Sixth Circuit Court of Appeals Denies Due Process and Equal Protection Claims Arising from Denial of Comprehensive Re-Zoning

This post was authored by Matthew Loescher, Esq.

Land of Illusion Adventure Park (“LOI”), owned and operated by Brett Oakley, is a regional family entertainment venue that provides seasonal attractions in Madison Township, Butler County, Ohio. In 2020, Oakley sought a zoning change for a B-PUD, which would have affected all 228 acres of his property at 8762 Thomas Road. Plaintiffs claimed that Oakley chose this route because the Butler County Planning Administrator, Defendant Peter Acuff, and other members of the Butler County Department of Development, advised Oakley to seek a comprehensive re-zoning for all his parcels, rather than piecemeal zoning changes for each parcel. Oakley’s preliminary BPUD application included “a plan for a campground, a themed hotel, an indoor water park, a family entertainment center, an expansion of the existing outdoor water park, and an amusement park.” This case arose from Butler County’s rejection of their preliminary Business Planned Unit Development (B-PUD), and the grant of judgment on the pleadings dismissing their complaint alleging due process and equal protection violations.

Plaintiffs first contended that they had a protectible property interest in the re-zoning of their property based on the preliminary B-PUD application that was submitted to the Butler County officials. The court found that even if Plaintiffs had a protectible property interest, however, they still could prevail on their procedural or substantive due process claims. Here, the record indicated that, before denying plaintiffs’ preliminary B-PUD application, the Butler County Board of County Commissioners heard testimony from Oakley’s “planner and his attorney” as well as from the “chamber of commerce, the county’s visitors’ bureau, the school district’s superintendent, the Ohio State Representative … and numerous business owners.” The resolution of the County Commissioners sets forth that other groups, including the “Ohio EPA, Butler County General Health District, Butler Soil and Water Conservation District” as well as the “Madison Township Trustees” expressed their concerns regarding the preliminary B-PUD application.

Additionally, with respect to plaintiffs’ procedural due process claims, the court found that it was not clear from their briefing what kind of additional procedures they contended would be required before Defendants could deny the B-PUD. Here, the denial was preceded by three rounds of review by the Planning Commission, the Rural Zoning Commission and the County Commissioners. Moreover, plaintiffs did not dispute that they received a hearing before the County Commissioners and were provided the opportunity to present testimony before the County Commissioners.

Plaintiffs next contended that the denial of their preliminary B-PUD application constituted a violation of their Fourteenth Amendment right to equal protection under the law. The court noted that since plaintiffs proceeded on a “class of one” equal protection claim, they could only prevail if they proved that “the state treated the plaintiff differently from others similarly situated and that there is no rational basis for such difference in treatment.” Here, plaintiffs’ response that the comparator haunted trail was shut down in 2004 and that Acuff made the seemingly neutral suggestion that Oakley proceed with an omnibus rezoning, rather than through piecemeal applications, was found insufficient to establish animus or ill will. Accordingly, the district court’s dismissal was affirmed.

L.O.I. Property, LLC v Butler County, OH, 2023 WL 3270901 (6^th Cir. CA 5/5/2023)