the paper this morning about it. The reason being, and I understand and appreciate zip lines, and I think these people, yeah, it's a wonderful process. It's a wonderful thing to engage in, but not at this location, not under our current rules, and not under the current circumstances. And that's the problem here. They want to sell you an ecological experience. They want to talk about the environment, but they never once talked about the zoning ordinances and our regulations that have been built over the last 50 years because they've callously disregarded them for money, and that's what it is. So let's take a look at this. Let's talk for a moment here. And I think it's really important to stress to you the time and effort over the last 50 years that everyone has put into the development of our existing body of law, that we have an agricultural area that we're keenly interested in protecting because it's an industry. It's a huge engine for economic growth and development. You know that. I'm not going to go through that whole process. And so in light of that concern and that uniqueness to Fayette County, we set out 50 years ago to develop a whole body of law to protect that. And that's in place now. And everybody knows it. And Burgess is a developer. He knows it. I mean, he's built houses. He knows what the rules are. It's just that as long as they're able to operate this process and generate funds, you know, why not keep going? And so somebody's got to put their foot down here and say, hey, wait a minute. You know, you're not the only person in this community that gets to ignore every ordinance and every rule and every process we've had in place for 50 years. You, too, have to pay attention and follow the rules like everybody else. Even though your bird just carried, you still have to do that. So let's talk a little bit about our brochure. We gave you a rather extensive booklet of information. And the reason why we did that is that we knew this was an appeal. and we knew that the staff had filed a notice of violation which contained the elements and very succinctly set out what transpired. Chris has done a great job. The appellant has filed his response, and he's eschewed interpretations of the statutes, and he's given you his impression of what he thinks the rule of law is. So we countered, and we gave you a very thorough itemization of each issue that was raised. We gave you citations. We gave you copies of the ordinances. and we've included that, and I don't pretend and will not go through that again. It's there for your review. I assume you've looked at it. Chris, I'm sure, will comment on these going forward. I just want to talk to you a little bit in common sense terms here and see if you can see why, and I know you do, why this is so important. Initially, J.D., give them those permits there. When you go through a process like this, as Burgess did 14 years ago, he got a conditional use permit. It was for the angler's club. And that, as I recall, was the result of a meeting with he and several of the neighbors, and they agreed on the substance of what he was going to be able to do. And it was incorporated in the minutes of that meeting in 2000. And I don't care how many times they profess to you that their rights go beyond that, it was an angler's club. And if you read the notes of that 2000 hearing, you'll recall that they wanted to have two extra cabins, which the staff excluded. I think some of the members of the Board of Adjustment at that time were in this audience to observe what transpires today. So those cabins were excluded. He was given the opportunity to have an anglers club. Sixty people. I mean, it says there. I mean, Chris said it in his argument. It's in the minutes of the meeting. Sixty people. And the obvious purpose was, okay, it's a neat idea to have a place where maybe people can trout fish, 60 people, not too many people down there. It's something that would be enjoyable. And anything that relates to trout fishing, okay, that's okay. That's a good purpose. Well, as time went on through the 2000s and coming up to 2008 or 2009, Burgess has expanded this particular use. And you've seen it from our exhibits. We've shown you all of a sudden it's open to the general public, and he's charging a fee. And then all of a sudden, corporate parties and weddings and all these other items that are listed there under tab. I think it's about 13 or 14, one of those tabs. It shows you in their own advertisement what he's doing. This is moving forward in time. So there's a conscious intent on his part to expand that use over time beyond the conditional use permit. People being as they are didn't want to fuss too much. Lo and behold, we come forward, and we're at 2009 and 2010, and he asks for this conditional use permit for the adjoining property. And he says, oh, well, that's a different entity. Well, that's a shell game. It's the same people, same principals, and they wanted this large opportunity to have a recreational facility. And it was denied by you. And the same reasons why it was denied by you then are the same reasons why it shouldn't be allowed here now. Nothing's changed. The safety issues are still there. The sanitary sewers are still there. The transportation issues are there. The planning is still there. They have systematically, categorically, uniformly just ignored every single precept, every single concept, every form, every petition, every license that you're supposed to get. This is an intentional act on their part. Did you give them those already, the permits? the permits that you see the exhibit and those are just generally the permits that you would obtain when you're going forward with a project of this nature or any others they have to get a compliance zoning compliance permit they have to have what we call a grading permit I guess it's a land disturbance permit to build their parking lot or expand their parking lot which is what they've done we've shown that to you in the exhibits there's questions about ingress and egress onto Richmond Road Of course, those have been ignored. Sign permits, you know, no sign permits were applied. And he knows better. I mean, just look at the front of the publication, and you can see, you know, zip lines, free barbecue. You know, it's turned into a carnival out there. And that's not what was intended by the initial granting of the fishing license or angler's club. What happens next? Well, he has to go before the various authorities and issue or obtain licenses. Yeah, just pass those out real quick. And these are the license fee requirements. If you're going to work out there and do construction, I guess you have to file and obtain a license. First of all, notify the revenue people that you're going to be engaged in that kind of activity. You have to get certified contractors who we understand and are capable of doing the work. If you've got employees working out there, you have to go through that process, and there's all the ordinances that pertain to what you should do. Again, ignore those. Last one, J.D. Contractors have to be registered, and that's for the obvious reason that should staff or engineering, or safety, police and fire go out there, they've got somebody they can talk with in the chain of command and make sure things are being done appropriately, and you have people that are accountable in case there's an issue to be raised. Again, none of this was done. So those are the three basic conditions proceeding to the initiation of this particular activity, other than the obvious, and that is a conditional use permit. that would have to go forward in order to engage in this process. Now, I thought it would be easy for me to give them the findings. We've prepared findings of fact for you. And we're kind of doing this cattywampus because I think it's easier just to go through this and analyze the itinerary of what has transpired here and make comments and at the same time familiarize you with the findings that we feel are appropriate and should be made in this particular case. And trust me, it won't be that painful. The first finding, of course, obviously, is that the Board of Adjustment has the authority and did in August of 2000 approve the Anglers Club. And it did so with the conditions that are filed of record, with limitations, that is, that are filed of record. And that's the basis upon which the current appellant, at that point, the applicant, was granted the privilege of operating his facility. As you can see down on number five, the conditions adopted by the board included the establishment of a private angler's club restricted as described in the submitted application and plan site. And that plan site I think we also included under tab one in our booklet. and membership in the private club was limited to 60 people with the establishment of a required membership list. And those regular membership dues would be collected as well as assessments for additional expenses. And there are also other conditions about a safety plan, which I, again, don't think has ever been complied with. So obviously as we're going through these, these are findings we would like for you to make. It should be noted under number 6 that no trails, platforms, zip lines, or similar uses were shown on the 2000 site development plan or mentioned in the application, and therefore they were not approved by the Board. The only applicants that made requests to the Board of Adjustment for approval were for a daily fee membership. I'm sorry. You had to be a permanent member. There was no provision for daily fee memberships involved in that or the canopy tour or any other kind of zip line or challenge course. Number eight, the elevated canopy tour or elevated structures, as is described, not only in this particular proposal but in the previous one in 2011, none of those obtained necessary permits. Now, I know there's a little bit of a rub here between ourselves and the staff about whether these are structures. It's our position under KRS 100 that they are structures because they obviously are firmly and permanently affixed to the ground or they're permanently affixed to a tree which is attached to the ground. But put all that legal gobbledygook aside and think about it from a practical standpoint. If you're allowing the public to come to your place in numbers that are sufficient to generate the revenue that we recall from the last hearing they indicated, and you're going to have the public climb 30, 40, 50, or 60 feet in the air as shown on those photographs. I would assume that you would want to have those inspected by an engineer or somebody who knows what they're doing. And I assume further that you would want to have somewhere in the public repository of record that, in fact, these things have been examined and are found to be structurally sound of appropriate components, that safety issues, OSHA regs may be involved in terms of railings or safety equipment or additional items that may be necessary. I think you would want that. And so the only way in which the government has the authority, as I perceive it, to investigate and make that determination is to, in fact, say there are structures. Okay? I don't think you can jettison that responsibility under the current environment. As Council pointed out, the Agriculture Department at one point indicated that these were amusement riots, but now the Agriculture Department is saying this is not in our bailiwick anymore because it's too complicated. We don't deal. This doesn't even have to be with agriculture. This is something that you're planning and zoning, you're engineering people, people that are involved in more technical aspects are going to have to get involved. Remember that if the Agriculture Department doesn't address that issue, That doesn't mean that the city or state doesn't have other statutory or legislative ways in which to secure the safety for the public. That's why you have ordinances that address these issues. If you can think of an example, I cited two cases to you in here, one of which involved the airport, where the airport board said, you know, we have this responsibility over the airport, you can't do this or that. But the city or state says, wait a minute, we've got local zoning ordinances. It says you can't build a motel next to that airport because it's in a rural area. You can't do this or that. So the two are not mutually exclusive, and I think that's kind of the misperception that's been given to you by council. All right. Number 11. On April 15th, Moon Creek Outdoors website offered canopy tours for $45 donations. Now, that has continued to go forth. They've opened their facilities to the public. They're collecting money on a daily basis. And I think they had the brass on their webpage today to put out their latest brochure that says, Come Saturday and ride the Zip Tours. And it's $85 a pop. I mean, I guess that doesn't say much for our process here. And I think that's further evidence of their callous disregard for the existing ordinances, rules, regulations, and procedures. And I don't mean to, I'm not trying to demean anybody. I'm just trying to point out what I think are obvious facts. And as you can see from the tabs that we had in our booklet, there are a number of different advertisements. and one of the purposes in demonstrating these to you, for example, if you look at tab 11 there, we want to show you the evolution of the public persona of this business. The evolution has gone from a quiet angler's club where we're fishing for trout and now we're bringing in people by the herds, we're looking for money, and we're selling it under the auspices of the environment. I understand the need to see the environment. I love the ecology. I mean, that's why I got involved in this kind of work. But there's a balance of interest here between that and public safety and public control, and that's the real issue here. And let's talk about that for one further minute. If you realize that this fellow and his company has gone through the process of opening and building this entire structure and has not gotten one permit, has not had one structural entity examined or inspected, hasn't done anything to the satisfaction of this government. And I assume he has insurance. I hope he has insurance. But if he does, I'll guarantee you that insurance policy has got exclusions in it in terms of not having the appropriate permitting and appropriate inspections and appropriate engineering, et cetera. And so those policy defenses are available to that insurance company to deny coverage to anybody who gets hurt. Because he hasn't gone through the process. I mean, he's crazy not to have done this. Now, take that one step further. You, as our representatives and the Planning Commission, you sit and you weigh these cases. And you know now, as a matter of fact, and it's in the public record, that he has built this thing without any permits. He hasn't inspected. he hasn't gone through the process of identifying who the contractors are we don't know who they are this gentleman who walked up here today was the first one I've ever met so what do we do in the face of an accident that occurs out there this weekend somebody falls I hope it doesn't happen and I'm sure these things are built okay but suppose somebody falls and they're paralyzed and we've taken no action here to cease and desist to stop until such time as the appropriate processes are followed through. I think that brings the umbrella of liability upon the city. Here to four it may not have, because they weren't aware of the full extent to which this violation has occurred, but now they do. And that's a serious question of liability for you to consider on behalf of the entire community who's looking to you to make this decision. I want to put that before you because I think it's real. As an attorney, I think that's real. Okay. Why do I submit to you that they have done this not in good faith? That it's not a we made a mistake or we've overlooked a few things or we really think we have a right and we think you're stepping on our rights. Why do I think that? Look at 18, 19, 20, and 21. Again, the 18, 19, 20, 21 point to this issue. The platforms under 18 and the zip lines are used to support individuals that are suspended from cables. We all know about the risks. We know so much about that risk that if you look at the release that they have to sign before they use that zip line, I mean, it says it's an inherently dangerous activity. So we all know that this is a dangerous activity where people get hurt. That's the first thing. Yet in the face of that, what steps have they taken to make sure they've done their due diligence to protect the safety and well-being of the consuming public? Number 19. As I mentioned to you, the property owner did not apply for permits as required under Article 5.4 in the zoning ordinances. All application permits shall be accompanied by the plans and information as to responsible divisions necessary to determine compliance. I mean, that's all safety. That's all safety. Number 20, the owner of the property failed to show good faith in proceeding with the construction of the zip line tours, admitting that it acted to install a canopy tour now before the council could take away its right to do so. That was in the public domain. That's crazy to say that. And Chris and his staff have gone out there and incited them, given them a notice of violation. You'd think they would say, wait a minute, we're going to close this thing down. We're going to go back and see what they want. We're going to show them our plans. We're going to have our engineers go over this thing, and we're going to do what we're supposed to do. They didn't do that. They just keep going ahead. Number 21, the myriad of additional recreational activities and uses on this property were not approved by the Board of Adjustment, only those that are specifically indicated as such at the Anglers Club. Now, here's what I mentioned to you earlier. The 2011-January-2012 case is similar, not in scope, but in principle. It's in the issues that are presented. They've tried to portray it as a different issue. You've got a different company. The issues are the same. It's safety. It's public concern. Our fire department doesn't know what this layout is out there. They have no idea where their safety equipment is, if they have any. They don't have that plan. Those things are supposed to be provided. and a copy of it put in the record here for all to see. All right. What can we do in this case? In light of what I think are obvious and blatant, just ignoring our purposes and procedures. There's a handout that we're attached to the findings. It's called penalties. and we've given to you a menu of the options that you have and the staff would have, as well as the citations of authorities attached to it. And it's our position that you would have the power to revoke their conditional use permit. You have that power under 7.6. Maybe you don't want to do that because you want to have them have an opportunity to do process. We feel you should do it. Maybe that's an issue for another day. But you have the right to find them under Zoning Ordinance 5-8 anywhere from $10 to $500 per day for their activities. And most importantly, in our opinion, under Article 5-9A, you have the right, in the face of serious threat to public safety, health, and welfare, to actually order a cessation of activities out there and direct that they take that zip line down. And if they don't, you can have it done and you can put a lien on their property to pay for it. Now that's the action that I suggest you take here. Because in the face of the flagrant disregard of all of our procedures and ordinances, they continue to go forward. And I will guarantee you what will happen today if you decide that you take their, and I know I'm preaching and I shouldn't, I apologize. But I just get to the point where I think this is really important for you to understand. If you decide against their appeal today, then they can appeal to circuit court. They can go fight appeal. They wait 29 days and file it. And then we go before the circuit judge, and the circuit judge can listen to arguments and make us write briefs, make sure the record is compiled appropriately, appropriately documented, given to the circuit judge. Now, the city can go in and ask for injunctive relief and say, you know, this is really a difficult issue, and there's safety questions, Your Honor. We want you to impose, to enjoin them from any further activity. And the court can do that, but we're 60 days down the road. Okay? The other option, as I see they have, they can go to district court, and they can go to the county attorney and say, Larry Roberts, we want to file a complaint. Here's the basis. Board of Adjustments ruled. And then Larry files issues a summons, or they bring them to court, show cause. And at that point in time, the attorneys who are representing them say, Your Honor, I'm not prepared for a hearing. I need a 30-day continuance. Here we go. 30 days down the road, Your Honor, I decided instead of trying this before you, I'm on a jury trial. I was a prosecutor for 10 years. I think I know how this system works. I want a jury trial. Well, jury trials are in August. There we go before the jury trial. And then you've got to draft instructions for that jury and explain to them what's going on here. You've got a six-panel jury, six-member jury. Kind of tough. I'm not sure they grasp hold this thing that well. So my suggestion to you is you need to take affirmative steps today under the ordinances that give you that authority to tell them to cease and desist, to impose a fine, because if you don't impose a fine, it's economically not worth their while to pay attention to you. Once those two things are in place, then the onus is on them to take appropriate steps. And I think that's the way it should be. Why? For the reasons I've explained to you earlier about their callous disregard for this entire process. Over the last ten years, they've just gradually expanded this thing under the auspices of environmental sensitivities and education. when if they're truly interested in education, I would assume they would have been down here educating themselves on how this process works and make sure that they follow their process and dot their I's and cross their T's. So that's it. I appreciate your consideration. I know I probably talked a little long, but this case is much more about zip lines. It's about our agricultural community that has taken steps over the last 40 years to preserve a unique and economical way of life, and we've had in place these rules and regulations that everyone else seems to be able to abide by. And as a result, we have a unique area of the country that people want to come and see. And I ask you to stand behind us and stand behind our citizenry and stand behind these ordinances and impose the appropriate sanctions so that the world can go forth that this is not something we're going to tolerate. And if you do, you have to pay the consequences. Thank you. Thank you, Mr. Todd. Did you have any other witnesses that wanted to testify? Uh, yes. Mary Diane, come on. Then I'll come by. Come on. Very short. Thank you. Hi. My name is Mary Diane Hanna. I live at 6398 Old Richmond Road, Lexington. I wanted to say that I'm not against canopy tours and zip lines in and of themselves. I've done them. I've done them in Hawaii. I've done a canopy tour in Ghana, West Africa. I'm just against the deceit and the disregard for the laws that have been put forth and all the work that people have done to try to enforce those laws. I wanted to say that Steps probably is a good building firm for these. I guess they've done it all over and probably have engineers that can inspect and so forth. But to my knowledge, Steps has never registered to work in Lexington, and you are supposed to do that if you're going to be a contractor in Fayette County. And they only recently registered with the state of Kentucky. And they keep today talking about canopy tours. Canopy tours, because that's sort of maybe a little more palatable in this area, yet all of the evidence and all of the signage and all of their websites all say, zipline, zipline, and of course you're only on the zipline for a few minutes or a few seconds because ziplines are fast. So, yeah, it is a tiny part of it, and I realize that. The other part that I was asked to read was a letter, a statement to enter into the official record. On Saturday, May 18, 2013, at 1.13 p.m., three people stopped by Boone Creek Outdoors and talked to a man at the open gate who was receiving people who wanted to go on the zip lines. We said, so tell us about the zip lines. He said, it's $45 to do the tour today, and there are four zip lines in a repelling area. We will have seven zip lines and sky bridges when we are finished, plus the repelling area or areas. I'm not sure if that was plural. Then it will be $89. We asked, when are you open? Right now we're open from 3 on Friday afternoon and take reservations throughout the weekend. We asked, how long is the longest zip line? He said, 1,200 feet. There was no mention of the Angler's Club joining a club, buying a membership, providing a donation, et cetera. It was just a business like any other ready to take your money and send you through the courses. The parking lot probably had about 20 vehicles in it, And the people in the car were Mary Diane Hanna, Carolyn Francis, and Angie Quigley, who all live in the Old Richmond Road area. And then the other thing is an ad, I guess, that went out. Let's see. I should have read this better. It's little. It talks about coming here and fighting for Boone Creek Outdoors. And thanks so much. And remember to come visit us when the full course is open. so that's all I have to say Chairman that's all we have in the way of presentation we have several neighbors who are here in support of opposition I want to make sure that I know KRS 100 has been entered as an exhibit I assume it always is as well as the city's ordinances planning and zoning ordinances as well as our booklet and the additional handouts that I gave to you during the presentation including our findings Thank you, sir. Thank you, Mr. Todd. And following our process for this hearing, we're going to let the applicant and the staff have an opportunity, but right now we'd like to hear from the public. For those that are supporting and those that are opposing, if you would like to stand up and come to the microphone and state your name and whether you're in support or opposition. Ma'am? My name is Jane Heron. Jane, come on up to the mic, please. Anyone come up to the mic, not speak in the audience, please. Good afternoon. My name is Jane Snyder Herod. I am the next-door neighbor to Burgess Carey, and our farm actually was all around Exit 99. I-75 came through the middle of us when I-75 came through when I was a child. so we are we have been on the land we are farmers trying to make it in a world of changing climate low food prices skyrocketing fuel prices and we allow many people to come on our farm including the Iroquois Hunt Club can come on our place for free We allow friends and neighbors to come down and fish, hike, all those things, because I think that's just, we have such a unique place. It's great to be able to share it. And it is a very dangerous place. Although when I was a child with my three brothers and sisters, we would run all over the place, go right to the edges of the cliffs. One of my favorite places to hang out was right at the edge of the cliff, and the drop was about a 450-foot drop right below me. Luckily, nothing bad happened. And let me get back to my notes here. I don't want to talk too much on my situation, but I will say that Mr. Carey has been a wonderful neighbor since 2000 when he came in there and got his permit. and from listening to Mr. Park's testimony, it seems that if Mr. Carey has a permit and there don't seem to be specifics restricting the things specifically in that permit, then it sounds like that's a pretty good permit to me. Also, since we are in the ag zone, and I know that since I served on the Governor's Forestry Board to help put together the best management practices for forestry and for logging and since forestry is allowed in the ag region then a wonderful accessory to forestry would seem to be canopy tours. The other accessory to forestry would be clear cutting. Now, I'm not sure if you would like Mr. Burgess Carey to come in there and clear cut. Would that be preferable to a canopy tour? And the education that he is providing in an area where we are overrun, from the time I was a child, when we used to go out and hike for wildflowers, my aunt was the national vice president of the Girl Scouts, and we would go out constantly and look at the wildflowers and hike and enjoy our area. And the invasive species, the winter creeper, the honeysuckle, has probably wiped out 90%. 90% of the trees, the ground cover, the older trees, obviously, it hasn't wiped out, but it is wiping out everything on the ground. I do my business is landscaping and native restoration I grow Kentucky native plants I do work for fish and wildlife I did the restoration for the Louisville parks and so I understand what I actually am talking about here the greatest threat we have to the Boone Creek corridor are the invasive species and without a funding mechanism people farmers like myself I cannot afford to hire the labor that it takes to get down in there in those very steep places and clear out these invasive species. I'm having a hard enough time making a living with farming as it is. Our farm used to be a very viable farm, but when 75 came through, they took out 70% of our tillable land, nearly all of our mari silt loam. So now what we have instead, but we are expected to farm on our 135 acres, and most all of that is very steep. We still have the Boone Creek area, which is extremely steep, many, many cliffs. We constantly, from time to time, we will lose cattle over the cliffs. Sometimes the mother cows will back up when they're getting ready to birth a calf. Go back right up to the cliff and birth the calf right off the cliff because they're trying to get away from the rest of the herd. That's just something cows do. So, you know, this is an extreme area. And if you all could put that topo map up of Mr. Carey's property and put the one up with the topo lines on it so people can see the actual elevation. All right. Does everybody understand what those lines mean that go across those maps, where they're really close together? When you look at a map like that, you can see the areas where it's far apart. Those are the flat areas where the lines come together really super close. That's where you drop right over a cliff. How is Mr. Carey supposed to farm that? The existing uses, and I kind of looked at your definitions here, that you adopted and approved November 28, 2012, October 8, 2012. You say for agritourism, these activities shall be integrated into, directly associated with, and incidental and subordinate to the principal agricultural production on the property. Okay, what has happened on this property? Since my family has lived there for many generations, we've been watching this property. We pass it by all the time. In fact, it was sort of in the middle of our property at one point in our history from 1804 till now. It's been a toll booth. Back in the days when people had to create their own roads and Eli Cleveland created the road that is there, that was a toll booth so that he could pay for his road. It's been a restaurant several times along with liquor license. It's been a house of prostitution. It has been a gas station. Now, can you tell me which of these principal agricultural practices you would like Mr. Carey to restart, to be able to make it with this property? Why is a property owner not allowed to make money with their property? Since when was that a rule in this country? I thought we were a capitalist society. he's supposed to buy this property and then never make a dime on it when he can't possibly have agriculture unless it's forestry with a conditional use of a canopy tour or logging. So he's trying to do the best use for this property, And I really appreciate that as being the downstream from this. We have the rest of Boone Creek on the Fayette County side down to the Kentucky River. Yet most of our land is very steep. We have seven acres left of tillable land on our 135. We struggle to make ends meet on this. We have an interstate. We have Exit 99 in the middle of the farm. And what that has brought us is no way to make money on our farm. It took away our ability to farm every day, 350 feet from our front door. We have 68,000 cars a day. 68,000 is the daily average car count. and Mr. Carey is not very far from the interstate either. And in here it talks about lights and noise. Would you please come out and see what it is you're ruling on before you just blanket say, oh, yeah, this is pristine, this place is not impacted. There are 80 high-intensity lights. When the interstate went through, we have never seen the stars since. 68,000 cars constantly. Do you know how many cars that is every hour? Let's see, where did I put that down? It's in here. It's a whole lot. 2,800 cars an hour. That is 46 cars a minute. and a third of those are semi-trucks. So my risk of cancer, because I have the interstate 350 feet from the front door, is seven times more than your risk. My mother died of cancer. My brother, my baby brother, has had cancer before he was 40 years old. Excuse me. We're off subject. I think we're way off the subject. The subject is that in agricultural areas you expect people to make a living with agriculture, yet you do not understand what has been taken away already. So Mr. Carey has the best use for the land, the steep cliffy area that he's been given. He has not expanded his parking lot because he can't expand the parking lot. And the fire department guys were down there having some free barbecue a couple of weekends ago. Lots of neighbors were down to do a cleanup along the highway. I'm just saying he's one of the best neighbors I've got, and I really appreciate that. And I don't feel like he's done anything wrong. and I'm so glad to have a fresh, exciting approach to nature that might be exciting to young people. Everybody can't afford horses. And I've worked in the horse industry. It's a great industry. I love horses. But that's not everybody's cup of tea. And Mr. Todd said that for someone to have threats, to be creating such threats to the public health. Let me remind you what one of our major crops is in this state. It's tobacco. So if we're going to say somebody's crazy to create threats to the public health, then you all better just get rid of tobacco farmers too. All right. Thank you very much. Thank you. I stated earlier, and I'm going to state it one more time, that the folks that come up here, I'd like for your comments to be relevant because we are getting off track and we need to get back on track. So I'd appreciate you coming on up and introducing yourself and letting us know if you're for the supporter. Chairman, my name is Bill Rouse. I appreciate you all having us here, and I will try to be brief. I'm a lifelong resident of Lexington and a longtime member of Boone Creek Anglers Club. I have no financial interest in this enterprise. And, you know, what I want to tell you is that I first fell in love kind of with Boone Creek when I was a kid. My grandfather was a member and one-time president of the Iroquois Hunt Club, which is on Boone Creek, right upstream from the Anglers Club. And we often went down there for special dinners or to swim, and I liked to steal away and play in the creek. Some years later, my two boys and I discovered fly fishing, and we kind of fell in with that. And, you know, I've often told people that my favorite part about fly fishing is the beauty of the places that you get to visit. And Boone Creek is one of those. So when Burgess called and invited us to join the Anglers Club, it was a no-brainer for me and my family. We love the place. We've had family reunions down there. My boys have learned to use it as sort of a healthy retreat from the stresses and pressures of everyday life. And I love it that they do that. There is, to me and to my boys and to my wife, probably not much more soothing for the soul than just to go stand in the middle of that creek and let the water just kind of get you real quiet. Now, I'm not sure what our purpose is here at this hearing, meaning what I'm doing here, but if it's to testify about whether or not Boone Creek Anglers Club is an actual club, then I can tell you that from my perspective it certainly is. We've been paying dues there for about ten years. And if it's not a club, I'd sure like to know what I'm paying all that money for. In addition, over the years, I've recommended a number of day users, day members, who have gone down and enjoyed the facilities. But if the real purpose of what we're here talking about is these zipline canopy tours, then let me also briefly address that. I'm in favor of it. I'm in favor of it. My kids have been climbing rocks and rappelling down there for years. This is not an amusement park ride. This is definitely nature-oriented. I would definitely not be in favor of anything that I thought might jeopardize the fishing. Boone Creek is, in my opinion, is absolutely the prettiest corner of Fayette County, and it's something that needs to be shared to some degree with the public in a minimally invasive and eco-friendly way with a strong bent towards preservation. It's my opinion that the Anglers Club and the Canopy Tours do exactly that. They're basically non-invasive. They're fun, and it's just plain beautiful. Just this past Memorial Day, I was standing in the Middle Lake Creek fishing, and several of the zipliners whizzed by over my head. Other than a couple of yeehives and kayabungas, I'm not sure I would have even noticed them. It certainly didn't bother me. In fact, I thought it was kind of cool that it was there. And again, I think it's important to say that anything that I thought that would disturb the fishing environment, I would definitely be against. You know, back in my real estate development days, and maybe even more so now, my involvement with various charities like the Hope Center and the Crystal's House, we often encountered sort of an attitude of, yeah, this kind of thing needs to be done, but just as long as it's not anywhere near me. And you know, this kind of feels like that this is one of those times, that people want this to happen, just not anywhere near them. And I believe that it takes strong leaders to make strong decisions, to do what's best for a whole community, and not just a select few who happen to have deep pockets. The taxpayers of this community have paid literally millions of dollars to protect thousands of acres. the majority of which they will never be allowed to see. It's my opinion that we ought to let them see Boone Creek. It's my opinion that they deserve it. It's my opinion that they've paid for it, and that's all I've got to say. Thank you. Thank you, Mr. Rouse. Hello, my name is Alex Martin. I live at 7121 Grimes Mill Road, and I have a couple issues to discuss. Having a family property that borders Burgess Carey, we as well have invited people to fish, hike, hunt. He is not the only one that has stopped Boone Creek over the years. Years ago, the state of Kentucky did, until local property owners were upset with the trespassing, with the camping, with the illegal hiking, with the trash that was left in the creek. When they went to the state, the state stopped stocking it, at which point private landowners, my father has stocked the creek, the gentleman across from us, Derek Vaughn, has stocked the creek, Burgess himself has stocked the creek. In saying that, we have had guests on our property that guessed from the approximately 27, 30 acres of Burgess' property have been 300 or 400 yards, 500 yards across that line asking if they have permission to be on the property, which wasn't even the fishing club. That was our own property and our guests. They were trespassing, not us. In one of the pictures he showed, he discussed people not crossing over to the other boundaries. If it's the waterfall that separates the two properties, in the picture that he showed, he has people trespassing on our side of the creek. Now, the state law with hunting and fishing is much different than kayaking and boating. Hunting and fishing laws are very specific. You are not using Boone Creek as a navigable waterway. You are using it with a rifle and hunting and with a fishing rod to actually capture, kill, eat, or release. They are different. trespassing does not have to be posted if you are hunting and fishing. Those people are responsible for knowing the property lines. My second note, years ago I came to this board to get a conditional use permit for a bed and breakfast. I know John Park has a conditional use permit for a bed and breakfast as well. When he came to you all originally to discuss the fishing club, I think the lodge or the bed and breakfast was not so much a component because John Park had one within a mile and a half. It's the property right next door. I believe the rules are in the rural ag zone, you have to be at least a mile and a half or two miles away. John, do you know? No, I don't, but his permit predated mine. Well, excuse me. Excuse me. You want to address the... Oh, yeah, I'm sorry. But my question then was, how can we have two bed and breakfasts or lodges in that mile-and-a-half zone? I know when I came to the board, if there had been another one, it would not have been allowed. So renting on a daily basis, my conditional use was no longer than seven days. and it had very specific uses of what I could do and what I couldn't do. Even the parking lot had to be paved and I had to put specific bushes in. I had to have very specific fire safety and alarm systems throughout the entire house that were monitored 24-7. It's in my conditional use. I don't understand with a new conditional use all of a sudden how a zip line can go up and there be a question. You know, when the fireman came to my house and the building inspection came to inspect and make sure everything had met the standards through the conditional use, I don't understand how there's even a question in regards to this. My third thing was a dinner I had not long ago at Riptides, which is approximately a half mile beyond his property. I'm glad that the one gentleman spoke. I did not know who he was. I did know Mr. Brasfield. The other person was apparently one of the people doing the zip lines themselves. The three of them were having a dinner discussing what was going to be built next, at which point the gentleman that was actually probably installing the zip line said, that's not what Burgess wanted, and the one gentleman said, I don't care what he wants. This is what needs to be done. and he'll have to deal with the dirt and the mud and everything over this period. You know, and for me, it was a little concerning that three gentlemen were having this meeting. Burgess wasn't there, and they didn't particularly care what he wanted. It was just get the project done. And then they just started discussing how the house at the top of the hill, he could eventually turn that into a gift shop, but in the meantime, they needed to build a kiosk. It was, do we want it like this, or do we want it like this particular zip line? As for which ones, I couldn't repeat. I don't know. But then they just started discussing other locations and other things that they had built, and I just found it interesting that he was not in on the conversation, that they didn't seem to care what he thought, and they were just going to do it how they wanted it done. So, thank you. Thank you, Mr. Martin. Hello, I'm Van Meter Pett at Elevent 155 Constitution Street. And first I just want to say I don't take lightly your responsibility as a board and that this is a real public service that you're sitting here listening to all this. and these laws are obviously what keep us safe and what allow our bluegrass to be the envy of the world. I am up here speaking with some pain because I really agree with everybody in the room. I just think that there's an unnecessary argument happening. preservation is at the center of this conversation we're having a procedural problem here but what is happening is somebody is bringing something new to Fayette County and so because it's new and strange people are recoiling as if it's going to be somehow a menace I think in that case it would be extremely beneficial to everybody involved to go take a look at it Take the tour. Decide for yourself. Do you feel unsafe? Is it not properly operated? Is it not properly guided? I will not speak to the lawyerly issues of this, but simply to say that when I have out-of-town guests from anywhere in the world, and I bring them to things that I love and care about in Kentucky, be it Shakertown or Keeneland or other special historic sites, at the top of that short list, or very near the top of that short list, for me now is Boone Creek and this facility. And I will tell you, I would be on the other side of the fence on this issue if I felt that this had not been done tastefully, if I did not feel like it had been done, with great care and with great affection for the land and with great consideration. And procedurally, I will not speak to whether or not this is exactly as it's supposed to be. But what I will say is, it is my personal opinion as a lifelong resident, somebody who really loves the preservation of our land, that if this is allowed to proceed with proper guidance and with proper controls, that this will be looked back upon with the same affection and reverence that we have for places like Keeneland and Shakertown. And that in the absence of time to determine that this is as wonderful as it will ultimately be, I simply ask you to use a little bit of reserve and to go out there on your own and to take it in and to ask yourself if this is truly creating harm. And I think that that's a bar we have to reach if we're going to deny something that has an enormous potential benefit to Fayette County and to Hall of Kentucky. I'm here on my own behalf. No one's paying me. I'm taking days or billable hours out of the day because this is what I think Fayette County needs to have. Thank you. Thank you, Mr. Pettit. Ma'am. Hello, I'm Melissa King. I live in Ashley Woods, part of the old Richmond Road neighborhood. On Wednesday, I received an email from Chelsea Perrin of Boone Creek Outdoors asking for help in showing up for the Board of Adjustment meeting today and for signing their petition. I'm opposed, by the way. Currently open at $69 until tomorrow, and then it goes to $89 after that. No mention of any club dues or membership or nothing of the such. If they feel that the rights granted and approved in 2000 were good enough to include zip lines, why did they try to get specific approval for it in 2011 and 12? I realize that that one included much more, was more lengthy, and much more details, but zipline canopy tours were specifically included in that one, but not in 2000. So I'm not against Boone Creek preserving and sharing the land with others. What I am strongly opposed to is the disregard for proper permits and zoning laws that are there for a reason. If Boone Creek wants to have canopy tours, then they need to either do it in a properly zoned area or get the appropriate approvals to do so. Plain and simple. Thank you, Ms. King. This gentleman right here actually had stood up a little bit earlier. Sir, would you come on forward? I'm close, sir. Okay, ma'am, come in. Well, I promise it will not be long. My name is Joan Mayer, and I live in Clark County. Now, that's a whole new thing. I'm a mile from the Fayette County line. Our family farm is heavily involved in Boone Creek. We have miles of shoreline both sides of the creek. My fear is for the future. I think it sounds like fun today to go up and down on those trees and things, maybe. I don't know whether I think it's fun or not. But I'm thinking of the future. What happens after Burgess Carey has built this place? How many tourists are going to come over and shoot at my cattle, which have happened before? I've had sheep found with bullet holes in their heads. What is going to happen in Clark County, we are very, we have no laws. We just open it up and say, come on. There's no protection. I have to look to you for the protection of the future 20 years from now. Am I going to have tourist cabins all around the creek area? Am I going to have gumbo machines and teepees like they do down in western Kentucky? Please, please look to the future. That's all I ask. Thank you. Thank you, Ms. Mayer. Sir? Good afternoon, Mr. Chairman, members of the board. My name is Mike Levy, and I'm a member of Boone Creek Anglers Club. I've been a member for 10 years, paid annual dues, used the property in accordance with my privileges as a member, and I'm here today to affirm that I pay my dues every year in return for my membership. My children have learned to fly fish in the waters of Boone Creek, and we've utilized the lodge for numerous family outings. If I pass my phone around, you all would see the multitude of family pictures taken and treasured on the property. To be very candid, I was first hesitant when the idea of the canopy tour was presented to me. I was assured by management that it would be constructed to be non-invasive, and it would be a great amenity to the land. Last Sunday was the first time I had the opportunity to participate in the tour. My three children and I have done canopy tours in Costa Rica and upstate New York. Not only did this tour equal or exceed the safety and beauty of those other experiences, the guides on our tour educated us on the historical structures of the land, the wildlife we could encounter on our tour, and the tremendous lure of the property itself. I've lived in Lexington for over 20 years, but I'm not a native. For my business, we travel extensively and have been fortunate to experience different cities and their attractions. In my opinion, Lexington is lacking in outdoor family experiences. While Gaddy Town and the movie theaters are full, the natural beauty and history of Boone Creek lies scant miles away and is unknown to too many. As an aside, my wife and I own Blue Water Farm and Old Frankfort Pike. We operate a third-blade farm and allow tours to share the beauty of our community and allow visitors to understand and respect what makes our city attractive. We are members of the PDR program and are supporters of protecting the inherent beauty of Fayette County. I respect your laws in process. However, I would hope that those laws do not stifle the opportunity for this community and our community's children to experience a two-hour tour that would certainly be more impactful than popcorn in a movie. Thank you. Thank you, Mr. Levy. My name is Linda Carey. I live at 1616 Tate's Creek Road. I'm the mother of Burgess Carey. I've known Don Todd for a long time, and I do find his demeaning language offensive. I had been on the Lexington Center Board or was on the Lexington Center Board serving this community for 26 years. That was on the fringe of politics. I can't deny the 12 years that Councilwoman Gloria Martin spent in these halls certainly was a wonderful tour de force. But I've watched this project ever since Burgess bought the property with his savings. He was single at the time, 17 years ago. And I have seen him become so passionate about it and always he was an outdoorsman and was trying to figure, how can I make this property accessible to the public? When he received his permit in 2000, I have seen the progress of Gloria Martin, Chaz Martin, the Thalance of Lawyers, and the Fayette Alliance in this great play that they've been putting on. They are the actors. It has been ludicrous, malicious, and Machiavellian. It is a farce. They are trying to shut down Boone Creek Anglers Club because they want no one on Boone Creek. It is as simple as that. The Board of Adjustment has in its power to either take away his conditional use permit or see it as it truly is, which was a vehicle for him to make his dream of preserving Boone Creek and that gorge and to make it accessible to the public. As to the safety concerns that you, Mr. Todd, expressed, I'm 71 years old. I did the completed Zipline Canopy Tour on Sunday, and it was awesome. I have two artificial hips, I have four screws in my back, and I had absolutely no concern that I would fall, have an accident, or should I have a heart attack, that the fire department, who has made a plan, could not extricate me. The guides are wonderfully trained. They understand the trees, the ecology, the environment that we are in. and I can't tell you what a thrill it was for me to see from the treetops, from the canopy, the palisades and that gorge and the creek below because I am unable to hike at my advanced age down to the creek and back up. So I would encourage you all to look at this for what exactly it is. He has not attempted to be devious or callous or disrespectful of this board or of any other. And I would like to remind you that when you first met in 2011, the planning department recommended approval. Thank you so much. Thank you, Ms. Carey. Hi there. I'm Erin Rouse, and I also am a member of Boone Creek Anglers Club and am a minister in the Presbyterian Church USA. I and my husband have been largely supportive of our Presbyterian camp ministry, some of you may know it, Burnham Wood, as we know that being out in creation, in nature, touches people spiritually, helps them to get right-sized again, and also helps them gain perspective and find some much-needed peace in these hectic days in which we all live. In my church, we're called to be good stewards of creation and good citizens and to care for creation. But I believe it's hard to care for the earth if you haven't been out in it yourself, if you haven't touched it or felt it or smelled it or put your hands in it. And that's what you can do at Boone Creek. And that's what I have done. We who live in the city don't get many other ways to do that. We get to do that down at Boone Creek. And we've had a multitude of great times with our family doing that. While I have many friends in the horse industry and appreciate our city's unique gift in that area, we are not just a city or county of horse farms. And we're not or should not be a city. were perhaps just a few dissenting, although loud voices should dissuade us from innovatively engaging with the world of nature. Just down the road, in that other city in Kentucky, which I won't name, I think you all know it, David Jones' son, Dan, is directing the innovative Floyd's Fork Park system. Maybe some of you all have learned about it. We were there recently on a Sunday afternoon, and it was stunning. People are longing for ways to engage in creation, in nature, in our environment. I believe that Burgess Cary would be celebrated and applauded in that city and other cities around our country instead of being condemned and vilified as some people have done to him. And that has offended me as well. He is a good person. He is a businessman. He's an entrepreneur, a visionary. And he is trying to share a treasure that he found with us. Some folks who live out in that way keep it to themselves. He's wanting to share what he has with others. One last thing. I did the zip line also a week ago, a couple weeks ago. I who have a bit of a fear of heights, like someone mentioned. I can tell you that after it was over, I realized I don't have that fear like that anymore. It actually can help people like me rise above a fear, gain confidence in their ability to do so, and just have a great time. Be joyful. Have a little fun. We need to do that in this city, in this county. If you haven't done it like others said, please go out and check it out. But please, please don't succumb to the voices of a few who are afraid. I believe there's some fear at work. Perhaps some voices who are even being selfish, wanting to keep that land just to themselves. Don't succumb to the voices that are insular, that are trying to keep us cowering in fear of what's going on around us. or that just want us to stay away. Let's be forward-thinking, open-minded, holistic for our community and perhaps help us create a little more diversity in our community. I want to say one other thing. Being from Louisville and seeing what's happening in that city, it almost embarrasses me that this is what we're doing. This is how we are treating someone here in our town, in our city. We need to be celebrating him. And I really encourage you all to do that and to try to please do not provoke this permit. I think it would be a travesty. I have a letter from some folks in Louisville. Can I circulate it among you or just give it to them? Can you give that to Mr. Salee? Thank you very much. Thank you very much, Ms. Rouse. My name is Martha Jenkins. I was on the Board of Adjustment in 2000 when this case was originally heard. What we heard was they were asking for three things, an administrative review, a variance, and the thing that's germane to us today is a conditional use. And the permit was what was asked for and what was granted was a private angler's club with a stated membership, dues collected, and a list kept. And that has been what we had figured was going to happen all these years. I think much of what most of these people have said has much merit. I'm in sympathy with a lot of the passion that they have. But from my vantage point, the conditions, the permit that was granted, he's gone way above what was requested and what was granted at that time. And I think that that is what we're talking about here today, And I think that's what we need to focus on. Thank you. Thank you, Ms. Jenkins. Yes, sir. My name is Jim Wharton. I live just off Richmond Road on Turner Station. I admire you of all's patience. We're here today to talk about the fact that a 2,000 conditional use permit has been grossly abused. and we fought this thing last year about the canopy tour, zip line, whatever you want to call it, and it was turned down. And the applicant went ahead and poked his finger in everybody's eye by going ahead and building it with no permits, without contacting the government or anything. And the residents of Old Richmond Road contacted the planning people and complained about it. And they have found that he's in violation. And I thought we were here to talk about the remedy of that violation. Thank you very much. Thank you. Anybody else? I'm Charles Martin. I live at 7416 Grimes Mill, and I'm the bad guy who locked up Boone Creek, wouldn't let anybody there. I think the, I wasn't going to speak, but the fishing club members have enjoyed fishing at Boone Creek, fly fishing in the creek. And you have how much frontage, 1,600 feet, something like that. That's not much fly fishing. That's not one nice beat. So the fly fishing will extend up the creek, down the creek, but club members have fished our farm from one end to the other for years, and we've never run anyone off. I've actually enjoyed seeing people on the creek, and it's been a great thing. People ride on our farm, friends, neighbors, and strangers. People hike. People are in the creek all the time. We know some of them, some we don't. We have some people that hunt. We're not locking it up. It's not about all that. You know, zip lining is fun. It's not about that. Getting out in nature and feeling close to the earth and meeting Mother Nature up front, that's good for your soul. It's not about that. It's not about being a pretty place. Bend Creek is a pretty place. It's not about that. PDR is not on trial. We're just trying to decide if these people have followed the rules and have gone according to the rules and regulations that are there. It's been a sad thing for the neighborhood and for the community since October of 2011, when all this started, and people that I used to enjoy being with won't look me in the eye, because of the differences of opinion and because of the extensive social media, public opinion poll, where some of us, less facile with using social media, are constantly ridiculed and called bad names by unknown people. Again, it's not about whether it's fun. It's just about have they followed the rules and what can we do to stop the continued profit-taking from an illegal project. Thank you. Thank you, Dr. Martin. There's a gentleman in the back. My name's Bill Mead. I'm at 1986 Old Richmond Road. I do not live there permanently. I've been on that river since 1952. I'm not going to take up much time because most everything's been said, I think. I got with Burgess Carey when I found out what he was wanting to do. He laid his plans out. I said, Burgess, I'm for you if you do what you say you're going to do. If you don't, I'm going to fight you all the way. I love that river. I love Boone Creek. I love the Palisades. I've been fortunate to be around the world a couple of times, and I keep coming back there. There's no place any prettier or deserves the respect that actually Burgess has given it. He has done everything, in my knowledge, that he said he would do. I just think that needs to be said that he's done what he said he would do in my opinion I don't know about the legal aspect of it I'm not here about that I know that's what the hearing is about but I would like to make one final comment that I came before this board several years ago for a conditional use permit and it was asked at that particular time is there anyone opposed to Mr. Mead? And one person raised their hand. And they asked, why are you opposed to what's happening? He said, because I can. I think that's part of what's happening here. The opposition is just because they can. I don't know if there's any good reason or not to it. That's just my opinion. Thank you. Thank you, Mr. Mead. Anyone else? Well, that will conclude public comments, and now we ask the... I'm sorry. Okay. My name is Callie Ricketts. I live at 8705 Durbin Lane, which is a road off of Old Richmond Road. I'm about 30 seconds from Burgess's property. I have always lived extremely close to this area. I'm from this area, but I have never gotten to see this gorge. I have never once been invited to visit it down. I have not had access to it, even though I've always wanted to go down there. With my job at Boone Creek Outdoors, I've had this opportunity, and I'm better from it. This area is gorgeous, and I am astonished that I was not able to see it my whole life, even though I'm only 30 seconds from it. Our operation has the most motivation out of anybody to preserve our green space because we are trying to promote what we're doing. We have to show off our area, and we can't show off an area that's been destroyed. The invasive species that are here are destroying this area, and I personally, myself, have gone and done work to fight against these invasive species. you know during our tours you know i'm constantly talking about our area pointing out what beautiful sites we have where to look what to see you know most people on my tours don't know that two of the poplar is the state tree let alone how to recognize one and i can instruct them on how to do that everybody is hooked in to our canopy at all times there's no chance of falling because we have safety procedures against this and the course has been built to minimize risk as much as we can. I've been trained to take people through this course as safely as I can while instructing them about the beauty of this area, the history of this area, and what we can do to preserve our area. I fully support this project. I don't see why there is any reason it shouldn't there is any reason it shouldn't be allowed to go ahead for safety concerns or whatever. You know, going out there and doing it myself has made me appreciate what he is doing, and I fully support him and his project. Thank you. Thank you very much. Ma'am, did you want to... Hello. My name is Sarah Steele. I'm not here in this room today because of money, because I'm worried about money. I'm here because I believe in the cause of Boone Creek Outdoors. Kentucky is my home, and I love this land, and I'm proud of it. This is the only job I've ever had that I can support wholeheartedly, and it's because I get to educate people about this beautiful place while encouraging them to overcome their fears, making them stronger, better informed people. The issue of safety has been brought up, and there are inherent risks associated with what we do, but I guarantee it's safer than driving your car on the interstate. We are thoroughly trained as guides to keep our participants safe, and we are thoroughly trained about the ecology of the area, trained to tell people how our course interacts with the trees. It makes a very minimal effect on the trees. but I'm a new guide here and from what I've gathered the main issue here is the zoning issue that classifies this land as an agricultural zone the land is too steep for farming it is not suitable for horses who would be injured most likely or cows if they were allowed to roam on the area Burgess has made the best possible use of this beautiful land, preserving it and opening it up to the public so that it can be appreciated and better understood by all. This is good work that we are doing. If all that stands in the way of this amazing project is a zoning issue, then please help us to comply with standards of good practice in a way that will allow us to continue our work as good stewards of this beautiful and unique land. Thank you. Thank you, Ms. Steele. Anyone else? Very good. Well, Mr. Park, you're up. Oh, I'm sorry. No, actually, according to my documents, is that we have to hear the rebuttal by the appellate, and then we're going to let staff go. Thank you, Mr. Chair. Mr. Todd got up and professed to say he was going to stick to the issues in the notice of violation. And instead we got the kitchen sink approach, which I expected. He talked a lot about stuff that he has no knowledge of and made a lot of unsupported allegations. Permits. I want to go back to the permit issued to Boone Creek properties. This is from the minutes of the hearing at which the Boone Creek Properties Conditional Use Permit was approved. And if you see the first highlighted activity, it speaks expressly about managed activities such as hiking, environmental education, and wilderness skills seminars. seminars. That is very general, but I submit to you that the canopy tour is a managed activity very much like hiking and biking. There have been two court decisions since the board's 2012 denial of the Boone Creek Adventures application. Both of those courts have reached the ruling that a canopy tour is an outdoor nature-based recreational akin to hiking and biking trails. That is the specific ruling of these courts. So if hiking and guided hikes, guided hikes were talked about, that is extremely similar to a guided canopy tour. It's a tour that allows people who wouldn't, as Mrs. Carey pointed out, be able to see the property to do so. In addition, I think Mrs. Carey told me she and her partner had 150 years combined experience with them. That same day of day before, a young man who was wheelchair-bound went through the course in tandem with his father and got to see the property. He would never get to see the beauty and the glory that is this gorge without Mr. Carey's canopy tour course. This is something else from the 2000 Board of Adjustment hearing from the 1996 Comp Plan. The plan envisions increased tourism and recreation in this area. Increased public recreation will build public support for rural green space plan. That is exactly what this project is going to do. It's going to build support for preserving our green space by increasing public awareness of the problems it's facing. Because I don't practice in this area all the time, I made a visit to the UK Law Library to do some research recently. This is a quote from Rathcop's The Law of Zoning and Planning. In accordance with the interpretive principle that since zoning restrictions are in derogation of the common law, they should be strictly construed in favor of the free use of land, courts generally have construed the terms club and clubhouse and zoning ordinances in a very broad fashion, allowing all manner of uses and activities to fall within their scope. Specifically, addressing clubs for recreation, all manner of recreational activities and facilities, unless otherwise expressly provided for by an ordinance, may well be allowed under the terms club as used in the zoning ordinance. So it's our position, because the club specifically covered general recreational activities, managed activities, guided hikes, that a guided canopy tour of the forest that allows increased access is a good thing and consistent with what that permit was granted for. If it's ambiguous, the tie goes to the landowner. Again from 2000. Ropes course, ropes course. Ropes course courses are extremely similar to canopy tours. been contemplated from the beginning and shown on this map. Mr. Todd mentioned so many things that were not in the notice of violation that I don't know where to begin. And I think it poisons the record, frankly. Grading permit, there was no grading. There was an existing paved parking lot. There were a few potholes filled in with gravel. Kerry Technologies is a registered contractor. That's Mr. Carey. He was the general contractor. And again, none of that's in the notice of violation. Barbecue? That was for a neighborhood Earth Day celebration at which... Three tons? How much of trash? Tons and tons of trash were collected off the roadside by volunteers, and they got free barbecue. That's horrible. Mr. Carey has stayed within the 60-guest limit when combining permanent fishing club guests and the day guests that visit the canopy tour. Every participant must sign a participant agreement that acknowledges that they are a day member. Safety. Again, nothing whatsoever about safety in the notice of violation. There's no way you can base a finding of a violation on something that's not in that notice because my client didn't receive proper notice of it. And he's totally wrong. It's been inspected by a third party, certified to do inspections. The fire safety plan has been updated and filed with the fire department. The fire department is some of our biggest fans. I mean, they're out there every weekend. They love it. Riding a horse is much more dangerous than participating in a canopy tour. Does that mean for public safety we're going to abate Keeneland? Are we going to shut down the Air Coy Hunt Club? Riding horses is much more dangerous than participating on a canopy tour, so that would seem to be the argument. And we've got somebody here who can testify further about safety and the specifics if that's really what we need to do. But I want to concentrate on whether this outdoor recreational activity is within the general scope of his permit. As far as the waiver and release, Mr. Todd, you should know better than that. Lawyers draft those things. They draft them to be as broad and exclusive as possible, or they don't work. So all that language, you have to have all that language about threats in there. That's just the way, if you don't, they're not effective as legal documents. There's some discussion of trespass, and a great amount of hand-wringing about following rules and procedure. this board should know that most of these pictures submitted with a written complaint were taken by somebody trespassing on Mr. Carey's property. So they obviously don't care for his property rights. And I share Dr. Martin's concern with the animosity that's been generated with this. It's truly regrettable and unfortunate. And I think his attorney, unfortunately, though, has contributed to it. There's no need to denigrate Mr. Carey. The fact that some people don't like Mr. Carey or his project, that's not a basis to find a violation. Finally, I want to stress, there's really, with so much competing testimony, there's no way you can judge what this tour actually is unless you experience it yourself. I did so for the first time last Saturday. Truly amazing. Truly amazing. An amazing asset for this community. and it's our request that you don't take that away from our community. Thank you, Mr. Park. Thank you. Thank you. Mr. Chairman and Board members, I am just going to make a few statements in rebuttal. I think both a lot of the evidence we presented at the, or not evidence, but our original statements covered a lot of the things that were raised. Some were covered by Mr. Todd. Some were covered by some of the speakers. but I just want to bring home a few points that I think are important that have been raised and maybe haven't been spoken to. Mr. Park talked about the NOV not alleging that the Boone Creek properties activities are having or have had any adverse impact on surrounding properties. I have not found any requirement in the zoning ordinance or state statute that a NOV make such an allegation. It either forms with the law or it doesn't. I don't recall ever that harm being a standard that you judge by if someone is, you find they're violating a law. They're either complying or they're not. Second thing I wanted to comment on was the statement that we did not cite any specific sections of the zoning ordinance in the NOV. That is just not correct. We cited sections of Article 8 that govern the control of uses, just as I alluded to when I spoke to what process the staff went through in determining whether or not the use that we were asked to investigate was, in fact, a violation of the zoning ordinance. In those sections, the ordinance were cited in the NOV. Third, there's been a lot of discussion about whether this is an amusement activity or a recreational activity. Nothing in the staff's NOV or in our analysis dealt on that one way or another. We know that that was an issue that was discussed quite a bit in the 2012-2011 Board of Adjustment case, but our NOV did not speak to that. If, in fact, it is a recreational activity with an educational component, as said, our contention was that it did not comply with the 2,000 conditional use permit. And that leads me to speak just a little about that. The 2,000 conditional use permit did, in fact, have specific conditions and restrictions placed on it by the Board, including that it had to operate in accordance with the submitted application and the site plan. We have reviewed the file which we have here. We find no site plan which showed a rope course. The site plan that was before the board is, I believe, tab 12 in the staff exhibits in your book, a reduced version of that. And again, you don't see the extensive types of facilities that have been put into place. You don't see designated parking areas that have been used and things of that nature that we felt why this activity, as it was conceived and as it was carried out even after the NOV, to comply with the terms that the Board placed on the conditional use permit. That was our opinion. Contributing to that opinion was the 2011 case. I did say that we looked at that. I did not say, and the NOV does not say, that that is the determinative factor as to whether the zip line was something that the board did or did not approve back in 2000. Again, we just were using common sense. The zip line was a part of the 2011 application. And admittedly, it was one part of a much larger application involving a different applicant and different properties. But this board turned that down along with everything else. And just because it was a larger application to the staff's mind does not mean that it was okay to do a smaller version of it or a smaller aspect of it or only on one of the properties. And again, what we looked at was what type of facilities were contemplated in those and how does that apply to our review of whether or not the use that's going on there was in violation of the zoning ordinance. I want to apologize before I sum. There were two things that we should have entered, or we have entered in the record that we should have noted at the very beginning, and here I am at the very end talking about that. There were two communications that were presented to the staff. one, a statement by the Fayette Alliance, which has been distributed to everyone, and there was an email communication, Jimmy, from. Please help me. There was an email from a Susan Booker. It was passed out to you at the beginning of the hearing. Yes, I think you have those, and I apologize. I wanted to mention at the very outset that those were a part of the record, so just if there were any questions. So, in the end, we understand and acknowledge there are plans that talk about things that should go on here. There are community goals. There are environmental stewardship issues and other things like that that all have been discussed and come in discussion. In the end, though, what this is about was the law and what the laws say and what the laws charge in this case. It's been alluded to already that this staff supported the 2011 application. This board turned it down. Therefore, we find ourselves now in the role of the enforcement agency, and we looked at this very hard, very closely, and in the end determined that the laws dictated both when you took in context the charge of statute, the charge of the zoning ordinance in terms of the zoning administrator, that this activity was in fact in violation of the zoning ordinance, and that was our conclusion. Thank you. Thank you, Mr. King. It's time for our board to ask questions, but we've had a couple members of our board that have asked to take a little bit of break. We've been sitting here for a little while, too. So we'd like to convene back in just about seven or eight minutes. Thank you. guitar solo Thank you. guitar solo guitar solo Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. If I could ask you all to take your seats, please. Thank you so much. It has been a long afternoon. We appreciate your patience as well, and we'll reconvene the Board of Adjustment. Presentations have been made, and I'd like to ask the Board if they have any questions of the applicant or the opposition or staff at this time. I have a question for staff. At what point, at any time, could Mr. Carey have come before you to revise the conditional use permit that he currently has in 2000? That's a good question. we did in the NOV indicate that one of the possible avenues of relief, in our opinion as a staff, would be to seek a revision in the conditional use permit that was granted in 2000 to expressly allow, regulate, determine under what terms of membership, parking, other issues could be done. As was pointed out by Mr. Park, we did say there was a problem with that because of the other case, which is still active. The 2011-2012 case was disapproved by this board, but it's under litigation. And we have always been told as a staff that you can't have two applications going at the same time on one piece of property. Okay? So what our NOV said in our comment was that if that avenue was approached, there would have to be consultations between the attorneys for the city and the other attorneys involved to figure out, is there a way to work around that? So I hope that brings a little clarification to what we saw in terms of an amended conditional use permit. So just for clarification, and I think you spoke to this a long time ago, two hours ago or how many, that in order for Mr. Carey to have asked for an amendment to his 2,000 conditional use permit, he would have had to withdraw his court case. Is that correct? Withdraw? I don't know. That would have been in the past. That has been one way that that has been handled that I'm familiar with. But I can remember at least more than one case where there was some kind of agreement presented before the court that got around that issue of having two different proceedings going on concurrently on the same piece of property. Thank you. Thank you, Mr. King. Well, Mr. Park, do you have anything else to offer? I have one question for Mr. King. I think he indicated because the canopy tour use was part of the 2011 application that was turned down, then staff thought that that activity was not permissible under the 2000 permit. And does that extend as well to the rappelling, the hiking, the biking, all those other portions of the 2011 permit that were turned down? All I said was that it was one of the indicators the staff used in determining. But we weren't asked to look at any of those other things at this point. So I will say I'm not comfortable trying to parse that level of detail off the fly in this hearing in terms of what would or would not be allowed under that permit. That kind of conversation certainly could go on. and perhaps should have gone on before all of this. But, again, I'm not comfortable trying to make that determination as the zoning administrator off the top of my head. If you've probably noticed, when we are faced with these, we look at them pretty deeply and look at a lot of different aspects of the issue before we make the ruling. Thank you, Mr. King. Mr. Parker? I'll address Ms. Meyer's question about the rehearing question. It's our understanding that the board has discretion to consider a new application that considers the same land if it's part of a different project, a different property owner, and circumstances have changed. It's been more than a year since that decision was held. There's also something called an unconstitutional condition doctrine, and that is where the government conditions the granting of one right on the surrender of another right. That's an unconstitutional condition. So in this case, Mr. Carey, in order for Boone Creek Properties to make an application for an amendment to his permit, which is allowed under the bylaws, in order to exercise that right, a separate company affecting the Snyder family and other families would have to give up their rights. We don't think that's fair. We want to come back with you all and straighten out parking everything. Thank you, Mr. Park. Mr. Todd, you had a comment? No, sir. I just thought we had concluded proof. Well, according to our rules, the applicant had a chance to respond to staff report. With that said, I think the board is prepared to move forward, and the chair will entertain a motion. Before I make a motion, there's a lot of passion for and against a canopy tour zip line. And having served on the ZODA committee, I've been through the process. I understand how hard it is. and I'm sitting here today very well aware of what is involved here and the long-term effects that we've got going. I appreciate Mr. Carey and his passion for the land that he found down at Boone Creek. I have not been there, but I'm sure it's beautiful. I've seen the pictures, and I'm sure it's gorgeous. I appreciate the young people who came up here to speak and who are very much engaged and finding out about the history and nature. But I think the broader issue here is that we have zoning ordinance and we have rules that have to be abided by. and we have, as someone said, in the testimony, we have lawyerly issues that need to be discussed, and I think that's the crux of the problem here. These are the lawyerly issues that we're hammering out today and the long-term ramifications that could happen if we don't deal with them. We have invested a lot in this county, a lot of time and effort in the zoning ordinances, and from where I'm sitting, this is what we're dealing with with this petition, this appealed for us today. Mr. Carey knew when he bought the property that it probably was not suitable for typical agriculture. He came before the board, and he asked for a conditional use permit for an angler's club. And that's what he got. And so with some other things that were associated with it. But I think that the intent was that when the board, I can't speak for the board, but it seems to me, reading the literature from the staff report at the time and also the minutes, that that's what we thought was going to happen down there. And so we seem to have gotten a bit off track down there, but I hope that with continued efforts by the city and with the zoning ordinance tax amendment that has just been the results from the ZODA committee have come out this week, that we can hammer this out in such a way that we can make it more transparent and more defined. And so we've got a long way to go, but I'm helpful that we can come to some consensus here and try and work this out. But I am going to, with regard to the petition before us today, the appeal before us today, Boone Creek Adventures case A2013-26, appeal of a notice of violation issued by the Division of Planning on March 8, 2013, for property in an AR zone at 8291 Richmond Road. I am moving that we disapprove the appeal at 8291 Old Richmond Road as it is zoned in an AR agricultural role zone. A conditional use permit for 8291 Old Richmond Road was issued in 2000 based on a site plan, application, and specific conditions placed by the Board of Adjustment for a private angler's club, which was a conditional use, not a permitted or accessory use. Cannabis tours utilizing zip lines were not included in the 2000 conditional use permit application or site plan and not granted as part of the conditional use permit. The granting of the conditional use permit in 2000 was not issued to permit this type of use, as stated by the BOA member at the time the permit was issued in 2000. Thank you, Ms. Meyer. Is there a second? Second. All those in favor of denying the appeal signify by saying aye. Aye. Aye. I'm sorry, Mr. Kerr, your appeal is denied. And I would just like to make a comment in that, In hearing all the testimony that we've heard today and we heard in December a year plus ago as well as in January, I think what you're doing down there is just absolutely incredible, and it is. It's not about nature and it's not about fun. It's not about adventure, you know, about education. When you come before the Board of Adjustment, this is a very difficult decision for us to make, and that's a very unpopular decision, I know, with a lot of folks. But at the end of the day, I think it really does set a very dangerous precedent by violating and ignoring the decision of the Board of Adjustment, as well as the notice of violation from the planning office. And I'd like to see this rectified. And echoing Mrs. Meyer's comments, there are committees right now that I know the planning commissioner is working on. Linda Gorton is chairing that ZODA committee. And I think that there are going to be other ways to try to resolve this. But I think that had we granted this appeal, I think it just sets a very dangerous precedent, and I think that it really pays the way for others to do the same. And I personally find it very concerning, which is why I supported it today. And I hope, as Ms. Myers does, and I think all of us do, that something is worked out in the future because you made a very excellent presentation, and I think the opposition has made a very eloquent response to that. And so with that said, sometimes being a volunteer body like we are, we have to really make some very, very tough decisions, but we try to weight all the evidence and we try to make a fair decision, and I think we've made that today. And so we wish you well, and this hearing is concluded. Are we going to address any of the issues about cessation? Well, this hearing is concluded, and what I would like to ask the legal office to do is that I'd like to, and we've done this on a few cases before, Ms. Jones, I'd like to authorize the law department as to what rights of action might be recommended that might be appropriate. I know that there were several penalties regarding fines and obviously even having the zip lines removed and so forth. And so I'd like to authorize the law department to seek what options that we do have. Would that be appropriate? Very good. I guess my question would be, what time frame are we talking about? I mean, there's some serious questions here if this is allowed to go on. I know that you've denied their appeal, but if— Well, Mr. Todd, let me refer that to Ms. Jones and what kind of timetable we're looking at. Well, there are all different kinds of options, and it depends on which one or which ones might be addressed. You know, there are civil penalties that would be allowed to be assessed at this point. because of the notice of violation. You know, court actions are going to take a little bit longer. I'm assuming that the board would want us to come back with recommendations at their next meeting in terms of court actions and things like that that we could take. But, you know, the board has some options open to them as a board that they can take or schedule in terms of, you know, things they can do under the ordinance when they think someone is not complying with a conditional use permit. But that also has to be considered with the right to appeal and also the right to correct a violation under the notice of violation that was just upheld. No, I understand and appreciate that. I was under the impression that, based on their finding, that the board under those ordinances I cited had the authority to indicate what they would do, whether it be a fine or to abate it if it's clearly a question of safety or health. And at that point, if the appellant wishes to appeal further, he's going to exercise that right. But at this point in time, if there's no action taken to cease and desist what's going on by history, he'll continue to keep doing what he's doing. And what message, A, does that send to the public? can be, I mean, there has to be an end line here at some point in terms of consequences, and I would expect the commission or the board to take steps in that regard. Thank you, Mr. Todd. Well, I asked my fellow board members, obviously, we have, Ms. Jones, is it correct that we have the right to vote to have Mr. Carey cease and desist? you do but we'll have to go through certain processes within the court to accomplish that how long will this take I mean do we have this discussion in a month from now or well it depends on what you all want to authorize and what you know And we'll have to legally review that within the law department and take the steps we're allowed to take under the law. So if the board does vote to cease and desist, for example, and we vote to approve that, that will have to go through the process is what you're telling us. I don't think this board has the authority to issue an injunction. Right. And I'm not asking that. I'm asking whether we have a right to vote to ask you to research whether or not we're able to. We can obviously, according to your comments, that we are able to ask Mr. Carey to cease and desist. Is that correct? I think, yes, you can ask us to do that. All right. Thank you. You also have the right, obviously, to seek penalties. And, of course, in the instance where the continuation of the violation would pose a substantial risk of injury or public health, you have the right to order an abatement of that as well. And I understand you want to explore those. I'm not saying, you know, put you on the line here today, but a time frame for a decision I think is important. Well, thank you, Mr. Tide. We appreciate your comments. Thank you. Mr. Stumbo, this, again, goes to my lack of familiarity with this field of law, but I understand that there was some reorganization with respect to responsibilities, and I thought that enforcement was now with the Department of Planning, and I just do not know. I look forward to what Tracy can produce. Thank you, Mr. Park. Well, according to Mr. Jones, we do have that right if the board would like to vote to do that. And then, obviously, other actions that can be taken can be explored. I would hope that certainly by the next meeting that we would have those in place. I would ask the law enforcement on the police department over here, if you will, to inspect the site and see if, in fact, this is ongoing. and if it proves to be ongoing, then I think I'm recommending or asking you to reconsider an accelerated consideration of the options that you have. I appreciate that, Mr. Todd. We are not, we certainly can, I think we've got a couple issues here, and Tracy, I think the first one is obviously a cease and desist order if that's something that we want to pass. But as far as enforcement goes, Mr. Salee, that's something that maybe you or Mr. Marks could address. And what guidelines or what limitations do we have? Or Mr. King, if you could address that. That's a good question. As you can see, given all the moving legal parts that we've got going on, this is somewhat complicated. I will just state that from the staff standpoint, we are committed and we have told the Department of Law that if you denied the appeal today, we would ask law to work with us to press forward in every way we can to move forward to have compliance on the ground. And I don't know what the answer is because I know law will have to research that. Again, we've got lawsuits. They have a right within 30 days to challenge your action here today in court. But regardless of that, I have asked law to work with us to let us move forward again as aggressively as we can to have compliance on the ground. Very good. Thank you, Mr. King. Does the board have a preference? Obviously, as Mr. King has responded, they would work vigorously with the legal department to determine actions. And I would, of course, very quickly. And I don't know, Mr. Todd, that we can give you a specific date today. But I think that they would make a good faith effort to do that. with that said I'd just like to ask the board if they what their feelings are and how would you like for us to continue would you I would like to I think that the board has denied the appeal and for the notice of violation. And having had that done, I would like to think that Mr. Carey would understand that the zip line canopy tour needs to cease and desist, is my thought. That's what we're here for. This has been the major crux of what this appeal has been. And for him to work with the city and see what they can come up with. But I think that there needs to be some enforcement. And as Mr. King has said, They want to quickly and aggressively get him in compliance. So at the next meeting, I would like to think that something had happened, and there will be a report made to us, and we'll go from there. And hopefully he'll be in compliance. But that's off the top of my head, and my other members may have other thoughts. Mr. Greggs. Mr. Carey, do you intend to operate the zip line after today? I'm going to ask him not to answer that until we've had a chance to discuss that. Okay. Well, it's not a criminal case. I mean, he ought to be able to indicate whether he intends to or not. That's a good faith. That's the least you can ask him to answer to. No, it's not been adjourned. The meeting is not adjourned. Excuse me, gentlemen. Have a seat, please. We have before us Ms. Meyer, and again at the pleasure of the Board, this has been a very, I think, very civil meeting, and we're going to keep it that way. Ms. Meyer, would you like to put in a motion, cease and desist, or do we want to, excuse me, Mr. Carey, or do we want to have planning and office and legal department make recommendations and have them presented to us to act on in June? That's basically, in my view, what we have before us today. I'm not sure. Law, I'm confused by what your response was. Do we have the ability to request a cease and desist? You do, but the way the ordinance reads, unless the violation poses a serious threat to public health, safety, or welfare, we have to go through the proper legal processes to accomplish that if the party's not willing to comply of their own free will. So I'm not sure that there has been enough evidence that's something we'd have to evaluate amongst ourselves. There are other avenues for the zoning enforcement officer to issue civil penalties and things like that that we can do. But in terms of I don't think this board has the authority to go out there and just say stop without going through the right legal process. Thank you, Ms. Jones. Mr. Marks, did you have something to say? I think we're kind of dealing with semantics here. You all can express your intent of what you expect us to try to do. That's about all you can do. And we'll do the best we can with the best options. Thank you, Mr. Marks. I think it's a consensus of the board, as I had stated earlier, to Ms. Jones. I think we were going to ask our legal counsel and our planning office to get together and make recommendations to us as a course of action for our next board meeting. I think that that would probably be the best compromise, the best solution. So we'd like to see that, Mr. King and Ms. Jones, at our June meeting. Okay? Very good. Thank you all very much for coming. Mr. Stumbo, before you formally adjourn, there is one. Well, yes, sir. And I was going to ask if there was any staff. Any staff? Thank you. Thank you, Mr. Chairman. There are two training opportunities for Board of Adjustment members to attain your required training credits in the month of June. The first is next Wednesday. There's an APA audio conference that will be held in the Division of Planning conference room for pedestrian and bicycle planning. That will be good for an hour and a half's worth of credit. And then later in the month, on Wednesday, June 26th, two days before your next meeting, another opportunity, that will be the annual planning law review session, and it will also count to one and a half hours. So those will be a nice dent in your biannual requirement. Thank you very much. Thank you, Mr. Salee. Our next meeting date will be June 28th, and with no further business, we stand adjourned. Thank you. Music