Editor’s note: Judge Jerry D. Crosby II of the Kentucky 12th Judicial Circuit recently denied the motion by Robert and Kristian Malin to reverse the findings of the Henry County Board of Adjustments and the BOA denial of the conditional use permit requested by the Malins for their agritourism project on Lacie Road farmland. While the Malins have appealed Judge Crosby’s denial of their motion and the case may still be pending more court action, the case seems sufficiently resolved to print the following article submitted to the Local in June of last year. The BOA denied the CUP request by the Malins in July of 2021 and the most recent filing in the case was made Jan. 12 in response by attorneys representing Henry County to deny the Malins’ request for oral arguments in appeal of Judge Crosby’s denial to reverse the BOA decision. Meanwhile, the Malins have applied to the Henry County Planning Commission for a business rezoning change from agricultural to business use for an 8.5-acre parcel at 352 Lacie Road and a conditional use permit to allow agritourism enterprise at that location. The public hearing for the rezoning change and CUP is scheduled for Feb. 8 at 6 p.m. in the 4-H building at the Henry County Fairgrounds located at 1106 Castle Highway in Eminence.

The Malin Family runs a successful business out of Turner Station and wants to create an agritourism destination near it. But they claim they have not been treated fairly by Henry County Planning & Zoning’s Board of Adjustments (BOA), which denied their request for a conditional use permit to turn the farm into a venue.

The Malins say that because they were offered no reason for the denial, they had no choice but to take the matter to court.

“It’s been a very very slow, litigious lawsuit …” says Jake Thompson, the Malins’ attorney. “I won’t accuse anyone of stonewalling, but everything that could be done to slow this thing down has happened.”

Thompson asserts that BOA’s decision shouldn’t stand because the board did not offer a finding of fact and conclusion of law to support its denial.

Josh Clubb, attorney for Planning & Zoning and the BOA, did not return calls for comment.

Robbie and Kris Malin have owned BYB Event Services for 22 years, operating it from their Turner Station family farm. Their son, Jess Malin, says they started out with a couple of inflatable bounce houses, with him as a kid riding in the back of the family car to help set up at events.

“And now we’re one of the largest turn-key event services in the country — we take care of everything from start to finish.” BYB specializes in corporate and college events and festivals, providing everything from zip lines, mechanical bulls and trains, to carnival rides, games and rock walls.

Malin says he was excited when he graduated from the University of Kentucky where he studied agricultural economics. He came back to the family farm with his degree and some big ideas about starting an agritourism business, and his mom and dad were all in.

The family bought another farm — 67 acres, about two miles away from their home, on Lacie Road. Malin says the old farm was in pretty rough condition, and had sat on the market for more than a year.

“We built two lakes on it, we’re going to fix the old tobacco barn up, probably add two more lakes and a pumpkin patch, hay rides, corn mazes, you-pick fields of things like lavender, vegetables and flower fields,” he says. They have named it Malins Red Barn and Family Farm.

“We just want to create a fun, family-friendly place to visit that also promotes Kentucky ag.”

Malin says they first presented their application for a conditional use permit a year ago to the BOA in a Zoom meeting. A public hearing was then held on July 12, where testimony was given for and against approving the permit.

He says that when it was time to vote, no discussion was held about why the application was being denied. “No one said anything. All they asked about was what the times of the events would be … We’re not proposing anything different from what other venues do … they gave us no reason. It feels like we’re being treated differently.”

When the Malins presented their case, they said the business plan does not violate the Henry County Comprehensive Plan and that it is not an urban development.

They offered statistics about the growth in the county and how the venue would offer employment opportunities. They are Kentucky Proud members and will sell local products, which will help support local ag communities. Plans also include ag educational opportunities through school visits and tours.

Hours of operation on Sundays would not interfere with local churches.

They also submitted a traffic study. Fire protection, septic, water and waste were all designated, and the Malins included a copy of the approval from Kentucky Department of Transportation for the entrance proposal.

Testimony given by those opposed included concerns about the traffic impact on Lacie Road, from safety issues to the “increased maintenance required on the roadway due to increased traffic.”

Comments were made about interference with hunting on surrounding land; lack of lodging and public transportation in relation to special events; and an increase of alcohol-induced accidents.

According to the minutes, after testimony was given, board member Matt Jackson made a motion to approve the Malins’ application, based on it being similar in nature to past applications the board has approved. Jackson pointed to findings that show the infrastructure will support the business, and that the move would promote agritourism.

He listed conditions for the approval, including the size of any proposed structures; sticking to a maximum occupancy level; no activities held in certain areas; and noise confined to the proposed wedding building. Other requirements included no carnival-type equipment should be located there, like mechanical rides, carousals or bounce houses, and no “outside music.”

It listed hours of operation, and with no alcohol sales past 10 p.m., except for Sundays when the cut-off is 8 p.m. Fireworks would be prohibited aside from July 4th and New Year’s Eve.

Board member Perry Thomas seconded the motion to approve, but they were the only ones in favor. Richard Riedel, Glenn Smith, Frank Denton and Bill Henderson all voted no.

“Vice Chairman Richard Riedel motioned to deny the application based on the following findings …” the public hearing minutes read. The reasons given for his vote against the plan included “evidence and testimony presented the infrastructure is not adequate for the volume of traffic.” It also said that the operation is “not compatible with the area and will cause a negative impact …”

And that the proposed plan “does not provide adequate information on the construction type of buildings and or reconstruction of existing buildings,” and the setbacks proposed will have an adverse effect.

Thompson and Malin say these reasons for the denial were not given during the public hearing, and that points seem to have been added to the minutes after the fact. Thompson points to how the minutes reflect that they weren’t approved until Oct. 25, more than three months after the hearing was held.

“But all of that aside, the fact is that when a conditional use permit application is denied, they are supposed to give a finding fact and a conclusion of law,” Thompson says. “That is the factual basis for denying it, and they didn’t do that.”

Since that hearing was held, Malin says someone trespassed on their farm, spray painting on machinery and adding water to gas tanks. “It hurts me, really … You’d think they’d want a young grad to come back home and start a company. It’s just so frustrating. Now, it’s like we’re stuck in mud.”