KY Supreme Court Holds Irreparable harm Presumed in Cases Involving Open Violation of Zoning Laws

Boone Creek owns property in southern Fayette County in the Agricultural-Residential (A-R) zon¬ing classification. In 2000 the Board of Adjustment approved a conditional use, permitting Boone Creek to operate a private fishing club on the prop¬erty; the permit authorized no additional deviations from authorized A-R uses. In 2011 Boone Creek Adventures, a separate but related entity, sought a conditional use permit for the same property to allow additional commercial and recreational activi¬ties, including an agricultural retail outlet, camping facilities, tree platforms, zip lines, and canopy tours. The board denied that application. Boone Creek nonetheless constructed the tree platforms and zip lines on the property, advertised the availability of these recreational amenities to the general public, and began operation of some of the allegedly nonconforming recreational uses. After receiving complaints about these activities, the Lexington- Fayette Urban County Government (LFUCG) investigated. A notice of violation issued, directing Boone Creek to remove the zip lines and tree platforms, and to cease conducting and advertising those activities to the general public within 30 days or face enforcement action. Boone Creek continued to operate its nonconforming recreational activities. The board obtained a temporary injunction based on a finding that the activities were “in violation of the Zoning Ordinance of the [LFUCG] and of a conditional use permit issued by the Board of Adjustment in 2000.” The highest court upheld the injunction. If a governmental unit enacts a law and cannot promptly compel compliance by enjoining an ongoing violation, the power and dignity of that governmental body is diminished. “Obviously, a government’s inability to enforce its laws and to promptly rectify a violation harms the government.” The irreparable harm that would occur in this case in the absence of an injunction is the genuine but intangible harm relating to the power and right of the county zoning authorities to correct open viola¬tions of the applicable zoning code. In situations such as this, irreparable harm is presumed.

Boone Creek Props., LLC v. Lexington-Fayette Urban County Bd. of Adjustment, 2014 WL 4651191 (KY 9/18/2014)

The opinion can be accessed at: http://opinions.kycourts.net/sc/2014-SC-000091-I.pdf

Editor’s Note: This abstract appears in the November 2014 issue of Planning and Environmental Law, see: http://www.planning.org