Highland Development, Inc. v. Duchesne County (505 F. Supp. 2d 1129, 2007)

ORDER AND MEMORANDUM DECISION

CAMPBELL, Chief Judge.

Highland Development, Inc., Duchesne Land LC, and Frank and Joan Steed (Plaintiffs) are building a large phased residential development (known as the “Utah Mini Ranches”) in Duchesne County, Utah. The County, its building inspector Karl Mott, and other County officials (all of whom are Defendants) oversee the construction, which is subject to County building codes. The Plaintiffs must receive building permits and other approvals from the County before they can construct and sell each home.

The Plaintiffs contend that the Defendants have maliciously delayed construction of the Utah Mini Ranches by imposing irrational and burdensome design, building, and documentation requirements throughout the permit process. The Defendants, who deny the Plaintiffs’ claims that the Defendants have violated the Plaintiffs’ constitutional rights of equal protection and due process, have filed a Motion for Summary Judgment on the Federal Claims.

The Plaintiffs have not presented evidence of similarly-situated comparators (a requirement for their equal protection claim). Nor have they presented evidence of the Defendants’ behavior that would shock the court’s conscience (a requirement for their substantive due process claim). And they have not presented evidence sufficient to demonstrate a biased tribunal. For these reasons, and others detailed below, the Defendants’ Motion for Summary Judgment is GRANTED.

Further, bdsed on 28 U.S.C. § 1367(c)(3), the court declines to exercise supplemental jurisdiction over the Plaintiffs’ remaining claims, all of which are based on state law. For that reason, the court dismisses Plaintiffs’ state law claims without prejudice. The federal claims are dismissed with prejudice.

I. PROCEDURAL BACKGROUND

The Plaintiffs filed their original complaint in August 2003. On July 12, 2005, the Plaintiffs moved for a preliminary injunction preventing the County’s building inspector, Karl Mott (who is a defendant), from participating in the building permit process with respect to the Plaintiffs’ construction project. The parties later stipulated that a different County building official, James Lisonbee, would be assigned to address building permit and building code issues relating to the Plaintiffs’ development and would report directly to the County Commission.

Then, on August 29, 2005, the Defendants filed their Motion for Summary Judgment on Federal Claims, which addresses the Plaintiffs’ federal equal protection and due process claims (the Eighth and Ninth Causes of Action). A delay in briefing occurred, by stipulation, to allow further discovery, including a deposition of Mr. Mott. The parties then completed the briefing in September and November 2006.

The Defendants also filed Motions to Strike, in part or in their entirety, the declarations of Plaintiffs’ witnesses Frank Steed, Joan Steed, Vince Isbell, Casey Dean, and Cheryl Raines.

The court held a hearing on all pending motions in December 2006 and now issues its order.

II. MOTIONS TO STRIKE

A. Declaration of Frank Joe Steed

Defendants move to strike Paragraph 10 of Mr. Steed’s declaration because it is based on lack of foundation and is speculative. The court agrees. Paragraph 10 is hereby stricken.

B. Declaration of Casey Dean

Defendants move to strike Paragraphs 14, 16, 18, and 19 of Mr. Dean’s Declaration on the basis that those paragraphs lack adequate foundation and contain unsupported and unqualified opinion testimony. The court agrees in part and strikes the second and third sentences of Paragraph 14, the last sentence of Paragraph 16, and all of Paragraphs 18 and 19.

C. Declaration of Cheryl Raines

Defendants move to strike Paragraphs 9 and 10 of Ms. Raines’ Declaration on the ground that they lack foundation, constitute impermissible argument, and violate the best evidence rule. The court agrees in part and strikes the last sentence of Paragraph 9 and all of Paragraph 10, with the exception of the statement “I was the President of the [Home Owner’s Association].”

D. Declaration of Joan Ann Steed

The Defendants have moved to strike almost all sixty-five paragraphs of Joan Ann Steed’s Declaration. Rather than address each of the multiple objections made by the Defendants, the court will address relevant portions of Ms. Steed’s Declaration throughout the Order. Otherwise, unless specifically addressed in this Order, the remaining challenged portions of Ms. Steed’s Declaration are inadmissible for the reasons set forth in the Defendants’ briefs. Accordingly the court does not rely on them.

E.Declaration of Vince Isbell

Similarly, the Defendants have moved to strike almost all of the 180 paragraphs in Vince Isbell’s Declaration. Rather than address each of the multiple objections made by the Defendants, the court will address relevant portions of Mr. Isbell’s Declaration throughout the Order. Otherwise, unless specifically addressed in this Order, the remaining challenged portions of Mr. Isbell’s Declaration are inadmissible for the reasons set forth in the Defendants’ briefs. Accordingly the court does not rely on them.

III. FACTUAL BACKGROUND

In the Fall of 2001 (after receiving plat approval in July 2001), Joe and Joan Steed, through their companies Duchesne Land LC and Highland Development, Inc. (collectively, “Plaintiffs”), began constructing their large multi-phase residential development project in Duchesne County, Utah. They called their development the Utah Mini Ranches (in 2003, they expanded the project to include the Duchesne Mini Ranches development) (the “Project”).

This suit arises out of what the Plaintiffs characterize as a “five year course of arbitrary and discriminatory conduct, that has cost millions of dollars and that has no rational justification, other than harming the Plaintiffs] and preventing them from developing a development that they were entitled to develop.” (Transcript of Dec. 6, 2006 Hearing (“Tr.”) at 47.) But it should be made clear that since Plaintiffs began construction, they have completed part of their development. For the Utah Mini Ranches, Plaintiffs have received approval from the County for eight phases. They have received eighty-seven building permits and sixty-five certificates of occupancy. For the Duchesne Mini Ranches, they have had one phase approved, thirteen building permits issued, and nine certificates of occupancy issued. Houses within the development have sold and marketing continues. The Project is ongoing and construction continues. Indeed, the Plaintiffs’ Project is the fastest growing and the largest active subdivision development in Duchesne County.

Still, the Plaintiffs are not happy with the pace of construction and blame much of the delay and expense on the Defendants. In particular, the Plaintiffs place many of their woes on Defendant Karl Mott. Mr. Mott is a Duchesne County Building Official and is fully licensed by the State of Utah (through the Utah Department of Occupational and Professional Licensing (DOPL)) as a combination building inspector. He is in charge of the County’s small building department. The County employs Mr. Mott, and it also employed Mr. Dean Johnson (not a Defendant) as a County building inspector. In addition, James Lisonbee (not a Defendant) acted as a County building official.

When the Project began, Mr. Mott was in charge of the inspections and permitting necessary for the Project. Later, in July 2005 (two years after the litigation had begun), the parties agreed that Mr. Lison-bee would take over Mr. Mott’s responsibilities with respect to the Project. But for four years, Mr. Mott was the one with whom the Defendants initially dealt when it came to acquiring building permits, passing ongoing inspections of construction materials and construction quality (all based on county building code), and obtaining certificates of occupancy.

On occasion, problems and disputes were aired to the Duchesne County Commission, and, later, to the relatively new Duchesne County Board of Appeals (it was created in September 2002). (Mr. Mott was an ex officio (non-voting) member of the appeals board.) Because Plaintiffs’ disputes spilled over into the County Commission arena, the Plaintiffs named current or former members of the County Commission as Defendants: Larry Ross, Loma Stradinger, and Guy Thayne. In addition, the Plaintiffs named Roland Ur-esk (a Duchesne County Attorney who was involved in some of the County’s disputes with Plaintiffs) as a Defendant. All of the individuals have been named in their individual as well as their official capacities. And, of course, Duchesne County is itself a Defendant.

The difficulty with this case is that there is no single event that Plaintiffs can hang their hats on, so to speak, to support their claims. Rather, they recite a laundry list of incidents that in isolation do not rise to the level of a constitutional violation, but that, according to Plaintiffs, in combination form a five-year pattern of conduct that violates their equal protection, substantive and procedural due process rights.

Given the voluminous record, the staggering minutiae, and the five-year span over which the alleged events occurred, the court will attempt to present only the most cogent facts in the record.

The Plaintiffs’ theory appears to begin with an incident that occurred soon after the Plaintiffs received plat approval from the County in July 2001 and began building their model home.

A. Dean Johnson

Dean Johnson (nicknamed “Mad Dog”) was a County building official in the summer and fall of 2001 when'he had some “run-in’s” with Joan Steed and Vince Is-bell, the Vice President of Highland Development, Inc. and the Project’s first general contractor. At the time, Mr. Johnson also had his own plumbing business. Apparently, he and Karl Mott were good friends. (See Decl. of Vince Isbell ¶ 107.)

In late summer 2001, Mr. Johnson entered the offices of Highland and approached Joan Steed. Ms. Steed asked Mr. Johnson if he was there in his capacity as a building inspector or as a plumber. He responded, “Both.” He then asked Ms. Steed who was doing Highland’s plumbing and what products Highland was using in its construction. He told Ms. Steed that Highland’s building inspections “would go better” if Highland permitted Mr. Johnson to do Highland’s plumbing and if Highland used his products.

In September 2001, Mr. Johnson approached Mr. Isbell and asked who would be doing the plumbing for the Project. Mr. Isbell responded that his company, BellSmith Construction, would be doing the plumbing. Mr. Johnson and Mr. Isbell disagreed about whether Mr. Isbell’s B-100 Contractor’s license was sufficient to authorize BellSmith Construction to install the plumbing. Mr. Johnson said that if BellSmith installed the plumbing, Highland would fail its inspection. (Deck of Vince Isbell ¶¶ 99-101.) According to Mr. Isbell, “[a] heated discussion followed. In fact, the discussion became so heated that Johnson and I nearly came to fisticuffs.” (Id. ¶ 102.) Based on this confrontation, Mr. Isbell resigned on September 26, 2001, as Highland’s general contractor. (But apparently Mr. Isbell became Vice President of Highland Development, Inc., so he continued to have involvement in the Project in some capacity.)

Highland did not give its plumbing business to Mr. Johnson. And on September 28, 2001, Highland complained to County Commissioners Thayne, Ross, and Stra-dinger about Mr. Johnson. (See Ltr. from Frank Steed, President of Highland Development, Inc. to Duchesne County Commissioners, attached as Ex. B to Joan Steed Deck) At some point (unspecified in the record), Mr. Johnson stopped inspecting the Plaintiffs’ construction.

B. The Alleged Conspiracy

According to Plaintiffs, Mr. Mott began harassing Highland Development after Mr. Johnson’s confrontations with Ms. Steed and Mr. Isbell.

1. Complaint to the Division of Occupational and Professional Licensing (DOPL)

In late September or early October, right after Mr. Johnson’s confrontations with Ms. Steed and Mr. Isbell, Mr. Mott reported Mr. Isbell’s potential plumbing licensing problem to the Utah Division of Occupational and Professional Licensing (DOPL).

DOPL investigated in early October 2001 and cited Mr. Isbell and BellSmith Construction, not for plumbing license problems but for doing electrical work without a license and contracting beyond the scope of their license. The citation was upheld on appeal.

The Plaintiffs contend that Mr. Mott’s complaint about the plumbing issue was “baseless,” certainly because they believe it was baseless and probably because they were not actually cited for the plumbing issue (which is more persuasive than Plaintiffs’ beliefs). But Plaintiffs go further by implying that Mr. Mott complained to the DOPL because his friend Dean Johnson had been spurned by Ms. Steed and Mr. Isbell. There is no direct evidence of Mr. Mott’s motive for filing the complaint. The only facts Plaintiffs can point to are the facts that Mr. Mott and Mr. Johnson are good friends and that the complaint was filed right after Mr. Johnson’s confrontation with Ms. Steed and Mr. Isbell.

The Plaintiffs further allege that Mr. Mott’s complaint was “the first of several baseless complaints to the [DOPL], based specifically on allegations which had come from Johnson.” (Pis.’ Opp’n Mem. at p. ix.) The Plaintiffs rely on Mr. Isbell’s Declaration, Paragraphs 143-146, to support their allegation. But the court finds that Paragraphs 143 and 145 are not admissible primarily because they lack foundation, are argumentative, and are vague. The last half of Paragraph 144 (beginning with the phrase “claiming to be just dropping by for a visit”) is inadmissible based on lack of foundation, lack of personal knowledge, speculation, and hearsay. And the last sentence of Paragraph 146 is inadmissible as hearsay. In short, Plaintiffs do not have evidence of a “series of baseless complaints made by Mott,” much less any connection between such purported complaints (which are not identified) and Mr. Johnson’s confrontation. Accordingly, this aspect of the Plaintiffs’ theory is simply not documented.

2. The Lumber Grading Issue

a. Flooring Issues in 2001-2002

In November 2001, Mr. Mott inspected a home under construction in the Utah Mini Ranches development. During that inspection (apparently a foundation and framing inspection), he discovered that Highland was using what he characterized as ungraded and unstamped plywood and oriented strand board (OSB) on the floors of the cabins Highland was constructing.

According to the Defendants, ungraded and unstamped plywood and OSB lack a grade from a recognized inspection agency certifying that the material meets its minimum standards. The lack of a grade or stamp most likely indicates some deficiency in the product. For example, deficiencies could include a problem with the glue holding the layers of wood particles together or the load strength of the panels. Major wood mills sell this product at greatly reduced prices from graded and stamped product. Moreover, the Uniform Building Code (which Duchesne County adopted in 1998) contains a section requiring a minimum quality of certain building materials and requiring a certain grade quality and a stamp (or other approved documentation) indicating such a grade:

2304.1 Quality and Identification. All lumber, wood structural panels, particleboard, structural glued-laminated timber, end-jointed lumber, fiberboard sheathing (when used structurally), hardboard siding (when used structurally), piles and poles regulated by this chapter shall conform to the applicable standards and grading rules specified in this code and shall be so identified by the grade mark or certificate of inspection issued by an approved agency.

(Uniform Building Code § 2304.1, attached as Ex. 1 to Decl. of Karl Mott (emphasis added).)

Mr. Mott was concerned with quality assurance and the structural integrity of the buildings, and on November 1, 2001, he sent a letter to Joe Steed at Duchesne Land LLC regarding the building materials. He stated, “As I have been conducting the foundation and framing inspections on the buildings now under construction within your subdivision, I have noted that the grade [markings] have been defaced to prevent clarity or are not present at all on the sheathing and lumber products.” (Nov. 1, 2001 Ltr. from Karl Mott to Joe Steed, Duchesne Land LLC, attached as Ex. 1 to Mott Aff.) He noted that the buildings under construction would not pass inspection unless properly graded and stamped materials were used or he received more information assuring him of the existing materials’ quality. He said that without markings, he had “no clue as to the structural capacity of the panel or it’s [sic] intended use.” (Id.) He also asked for “a listing for this product from it’s [sic] manufacture^.” (Id.)

Mott insisted on certification from the manufacturer. According to him,

[t]he only person that can certify any plywood product, lumber product, is the manufacturer of the product.... The manufacturer is required to have an independent inspection agency certify their material. The way they do that is the certified inspection agency oversees the inspection process in the manufacturing. ... The documents I received from the manufacturer tells me they will stand behind that material if it should fail.... That’s just what the code requires. That’s the whole point of stamped and graded material.... It’s a question of public health because the paneling is built to a standard.

(Mott Dep. Vol. I at 56:3-13, 58:2-12.)

Highland buys many of its building materials in bulk — including plywood, OSB, and Tl-11 siding. These materials are purchased by Highland through its supplier, Mason Forest Products. The materials, which are shipped to Highland in bulk via railcar, are, according to Highland, “shop grade or better.” (Isbell Decl. ¶ 34.) In Mr. Isbell’s opinion, “shop grade” materials do not have stamps on them because they contain cosmetic defects. He further opines that “[t]he lack of ‘Shop’ grade stamp does not make the materials ‘ungraded’ in the sense that they are defective for lack of quality or structural integrity.” (Id. ¶ 37.)

Highland concedes that most of the individual pieces of lumber were not stamped. But it contends that the plywood came in bundles of 44 pieces (a “bunk” is a bundle of plywood containing 44 pieces), and that each bundle contained a tag indicating that the materials were at least shop grade. (Isbell Decl. ¶ 35.) Still, the record does not indicate that Mr. Mott (or anyone else from the County) knew about, much less inspected, the wood when it was still in “bunks.” Also, contrary to Highland’s assertion, there is no admissible evidence that Mr. Mott, or anyone else from the County building department, knew from the beginning of the Project that Highland was using some material that did not have grade stamps.

Highland contends that, in response to Mr. Mott’s November 1, 2001 letter, it provided evidence of the integrity of these materials on December 14, 2001. On that date, Highland forwarded two letters to Mr. Mott.

The first letter that Highland gave Mr. Mott was dated December 13, 2001, and was drafted by an employee of Mason Forest Product’s sales department and addressed to Joe Steed. It says:

We sell this 3/4 plywood country wide. The application of this product can be used for flooring or as the job engineer see’s [sic] fit. We sell this product to cash and carry retail stores in Dallas Memphis and New Orleans. We also sell to box and container companies in Dallas and Burleson, TX. We sell this product by railcar to California.

(Dec. 13, 2001 Letter from John Whitaker, Sales Department, Mason Forest Products, to Joe Steed, attached as Ex. B to Isbell Decl.) This letter is not written by a representative of the manufacturer (as Mr. Mott had requested). Rather, Mason Forest Products (MFP) is a supplier. Also, the letter was written by a sales department representative and says nothing whatsoever about the structural integrity of the plywood.

In the second letter, also dated December 13, 2001, Troy Ostler (a professional engineer with CIVCO Engineering, Inc., who was hired by Highland for the Project), addressed plywood grading:

I have inspected the 3/4" plywood currently being used in the construction of the homes in the Utah Mini Ranch development and stored in your warehouse. This plywood does not carry a grading stamp. I am writing this letter as certification that this plywood meets or exceeds the structural requirements for the [APA — Engineered Wood Association] for use in the flooring for these homes.

(Ex. 2 to Mott Aff.) Mr. Mott, after consulting with Robert Downard at the DOPL (Mr. Mott’s supervising agency), did not accept Mr. Ostler’s certification as sufficient. In Mr. Downard’s February 1, 2002 letter to Mr. Mott, he wrote:

[Mr. Ostler] cannot certify the plywood after the fact using the UBC [Uniform Building Code] guidelines. His certification at this point has primarily consisted of visual inspection of the finished product.... Given [the requirements in UBC § 23.208 regarding manufacturer grading, stamping, and warranties of plywood], there would be no way for a professional engineer not involved in the manufacturing process and having access to the specific materials and design of the plywood to certify that the plywood meets or exceeds the APA standards. Only the qualified inspector and testing agency overseeing the manufacturing of the product can certify the plywood. Without knowing the species group classification or span rating of the wood, the glue bond type, or other specific details of its construction, certifying a panel of plywood would be impossible. Visual inspection would not suffice.

Using this plywood in a structure creates a public welfare and safety issue. Plywood not conforming to the Uniform Building Code should not be allowed for use in a residence or commercial building. To allow its use could subject the inspector to a licensing disciplinary action by the Division.

(Ex. 3 to Mott Aff.)

Mr. Mott and Highland continued to debate the issue in early 2002. Highland characterizes the dispute as “manufactured and phony.” (Pis.’ Mem. Opp’n at x.)

On February 6, 2002, Mr. Mott told Highland that Mr. Ostler’s and MFP’s letters were not sufficient, and wrote in a letter that “it is required that all work on the existing buildings be stopped until such time that methods and materials can be determined that will bring your buildings into code compliance.” (Feb. 6, 2002 Letter from Mott to Joe Steed (emphasis added), attached as Ex. 3 to Mott Aff.)

Highland continued its construction using the materials that were questioned by the County without providing the requested documentation. On May 7, 2002, the County sent a Notice to the Defendants warning that the building department would post “stop work orders” (SWO’s) if issues regarding use of the ungraded and unstamped materials were not resolved. (See Ex. 4 to Mott Aff.) The letter further stated that:

If these issues are not resolved, this department will be required by Du-chesne County Code section 15.04.040, to issue a CEASE AND DESIST ORDER of all construction on lots 183, 142, 181, 114, 171, 97, 172, 110, and 79 and the commercial building located on what will be known as lot 246 of phase 6.

(Id. at p. DC01067.)

On May 9, 2002, the County Commission held a working meeting to discuss the issues raised in Mr. Mott’s Notice to Highland. Under a provision of the building code that allowed alternative materials in certain circumstances, Highland proposed to have its engineer design and certify a system that would meet or exceed the structural integrity the building code called for (that particular system related to the flooring, but it still addressed the more universal problem of ungraded and unstamped materials). (See Minutes of May 9, 2002 County Commission Working Meeting at 1-2, attached as Ex. 10 to Pis.’ Mem. Opp’n.) Apparently the County and Highland reached an agreement that a certified engineering plan would be acceptable as an alternative to strict building code requirements. (See, e.g., id. at 3; May 14, 2002 letter from Highland’s attorney to County Commissioners (Ex. 11 to Pis.’ Mem. Opp’n) (memorializing what Highland believed the agreement contained); May 31, 2002 letter from Mott to Duchesne Land LLC (Ex. 12 to Pis.’ Mem. Opp’n) (noting that during May 9, 2002 meeting, the County agreed that Highland could use an “alternate floor system” if the design was approved by the County).)

On June 3, 2002, Mr. Ostler (Highland’s Engineer) sent Mr. Mott a letter certifying Highland’s alternative flooring plan using the ungraded and unstamped plywood and OSB in Mr. Steed’s warehouse. Attached to the letter was a one-page stamped and certified plan. (See Ex. 13 to Pis.’ Mem. Opp’n.) But Mr. Mott did not accept Mr. Ostler’s certified plan as it was submitted. Rather, he required that the plan be accompanied by engineering calculations that could be verified by an independent engineer.

Highland asserts that the engineering calculations were not necessary because a licensed engineer had certified the plan, and that Mr. Mott had never before required peer review of any certified engineering plan. Highland further asserts that because Mr. Mott had no ability to read the calculations himself (he was not an engineer), he was requesting unneeded calculations arbitrarily, in an effort to harass, delay, and single out Highland. Highland’s attempt to characterize Mr. Mott as unskilled when it comes to an engineered plan is not persuasive. The record demonstrates that Mr. Mott is a certified plan reviewer and has a certain level of skills that would allow him to conduct an initial review to identify more basic problems. Mr. Mott does not profess to be an engineer. But neither is he a rubber stamp. Rather, he is the gatekeeper with specialized training and experience who is supposed to make a judgment call. His initial reaction to Mr. Ostler’s one-paragraph description of the flooring plan and one-page plan was that the package did not contain even the basic foundation of information necessary to conduct an initial review. Nothing in the record suggests that Mr. Mott requested the calculations for arbitrary reasons unrelated to a legitimate governmental objective.

Highland also complained to the County because it felt that the County, or at least Mr. Mott, was reneging on the agreement reached at the May 9, 2002 County Commission working meeting.

On July 15, 2002, the County Commissioners held another working meeting. Officials from the DOPL attended and explained their interpretation of the “alternative materials” provision of the building code. They opined that the alternate engineering plan was not sufficient under the building code. Mr. Mott said he now disagreed with his earlier decision to allow the alternative plan. According to Highland, Mr. Mott sought out DOPL’s contrary opinion because he was “angry” with Highland. But the minutes and his deposition testimony do not support Highland’s contention.

The County continued to request the engineering calculations to support Mr. Ostler’s certification. Highland did not provide any. So on July 26, 2002, Mr. Mott wrote to Highland, essentially setting forth an ultimatum:

As all of your houses incorporate this floor design using the unlisted 3/4" plywood, the structural] integrity and the life expectancy of the structure are in question. Until a determination of the validity of this engineering attempt to incorporate this material in a structural design is determined, the county cannot and will not conduct final inspections that may imply approval of the use of these products.

(Ex. 6 to Mott Aff.) Apparently there was no response to Mr. Mott’s letter, so in early August 2002, Mr. Mott issued SWO’s for several lots in the Project and revoked a final certificate of occupancy and a temporary certificate of occupancy.

Highland appealed the SWO’s to the County Commission, who heard the appeal on August 14, 2002. The next day, the Commission issued its decision. (See Aug. 15, 2002 Findings and Ruling, attached as Ex. 4 to Defs.’ Mem. Supp. Mot. Summ. J.) In its Ruling, the Commission upheld Mr. Mott’s decision to issue the SWO’s and reject the proposed alternative flooring plan submitted by Mr. Ostler on behalf of Highland. The Commission expressed concern that no explanation had ever been given why the material was not stamped, graded, or certified. It further noted that right before the hearing the County Commission had received an alternative overlay solution from Engineering Services, Inc. (who apparently submitted the proposal on behalf of Highland), which solution had been approved by Mr. Mott for use in the houses that had already been built. The Commission said that the Engineering Services, Inc.’s proposal would allow Highland to correct the problem for the existing structures. Accordingly, the Commission lifted the SWO’s “for the purpose of allowing [Highland] to implement the approved alternative method. If the alternate system is implemented on all the lots including the two lots where the certificate of occupancy was revoked, the Cease and Desist order and the Revocation shall be rescinded.” (Id. at DC00596.) The Commission further noted that Highland could use Mr. Ostler’s alternative flooring plan for the as-yet-unbuilt houses if Highland obtained approval from Mr. Mott.

Highland now objects to the Findings and Ruling, contending that the overlay solution required it to “install a wholly unnecessary and superfluous third layer of flooring material.” (Pis.’ Mem. Opp’n at xvii (emphases in original).) Highland also contends that independent agency testing of the materials is “extra-statutory, and an unwarranted ratcheting up on the County’s previous position that [Highland] was only required to provide an engineer’s certificate regarding this matter.” (Id.)

On August 30, 2002, Highland submitted Mr. Ostler’s calculations to Mr. Mott. But Mr. Mott rejected the calculations because, according to Mr. Mott, the calculations depended on an arbitrary assignment of value to the unstamped, ungraded materials of half that of stamped and graded materials. Highland contends that Mr. Mott was not qualified to determine whether the value assigned by Mr. Ostler was appropriate, and so it was unreasonable for Mr. Mott to reject the calculations. After rejecting Mr. Ostler’s calculations, Mr. Mott repeated the County Commission’s recommendation that Highland have the grade of the materials determined by a nationally accredited testing agency.

Highland implemented the overlay solution for cabins already built. It then proposed an alternative to agency testing and certification — in situ load testing (which is set forth in International Building Code § 1713) — to which the County agreed on September 9, 2002. The in situ tests were performed on September 13th and 14th, 2002. Mr. Ostler’s design passed the test, and the design was approved for use in the cabin floors with the ungraded and unstamped plywood and OSB.

b. Siding Issues in 2001-2005

Two years after the flooring issues were ostensibly resolved, another dispute arose, this time over siding.

Initially, based on Mr. Mott’s interpretation of the building code in force at the time construction began in 2001, he approved Highland’s use of shop-grade panels as external siding. At some point in 2004, James Lisonbee (another county building inspector) told Mr. Mott that the panels being used by Highland no longer bore the “shop” stamp. Upon further review of the building code in effect in 2004, Mr. Mott learned that the state’s building code (which was amended in 2002) required that all exterior wood siding products be of a graded or listed material. Mr. Mott confirmed his interpretation with the International Code Council (ICC), which had drafted the uniform code provision adopted in 2002 by the State. At the end of August 2004, Mr. Mott told Highland that it was no longer in compliance with the code if it used ungraded and unstamped siding panels and, further, that Highland would have to replace panels in houses built after the 2002 code change.

On January 13, 2005, Highland appealed Mr. Mott’s decision to the Duchesne County Board of Appeals. Highland did not dispute the interpretation of the existing code section, but it argued that a grace period should apply to homes built before the County (i.e., Mr. Mott) became aware of the 2002 code change (Highland did not believe it had to replace siding panels on already-constructed homes). Highland also contends that the panels were not structural and so were not subject to the new code requirement.

The Board met to hear Highland’s appeal on January 20, 2005. Mr. Mott was the Secretary of the Board of Appeals. Apparently he participated in a closed executive session, but he did not have a vote. During the hearing, the Board decided it needed documentation from Highland that the paneling used was at least shop grade, and so it recessed until February 3, 2005.

During the February 3, 2005 Board of Appeals meeting, Highland provided a notarized letter from Mason Forest Products, its lumber supplier, saying that the siding material was shop grade. The Board accepted this letter and allowed the panels to stay in already-constructed cabins, but only on the condition that Highland provide a ten-year warranty for each cabin, secured by a 100% performance bond and recorded notice.

On April 13, 2005, Highland submitted an application to the Board of Appeals for a rehearing (“as soon as possible”) of the decision requiring the performance bond. The hearing was held on June 2, 2005, much later than Highland would have liked. (But Defendants point out that Highland did not request a re-hearing until more than two months after the Board’s initial decision.)

On June 3, 2005, the County agreed to accept a letter of credit in lieu of a performance bond. The siding issue was settled, at least with respect to already-constructed cabins.

c. Vince Isbell’s Lumber Certification

In May 2005, Duchesne County Building Inspector James Lisonbee placed stop-work-orders on three cabins because they incorporated lumber that had not been graded. On June 3, 2005, Vince Isbell, working for Timber On Line Inspections Inc., submitted his Lumber Grade Certifications, requesting that the SWOs be lifted.

Plaintiff Frank Joe Steed is the registered agent for Timber On Line Inspections, Inc. (TOLI). Mr. Isbell worked for TOLI, certifying unmarked and ungraded lumber for use in Highland’s Project. In his capacity for TOLI, Mr. Isbell was certified by Timber Products Inspections (TP) to be a grader. Mr. Isbell is a Vice President for Highland as well. Highland purchased the lumber certified by Mr. Isbell at TOLI.

In a June 6, 2005 letter to Highland, Mr. Mott rejected Mr. Isbell’s certifications for various reasons, some of which turned out to be incorrect. But some reasons were legitimate. In particular, Mr. Mott noted that Mr. Isbell had a conflict of interest because he was Vice President for Highland while certifying lumber being used by Highland. Mr. Mott contended that the American Lumber Standards Committee, Inc. (ALSO) “prohibits the grading by a person or firm whose own products are subject to the inspection.” (Ex. 10 attached to Mott Aff.) Section 3.1.6 of the ALSO Board of Review Enforcement Regulations provides that the accredited lumber grading agency (in this case, TOLI)

shall not be controlled by any person or firm whose own products are subject to its inspection and certification, nor shall the Board approve inspection services furnished by buyers and users for the inspection of their own purchases. The inspectors of the agency shall not be employed by any lumber manufacturer or by any buyer of lumber or engage in any other undertaking which might conflict with their independent positions as inspectors.

(See id. (emphasis added).)

On June 27, 2005, Highland appeared before the County Commission to complain about the SWO’s issued by Mr. Lisonbee. On June 30, 2005 Mr. Mott rejected documentation from Mr. Isbell that certified grade through a process of grading of the wood already installed in the structure. Mr. Mott noted that the ALSO regulations prohibit grading or re-grading lumber already installed in a structure. To resolve the problem “short of tearing these units down and rebuilding, the County will accept an inspection from Timber Products, Inc. [sic] which states no plates or sills have any characteristics that would eliminate them from the minimum grade category.....All future buildings will be required to have all lumber graded prior to being installed into the building projects.” (June 80, 2005 Letter from Mr. Mott to Mr. Isbell, attached as Ex. 11 to Mott Aff.) Timber Products Inspection provided the requested inspection report. After receiving certificates from Timber Products Inspection, the County lifted the SWOs.

But on July 11, 2005, Mr. Mott said the County’s past acceptance of lumber mill certificates from Mr. Isbell was error. Mr. Mott said that the from then on the County would only accept certificates that had been signed and issued by Timber Products Inspection. On July 15, 2005, Highland again wrote to the Commission complaining about Mr. Mott’s requirement (See Ex. 4 to Aff. of Roland Uresk.), but Highland did not file an appeal with the Duchesne County Board of Appeals.

3. Engineering Calculations

The Plaintiffs contend throughout their brief that Mr. Mott required them to submit duplicative and unnecessary engineering calculations. They requested more than once that he organize his files better so that they did not have to provides copies of what he already had. They also contend that he could not use the calculations because he was not qualified to read them. Essentially they suggest that he had no reason to request the calculations other than to impose more work and expense on the Plaintiffs.

4. Mott’s Treatment of Other Home Builders

Plaintiffs claim, among other things, that their equal protection rights were violated when they were treated differently than similarly situated builders. They compare themselves to “other builders of single family homes in Duchesne County.” (Pis.’ Mem. Opp’n at 1.) They provide examples relating to large developers as well as to single owner-builders. The record provides the following information regarding these builders.

a. The Thomases’Home

Vaughn and Gayle Thomas were building a home in Duchesne County in July 2002. They were “owner-builders” (that is, they were building a single family home of their own). They submitted building plans and engineering for a flooring system that was essentially the same as the flooring system that Mr. Mott refused to accept in Highland’s construction. Mr. Mott reviewed the engineering plans and sent them a letter on July 19, 2002, stating that plywood needed to be stamped and graded. (Ex. 18 to Pis.’ Mem. Opp’n. at 7.) But after the County agreed in August 2005 to allow Highland to use the overlay system, Mr. Mott allowed the Thomases to use the overlay system as well. In fact, it was Mr. Ostler who provided the engineering for the overlay on the Thomases’ floor, along with supporting calculations, on August 27, 2002. (See id. at 13.) Still, Mr. Mott did not require the Thomases to conduct any additional testing, such as in situ load testing.

b. The Campbell Home

On January 18, 2005, the County issued a building permit to Mandy Campbell for construction of a single family dwelling. R & C Construction, Inc. was listed as the General Contractor, and the house was to be built in the Bandanna Ranch subdivision.

Mr. Mott learned that the external siding consisted of plywood that was not fully stamped (and therefore not properly certified as grade). While the plywood boards bore stamps indicating the manufacturer, and date and shift they were manufactured, they did not contain a full grade certification stamp. Mr. Mott told Ms. Campbell that he needed a letter from the manufacturer certifying that the plywood was of an acceptable grade. That letter was provided on May 27, 2005. It stated:

The 303-18 Fir siding produced at both Plum Creek plywood mills is APA approved and under normal situations would have the APA stamp on the back of each panel. The only way a panel could get out of the mill without a stamp would be for the stamp to fall off the machine without the operator noticing. All of our downfall is pulled out before it is run to pattern so I am confident the panels you received are not only APA approved but also on grade.

(Ex. 26 to Pis.’ Mem. Opp’n at 15.) Mr. Mott accepted this letter and approved use of the siding. Nothing further was required.

c. The Mountain Home

Mr. Mott testified about another home somewhere in Duchesne County, referred to as the Mountain Home, that apparently had incorporated unstamped and ungraded OSB in the home’s roof. In his deposition, Mr. Mott recalled that he knew “of one roof in Mountain Home that they had the unstamped and ungraded O. S.B. and they put a tin roofing on, and I made the contractor install blocking to support the roofing tin so that the O.S.B. was no longer a structural element in that design.” (Mott Dep. Vol. I at 35-36.) The record does not indicate when this occurred.

d. Other Large Developers

The Plaintiffs refer to other builders who build on a larger scale in Duchesne County. But the evidence presented on that issue (Paragraphs 7 and 9 of Ms. Steed’s Declaration) is inadmissible for lack of foundation. Moreover, even if the information was considered by the court, it tells the court nothing more than the fact that other large developments exist in Du-chesne County. There is no evidence regarding whether these large developments are similar in any other way to Utah Mini Ranches (that is, that their building practices were or are the same as Highland’s, such as the practice of using unstamped and ungraded building materials). Accordingly, the information is not helpful.

5. Opinion Shopping

The Plaintiffs claim that Mr. Mott engaged in opinion shopping to find what he needed, regardless of source, to deny Plaintiffs what they believe was rightfully theirs. (See Pis.’ Mem. Opp’n at xi.) The Defendants responded as follows:

The citations Highland provides for its conclusion that Mott was “opinion shopping” do not present any opposing opinions (let alone any from organizations as respected as the [APA — Engineered Wood Association], [International Code Council], and [Western Wood Products Association]) that Mott disregarded. In fact, one of the “opinions” Highland cites is a letter from DOPL warning Mott of disciplinary proceedings if he accepts the ungraded and unstamped plywood and OSB.

(Ex. 1 to Defs.’ Reply at pp. Al-9 to Al-10.)

6. Mott’s Public Statements

The Plaintiffs assert that Mr. Mott defamed Highland to Highland’s customers and potential customers. But the question of whether he defamed Highland is a question of law going to the Plaintiffs’ second and third causes of action, and that issue is not currently before the court. Moreover, much of the evidence presented regarding Mr. Mott’s statements about Highland— Paragraphs 108-116 and 121-123 — is inadmissible because it lacks foundation, is speculative, is inadmissible hearsay, and/or contains a legal conclusion.

The Plaintiffs also assert that Mott made false statements about Highland to the local newspaper, Uintah Basin Standard, in 2002. For example, in a July 23, 2002 article, the newspaper reported that, “Mott said when he first noticed the cabins were being constructed with ‘questionable listings on the material’ last November he issued a stop work order, but it was ignored.” (Ex. 38 to Pis.’ Mem. Opp’n.) Mr. Mott admitted that no official stop work order was issued in November 2001. But the County did issue a letter in May 2002, before the article was written, that threatened a formal cease and desist order if Highland did not comply with the Building Department’s requirements. SWO’s were issued, but not until August 2002, after the article was written. Plaintiffs raise questions about the accuracy of Mr. Mott’s statements to the Uintah Basin Standard, but the court makes no finding on any defamation charge.

Finally, Highland points out that Mr. Mott obtained information from the Uintah Basin Standard regarding Mr. Steed’s criminal history, and then gave that information to members of the County Commission. This occurred about the time that the alternative flooring system was at issue.

C. The County Commission and its Commissioners

The Plaintiffs also present a series of disjointed events relating to the Project that involve members of the County Commission (some more peripherally than others).

1. Tax Assessment

In the summer of 2002, the Duchesne County Assessor set the 2002 value of each Utah Mini Ranches lot as approximately $14,950. Duchesne Land LC appealed to the Duchesne County Board of Equalization. The County Commission sits as the Board of Equalization. The Board upheld the valuation. Duchesne Land appealed to the Utah State Tax Commission. The Commission reduced the value to $5,875 per lot. The County Assessor appealed that ruling.

While the Assessor’s appeal was pending, the Assessor issued 2003 valuations to Duchesne Lane. The Assessor again set the value at approximately $14,950. Du-chesne Land appealed that decision to the Board. The Board denied the appeal, but stated that “the commission has determined to honor the decision of the outcome of the state tax appeal that is on file for 2002. Whatever is decided on those appeals for 2002 will also be made for 2003.” (Oct. 29, 2003 Letter from Diane Freston, Duchesne County Clerk/Auditor to Du-chesne Land LC, attached as Ex. C to Aff. of Joan Steed.)

The 2002 valuation appeal was heard, and the Tax Commission ordered the County to reduce the value of each lot to approximately $6,438. But the Board did not apply the $6,438 value to the 2003 assessment. Duchesne Land appealed the 2003 assessment. On September 26, 2005, the Utah State Tax Commission ordered the County to reduce the value of the lots to approximately $4,750 per lot.

2. Model Home Appeal

On May 9, 2003, Highland wrote to Ronald Uresk, attorney for the County, demanding that the County reconsider the Building Department’s denial of a model home building permit. (Ex. X to Isbell’s Deck; Isbell Deck ¶ 149.) The County did not respond. On May 19, 2003, Highland sent Mr. Uresk a follow-up fax with a demanding, irritated tone. (Ex. Y to Is-bell’s Deck) The County did not respond. Then on June 16, 2003, Highland wrote a letter to the County Commissioners regarding various issues, including the County’s lack of response to the model home permit. On June 24, 2003, Highland wrote a third letter to Mr. Uresk, with no response. On June 30, 2003, Highland wrote a fourth letter to Mr. Uresk again asking for information and requested an appeal. The matter was briefly discussed at the June 30, 2003 County Commission working meeting. Highland did not receive an opportunity to have the decision heard by the Board of Appeals.

3. Statements made by County Officials

Highland presents a series of alleged statements by County Officials that purportedly demonstrate animosity toward the Plaintiffs.

For example, Ms. Steed vaguely asserts that, “[o]n one occasion before a County Commissioner’s meeting, [County Commissioner Lorna] Stradinger told me to ‘tell Vince to keep his mouth shut.’ ” (Deck of Joan Steed ¶ 42.)

Mr. Isbell vaguely asserts that both Commissioners Stradinger and Ross treated him with open hostility on several occasions. (Deck of Vince Isbell ¶¶ 168,171.) For instance, he says Ms. Stradinger would often talk down to him, interrupt him, yell at him, or tell him to “shut up.” Such occurrences happened both in working meetings and open public meetings of the County Commission. For the most part, such occurrences happened during or about the time of the flooring issue. As for Commissioner Ross, Mr. Isbell says that, in a 2005 meeting, Mr. Ross accused him of purposefully grading lumber in an improper fashion, and accused him of having a conflict of interest when he was grading lumber that would be used by Highland. Mr. Ross accused him of these items in an open meeting and in front of the local press. (Id. ¶¶ 172-73.) Then, according to Mr. Isbell, Daryl Grant (not a Defendant), a Board of Appeals member in 2005, admitted that he voted against Highland not based on the merits of the appeal but because he disliked their attitude. (Id. ¶ 174.) Finally, Mr. Isbell asserts that Mr. Mott told him that Duchesne County “would grow with or without Joe Steed.” (Id. ¶ 165.) Many of these statements are presented without any context.

Mr. Steed asserts that Duchesne County Commissioner Rod Harrison (who is not a defendant in this action) stated, during a 2006 County Commission meeting, that “the Steeds won’t be building any more homes up on the mountain. They won’t be getting any more phases approved.” (Decl. of Frank Joe Steed ¶ 9.)

4. Appeals Board

The County created the Duchesne County Board of Appeals in 2002.

On July 6, 2004, Duchesne Land submitted two applications for appeals to the Board of Appeals. The next day, Mr. Mott (who is the Secretary for the Board of Appeals) returned them to Duchesne Land, stating that the applications were incomplete:

Please note that you have not specified what you want to appeal or and have not identified the lot(s) by lot number and/or address of the project subject to appeal. Therefore the applications must be returned as incomplete.

Please site [sic] the section of the code to which you wish to appeal and identify the project for which the appeal applies.

(July 8, 2004 Letter from Mr. Mott to Mr. Steed, Duchesne Land, at DC02305, attached as Ex. 45 to Pis.’ Mem. Opp’n.) The Plaintiffs claim that Mr. Mott’s rejection of their applications was arbitrary. They never followed through on Mr. Mott’s request to clarify the nature of their appeals.

The Plaintiffs also complain that, in general, Mr. Mott, as Secretary of the Board and ex officio member, took part in an appeal of a decision he made, and that made the Board of Appeals a biased tribunal. But Mr. Mott is not allowed to vote. Defendants also note that, by making Mr. Mott an ex officio member of the Board and its nonvoting secretary, the County followed the organization set forth in the Uniform Building Code, which provides in relevant part, that “[t]he building official shall be an ex officio member of and shall act as secretary to said board but shall have no vote on any matter before the board.” (Uniform Building Code § 105.1 (Vol. 1 1997), attached as Ex. 7 to Defs.’ Reply.)

TV. ANALYSIS

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56 permits the entry of summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998). The court must “examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). “The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient [to overcome a motion for summary judgment]; there must be evidence on which the jury could reasonably find for the plaintiff.” Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505; see also Anderson v. Coors Brewing Co., 181 F.3d 1171, 1175 (10th Cir.1999) (“A mere scintilla of evidence supporting the nonmoving party’s theory does not create a genuine issue of material fact.”).

B. Equal Protection “Class of One” Claim

The Plaintiffs have alleged a claim of discrimination under the Fourteenth Amendment’s Equal Protection Clause. But none of the Plaintiffs is a member of a suspect or quasi-suspect class (for example, they do not claim discrimination on the basis of race, ethnicity, or gender). Instead, they are proceeding under the “class of one” theory expressly recognized by the United States Supreme Court in Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000), and since applied by the Tenth Circuit:

In the paradigmatic class-of-one case, a public official inflicts a cost or burden on one person without imposing it on those who are similarly situated in material respects, and does so without any conceivable basis other than a wholly illegitimate motive.... The paradigmatic “class of one” case, more sensibly conceived, is one in which a public official, with no conceivable basis for his action other than spite or some other improper motive (improper because unrelated to his public duties), comes down hard on a hapless private citizen.

Jicarilla Apache Nation v. Rio Arriba County, 440 F.3d 1202, 1209 (10th Cir. 2006). But courts, including the Tenth Circuit, are cautious when analyzing class-of-one claims:

Most circuits, including this one, have proceeded cautiously in applying the theory, sensitive to Justice Breyer’s warning [in Olech ] against turning even quotidian exercises of government discretion into constitutional causes. An approach that reads Olech too broadly could transform the federal courts into “general-purpose second-guessers of the reasonableness of broad areas of state and local decisionmaking: a role that is both ill-suited to the federal courts and offensive to state and local autonomy in our federal system.” Such a pervasive threat of federal litigation could straitjacket local governments that have neither the capacity to document the reasoning behind every decision nor the means to withstand an onslaught of lawsuits.

Id. (citations omitted).

A class-of-one equal protection claim has two essential elements. First, the plaintiff must establish that the government official or entity intentionally treated it differently from those who are similarly situated. Grubbs v. Bailes, 445 F.3d 1275, 1282 (10th Cir.2006). Second, the plaintiff must show “that the official action was objectively irrational and abusive .... ” Jicarilla Apache Nation, 440 F.3d at 1211 (emphasis in original).

1. Similarly Situated

The key to the first element of a class-of-one claim is to establish a similarly situated comparator. The question of whether individuals are similarly situated is a factual question. But “a court may properly grant summary judgment where it is clear that no reasonable jury could find that the similarly situated requirement has been met.” McDonald v. Village ofWinnetka, 371 F.3d 992, 1002 (7th Cir. 2004). In this case, the Plaintiffs have not, as a matter of law, satisfied the similarly situated requirement of a class-of-one equal protection claim.

“The requirement that a plaintiff show that similarly situated persons were treated differently ‘is especially important in class-on-one cases.’ ” Jicarilla Apache Nation, 440 F.3d at 1212. Plaintiffs must demonstrate similarity “in all material respects,” and “cannot prevail if there is any material difference between it and allegedly similarly situated parties that relates to a governmental interest.” Id. at 1212-13 (emphasis in original). This is a heavy-burden. See, e.g., id. (“when the class consists of one person or entity, it is exceedingly difficult to demonstrate that any difference in treatment is not attributable to a quirk of the plaintiff or even to the fallibility of administrators whose inconsistency is as random as it is inevitable”) (emphasis added); Jennings v. City of Stillwater, 383 F.3d 1199, 1214 (10th Cir. 2004) (“It is ... imperative for the class-of-one plaintiff to provide a specific and detailed account of the nature of the preferred treatment of the favored class.”); Neilson v. D’Angelis, 409 F.3d 100, 105 (2d Cir.2005) (class-of-one plaintiff must show that “no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy”); Purze v. Village of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir.2002) (requiring class-of-one plaintiff to show it is “prima facie identical [to the proposed comparator] in all relevant respects”) (emphasis added).

Here, Plaintiffs contend that they should be compared to “other builders of single family homes in Duchesne County.” (Pis.’ Mem. Opp’n at 1.) But Plaintiffs definition of “similarly situated” in a class-of-one case is too broad, as discussed below. Also, Plaintiffs have not presented compelling evidence of a truly similarly situated comparator. See Jennings, 383 F.3d at 1215 (“the multiplicity of relevant (nondis-eriminatory) variables requires [a class-of-one] plaintiff to provide compelling evidence of other similarly situated persons who were in fact treated differently.”).

The Tenth Circuit has emphasized how narrowly the favored class must be defined. In Jennings, to demonstrate its point, it approvingly quoted a District of Massachusetts opinion dealing with a class-of-one claim challenging a zoning decision:

“It might be suggested that all applicants should be considered ‘similarly situated’ simply because they had all made requests for waivers of the dead-end street length regulation. But that is so broad a definition of ‘similarly situated’ that it is not useful for equal protection analysis; it could be applied to any group of applicants where, looking back, one could see that there had been some who succeeded and some who failed. For example, high school students whose applications to a particular college were rejected could allege that they were being treated differently from the ‘similarly situated’ fellow students whose applications were accepted. In the example, one would want to know a good deal more about the merits of individual applicants before deciding who was similarly situated to whom. ”

Jennings, 383 F.3d at 1214 (underline emphasis added) (quoting Lakeside Builders, Inc. v. Planning Bd. of the Town of Franklin, 2002 WL 31655250, at *3 (D.Mass. Mar. 21, 2002) (citations omitted; italicized emphasis added by Tenth Circuit)).

The Second Circuit has also noted that, “[i]n order to succeed on a ‘class of one’ claim, the level of similarity between plaintiffs and the persons with whom they compare themselves must be extremely high. ” Neilson, 409 F.3d at 104 (emphasis added). The Neilson court required the class-of-one plaintiff to show that “the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendant acted on the basis of a mistake.” Id. at 105 (emphasis added). This narrowly defined standard is consistent with the language in Jennings, in which the Tenth Circuit said that,

unless carefully circumscribed, the concept of a class-of-one equal protection claim could effectively provide a federal cause of action for review of almost every executive and administrative decision made by state actors. It is always possible for persons aggrieved by government action to allege, and almost always possible to produce evidence, that they were treated differently from others, with regard to everything from zoning to licensing to speeding to tax evaluation. It would become the task of federal courts and juries, then, to inquire into the grounds for differential treatment and to decide whether those grounds were sufficiently reason