L.O.I. Property, LLC v. Butler County, Ohio

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

L.O.I. Property, LLC, et al., :

: Case No. 1:20-cv-1020

Plaintiff, :

: Judge Susan J. Dlott

v. :

: Order Overruling Objections, Adopting

Butler County, Ohio, et al., : Report and Recommendation, and Granting

: Motion for Judgment on the Pleadings

Defendants. :

Plaintiffs L.O.I. Property, LLC, B.A.O. Productions, LLC, and Brett Oakley initiated this

action against Defendants Butler County, Ohio, the Butler County Board of County

Commissioners, and Peter Acuff, in his official capacity as the Butler County Planning

Administrator, alleging due process claims, equal protection clause claims, and a violation of the

Butler County Rural Zoning Resolution. (Doc. 1.) Defendants filed a Motion for Judgment on

the Pleadings, which was fully briefed by both parties. (Docs. 17, 25, 35.) On February 12,

2022, Magistrate Judge Karen L. Litkovitz issued a Report and Recommendation recommending

that the Court grant the Motion for Judgment on the Pleadings, dismiss with prejudice the due

process and equal protection claims, and dismiss without prejudice the Rural Zoning Resolution

claim. (Doc. 31.) Plaintiffs then filed Objections to the Report and Recommendation, to which

Defendants filed a Response in Opposition, and Plaintiffs filed a Reply. (Docs. 32, 34, 35.) This

matter is now ripe for the Court’s review. For the reasons that follow, the Court will

OVERRULE the Objections, ADOPT the Report and Recommendation, and GRANT the

Motion for Judgment on the Pleadings.

I. BACKGROUND

Plaintiff Brett Oakley owns and operates Land of Illusion Adventure Park, a regional

family entertainment venue, in Madison Township, Butler County, Ohio. (Doc. 1 at PageID 2.)

In March 2020, Land of Illusion sought a zoning change for a business planned-unit

development (“BPUD”) encompassing 228 acres at 8762 Thomas Road to expand the adventure

park. (Id. at PageID 13–14.) Plaintiffs allege this BPUD request “came at the recommendation

of Butler County planning staff, including Mr. [Peter] Acuff—who suggested that rather than

seeking to piecemeal zoning changes for the property, it would be better to have a cohesive plan

for any future expansion.” (Id. at PageID 13.) Applications for zoning changes such as the

implementation of a BPUD proceeded in stages, beginning with the Butler County Planning

Commission, then to the Butler County Rural Zoning Commission, and finally to the Butler

County Board of County Commissioners. (Doc. 25-1 at PageID 409–410.)

After Plaintiffs submitted their initial zoning-change application in March 2020, “the

Butler County planning staff . . . recommended approval at the preliminary stage,” as did the

Planning Commission on a unanimous basis. (Doc. 1 at PageID 14.) The Rural Zoning

Commission, however, unanimously recommended the application be denied. (Id.) Plaintiffs

allege that prior to a hearing before the Board of County Commissioners, they withdrew the

application “in an effort to take the suggestions and comments from Butler County planning staff

and amend the initial application.” (Id.)

Plaintiffs submitted an amended application on September 22, 2020, which

“contemplated many of the comments from the initial application and made changes to address

concerns expressed by Butler County staff and nearby residents.” (Id.) Despite the changes

made by Plaintiffs, the Butler County planning staff, without offering any explanation, changed

their recommendation from approval of the preliminary BPUD application to denial. (Id. at

PageID 15.) After holding a hearing on the application, the Planning Commission similarly

reversed course, unanimously recommending denial without providing the reasoning for its

decision. (Id.) Plaintiffs also allege the Rural Zoning Commission unanimously recommended

denial of the application without providing any reasoning. (Id.) Ultimately, the County

Commissioners voted to deny Plaintiffs’ application. (Id.)

Defendants supplemented the allegations in the Complaint by filing into the record the

written recommendations of the Planning Commission dated October 13, 2020 and the Rural

Zoning Commission dated October 26, 2020, and the decision of the County Commissioners

dated December 12, 2020. (Doc. 17-1 at 131, 132, and 133–138, respectively.)1 The Planning

Commission stated in conclusory fashion that it was recommending the denial of the requested

zoning change because rezoning was “not generally consistent with the Comprehensive Plan for

Butler County.” (Doc. 17-1 at PageID 131.) Similarly, the Rural Zoning Commission stated

recommended denial because rezoning “is not consistent with the adopted Future Land Use

Plan.” (Id. at PageID 132.)

The County Commissioners were more expansive when they provided the following

findings of fact:

1. The requested zoning map amendment to B-PUD for Land of Illusion (RZC

20-03) does not conform to the adopted Madison Township Proposed Land Use

Plan’s recommendation of residential or agricultural use for the subject site.

2. Analysis of Madison Township’s development over the last 10-20 years shows

very little change in the character of the Township, suggesting that the Land Use

Plan adopted in 2001 is still relevant and applicable:

1 The Court may consider public records that are referenced in or central to the allegations in a complaint without

converting a Rule 12 motion into a Rule 56 motion. See Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673,

681 (6th Cir. 2011); In re Keithley Instruments, Inc. Sec. Litig., 268 F. Supp. 2d 887, 893 (N.D. Ohio 2002).

a. Since 2000, the Township’s population has only increased by

2%, from 8,611 to 8,772 persons[.]

b. Over the last ten years, there has only been an average of 5.8

new homes built annually, comprising 1.4% of residential permits

issued countywide[.]

c. A Department of Development planning study conducted in

2019 shows that land uses have remained stable over the past two

decades, with only minor fluctuations in the percentage of land

dedicated to agricultural, residential, recreational, commercial, and

industrial uses.

d. Since 2004, the County has considered ten zone change requests

in Madison Township, only five of which were approved (two

cases in 2004 and one case each in 2005, 2011, and 2019). Two

prior zone change requests for the subject site (in 2015 and 2020)

were withdrawn by the applicant.

3. The high-intensity commercial recreation uses proposed in the Preliminary

Development Plan (PDP) are likely to adversely impact the existing land uses and

have detrimental effects on the surrounding rural residential 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.

4. The PDP does not adequately address the aforementioned adverse impacts or

detrimental effects or adjoining property owners’ voiced concerns during the

public hearings process.

5. The PDP does not integrate or demonstrate protections to and for the public

health, safety, and general welfare of the residents of Madison Township and

Butler County, Ohio.

6. Relevant state and local agencies (Ohio EPA, Butler County General Health

District, Butler Soil and Water Conservation District) have questioned the ability

of the proposed project as illustrated in the PDP to provide public services in an

effective manner.

7. The existing zoning districts on the subject site currently allow a broad range

of uses, including production agriculture, residential development, and general

business or institutional uses.

8. The Madison Township Trustees have expressed their opposition to the

requested zoning map amendment.

(Doc. 17-1 at PageID 134–135.) The County Commissioners then denied Plaintiffs’ requested

zoning change concluding that the request was inconsistent with the Land Use Plan and

development patterns in the area; did not promote public health, safety, or welfare of the

adjoining property owners or residents of Butler County; and would constitute unnecessary

business zoning at the expense of adjoining existing land uses. (Id. at PageID 135.)

Less than one week after the denial of their request, Plaintiffs filed their Complaint

against Defendants. Plaintiffs asserted due process claims under the United States and Ohio

Constitutions (Counts One and Two), equal protection claims under the United States and Ohio

Constitutions (Counts Five and Six), and a claim for violation of the Butler County Rural Zoning

Resolution (Count Ten). (Doc. 1.)2 Defendants filed their Answer, and then after the Magistrate

Judge held a preliminary pretrial conference, Defendants filed the pending Motion for Judgment

on the Pleadings. (Docs. 10, 17.) The Magistrate Judge recommended granting judgment with

prejudice to Defendants on the due process and equal protection claims. She also recommended

declining to exercise jurisdiction over the remaining state law claim, and thus dismissing it

without prejudice. (Doc. 31 at PageID 786.)

II. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 12(c), a party may move for judgment on the

pleadings “[a]fter the pleadings are closed—but early enough not to delay trial.” The legal

standard for adjudicating a Rule 12(c) motion is the same as that for adjudicating a Rule 12(b)(6)

motion. Lindsay v. Yates, 498 F.3d 434, 437 n.5 (6th Cir. 2007). To withstand a dismissal

motion, a complaint must contain “more than labels and conclusions [or] a formulaic recitation

of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

2 Plaintiffs also alleged causes of action against Madison Township, Ohio and the Madison Township Board of

Township Trustees, but both defendants were dismissed from this lawsuit in November 2021. (Doc. 26.)

The Court does not require “heightened fact pleading of specifics, but only enough facts to state

a claim for relief that is plausible on its face.” Id. at 570 (emphasis added). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). A district court examining the sufficiency of a complaint must accept the well-

pleaded allegations of the complaint as true. Id.

When objections to a magistrate judge’s report and recommendation are received on a

dispositive matter, the assigned district judge “must determine de novo any part of the magistrate

judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). After review,

the district judge “may accept, reject, or modify the recommended disposition; receive further

evidence; or return the matter to the magistrate judge with instructions.” Id.; see also 28 U.S.C.

§ 636(b)(1)(B). General objections are insufficient to preserve an issue for review: “[a] general

objection to the entirety of the [magistrate judge’s] report has the same effects as would a failure

to object.” Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).

III. ANALYSIS

Plaintiffs raise a host of objections to the Report and Recommendation, many of which

simply re-hash the arguments they made in the original round of briefing on the Motion for

Judgment on the Pleadings. The Court will not address each of Plaintiffs’ objections, but rather

will highlight a few specific objections. Upon consideration, the Court agrees with and will

adopt the well-reasoned analysis of the Magistrate Judge.

A. Due Process Claims

Plaintiffs allege that Defendants violated their substantive and procedural due process

rights in violation of the United States and Ohio Constitutions. (Doc. 1 at PageID 16–22.) The

Magistrate Judge correctly determined that the federal and state due process claims could be

addressed together. Tri-Cty. Concrete Co. v. City of N. Royalton, No. 98-3262, 1999 WL

357789, at *4 (6th Cir. May 14, 1999); see also Simpkins v. Grace Brethern Church of Del.,

Ohio, 149 Ohio St. 3d 307, 75 N.E.3d 122, 132 (2016) (“We have generally recognized the Ohio

Constitution’s ‘due course of law’ provision as the equivalent of the Due Process Clause in the

United States Constitution.”). “Procedural due process is traditionally viewed as the requirement

that the government provide a ‘fair procedure’ when depriving someone of life, liberty, or

property.” EJS Properties, LLC v. City of Toledo, 698 F.3d 845, 855 (6th Cir. 2012).

“[S]ubstantive due process protects individual liberty against certain government actions

regardless of the fairness of the procedures used to implement them.” Id. (internal quotation and

citation omitted). A plaintiff must have a protectable property interest to establish either type of

due process violation. See Tollbrook, LLC v. City of Troy, 774 F. App’x 929, 933 (6th Cir. 2019)

(regarding substantive due process); Wayne Watson Enters., LLC v. City of Cambridge, 751 F.

App’x 760, 763 (6th Cir. 2018) (regarding procedural and substantive due process).3 “Property

rights are created and defined by independent sources such as state law and not by the

Constitution.” Braun v. Ann Arbor Charter Twp., 519 F.3d 564, 573 (6th Cir. 2008).

“In order to have a property interest in a benefit, a person must have more than a desire

for it or unilateral expectation of it; rather, he must have a legitimate claim of entitlement to it—

in this case, a legitimate claim or an entitlement to a rezoning.” Id. (internal quotation and

citation omitted). “A property owner arguably has a property right where the government

rezones an existing property.” Id. “Citizens have a substantive due process right not to be

subjected to arbitrary or irrational zoning decisions.” Tollbrook, 774 F. App’x at 933 (citation

3 Although Plaintiffs assert a violation of undefined liberty interests in the Complaint, they argue in their briefs only

that their property rights were denied.

omitted). However, “in order to establish a property right in a future, rezoned land use, an

individual must point to some policy, law, or mutually explicit understanding that both confers

the benefit and limits the discretion of the [government] to rescind the benefit.” Braun, 519 F.3d

at 573 (cleaned up). It follows that “[a] party cannot possess a property interest in the receipt of

a benefit when the [government]’s decision to award or withhold the benefit is wholly

discretionary.” EJS Props., 698 F.3d at 856 (citation omitted). For example, “when a

municipality retains the discretion to deny a plaintiff’s requested land use, even if all mandatory

requirements are met, he does not have the requisite legitimate claim of entitlement or justifiable

expectation needed to establish a property interest in a particular use of his land.” McGuire v.

City of Moraine, Ohio, 178 F. Supp. 2d 882, 892 (S.D. Ohio 2001) (internal quotations and

citations omitted).

Plaintiffs argue that the Magistrate Judge erred in determining that they did not have a

protectable property interest in having their application for a preliminary BPUD approved.

Specifically, Plaintiffs argue that this case is more like Ritz v. City of Findlay, No. 3:07 CV 3716,

2009 WL 1954635 (N.D. Ohio July 6, 2009), than Oberer Land Developers, Ltd. v. Sugarcreek

Twp., No. 3:19-cv-82, 2020 WL 1466184 (S.D. Ohio Mar. 26, 2020). In Ritz, the court found

that a city planning committee lacked discretion to deny the plaintiffs’ land use application

because it fully conformed with the city ordinance requirements. 2009 WL 1954635, at *5. The

applicable city ordinance stated that the commission “shall consider” certain matters and then

approve, approve with conditions, or “reject the site plan submission if it is nonconforming.” Id.

The court found that the ordinance’s use of the term “shall” required the planning committee to

approve all conforming applications, with or without conditions, and that this requirement

established a constitutionally protected property interest. Id. at *5-6. In Oberer, conversely, the

applicable zoning resolution provided a list of criteria for the board of trustees to consider when

reviewing a plan submission, but “nothing indicate[d] that, if all the criterial were satisfied, the

application must be approved.” 2020 WL 1466184, at *7. The district court in Oberer also

found that that some of the zoning criteria set forth in the zoning resolution were subjective, not

objective, adding to the discretionary nature of the zoning decision. Id. The district court

concluded that because a board of trustees “had discretion to approve or reject the proposed

development plan,” the developer plaintiffs did not have a protected property interest in

approval. 2020 WL 1466184, at *5.

This Court agrees with the Magistrate Judge that Ritz is distinguishable and Oberer is the

more instructive precedent. Plaintiffs do not challenge the Magistrate Judge’s finding that a

county commission’s approval of a preliminary BPUD application is discretionary under Ohio

Revised Code § 303.12(E)–(H). Instead, Plaintiffs argue that approval of a preliminary BPUD is

not discretionary under the Rural Zoning Resolution.

The Rural Zoning Resolution here provides a list of eight conditions in §§ 13.041–13.048

required for approval of a preliminary BPUD application, but it does not mandate approval if the

conditions are met. (Doc. 25-1 at PageID 411.) Instead, it provides that the County

Commissioners can “approve, modify, or disapprove the application.” (Id. at PageID 410.)

Moreover, as in Oberer, some preliminary approval conditions in the Rural Zoning Resolution

are inherently subjective. Condition § 13.044 requires a finding that the proposed uses will have

a “beneficial effect” on the present and potential surrounding land uses, and condition § 13.048

requires a finding that the proposed plan would “promote health, safety, and general welfare” of

Butler County residents. (Id. at PageID 411.) Because at least two of the approval conditions

were inherently subjective, and because approval was not mandatory even if the conditions were

satisfied, Plaintiffs did not have a legitimate claim to entitlement of approval of their preliminary

BPUD application. Accordingly, Plaintiffs have failed to allege that they have a protected

property interest, and Defendants are entitled to judgment on the pleadings on the substantive

and procedural due process claims.

B. Equal Protection Claims

Plaintiffs also object to the Magistrate Judge’s recommendation that the equal protection

claims be dismissed. Plaintiffs allege that Defendants subjected Plaintiffs to unequal treatment

because they previously voted to approve some zoning changes that are inconsistent with the

Madison Township Land Use Plan and other zoning changes that are inconsistent with current

land use plans. (Doc. 1 at PageID 28–31.) “Equal Protection claims under the Ohio Constitution

and the Fourteenth Amendment of the United States Constitution are governed by essentially the

same standards.” Ullmo v. Ohio Tpk. & Infrastructure Comm’n, 126 F. Supp. 3d 910, 919 (N.D.

Ohio 2015).

The Equal Protection Clause provides that “[n]o State shall . . . deny to any person within

its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “To state an

equal protection claim, a party must claim that the government treated similarly situated persons

differently.” Braun, 519 F.3d at 574. Equal protection claims can be brought by a “class of

one,” where the plaintiff alleges that the state treated the plaintiff differently from others

similarly situated and that there was no rational basis for such difference in treatment. Warren v.

City of Athens, Ohio, 411 F.3d 697, 710 (6th Cir. 2005). A class-of-one plaintiff may

demonstrate that a government action lacks a rational basis by negating every conceivable basis

which might support the government action or by demonstrating that the action was motivated by

animus or ill will. Id. at 711. The ill will or animus must be directed towards the class-of-one

plaintiff personally, not towards the zoning application. Ziss Bros. Constr. Co. v. City of

Independence, 439 F. App’x 467, 479 (6th Cir. 2011).

The Magistrate Judge recommended dismissing Plaintiffs’ equal protection claims in part

because Plaintiffs failed to adequately plead that they were treated differently than similarly-

situated zoning applicants. The Magistrate Judge stated that Plaintiffs’ broad allegations “based

on information and belief” that “the other property owners [who] were treated differently (better)

than [Plaintiffs] were similarly situated in all material respects” did not satisfy the Iqbal-

Twombly plausibility standard. (Doc. 1 at PageID 29, 30.) Plaintiffs object that the Magistrate

Judge erred because allegations based on information and belief can satisfy the plausibility

standard. Plaintiffs are correct in the abstract, but the Court agrees with the Magistrate Judge

that their allegations did not meet the plausibility standard.

Allegations based upon information and belief are appropriate “where a complaint

contains supporting factual allegations.” Cassidy v. Teaching Co., LLC, No. 2:13-CV-884, 2014

WL 1599518, at *3 (S.D. Ohio Apr. 21, 2014). For example, facts may be alleged on

information and belief when the facts are in the possession of the defendant. Id. A plaintiff

“must plead facts that create a permissible inference of wrongdoing.” In re Darvocet, Darvon, &

Propoxyphene Prods. Liab. Litig., 756 F.3d 917, 931 (6th Cir. 2014) (internal quotation and

citation omitted). “The mere fact that someone believes something to be true does not create a

plausible inference that it is true.” Id. “The plausibility of an inference depends on a host of

considerations, including common sense and the strength of competing explanations for the

defendant’s conduct.” 16630 Southfield Ltd. P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504

(6th Cir. 2013).

Plaintiffs’ allegations in this suit fail because they do not provide facts to support the

allegations based on “information and belief.” Plaintiffs do not allege that the supporting facts

about similarly-situated zoning applicants are solely in the possession and control of Defendants.

At least some records pertaining to the actions taken by Defendants are public records. For

example, the meeting agenda, minutes, and audio recordings for the Rural Zoning Commission

are available online. Butler County Department of Development, Rural Zoning Commission,

http://development.butlercountyohio.org/content/txtcontent/plan/RuralZoningComm.cfm (last

viewed 5/11/2022.)

Also, the Court notes that Plaintiffs asserted in the Factual Allegations section of the

Complaint that “the County Commissioners permitted the B-PUD along Trenton Franklin

Road—the current home to Rowe Sports Complex—despite it not being consistent with the

Township’s 2001 Land Use Plan.” (Doc. 1 at PageID 11.) Plaintiffs do not allege, however, that

the Rowe Sports Complex BPUD developers were similar to them in all relevant respects. They

do not allege facts about the size of the Rowe Sports Complex BPUD, the land uses and zoning

of the surrounding areas, or its impact upon public health, safety, or welfare of Butler County

residents—facts that might have enabled the Court to determine whether it is plausible that

Plaintiffs were similarly situated to the Rowe Sports Complex BPUD developers. Plaintiffs’

upon-information-and-belief allegations here are not sufficient to state a plausible claim that

Defendants treated similarly-situated applicants differently.

Separately, Plaintiffs also object that the Magistrate Judge erred in determining that they

had not adequately pleaded that Defendants acted with animus or ill will. Plaintiffs identify only

two allegations that might support a finding that Defendants acted with animus or ill will. First,

Plaintiffs allege that sometime between 1997 and 2004 Defendants forced Plaintiff Oakley to

close a haunted trail operation located at his home on Meyer Road that he used to raise funds for

the Madison Township Fire Department. (Doc. 1 at PageID 6.) However, Plaintiffs allege in the

next paragraph that Oakley “purchased an old salvage yard in 2004” to expand the Halloween

operation “into a more permanent and safer environment.” (Id.) The plausible inference from

these allegations taken together is that Defendants had concerns about the safety of the haunted

trail on residential property, not that Defendants had ill will or animus towards Plaintiff Oakley.

Second, Plaintiffs assert that Defendants’ denial of Plaintiffs’ preliminary BPUD

application despite Defendant Acuff’s recommendation to apply for a business planned-unit

development at the site indicates ill will or personal animus. The Court does not agree.

Plaintiffs do not allege that Acuff guaranteed or could have guaranteed the support of the County

Commissioners for a BPUD at the site. Rather, the Rural Zoning Resolution at § 13.02 expressly

provides that statements by the Zoning Administrator and the Planning Commission prior to the

preparation of a preliminary planned-unit development are not binding upon the County

Commissioners. (Doc. 25-1 at PageID 409.) Plaintiffs also have not pleaded facts suggesting

that Defendants made statements that indicated hostility towards Plaintiff Oakley or towards his

associated businesses. Instead, Plaintiffs make the circular argument that Defendants must have

had animus against him because they denied the preliminary BPUD application, and that they

denied the preliminary BPUD application because they had animus against him. Plaintiffs’

argument also is undercut by their factual allegations that Defendants approved for Plaintiffs a

specific zoning change in 2005 and “a number of variances and conditional-use permits”

between 2005 and 2020. (Doc. 1 at PageID 13.)

The Court concludes that Plaintiffs have not stated a plausible claim that Defendants

treated Plaintiffs differently than similarly-situated zoning applicants nor that Defendants acted

with ill will or malice towards Plaintiffs. The class-of-one equal protection claims fail as a

matter of law.

C. Dismissal with Prejudice

Before turning to the remaining state law claim, the Court will address Plaintiffs’

argument that the Magistrate Judge should not have dismissed Plaintiffs’ due process and equal

protection claims with prejudice. They request that any dismissal be made without prejudice so

that Plaintiffs can address the deficiencies in the Complaint. However, Plaintiffs have not moved

to amend the Complaint nor identified additional factual allegations that would make their claims

sustainable. The Court will deny this roundabout request to amend. “A dismissal for failure to

state a claim under Federal Rule of Civil Procedure 12(b)(6) is a judgment on the merits, and is

therefore done with prejudice.” Pratt v. Ventas, Inc., 365 F.3d 514, 522 (6th Cir. 2004) (cleaned

up). If Plaintiffs wanted to move to amend their Complaint, they should have filed a motion to

amend and a proposed amended complaint before the Magistrate Judge issued her Report and

Recommendation. Cf. Begala v. PNC Bank, Ohio, Nat’l Ass’n., 214 F.3d 776, 783–784 (6th Cir.

2000) (affirming a district court decision that the plaintiffs were not entitled to an advisory

opinion informing them of the deficiencies of their complaint and an opportunity to amend).

D. Remaining State Law Claim

Plaintiffs allege in their final claim that Defendants violated the Butler County Rural

Zoning Resolution. (Doc. 1 at PageID 34–36.) The Magistrate Judge recommended that the

Court decline to exercise supplemental jurisdiction over this claim because the federal claims are

being dismissed with prejudice. Plaintiffs’ only objection to this recommendation is that

dismissal of the state claim is not necessary because the federal claims should not be dismissed.

The Court is dismissing the due process and equal protection claims with prejudice.

Accordingly, the Court will decline to exercise jurisdiction over this claim pursuant to 28 U.S.C.

§ 1367(c)(3).

IV. CONCLUSION

For the foregoing reasons, Plaintiffs’ Objections are OVERRULED, the Report and

Recommendation is ADOPTED, and Defendants’ Motion for Judgment on the Pleadings is

GRANTED. (Docs. 17, 31, 32.) The due process claims (Counts One and Two) and equal

protection claims (Counts Five and Six) are dismissed with prejudice. The claim for violation of

the Rural Zoning Resolution (Count Ten) is dismissed without prejudice.

IT IS SO ORDERED.

BY THE COURT:

S/Susan J. Dlott

Susan J. Dlott

United States District Judge