The owner of Land of Illusion in Madison Twp. is contesting a recommendation by a federal magistrate to dismiss the lawsuit filed against Butler County over zoning denial for a $190 million expansion.
Butler County commissioners heard the zoning case in late 2020 and denied rezoning 206 acres across eight parcels off Thomas Road to a Business Planned Unit Development from the current agriculture, residential and general business classifications. Owner Brett Oakley wanted to make Land of Illusion a year-round facility with additional family activities, camping sites and a hotel.
He said the multi-phased project would be a $190 million investment in the county’s economy.
Oakley sued the commissioners, Madison Twp. and others in federal court claiming the action trampled on his property rights. The township was released from the suit months ago because they don’t control their own zoning. Magistrate Karen Litkovitz recently filed her recommendation to dismiss the case against the county.
“In sum, the Court finds that construing the complaint in the light most favorable to plaintiffs, plaintiffs have not alleged facts showing they possess a “legitimate claim of entitlement” or a “justifiable expectation” in approval of their application for rezoning and a preliminary BPUD,” Litkovitz wrote. “Accordingly, plaintiffs’ substantive due process claim fails on this basis.”
U.S. District Court Judge Susan Dlott has the final say and Oakley’s lawyers are asking her to ignore Litkovitz’s recommendation.
“Oakley met the necessary criteria for approval of a preliminary PUD plan. Having met those criteria, Defendants did not have discretion to deny the Application. The Zoning Resolution created a protected property interest which Defendants violated,” court documents read.
“At the very least, discovery is warranted to allow Oakley the opportunity to develop their case and demonstrate why their constitutional property rights were violated. The Report’s findings to the contrary should be overruled and modified accordingly.”
The Butler County Planning Commission and the county Rural Zoning Commission denied the rezoning request. Neighbors opposed the expansion, citing concerns over noise, traffic and other problems associated with a development of this size and Oakley himself.
When they denied the rezoning request commissioners Cindy Carpenter and T.C. Rogers said the plan doesn’t match the township’s land use plan and would have a negative impact on neighbors. They acknowledged the land use plan is outdated — which Oakley highlighted in his lawsuit — but said the plan still isn’t right for the area.
“The high density commercial, recreational uses proposed in the preliminary development plan are likely to adversely impact the existing land uses and have detrimental effects on the surrounding rural and residential developments,” Rogers said. “Particularly with respect to the development’s density and intensity.”