ON REVIEW FROM COURT OF APPEALS. CASE NO. 2013-CA-001760-MR. FAYETTE CIRCUIT COURT NO. 13-CI-02676.
COUNSEL FOR MOVANT: John B. Park.
COUNSEL FOR RESPONDENTS LEXINGTON-FAYETTE URBAN COUNTY BOARD OF ADJUSTMENT AND ITS MEMBERS, BARRY STUMBO, KATHRYN MOORE, THOMAS GLOVER, JANICE MEYER, JAMES GRIGGS, NOEL WHITE, AND JOSEPH SMITH; BOONE CREEK NEIGHBORHOOD ASSOCIATION, INC.; AND OLD RICHMOND ROAD, INC.: Tracy Webb Jones.
DENYING INTERLOCUTORY RELIEF
In an action pending in the Fayette Circuit Court, the Lexington-Fayette Urban County Government Board of Adjustment (the Board) moved under CR 65.04 for a temporary injunction to enjoin Boone Creek Properties, Inc. (Boone Creek) from operating certain commercial recreational activities on land in southern Fayette County. The circuit court granted the motion and issued a temporary injunction, based upon its finding that the activities were " in violation of the Zoning Ordinance of the Lexington-Fayette Urban County Government and of a conditional use permit issued by the Board of Adjustment in 2000." The issues arising out of that controversy now focus upon what a governmental entity charged with enforcement of a civil law must show to satisfy the " irreparable harm" prong of CR 65.04 in order to obtain a temporary injunction restraining an ongoing violation of the law. It is an issue we have not previously addressed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Boone Creek owns property in southern Fayette County that is zoned for use consistent with the Agricultural-Residential (A-R) zoning classification. In August 2000, the Board approved a conditional use permit allowing a deviation from the standard A-R uses permitting Boone Creek to operate a private fishing club on the property; the permit authorized no additional deviations from authorized A-R uses.
In 2011, Boone Creek Adventures, a separate but related entity, applied for a conditional use permit for the same property, seeking authorization for a number of additional commercial and recreational activities, including an agricultural retail outlet, camping facilities, tree platforms, zip lines, and canopy tours. Significantly, the application for the additional uses strongly suggests Boone Creek's recognition that its existing permit did not encompass those additional activities. Following a hearing, the Board denied that application; Boone Creek appealed the decision to the Fayette Circuit Court pursuant to KRS 100.347.
Despite the Board's denial of Boone Creek's application for expanded uses,
Boone Creek 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 LFUCG Division of Planning conducted an investigation, and subsequently a notice of violation was 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 thirty days, or face enforcement action. Boone Creek filed an appeal in circuit court to challenge the notice of violation.
Notwithstanding the notice of violation, Boone Creek continued to operate its nonconforming recreational activities. Consequently, in June 2013, the Board filed a motion in the circuit court for a temporary injunction pursuant to CR 65.04 seeking to halt Boone Creek's continuing violation of the conditional use permit. Following a hearing, the circuit court granted a temporary injunction ordering Boone Creek to cease the operation of its zip lines and canopy tours, and to ...