Agenda - Planning Commission - 12/04/2014

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Zoning Bulletin November 10, 2014 I Volume 8 I Issue 21 Enforcement of Regulations —County board seeks injunction against Iandowner's zoning violations Landowner argues injunction is not warranted since board. failed to present evidence of any irreparable harm despite zoning violation Citation: Boone Creek Properties, LLC v. Lexington -Fayette Urban County Bd. of Adjustment, 2014 WL 4651191 (Ky. 2014) KENTUCKY (09/18/14)—This case addressed the issue of what a govern- mental entity, charged with enforcement of a civil law, must show to satisfy the "irreparable harm" prong of Kentucky statutory law, CR 65.04, in order to obtain a temporary injunction restraining an ongoing violation of the law. The Background/Facts: Boone Creek Properties, Inc. ("Boone Creek") owned property in Fayette County, Kentucky. Boone Creek's property was zoned for use consistent with the Agricultural -Residential ("A-R") zoning classification. In August 2000, the Lexington -Fayette Urban County Govern- ment Board of Adjustment (the "Board") approved a conditional use permit allowing Boone Creek to operate a private fishing club on the property; the permit did not authorize any additional deviations from authorized A-R uses. In 2011, Boone Creek Adventures, a separate but related entity to Boone Creek, applied for a conditional use permit for the same property. (Hereinaf- ter, for simplicity, Boone Creek Adventures and Boone Creek are referred to collectively as "Boone Creek.") Boone Creek sought authorization for a number of additional commercial and recreational activities, including an ag- ricultural retail outlet, camping facilities, tree platfoiins, zip lines, and canopy tours. The Board denied Boone Creek's application. Boone Creek appealed. Meanwhile, despite the Board's denial of Boone Creek's application, Boone Creek constructed tree platforms and zip lines on the property, and advertised those recreational amenities to the general public. The County Division of Planning eventually issued a notice of violation, directing Boone Creek to remove the zip lines and tree platforms and to cease those activities. Boone Creek appealed to circuit court, but continued to oper- ate its nonconforming recreational activities. The Board then sought a temporary injunction pursuant to Kentucky Civil Procedure law, CR 65.04. The circuit court granted a temporary injunction ordering Boone Creek to cease the operation of its zip lines and canopy tours and to comply with the directives of the notice of violation. Boone Creek appealed, and the court of appeals concluded that the circuit court had properly granted the injunction. Boone Creek again appealed. On appeal, Boone Creek argued that the temporary injunction was erroneously issued because, among other things, the Board had failed to prove any tangible harm as required for an injunction, such as environmental damage or damage to neighboring property owners. 2014 Thomson Reuters