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Butler County, Madison Township to enter mediation with Land of Illusion owner over $190M expansion lawsuit

Butler County Commissioners and Madison Township Trustees agreed to go to mediation to try to...
Butler County Commissioners and Madison Township Trustees agreed to go to mediation to try to resolve a lawsuit from the water park’s owner over his rejected $190 million expansion plan, federal court records show. Madison Township also will mediate a second lawsuit filed by Land of Illusion owner Brett Oakley and affiliated companies over the township's noise ordinance.
Published: Jul. 26, 2021 at 9:24 AM EDT|Updated: Jul. 26, 2021 at 12:00 PM EDT
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BUTLER COUNTY, Ohio (FOX19) - The day after a teen is believed to have drowned at Land of Illusion’s water park Butler County Commissioners and Madison Township Trustees agreed to go to mediation to try to resolve a lawsuit from the owner over his rejected $190 million expansion plan, federal court records show.

In December 2020, Brett Oakley and affiliated companies L.O.I. Property, LLC of Carlisle and B.A.O. Productions, LLC of Middletown filed a federal lawsuit against the county, township, township trustees, county commissioners and the county planning administrator.

The suit accuses county officials of being “arbitrary and capricious” in their decision-making process and ultimate denial for the zoning change he needed to expand.

The suit seeks a declaratory judgment, compensatory and punitive damages and legal fees.

Butler County Commissioner T.C. Rogers tells FOX19 NOW a federal court judge asked all parties to try to resolve the dispute.

He declined to say Sunday if he thinks mediation will be successful.

“They wanted a zone change. The commissioners didn’t agree with the plan as presented, so I don’t know what there is to mediate, but I better not comment on that,” Rogers said.

Madison Township also agreed Wednesday, July 21 to go into mediation to try to work out a separate, second federal lawsuit with Oakley and companies over the township’s noise ordinance, court records show.

Oakley, B.A.O. Productions LLC and Ohio Event Services, LLC sued the township and its board of trustees earlier this year, alleging the ordinance was unconstitutional.

We have requests for comment into all other parties and/or their attorneys.

“Butler County will not comment on active litigation,” County Administrator Judi Boyko wrote us in an email response.

One of Oakley’s attorneys, Scott Phillips, responded to our email to him and another attorney representing Oakley: “I have forwarded this to my client. Someone will respond.”

Later Monday morning, a representative from Land of Illusion, Michael McKnight, sent us an email saying he was responding to our request to speak with Oakley:

“I am pleased to refer you to the statement posted on our website yesterday by Ryan Perry, park manager https://www.landofillusion.com/media-statement/ Land of Illusion has nothing additional to add to this statement at this time.”

Land of Illusion is now the scene of an investigation by the Butler County Sheriff’s Office. A 14-year-old park guest died shortly after she was pulled from the water Tuesday, July 20.

Mykiara Jones, a freshman at Middletown High School, was under the water about 30 minutes before she was pulled out by a water park staff member, according to the sheriff’s office.

The teen was flown to Children’s Hospital in Dayton, where she was pronounced dead, sheriff’s officials have said.

The Montgomery Coroner’s Office said Sunday and again Monday it has not released her preliminary cause of death yet.

The sheriff’s office has said they are investigating the incident and refers to Mykiara in a news release as a “drowning victim.”

Last week, Sheriff Richard Jones announced he would be contacting the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) and the Ohio Attorney General’s Office for assistance.

On Friday, Ohio Attorney General Dave Yost told FOX19 NOW: “Any loss of life is a tragedy—it’s even worse when it’s a child, a young life full of promise and possibilities. We are closely monitoring the investigation through local law enforcement and with our client agency, the Ohio Department of Agriculture.”

He also said: “My office has been in contact with the Butler County Sheriff’s Office and we stand ready to assist.”

On Monday, Butler County Commissioners emailed the following statement to FOX19 NOW

“The Butler County Board of Commissioners joins the City of Middletown and all county citizens in expressing its deepest sympathies for the tragic loss of Mykiara Jones. The Board is saddened by the passing of one of the County’s youth citizens and future leaders. Thoughts and prayers for peace and comfort are extended to and are with the Richardson and Jones families.

“Due to current litigation, filed by the owner of Land of Illusion and its Aqua Adventure Park, challenging the Board of Commissioners’ denial of a change in zoning, the Butler County Board of Commissioners will not comment any further on this matter during the legal process. The Board of Commissioners, again, extends its heartfelt condolences to the Richardson and Jones families and encourages all county citizens to unite as all heal from this tragedy.”

Land of Illusion started in 1997 with just a haunted trail on Meyer Road at the then-home of owner Oakley, court records state.

It began as a fundraiser for the Madison Township Fire Department and eventually moved to a larger area on Thomas Road, between State Route 4 and Franklin Madison Road, Oakley’s attorneys wrote.

Land of Illusion has grown to include seven haunted attractions that provide entertainment to patrons each fall. The Halloween Haunt Scream Park operates on weekend evenings during September and October each year, according to the lawsuit.

Aqua Adventures water park opened in 2018 and operates late spring to late summer.

“The water park includes an inflatable water slide, a sand beach, sand volleyball courts, paddle boarding, and Butler County’s only water inflatable obstacle course,” Oakley’s lawsuit reads. “Aqua Adventures centers around a managed, natural lake.”

Land of Illusion also began offering “Christmas Glow” in 2017.

“The Christmas Glow is the State’s largest Christmas light drive-thru—with over 3.5 million Christmas lights,” according to the lawsuit.

In addition to the drive-thru, a number of winter attractions are offered: a petting zoo, the 12 Days of Christmas, a gift shop, the Christmas Village, and Santa’s workshop, the suit states.

Land of Illusion also “hosts a small number of musical concerts each year to support local and regional acts. Land of Illusion attracts significant crowds throughout the year and could even have even larger crowds—but Land of Illusion’s parking capacity is limited because the Butler County Defendants refuse to allow him to utilize additional parcels that he owns for parking,” the lawsuit alleges.

It also says: “In operation since 2005, Mr. Oakley has reached the capacity for his current location and wants to expand the attractions offered at Land of Illusion. To do that, he sought approval from the Butler County Defendants to rezone (eight) parcels of property that he owns adjacent to Land of Illusion,” the suit states.

In February 2020, the park announced plans to become a year-round attraction.

The expansion proposal includes a 250-room hotel with indoor and outdoor water parks, campground with 140 hook-ups and 40 cabins, indoor entertainment center with arcade games, bowling and laser tag and an outdoor adventure area with ziplines, climbing zone, challenge course, team building center, canopy walks, ropes courses, kids treetop kingdom play area and hiking trails.

According to an online petition for the project, the expansion would span over 10 years. There would be 180 construction jobs on average annually during the expansion and a total of 500 operating jobs.

Oakley sought approval from Butler County to rezone eight parcels of property that he owns adjacent to Land of Illusion to a Business Planned Unit Development.

“The County recommended that Mr. Oakley seek to change the zoning to a business planned unit development (PUD) rather than piecemeal the zoning across eight different parcels (which already had three different zoning classifications),” the lawsuit states.

The proposal, however, met vocal opposition from residents who already repeatedly had expressed noise and traffic concerns to their elected township and county leaders over the years about Land of Illusion’s various events and attractions.

Sheriff Jones says these complaints prompted him to recently prohibit deputies from work off-duty security details there.

”I didn’t want people to think we were involved in all that and on the take,” he tells FOX19 NOW.

Oakley’s lawsuit says that, initially, Butler County’s planning staff and planning commission recommended approval of the zone-change application.

“But then something changed. Suddenly, the County staff reversed its recommendation. The Butler County Planning Commission changed its recommendation, too,” the suit reads.

In June 2020, the county’s Rural Zoning Commission unanimously voted against the expansion.

Saying it didn’t fit well in the rural township, Butler County commissioners in December also denied the request to rezone 206 acres needed to expand Land of Illusion.

Now, in court records in response to Oakley’s lawsuit, the county says: “The Land of Illusion property was previously the subject of citations for a lack of compliance with the Butler County, Ohio Rural Zoning Resolution and the Butler County Building Code.”

Such instances include but are not limited to, according to the county’s response in the federal court system:

  • On or about October 26, 2000, Oakley was notified that he was in violation of the Zoning Resolution for the running of a commercial business in an A-1 Agricultural Zoning District. He was given ten days to cease and desist from such violation.
  • On or about January 30, 2001, Mr. Oakley applied for a conditional use through the Butler County Board of Zoning Appeals seeking permission to “run a Halloween haunted trail.” On about February 20, 2001, the Butler County Board of Zoning Appeals received a petition indicating, “the following residences of Meyers Rd., situated in Madison Township, Butler County in the state of Ohio are adamantly OPPOSED to the rezoning the property of ....Oakley 7747 Meyers Rd from Residential to Business in any capacity whether it is full time, part time, or seasonal.” This petition stated Mr. Oakley had operated the haunted trail for four years (presumably without the required permits or zoning approvals) prior to such correspondence. Such a petition was signed by neighboring property owners.
  • On or about March 2, 2001, Mr. Oakley was granted permission to run a haunted trail, subject to certain conditions: The placement of a 100-foot buffer of natural vegetation on the east, west, and south side of the haunted trail; No parking on side streets or in the neighbors’ property; No Parking and directional signs be put on Meyers Road; hours of operation to be from 8:00 p.m. until 12:00 a.m. with gates closing at 11:30 p.m. Friday and Saturday, September 15 until October 31; and any changes in ownership or operator of the haunted trail require Board of Appeals approval.
  • Oakley was to come before the Board of Zoning Appeals every August for an annual review of the conditional use.
  • Thereafter, on or about June 6, 2001, Mr. Oakley applied for a conditional use to “request a change on two stipulations placed on the prior conditional use.” On July 3, 2001, such a request was granted.
  • On or about January 20, 2004, Mr. Oakley was granted permission to operate a Christmas trail and Haunted Halloween trail.
  • On or about such time, the use of the existing trail on Meyers Road was abandoned.
  • Oakley at the end of 2004 applied for a zoning change to change the zoning status of a 51-acre parcel from A-1 to B-3. The stated reason was the need to alleviate the annual review and filing for conditional uses. The Planning Commission, Rural Zoning Commission, and the Board of Commissioners approved the change, effective December 18, 2004.
  • On or about December 22, 2014, Brett Oakley, L.O.I. Property, LLC and/or its affiliated entities applied for a zoning change for 103 acres. The purpose of such change was to expand the Halloween theme park to a year-round amusement facility, including paint ball, zip lines, miniature golf, go-karts, and temporary camping. The Planning Commission recommended denial of such application on January 13, 2015, and the Plaintiffs voluntarily withdrew the rezoning request before consideration by the Rural Zoning Commission
  • On or about May 6, 2015, the Land of Illusion property was subject to an adjudication order by the Butler County Building Department, for a failure to have required building and electrical permits.

FOX19 NOW asked Butler County for copies of all citations they mention in their response to the lawsuit, as well as copies of current and former building permits for all structures on the Land of Illusion property.

The county administrator responded that the “Prosecutor’s Office will review your request for public records and advise on the release of them.”

On or about March 25, 2020, LO.I. Property, LLC by and through its agent Jonathan Wocher applied for a zoning change for (about) 227 acres. This new plan added a large campground, hotel, indoor water park, family entertainment center and future “amusement park expansion area” as well as zip lines and enlarged outdoor water park, the suit states.

On June 9, 2020, the Planning Commission recommended approval of the zoning change request.

The Rural Zoning Commission recommended disapproval of the zoning change request. The Plaintiffs again voluntarily withdrew the rezoning request before consideration and vote by the Butler County Commissioners

On or about September 22, 2020, approximately three months after withdrawing the second withdrawn application, LO.I. Property, LLC by and through its agent Jonathan Wocher, refiled requesting a rezoning change.

“It is the Final Application that forms the subject of this dispute,” the county’s response to the lawsuit states.

Following Department of Development staff review and comment, on October 12, 2020, the final application received a negative recommendation from staff. On October 13, 2020, it was recommended for denial by the Butler County Planning Commission meeting by a 4-1-1 vote.

At the Rural Zoning Commission hearing on October 26, 2020, it received a recommended denial of 4-0.

“The reasons for such denial were well documented in the October 12, 2020, staff report, and noted, “Many questions remain to be resolved around this project, despite these questions having been raised months ago.”

County staff went on to document issues with the project, including many surrounding the provision of public utilities, and concerns about public health, safety, and welfare.

On December 7, 2020, after receiving a negative recommendation from Department of Development Staff, the Butler County Planning Commission, and the Butler County Rural Zoning Commission, Butler County Commissioners voted 2-0 to deny the requested rezoning.

Butler County also denies Oakley has been “in operation” since 2005.

“Mr. Oakley has applied for and obtained conditional uses to operate his Halloween haunted trail beginning in 2001. The Butler County Defendants admit that Mr. Oakley has previously sought approval to rezone certain properties....Further answering, following Mr. Oakley’s piecemeal application for conditional uses, staff worked with Mr. Oakley to rezone the property to a business planned unit development (PUD).

“As noted in the Commissioner’s resolution denying the zoning change, the plan submitted by plaintiffs does not comply with the requirements for a B-PUD, including but not limited to the following:

  • The requested zoning map amendment to a B-PUD for Land of Illusion does not conform to the adopted Madison Township proposed Land Use Plan’s recommendation
  • The high intensity commercial recreation uses proposed in the Preliminary Development Plan are likely to adversely impact the existing land uses and have detrimental effects on the surrounding rural development, particularly with respect to development density and intensity, quality of life and enjoyment of property as zoned, and/or other public health, safety and general welfare elements, including but not limited to noise, traffic, sanitary wastewater treatment, storm water runoff, and demand for local emergency services.

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