                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 11a0646n.06
                                                                                               FILED
                                             No. 10-1222
                                                                                          Aug 31, 2011
                           UNITED STATES COURT OF APPEALS                          LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


SHARON L. SCHELLENBERG                      and     )
DAVID W. RIGGLE,                                    )
                                                    )
        Plaintiffs-Appellants,                      )
                                                    )   ON APPEAL FROM THE UNITED
v.                                                  )   STATES DISTRICT COURT FOR THE
                                                    )   WESTERN DISTRICT OF MICHIGAN
TOWNSHIP OF BINGHAM and                             )
ROBERT W. FOSTER,                                   )

        Defendants-Appellees.


Before: MOORE and GIBBONS, Circuit Judges, and BORMAN, District Judge.*

        JULIA SMITH GIBBONS, Circuit Judge. Plaintiffs-appellants Sharon L. Schellenberg

and David W. Riggle appeal a district court order granting summary judgment to defendants-

appellees the Township of Bingham and Robert W. Foster. They argue pursuant to 42 U.S.C. § 1983

that the defendants violated their equal protection rights by treating them unfavorably during the

application process for a special land use permit. Schellenberg and Riggle contend that the district

court’s disparate treatment analysis was flawed, that the court failed to construe the facts in the light

most favorable to them, and that the court improperly refused to grant their motion to alter or amend




        *
       The Honorable Paul D. Borman, United States District Judge for the Eastern District of
Michigan, sitting by designation.

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judgment pursuant to Federal Rule of Civil Procedure 59(e). For the reasons that follow, we affirm

the district court.

                                                 I.

        On February 20, 2006, Schellenberg and Riggle applied to Bingham Township, Leelanau

County, Michigan, for a cluster-housing special land use permit (“SLUP”) to build a second house,

known as the Baywatch project, on their three acres of property. The plaintiffs sought to reserve 1.5

acres of their property as undeveloped land and to build the second house on the remaining 1.5 acres.

Bingham Township is zoned for one house per acre; however, the Bingham Township Zoning

Ordinance (“Zoning Ordinance”) allows residents to apply for cluster-housing permits in order “to

retain the rural atmosphere of Bingham Township, and to protect the wetlands, farmlands,

woodlands, and other open space.” Because clustered housing is deemed a special land use, Article

XI of the Zoning Ordinance requires applicants to obtain a SLUP from the Township’s Planning

Commission (“Commission”) and sets forth the requirements for approval. SLUP applications, in

pertinent part, must comply with the provisions of the health department. Under Article XI, the

Commission may grant a SLUP “after the plans for development have been presented at a public

hearing, and reviewed by all affected government agencies.” If the Commission denies the SLUP,

the applicant may re-apply after “the expiration of 120 days from the date of denial.”

        On March 3, 2006, after submitting their application, the plaintiffs received a letter from

Charles E. Grant, the Township’s Environmental Sanitarian, apprising them of potential sewage

disposal problems on their proposed land division. The letter noted that their property “did not show

any area that meets [the Township’s] conventional sanitary code.” By correspondence dated March

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26, 2006, the plaintiffs also were informed by the Township Planner, Rochelle Rollenhagen, of

various deficiencies in their application: it did not show the proposed location of any new buildings,

the topography of the proposed construction site—including the natural features and vegetation—

or sewage disposal plans. Rollenhagen’s letter stated that the Commission would consider the

plaintiffs’ application withdrawn unless they supplemented it with the required information within

30 days. On April 16, Schellenberg and Riggle submitted supplemental data to the Commission,

which they allege cured any problems in their application.

       Although the record indicates that the plaintiffs’ application initially was scheduled for

review at the Commission’s meeting on July 6, 2006, the hearing was delayed upon the

recommendation of the Township’s attorney, Robert Parker, who advised postponing action until

a dispute concerning the plaintiffs’ land division application for the project was resolved.1 On

September 15, 2006, after meeting with the plaintiffs, Steven Patmore, the Zoning Administrator,

advised Schellenberg and Riggle that the Commission would review their application and, “if

complete . . . [would] send out Public Notice and add the project to the agenda of a Planning




       1
         Article X § 10.6 of the Zoning Ordinance requires applicants seeking cluster housing permits
to abide by the requirements of Article XI and to “meet the requirements of the Articles pertaining
to the method of conveyance. (i.e. Site Condominium, Subdivision, Land Division).”
Rollenhagen’s March 26 letter stated that “it is unclear from your application as to how you plan to
convey the proposed property in the project. If this is a Land Division, the Township will require
a complete application for Land Division to be submitted with the requested supplemental
information.” However, following discussions during the summer, Steven Patmore, the Zoning
Administrator, advised the plaintiffs to proceed with their SLUP application and then to seek land
division approval.

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Commission meeting.” Patmore assured the plaintiffs that he would “treat [their] application no

different than any other.”

       On November 2, 2006, the plaintiffs’ application was scheduled for a public hearing at the

Commission’s December 7 meeting. Schellenberg acknowledges that she received written notice

of the December 7 hearing, and although the plaintiffs could not attend, they neither objected to the

date nor requested a postponement. At the hearing, the Commission denied their application by a

6–1 vote. Schellenberg and Riggle received the Record of Action concerning the Commission’s

decision “sometime around Christmas.”

       On April 26, 2007, after meeting with Parker, Rollenhagen, and Patmore, the plaintiffs were

informed in writing of their right to file a new SLUP application because the 120-day waiting period

had elapsed. Although Schellenberg and Riggle had submitted revised plans to the Township in

February 2007, the April 26 letter advised them that “there was no Application or fee transmitted to

the Township, nor had the 120 days expired,” and that a new application was therefore required. The

record indicates that the plaintiffs did not file a new application.

       Instead, the plaintiffs filed suit against Bingham Township in the Leelanau County Circuit

Court on April 30, 2007, appealing the denial of their SLUP application. See Schellenberg, et al.

v. Bingham Twp., No. 07-7475-AW (Leelanau Cnty. Cir. Ct. filed Apr. 30, 2007.) The plaintiffs

alleged that the Commission violated the Township’s Zoning Ordinance by denying their

application; that the denial “was purely arbitrary, capricious, and unfounded”; and that it “resulted

in a temporary taking of [their] property.” They sought both monetary damages based upon an

alleged taking of property and a writ of mandamus to compel the Commission to approve their

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application. The defendants, in turn, sought summary disposition of the claims on the grounds that

“the state court lacked subject matter jurisdiction because plaintiffs failed to timely appeal from the

Planning Commission’s decision.”

        On July 25, 2007, while their state-court case was pending, the plaintiffs filed suit in federal

district court against the Township and former Township Supervisor, Robert Foster. In their

Amended Complaint, filed in January 2008, Schellenberg and Riggle alleged under 42 U.S.C. § 1983

that the defendants had violated the plaintiffs’ equal protection rights under the United States and

Michigan Constitutions by subjecting them to disparate treatment and illegitimate animus during the

SLUP application process. On their claim of disparate treatment, the plaintiffs contended that the

defendants “intentionally imposed requirements on Plaintiffs in regard to the Baywatch project not

required of similarly situated individuals on similar projects.” On their claim of illegitimate animus,

the plaintiffs contended that Township employees, including Foster, harbored ill-will based upon the

“numerous disputes that the Defendants and Plaintiffs have had over several years, several of which

resulted in litigation.”2

        On September 4, 2007, the state court issued an order granting the Township’s motion for

summary disposition. Schellenberg and Riggle sought reconsideration of the state court order and

also moved to disqualify the state court judge based upon allegations of bias and financial interest


        2
         The plaintiffs have a contentious legal history with the Township. Although these disputes
are unrelated to the present litigation, Schellenberg and Riggle first sued Bingham Township in 2004
in the Leelanau County Circuit Court for alleged violations of Michigan’s Land Division Act and
the Township’s Land Division Ordinance. The plaintiffs filed two additional suits in the circuit court
for alleged violations of the Freedom of Information Act (“FOIA”) and Michigan’s Open Meetings
Act.

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in the matter. However, these motions were denied, and the plaintiffs did not pursue further appeals

of the state court decision.

       In November 2008, the defendants filed a motion to dismiss the federal case pursuant to

Fed. R. Civ. P. 12(b)(6) and 12(b)(1) or, in the alternative, sought summary judgment pursuant to

Fed. R. Civ. P. 56. The defendants argued that Schellenberg and Riggle failed to exhaust their

administrative remedies by electing not to reapply for a cluster-housing permit; that the plaintiffs’

Complaint served as an improper appeal from the state court’s judgment that was barred by the

Rooker-Feldman doctrine or by claim-preclusion; and that the plaintiffs had not alleged viable equal

protection claims against the Township or Foster. In particular, the defendants noted that

Schellenberg and Riggle had not identified any similarly situated individuals and that the

Commission had a rational basis for rejecting the plaintiffs’ application based upon sewage disposal

concerns.

       In July 2009, following unsuccessful settlement negotiations, the district court granted the

defendants’ motion for summary judgment on the ground that Schellenberg and Riggle had not

demonstrated disparate treatment and thus had failed to establish a cognizable “class of one” equal

protection claim. The court rejected the plaintiffs’ argument that “all applicants” were similarly

situated to the plaintiffs and also rejected the plaintiffs’ alternative argument that the Michele and

Alan Weverstad, owners of the adjacent Lee Point’s Island View project (“Island View”), were

similarly situated. Rather, the court noted that “unlike the [Island View] project, the Baywatch

project had sewage issues that drew the attention of the health department.” The court thus



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concluded that “[i]n at least this material respect, the Baywatch project is not similarly situated to

the [Island View] project.”

       Thereafter, Schellenberg and Riggle filed a motion to alter or amend judgment under

Fed. R. Civ. P. 59(e) on the grounds that they had established disparate treatment and that the court’s

equal protection analysis was deficient. The district court denied the plaintiffs’ Rule 59(e) motion

on January 25, 2010, and the plaintiffs timely appealed.

                                                  II.

       We review a district court’s grant of summary judgment de novo. Braun v. Ann Arbor

Charter Twp., 519 F.3d 564, 569 (6th Cir. 2008). A grant of summary judgment is proper “if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247–48 (1986). The moving party bears the initial burden of showing that “there is no

dispute regarding any genuine issue of material fact, and this burden can be satisfied by

demonstrating . . . that there is no evidence underlying the nonmoving party’s case.” Slusher v.

Carson, 540 F.3d 449, 453 (6th Cir. 2008). Once the moving party meets this burden, “the opposing

party must go beyond the contents of its pleadings to set forth specific facts that indicate the

existence of an issue to be litigated.” Id.; Fed. R. Civ. P. 56(c)(1) (describing the materials a party

may rely upon to support its assertions).

       In reviewing the record, we view factual evidence in the light most favorable to the non-

moving party and draw all reasonable inferences in that party’s favor. Slusher, 540 F.3d at 453. Our



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Schellenberg, et al. v. Township of Bingham, et al.

ultimate inquiry “is whether the state of the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.

                                                  III.

        The plaintiffs challenge the district court’s equal protection analysis. They contend that,

owing to their acrimonious legal history with the Township, the Commission imposed “hurdles” in

their application process “that other applicants were free to skip completely.” In reply, the

defendants maintain that the plaintiffs have not identified any similarly situated individuals and have

not established that the Commission acted with discriminatory animus.

        The plaintiffs have raised their equal protection claim under 42 U.S.C. § 1983.3 The

Fourteenth Amendment’s Equal Protection Clause provides that no state shall “deny to any person

within its jurisdiction the equal protection of the laws.” U.S. Const. amend XIV, § 1. Under the

Equal Protection Clause, “the states cannot make distinctions [that] . . . burden a fundamental right,

target a suspect class, or intentionally treat one differently from others similarly situated without any

rational basis for the difference.” Radvansky v. City of Olmstead Falls, 395 F.3d 291, 312 (6th Cir.

2005); see also Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). We have recognized that



        3
         To state a viable claim under § 1983, “a plaintiff must allege the violation of a right secured
by the Constitution or laws of the United States and must show that the deprivation of that right was
committed by a person acting under color of state law.” Harbin-Bey v. Rutter, 420 F.3d 571, 575
(6th Cir. 2005). The liability of a local government, such as the Township, under § 1983 “depends
solely on whether the plaintiff’s constitutional rights have been violated as a result of a ‘policy’ or
‘custom’ attributable to the county or local government.” Holloway v. Brush, 220 F.3d 767, 772 (6th
Cir. 2000) (en banc). Although government officials may be entitled to qualified immunity in certain
instances, this court need not address that issue because the plaintiffs have failed to demonstrate any
deprivation of their Fourteenth Amendment equal protection rights.

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“[w]here, as here, a plaintiff alleges a violation of the third type, it is said to proceed on a ‘class of

one’ theory.” Taylor Acquisitions, L.L.C. v. City of Taylor, 313 F. App’x 826, 836 (6th Cir. 2009)

(quoting Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, 470 F.3d 286, 298 (6th

Cir. 2006)).

        To prevail on a “class of one” equal protection claim, the plaintiffs must prove that the

government treated similarly-situated individuals differently. Braun, 519 F.3d at 574. Materiality

is an essential element of this test. TriHealth, Inc. v. Bd. of Comm’rs, 430 F.3d 783, 790 (6th Cir.

2005). Thus, to satisfy this inquiry, the plaintiffs “must allege that [they] and other individuals who

were treated differently were similarly situated in all material respects.” Taylor, 313 F. App’x at

836; see also TriHealth, 430 F.3d at 790 (noting that “disparate treatment of persons is reasonably

justified if they are dissimilar in some material respect”).

        If the plaintiffs succeed in demonstrating that they were treated differently from similarly-

situated individuals, they must further prove that the government lacked a rational basis for its

action. TriHealth, 430 F.3d at 791. This test is a narrow one, and we “will not overturn government

action unless the varying treatment of different . . . persons is so unrelated to the achievement of any

combination of legitimate purposes that [the court] can only conclude that the [government’s] actions

were irrational.” Warren v. City of Athens, 411 F.3d 697, 710 (6th Cir. 2005) (internal quotation

marks omitted) (alterations in original). In a “class of one” case, the plaintiffs may demonstrate that

the government’s action lacked a rational basis “either by negativing every conceivable basis which

might support the government action, or by showing that the challenged action was motivated by

animus or ill-will.” TriHealth, 430 F.3d at 788. Here, Schellenberg and Riggle rely upon the latter

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theory, arguing that the defendants “imposed additional application requirements in a spiteful effort

. . . toward [them] for suing the township” previously.

                                                 A.

       Schellenberg and Riggle argue here, as before the district court, that we must consider “all

property owners in Bingham Township who apply for a Special Land Use Permit” as similarly

situated to them for the purpose of our equal protection analysis because all applicants must “be

treated equally and under the same standards and guidelines.” The plaintiffs maintain that the

Commission imposed higher standards upon their application; demanded additional information not

required of other applicants; and refused to process their application, as mandated by the Zoning

Ordinance. In particular, they argue (1) that Foster requested the involvement of Parker, the

Township attorney, in reviewing their SLUP application, although Foster’s assistance was not

required in reviewing other applications; (2) that the Commission demanded a land division

application as part of their SLUP application while not requiring the same of other applicants; and

(3) that Rollenhagen improperly required septic approval from the health department. The district

court rejected these arguments, as do we.

       As an initial matter, we reject Schellenberg and Riggle’s argument that “all [SLUP]

applicants” are similarly situated to them. Indeed, we have recognized that “bare allegations that

other applicants, even all other applicants, were treated differently is insufficient” to establish an

equal protection violation unless the plaintiff shows that “these other applicants were similarly

situated to the plaintiff.” Taylor, 313 F. App’x at 836 (internal quotation marks omitted) (editorial

marks omitted). In Braun, for example, we affirmed a district court’s grant of summary judgment

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to the defendants on a similar equal protection claim asserted by plaintiffs who sought to re-zone

their commercial farm property for residential use. 519 F.3d at 574–75. We stated that “the failure

to make any concrete allegations with respect to similarly situated persons mandate[d] a grant of

summary judgment in the defendant’s favor.” Id. at 575. Here, we likewise conclude that the

plaintiffs cannot establish a cognizable “class of one” equal protection claim merely by relying upon

the unsupported assertion that “all applicants” are similarly situated.

       The plaintiffs next contend that Foster “singl[ed] [them] out” by requesting Parker’s

involvement in reviewing their SLUP application and that this request constituted disparate

treatment. To support this argument, the plaintiffs state that Rollenhagen testified that no other

application had been treated in this manner. This argument, however, misstates Rollenhagen’s

deposition testimony, in which she remarked that she could not recall whether Parker had assisted

in the review of other applications. Moreover, the plaintiffs have not explained how Parker’s

involvement resulted in any unequal treatment of them during the application review process. For

example, the plaintiffs have not alleged that Parker’s involvement resulted in more exacting review

of their application. Instead, they argue without elaboration that “no other application had ever been

singled out for attorney involvement at the application stage.” This unsupported argument

concerning Parker’s review of the plaintiffs’ application is insufficient to permit an inference of

unlawful discrimination.

       Furthermore, even assuming that Parker’s review of their application constituted disparate

treatment, the plaintiffs have not established that the Township lacked a rational basis for requesting

Parker’s involvement in light of the plaintiffs’ prior lawsuits against the Township. We have

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explained that, in order to prevail upon a “class of one” equal protection claim, the plaintiffs must

establish that similarly situated individuals were treated differently and also “must show that the

adverse treatment they experienced was so unrelated to the achievement of any combination of

legitimate purposes that the court can only conclude that the government’s actions were irrational.”

Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 682 (6th Cir. 2011) (internal quotation marks

omitted). Under rational basis review, the defendants “ha[ve] no obligation to produce evidence to

sustain the rationality of its actions; its choice is presumptively valid and may be based on rational

speculation unsupported by evidence or empirical data.” Club Italia, 470 F.3d at 298 (internal

quotation marks omitted). Here, the plaintiffs have not met “this daunting standard.” 1064 Old

River Rd., Inc. v. City of Cleveland, 137 F. App’x 760, 765 (6th Cir. 2005). At the time of their

application, the plaintiffs had previously filed at least three lawsuits against the Township based

upon alleged violations of FOIA and of Michigan’s Land Division Act and Open Meetings Act.

Given this history of legal disputes, the Township’s decision to include Parker in the review of the

plaintiffs’ SLUP application was eminently reasonable.

       The plaintiffs next contend that Rollenhagen treated them disparately with respect to other

applicants by stating in her March 24, 2006, letter that a land division application was required to

supplement their SLUP application. In the letter, Rollenhagen advised:

       Because the application is incomplete under Article XI [of the Zoning Ordinance],
       an analysis of compliance with Article X Clustered Housing Development can not
       be done until the above concerns are addressed. In addition, it is unclear from your
       application as to how you plan to convey the proposed property in the project. If this
       is a Land Division, the Township will require a complete application for Land
       Division to be submitted with the requested supplemental information.


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Schellenberg and Riggle allege that this demand violated Article XI § 11.11 of the Zoning

Ordinance, which does not include the land division application in the list of “data required” for

SLUP applications. However, contrary to the plaintiffs’ argument, the record indicates that the

plaintiffs, in fact, were not required to obtain land division approval before proceeding with their

SLUP application. On September 15, 2006, Patmore, the Zoning Administrator, advised the

plaintiffs that “the best way to proceed with the review of [their] proposed ‘clustered] metes and

bounds project is to first submit the application . . . for issuance of a Special Land Use Permit, then,

if [it] is issued, proceed with the Land Division Approval.” This statement concerning the land

division application comports with the requirements of Article X § 10.6 of the Zoning Ordinance,

which provides that, in addition to meeting the requirements of Article XI, clustered housing sites

“shall also meet the requirements . . . pertaining to the method of conveyance. (i.e. Site

Condominium, Subdivision, Land Division)[.]” And, the record further indicates that the Township

required land division approval as a condition for granting other applicants’ cluster housing permits.4

Thus, the plaintiffs have not presented evidence permitting the inference that they were treated

differently than similarly situated applicants with respect to the land division application.

        The plaintiffs also generally allege that the Commission required them to “jump through

hoops” by demanding data that was not required under Article XI § 11.11 of the Zoning Ordinance.

Specifically, Schellenberg and Riggle argue that they were subject to “heightened requirements” by


       4
         For example, the plaintiffs have included in the record the Township’s decision
conditionally approving the SLUP application filed by Michele and Alan Weverstad for the Lee
Point’s Island View project. The Township’s conditional grant of the Weverstads’ SLUP application
states that they “[m]ust obtain Land Division Approval” in order to proceed.

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the Commission, which has “never required anyone else to submit [site plans showing] soils, natural

features, vegetation and topography, [the] proposed location of buildings and structures to be

constructed,” or sewering plans. We find this argument meritless. Article XI § 11.11 of the Zoning

Ordinance prescribes data that “shall accompany” the SLUP application. This data includes: “[a]

site plan drawn to scale . . . sufficient to show the lot/lots on which the proposed special use is to

exist or be conducted, including soils, natural features, vegetation and topography; . . . the proposed

location of buildings and structures to be constructed . . . and [the] location of on site sources of

water, lagoons and other sewering plans.” Accordingly, the terms of § 11.11 undermine the

plaintiffs’ contention that the Commission imposed more stringent requirements upon them. Rather,

the Commission requested that the plaintiffs file a complete application, as required by the Zoning

Ordinance.5

                                                  B.

        We now turn our attention to the plaintiffs’ allegation that they were treated less favorably

than several specific cluster-housing applicants.       In particular, Schellenberg testified in her

deposition that Thomas Darga, owner of the Pathways project, and Wayne Kiley, owner of the

Bayview Pines project, were treated more favorably than the plaintiffs during the application process.



       5
         To the extent that the plaintiffs allege that the Township improperly delayed review of their
SLUP application by requiring them to submit data in accordance with §11.11, we also reject this
argument. The record indicates that Schellenberg and Riggle submitted three different versions of
their proposed project throughout the spring and summer of 2006, involving both clustered and non-
clustered site plans. Thus, although the plaintiffs allege that their project was delayed for 11 months,
the record reflects that Schellenberg and Riggle did not decide upon a finalized site plan until
September 2006.

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Schellenberg stated that, based upon her review of the site plans submitted by Darga and Kiley, the

Pathways and Bayside Pines projects were approved by the Commission without documentation of

the natural features, vegetation, sewage disposal plans, and topography of the property. The

plaintiffs also allege that they were treated less favorably than the Weverstads, owners of the Island

View project. In essence, the plaintiffs contend that the Commission typically did not enforce the

requirements of § 11.11 with respect to other cluster housing applicants but did so in their case out

of animosity stemming from the plaintiffs’ legal disputes with the Township.

        The plaintiffs first argue that they were treated less favorably by the Commission than Darga.

Schellenberg testified in her deposition that, based upon her “review[] [of] the original site plan that

was submitted by Pathways,” Darga was not required to submit data concerning “soils, natural

features, vegetation and topography, [the] proposed location of building[s] and structures to be

constructed . . . [or] sewering plans.” The record, however, does not support Schellenberg’s

allegations of unequal treatment. To the contrary, a “Staff Report—Review of Pathways Clustered

Site Condominium Project,” filed on May 24, 2006, indicates that Darga was required to submit data

concerning the natural features, vegetation, and sewering on his property in order to obtain

conditional approval of the Pathways project. The report notes the following: (1) Darga “proposes

to preserve wetlands as open space”; (2) Darga “is working with the Benzie-Leelanau Health

Department for on-site sewage disposal” and “shows septic systems on remote sites”; and (3) Darga

“needs to state clearly the significant ecological areas that will be preserved.”

        The Commission’s minutes from its June 1, 2006, meeting also indicate that Darga, like the

plaintiffs, was required to supplement his application with additional information: Darga “was

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notified of the deficiencies in his application and Planner Rollenhagen will provide [Darga] with a

list of items to be provided to the township prior to approval.” The record therefore makes clear that

the Commission required Darga to submit the data required by § 11.11, and it undermines the

plaintiffs’ argument that the Commission imposed more demanding requirements upon them. See

Umani v. Mich. Dep’t of Corr., No. 10-1169, 2011 WL 2882254, at *7 (6th Cir. July 18, 2011)

(noting that Umani’s claim that he and another prisoner had been subject to adverse treatment

undermined the argument that Umani had received unequal treatment). Schellenberg and Riggle

have not presented evidence that Darga received more favorable treatment by the Commission. See,

e.g., Renchenski v. Williams, 622 F.3d 315, 338 (3d Cir. 2010) (concluding that appellant failed to

establish a “class of one” equal protection claim “because he has adduced no evidence of unequal

treatment”). And, Schellenberg’s own unsupported opinion on this point is insufficient to create a

genuine issue of material fact. See Mitchell v. Toledo Hosp., 964 F.2d 577, 585 (6th Cir. 1992)

(stating that “conclusory allegations and subjective beliefs . . . are wholly insufficient to establish

a claim of discrimination as a matter of law”).

        Second, the plaintiffs submit that Kiley and the Weverstads received more favorable

treatment by the Commission during the review of the Bayview Pines and Island View projects.

They contend that the “Bay[view] Pines cluster project was under consideration . . . repeatedly

amended, and repeatedly approved before and after the date of [Schellenberg and Riggle’s]

application.” In her deposition, Schellenberg testified that Kiley “had multiple hearings at the

planning commission” and that she “wouldn’t be surprised if Bingham Township hasn’t had Wayne

Kiley’s project in hearings more than ten times.” The plaintiffs similarly allege that other applicants,

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such as the Weverstads, were permitted to appear before the Commission “several times before their

application was completed, without a completed site plan or drawing of the project.” However, even

accepting these assertions, Schellenberg’s testimony does not suggest that either Kiley or the

Weverstads received more favorable treatment by virtue of their multiple hearings before the

Commission. Rather, the record indicates that multiple hearings occurred in some cases in order to

cure problems in the applicant’s site plan. For example, the Commission’s April 7, 2007, minutes

state that review of the Island View project was “table[d] until [the] next meeting so further research

[could] be done” to address concerns raised by the Township. And, Schellenberg’s allegation

concerning the inadequacy of her hearing before the Commission is particularly disingenuous given

that the plaintiffs did not attend their public hearing on December 7, 2006, and made no effort to

postpone it until a later, more convenient, date. Thus, we find that the plaintiffs have not come

forward with any evidence of unequal treatment on the basis of their hearing before the Commission.

       The record also does not support Schellenberg’s argument that the Weverstads were not

required to submit a site plan for the Island View project and therefore obtained more favorable

treatment. To the contrary, a staff report by the Commission indicates that the Island View project

initially was scheduled for a public hearing on April 12, 2007; that the Weverstads submitted an

application package for the project on November 9, 2006; and that the Weverstads filed a site plan

on January 30, 2007. In its “general findings of fact,” the staff report further notes that the Island

View “site plan shows three residential parcels and one open space parcel,” and it contains a detailed

description of each proposed lot. Schellenberg’s contention concerning the Island View site plan

is without merit.

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        Third, the plaintiffs argue that the trial court erred in concluding that the Weverstads were

not similarly situated to them. The district court reached this conclusion after considering the

deposition testimony of Rollenhagen, who noted that the Zoning Ordinance obligated cluster housing

applicants to comply with the requirements of the health department and that the health department,

through Grant’s letter and testimony, had expressed concern over the potential sewage problems on

the plaintiffs’ property. Rollenhagen further stated that, unlike the Island View project, “if

something had happened to [Schellenberg’s] septic system, she wouldn’t be able to replace it. And

that was a major concern of the township’s, because . . . she would not be able to live in the house.”

Thus, the Weverstads were not required “to go through the same review [as plaintiffs because] [t]hey

just did not have the same problem.” The plaintiffs, however, contend that the Township’s

comparatively stringent review of their sewage problems constituted unlawful discrimination.

        In Rondigo, we evaluated a similar claim of unlawful discrimination and stated that, even

accepting that an allegedly similarly situated individual “was not in fact subjected to any of these

various adverse treatments, an inference of discriminatory animus arises only if the . . . defendants’

proffered reasons for the actions are negatived or shown to be irrational.” 641 F.3d at 683. There,

the plaintiffs alleged that the Township imposed heightened requirements on their compost

operations application. Id. at 682–83. In rejecting the plaintiffs’ claim we noted that these

requirements “were triggered by the discoveries, during site inspections, that plaintiffs had stockpiled

large amounts of leaves . . . creating potential for groundwater pollution.” Id. at 683. And we noted

that the plaintiffs’ pleadings “substantiate[d] undisputed and facially legitimate reasons for the . . .

defendants’ complained-of actions in regulating plaintiffs’ compost operation . . . reasons that appear

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Schellenberg, et al. v. Township of Bingham, et al.

to be unique to that property.” Id. We therefore held that “no inference of unlawful discrimination

can legitimately arise where the only asserted comparable . . . is shown by plaintiffs’ own pleadings

to be dissimilarly situated in several relevant respects.” Id. at 683–84.

        Here, as in Rondigo, the plaintiffs have not established that the Weverstads were similarly

situated in all relevant respects, nor have they demonstrated that the Commission’s review of their

septic system was irrational. Grant, the Township’s Environmental Sanitarian, repeatedly expressed

concern about sewage disposal plans for the Baywatch project through written correspondence and

through testimony before the Commission. In his March 3, 2006, letter, Grant noted that the

plaintiffs’ site plan, which included a residential parcel containing less than one acre of land, “did

not show any area that meets [the Township’s] conventional sanitary code” and that land divisions

of less than an acre were ineligible for alternative treatment systems or holding tanks. Grant

reiterated this concern at the Commission’s December 7, 2006, meeting, stating that because

“proposed parcel A is less than one acre . . . another permit could not be issued if the existing

[septic] system failed.” Similarly, in its decision denying the plaintiffs’ permit, the Commission

noted that the Township’s health department “could not approve a replacement [septic] system or

the installation of holding tanks should the existing drywell fail” and that the Baywatch project

“creates a potential problem for adequate and safe septic disposal for the existing single family

dwelling (located on parcel A).”

       Because the plaintiffs have not submitted evidence that the Island View project implicated

comparable septic concerns, they have not created a permissible inference that the Weverstads were

similarly situated, and they are not entitled to an inference of unlawful discrimination on this basis.

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Schellenberg, et al. v. Township of Bingham, et al.

See Rondigo, 641 F.3d at 683–84; Braun, 519 F.3d at 575 (rejecting plaintiffs’ equal protection claim

where they “fail[ed] to allege any specific examples of similarly situated individuals”). Schellenberg

and Riggle also have not submitted evidence from which it could be inferred that the Commission

acted with discriminatory animus in reviewing their application; rather, after consulting with the

health department, the Commission expressed legitimate concerns about sewage disposal on the

plaintiffs’ property based upon their proposed land division. Having reviewed the plaintiffs’ various

allegations of unequal treatment, we agree with the district court and conclude that the plaintiffs have

not submitted evidence that could establish a cognizable “class of one” equal protection claim.

                                                  IV.

        Schellenberg and Riggle next argue that the district court failed to construe the facts in the

light most favorable to them in its review of the defendants’ motion for summary judgment. It is

well-settled that the court, when reviewing a motion for summary judgment under Fed. R. Civ. P.

56, views factual evidence in the light most favorable to the non-moving party and draws all

reasonable inferences in that party’s favor. Slusher, 540 F.3d at 449.

        The plaintiffs argue that the district court was required to “accept as true that Plaintiffs are

similarly situated” to all other applicants under the Zoning Ordinance. They further contend that the

district court “failed to accept as true [their] assertion that the Planning Commission treated these

applicants differently during the application process, and imposed additional standards . . . as to what

is required on the application.” We disagree. The plaintiffs’ allegations “are exposed as little more

than ‘legal conclusions couched as factual allegations’” and thus need not be construed in the

plaintiffs’ favor under Rule 56 scrutiny. Cf. Rondigo, 641 F.3d at 684 (stating that legal conclusions

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Schellenberg, et al. v. Township of Bingham, et al.

presented as factual assertions “need not be accepted as true under Rule 12(b)(6) scrutiny”). The

district court committed no error in evaluating whether the factual evidence created a genuine issue

of material fact.

                                                  V.

        In their final claim, the plaintiffs contend that the district court failed to consider their

“amended pleadings” when it denied their Rule 59(e) motion to alter or amend judgment. The

“amended pleadings” comprise an affidavit filed by Schellenberg on August 6, 2009, which outlined

thirty-three alleged instances of disparate treatment. The district court concluded that these new

factual assertions were “too little, too late,” given that it was “hard to imagine how an affidavit from

plaintiff herself was previously unavailable to counsel.”

        Although we generally review the denial of a motion to alter or amend judgment under Rule

59(e) for an abuse of discretion, “when the Rule 59(e) motion seeks review of a grant of summary

judgment, . . . we apply a de novo standard of review.” Shelby Cnty. Health Care Corp. v. Majestic

Star Casino, 581 F.3d 355, 375 (6th Cir. 2009) (quoting Wilkins v. Baptist Healthcare Sys., Inc., 150

F.3d 609, 613 (6th Cir. 1998)) (alteration in original). Thus, in this case, de novo review is proper.

        A court may grant a timely filed motion to alter or amend judgment only where there is “(1)

a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or

(4) a need to prevent manifest injustice.” ACLU v. McCreary Cnty., 607 F.3d 439, 450 (6th Cir.

2010) (quoting Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005)). But, we have

repeatedly held that a Rule 59(e) motion “does not permit parties to . . . re-argue a case” and “cannot

be used to present new arguments that could have been raised prior to judgment.” Howard v. United

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Schellenberg, et al. v. Township of Bingham, et al.

States, 533 F.3d 472, 475 (6th Cir. 2008) (internal quotation marks omitted); see also Moore v.

Coffee Cnty., 402 F. App’x 107, 109 (6th Cir. 2010) (“Indeed, this court has long held that ‘[a] Rule

59(e) motion . . . is not the proper vehicle to raise arguments that should have been made before

judgment.’”) (quoting Russell v. GTE Gov’t Sys. Corp., 141 F. App’x 429, 434 (6th Cir. 2005)).

       Although conceding that Schellenberg’s supplemental affidavit cannot be considered “newly

discovered evidence” for the purpose of a Rule 59(e) motion, the plaintiffs nevertheless contend that

they were entitled to a grant of their motion in order to “prevent manifest injustice.” We disagree.

The plaintiffs have not cited any case law supporting their argument, and we find that Schellenberg’s

affidavit constituted an improper attempt to re-argue the merits of her case. See Howard, 533 F.3d

at 475. The district court did not err in denying the plaintiffs’ Rule 59(e) motion.

                                                VI.

       For the foregoing reasons, we affirm the district court.




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