Joseph Stanislaw v. Thetford Twp., Mich.

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 17, 2025
• Docket: 23-1756
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 25a0023n.06

Case No. 23-1756

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 17, 2025 ) KELLY L. STEPHENS, Clerk JOSEPH P. STANISLAW; LARRAINE M. ) STANISLAW, ) Plaintiffs - Appellants, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE EASTERN DISTRICT OF ) MICHIGAN THETFORD TOWNSHIP, MICHIGAN; ) DENNIS BLOSS; STUART WORTHING; ) OPINION ROBERT SWARTWOOD; MARC ANGUS, ) Defendants - Appellees. )

Before: GIBBONS, WHITE, and MURPHY, Circuit Judges.

GIBBONS, J., delivered the opinion of the court in which MURPHY, J., concurred. WHITE, J. (pp. 16–35), delivered a separate dissenting opinion.

JULIA SMITH GIBBONS, Circuit Judge. Joseph and Larraine Stanislaw are owners of

an automobile-related business in Thetford Township, Michigan. The Stanislaws have been

living—and attempting to operate their business—on the same parcel of land in the Township

since 1983. From 2005 to 2018, after receiving citizen complaints about the state of the

Stanislaws’ property, the Township denied the Stanislaws licenses to operate their business. The

Stanislaws assert an equal protection class of one claim, arguing that the Township and its officials

intentionally discriminated against the Stanislaws in comparison to other similarly situated

businesses with no rational basis for the differential treatment. Because the Stanislaws have failed

to carry their heavy burden, we affirm the judgment of the district court for the Township and its

officials. No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

I.

These parties are before the Sixth Circuit for a third time, presenting a factual and

procedural history that spans forty years. The Stanislaws purchased a property in Thetford

Township in May 1983. That same year, the Township Supervisor authorized the Stanislaws to

conduct automobile sales on the property. As a part of this process, the Stanislaws filed a petition

for site plan review with the Thetford Township Planning Commission; the site plan contemplated

that the property would be used for a residence and for used automobile sales and servicing. In

1984, the Stanislaws added a fence to the outside storage area, as required by the ordinance in

effect at the time, Ordinance No. 3. But in 1989, the Township replaced Ordinance No. 3 with

Ordinance No. 78, which “vastly changed the conditions and requirements of zoning in the

Township, including on” the Stanislaws’ property. DE 62-2, Decl., Page ID 923. Via Ordinance

No. 78, the Stanislaws’ property was zoned as General Commercial.

In 1993, the Stanislaws were licensed for three types of business activity on their property:

Class B, “Used Vehicle Dealer,” which allowed them to “buy and sell used vehicles”; Class C,

“Used Vehicle Parts Dealer,” which allowed them to “buy and dismantle vehicles to sell parts and

remaining scrap” and also to “buy and sell used late model major component parts”; and Class E,

“Distressed Vehicle Transporter,” which allowed them to “buy vehicles only for resale to Class

‘C’ or Class ‘F’ dealers.” DE 62-2, Ex. 4, Page ID 1117–18. The Stanislaws’ last full year in

operation was 2001; they did not operate their business from 2002 through 2005 due to Mr.

Stanislaw’s health issues. The Stanislaws continued to use the property as their residence.

Notably, Ordinance No. 78 does not permit junk yards in areas zoned as General

Commercial. Per Ordinance No. 78, “junk” is “[a]ny motor vehicles, machinery, appliances,

products or merchandise with parts missing or other scrap materials that are damaged,

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deteriorated, or are in a condition which prevents their use for the purpose of which the product

was manufactured,” and a “junk yard” is an “area where waste [and] used or second hand materials

. . . including but not limited to junk, scrap iron and other metals, paper, rags, rubber tires and

bottles” are bought, sold, exchanged, disassembled, or stored. DE 62-2, Ordinance No. 78, Page

ID 966. The Ordinance goes on to state that “[a] junk yard includes automobile wrecking yards

and includes any open area of more than two hundred (200) square feet for storage, keeping, or

abandonment of junk.” Id.

In September 2005, neighboring property owners of the Stanislaws, Daniel and Marsha

Case and Lillian Sheppard, complained to the Township that the Stanislaws were operating “a Junk

Yard” and that their business had “become an eyesore and possibly a nuisance.” DE 62-2, Ex. 16,

Page ID 1174. The neighbors urged the Township to “investigat[e].” Id. A few months later, in

December 2005, the Stanislaws applied for two business licenses—Class B, Used Vehicle Dealer,

and Class E, Distressed Vehicle Transporter. After inspecting the property, Township building

inspector Marc Angus disapproved the Stanislaws’ application. On the disapproval form, Angus

wrote that the Stanislaws’ property was not properly zoned for a Class E license, that it required a

fence for outside storage, that the partial fence on the property was in disrepair, and that the

Stanislaws were operating an automobile graveyard.

“Without first appealing to the [Township Zoning Board of Appeals (ZBA)] or the

Michigan state courts,” the Stanislaws in 2009 initiated an action in federal court challenging the

2005 denial. Stanislaw v. Thetford Twp., 515 F. App’x 501, 502–03 (6th Cir. 2013) (Stanislaw I).

While this action was pending, the Stanislaws in 2011 again applied for licenses—this time, Class

B, Used Vehicle Dealer, and Class C, Used Vehicle Parts Dealer—and were denied. The

Stanislaws appealed this 2011 denial to the ZBA, which affirmed the denial. In its determination,

-3- No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

the ZBA emphasized that the Stanislaws’ property “is properly zoned for a Class B license” and

that if the Stanislaws “submit a Zoning Approval for only a Class B license, the Zoning Approval

form must be approved.” DE 60-5, ZBA Meeting Minutes July 27, 2011, Page ID 593.

Instead of filing for a Class B license, the Stanislaws appealed the ZBA’s decision to the

Genesee County Circuit Court. After a hearing, the Genesee County Circuit Court affirmed the

ZBA’s decision to uphold the 2011 denial of the licenses. The circuit court found no abuse of

discretion by the ZBA. (Id.) The Stanislaws did not appeal this decision.

In 2013, this court affirmed the district court’s grant of summary judgment to the Township

on the Stanislaws’ claims arising from the 2005 denial. Stanislaw I, 515 F. App’x at 507.

Following that, in 2015, the Stanislaws appeared before the Thetford Township Planning

Commission to “ascertain the fencing requirements for their property.” DE 1-1, Compl., Page ID

14; DE 60-10, Thetford Twp. Planning Commission Mtg. Minutes, Page ID 653–54. At this

meeting, Daniel Bloss, a member of the Planning Commission, and Stuart Worthing, the Township

building inspector after Marc Angus, told the Stanislaws they could not have a business and a

residence on the same property. The Stanislaws appealed to the ZBA the determination that their

plot should be treated as residentially zoned. In July 2016, the ZBA affirmed the determination to

treat the plot, despite being in the General Commercial district, as residentially zoned. The

Stanislaws appealed this decision to the Genesee County Circuit Court, and the circuit court

reversed and remanded back to the ZBA. Following this, in 2017, the ZBA reversed itself and

acknowledged that the Stanislaws could operate a business and maintain a residence on the same

plot. The next year, in 2018, the Stanislaws applied for a Class B license and were approved.1

1 During the pendency of this litigation, the Stanislaws in 2022 were granted Class B, Class C, and Class E licenses. -4- No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

Also in 2018, the Stanislaws initiated this action in Michigan state court, alleging, among

other claims, discriminatory treatment by the Township, Marc Angus, Daniel Bloss, and Stuart

Worthing in violation of the Equal Protection Clause of the Fourteenth Amendment. Following

removal to federal court, a panel of this court in 2021 held that, while “claims or issues solely

based on the events of 2005 to 2009” were precluded by the Stanislaw I litigation, the Stanislaws

could continue to press forward on their claims of discriminatory treatment post-2009. Stanislaw

v. Thetford Twp., Mich., et al., No. 20-1660, 2021 WL 3027195, at *5 (6th Cir. July 19, 2021)

(Stanislaw II). After discovery, the district court granted summary judgment for the Township

and the Township officials on the Stanislaws’ equal protection class of one claim. The district

court declined to exercise supplemental jurisdiction over the Stanislaws’ state law claims. The

Stanislaws timely appealed.

II.

We review the district court’s grant of summary judgment de novo. Jones v. Producers

Servs. Corp., 95 F.4th 445, 449 (6th Cir. 2024). Summary judgment is appropriate only if “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 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). To survive

the defendants’ motion for summary judgment, the Stanislaws “must establish that there is a

genuine issue of material fact” on their equal protection class of one claim. Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). At this stage, we view all facts and make all

inferences in the light most favorable to the Stanislaws, the non-moving party. See id. at 587.

We begin with a few preliminary matters. We found the Stanislaws’ briefing difficult to

follow as to what actions they were now challenging, so we asked about this issue at oral argument.

First, given the prior litigation between these parties, counsel for the Stanislaws acknowledged

-5- No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

that this appeal does not challenge Angus’s 2005 denial. Oral Argument at 1:23–:45, Stanislaw v.

Thetford Twp., Mich., et al. (No. 23-1756). The prior litigation has already addressed any claims

arising out of the 2005 denial. See Stanislaw I, 515 F. App’x at 503–04; Stanislaw II, 2021 WL

3027195, at *5. Second, counsel for the Stanislaws conceded at oral argument that the Stanislaws

were not challenging Angus’s 2011 denial. See Oral Arg. at 4:06–:20. This concession effectively

waived our review of any claim tied to the denial of the 2011 applications. See United States v.

Duval, 742 F.3d 246, 255 (6th Cir. 2014); cf. Kovalchuk v. City of Decherd, 95 F.4th 1035, 1038–

39 (6th Cir. 2024). And even if claims based on the 2011 denial were not waived because counsel

misspoke as the dissent notes, they are still precluded. The Genesee County Circuit Court affirmed

Angus’s 2011 denial (and the ZBA’s 2011 decision upholding that denial), finding that “the law

has been followed, proper procedure has [been] followed, [and] there’s competent material and

substantial evidence on the record,” leading the court to conclude that “the ZBA . . . exercised its

discretion” and that there was “[n]o abuse of discretion on the record before the ZBA.” DE 60-7,

Genesee County Circuit Court Hr’g Tr., Page ID 638–39, 641. The Stanislaws did not appeal this

judgment. Res judicata applies to the Genesee County Circuit Court’s final judgment, thus

precluding our review of Angus’s 2011 denial or the ZBA’s 2011 resolution affirming that denial.2

See Westwood Chem. Co. v. Kulick, 656 F.2d 1224, 1227 (6th Cir. 1981).

2 The dissent frames our decision to raise the issue of res judicata as error because it was sua sponte citing a quote out of context from Hutcherson v. Lauderdale County, 326 F.3d 747, 757 (6th Cir. 2003). See Dissent at 19. The full context of that quote notes that the Supreme Court and this circuit have held that courts may take the initiative to assert the res judicata defense sua sponte to conserve judicial resources, prevent unnecessary judicial waste, and protect litigants from multiple lawsuits among many other reasons. Hutcherson, 326 F.3d at 757. This case—given its long- running litigation and multiple state and federal court decisions—may be the quintessential candidate for consideration of a res judicata claim sua sponte. See generally Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 (1979) (describing res judicata as having “the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation”). -6- No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

The dissent claims that Michigan’s state circuit court decisions do not have res judicata

effect as to their constitutional claims. See Dissent at 22. The decision the dissent cites for that

proposition, Houdini Properties, LLC v. City of Romulus, declined to apply res judicata to

constitutional claims on a plaintiff’s appeal of a ZBA board decision. 743 N.W.2d 198, 198–99

(Mich. 2008). But as our circuit later noted in discussing that case, res judicata did not apply in

Houdini Properties because the Michigan circuit court was reviewing the ZBA board decision

“solely as an appeal [of the ZBA Board] and review[ing] it as such.” Jon Jon’s, Inc. v. City of

Warren, 534 F. App’x 541, 544 (6th Cir. 2013) (emphasis omitted). Here, the Michigan circuit

court explicitly considered the equal protection argument and rejected it. So, unlike Houdini

Properties, in the case before us, the Michigan court did treat “Plaintiffs’ case as involving an

appeal and a separate civil counterclaim[,]” which would “indeed . . . be a crucial distinction [from

Houdini Properties].” Jon Jon’s Inc., 534 F. App’x at 544–45. Therefore, the analysis the dissent

proffers concerning where res judicata would not apply to the Stanislaws.

Given the preclusive effect of the prior litigation, counsel’s waiver, and the Genesee

County Circuit Court’s final judgment, the Stanislaws are left with an equal protection class of one

challenge to differential treatment between themselves and similarly situated businesses between

2013 and 2018.3 As discussed below, the Stanislaws cannot carry their heavy burden to prove

3 The dissent rightly notes that in Stanislaw II, the court did not hold that the events in Stanislaw I could be entirely disregarded. See Dissent at 20–22. The reason for that, however, is that the “factual allegations . . . [were] materially distinct from the claim that was pled in Stanislaw I[.]” Stanislaw II, 2021 WL 3027195, at *3. As noted, the panel also held that the Stanislaws could not relitigate any issues or claims based solely on the events of 2005 or 2009 as those were subject to res judicata. Id. at *5. In this current dispute, any equal protection class of one claims could have been brought in the prior litigation based on the alleged prior actions of the Township where the Stanislaws were alleged to have been “intentionally treated differently from others similarly situated and [where] there [was] no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Thus, those prior actions are precluded from consideration now. Ultimately, under the dissent’s theory of res judicata there would be a -7- No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

either (1) the existence of similarly situated businesses in all material respects or (2) the absence

of a rational basis for any differential treatment.

III.

On appeal, the Stanislaws assert an equal protection class of one claim: They argue that

(1) the Township and its officials “intentionally treated” them “differently from others similarly

situated” in all material respects, and (2) “that there is no rational basis for the difference in

treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Bench Billboard Co. v.

City of Cincinnati, 675 F.3d 974, 987 (6th Cir. 2012). The Stanislaws cannot carry their burden

to establish a genuine issue of material fact on either prong. We have previously emphasized that

courts should review class of one claims “skeptically” as they have the potential to “effectively

provide a federal cause of action for review of almost every executive and administrative decision

made by state actors.” Loesel v. City of Frankenmuth, 692 F.3d 452, 461–62 (6th Cir. 2012)

(quoting Jennings v. City of Stillwater, 383 F.3d 1199, 1211 (10th Cir. 2004)). The Stanislaws

cannot overcome their “heavy burden.” Id. at 462 (internal citation omitted).

A.

We begin with the Township. The Stanislaws argue that Thetford Township violated the

Equal Protection Clause of the Fourteenth Amendment under their class of one theory. But they

overlook an important step. The Stanislaws are proceeding under 42 U.S.C. § 1983, the vehicle

by which they may bring a federal claim against the Township. While municipalities are “persons”

for purposes of § 1983, see Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658, 690

(1978), a municipality cannot be held liable under a theory of respondeat superior. See id. at 691;

Stanislaw IV, a Stanislaw V, and so on whereby the Stanislaws could keep challenging and relitigating the past actions of the Township so long as they can supplement with a new action. We cannot endorse such a scenario. -8- No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

City of Canton v. Harris, 489 U.S. 378, 385 (1989). Instead, the Stanislaws must identify a

municipal “policy,” “custom,” or “practice.” Thomas v. City of Chattanooga, 398 F.3d 426, 429,

432 (6th Cir. 2005). While their complaint and counsel’s Rule 28(j) letter attempt to tie the § 1983

claim to the actions of the ZBA, the Stanislaws’ briefing before this court never cites Monell, nor

does it identify any municipal policy, practice, or specific ZBA action.4 This would indicate the

Stanislaws have abandoned any claim against the Township. See Hardrick v. City of Detroit, 876

F.3d 238, 243–44 (6th Cir. 2017) (explaining that Monell claims are generally forfeited when not

raised in the appellant’s opening brief). The dissent frames the Stanislaws’ failure to pursue a

Monell claim as merely a “missed citation to [a] legal authority.” Dissent at 17 (quoting United

States v. Charles, 843 F.3d 1142, 1147 (6th Cir. 2016). But a Monell claim is not a mere case

citation, it is the argument with Monell and its progeny setting out a very specific way in which

plaintiffs are to establish municipal liability under § 1983.5 Thus a failure to even raise the Monell

4 In seeking to show alleged municipality actions, the dissent cites an action by a ZBA chairman and a ZBA member. See Dissent at 17. But these are not municipality actions. See City of Canton, 489 U.S. at 385 (“[A] municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. . . . It is only when the execution of the government’s policy or custom . . . inflicts the injury that the municipality may be held liable under § 1983.”) (citations omitted). It is not enough to merely the cite the actions of members of a government body with power backed by the ZBA to find a municipality liable as “[d]iscretion to act is not to be confused with policymaking authority; no municipal liability results where an official merely has discretion to act because subjecting a municipality to liability in such a situation would be ‘indistinguishable’ from respondeat superior liability.” Feliciano v. City of Cleveland, 988 F.2d 649, 656 (6th Cir. 1993) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 126 (1988)). 5 This is why case law explicitly refers to Monell in the context of a Monell “claim” or Monell “liability,” which establishes what a plaintiff must prove in order to succeed on a Monell claim or under Monell liability. See, e.g., Hardrick v. City of Detroit, 876 F.3d 238, 243 (6th Cir. 2017) (establishing requirements to succeed on a Monell claim); see also, e.g., Lockett v. Cnty. of Los Angeles, 977 F.3d 737, 740 (9th Cir. 2020) (describing the unique process on how to obtain § 1983 against a municipality as a “Monell claim”); Thomas v. Cook Cnty. Sherriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2010) (describing the unique process a plaintiff must satisfy to establish “Monell liability”). -9- No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

argument of course can constitute a waiver of the Monell argument. But, even if the Stanislaws

had properly raised Monell liability, they cannot identify any ZBA action during the time period

at issue in this appeal that evinced differential treatment from others similarly situated for which

there was no rational basis.

Between 2013 and 2018, the only adverse ZBA action on the record before us occurred on

July 27, 2016. At that meeting, the Stanislaws were appealing the zoning decision to treat their

plot as residential, instead of as a commercially zoned plot. This was after the Stanislaws had

halted operation of their business back in 2002, lost their business licenses in 2005, yet lived on

the same property continuously before coming before the ZBA in 2016. The ZBA resolved to

continue to treat the Stanislaws’ plot as residentially zoned. The Stanislaws then appealed this

decision to the Genesee County Circuit Court, and that court reversed the ZBA, leading the ZBA

to reverse its earlier decision and acknowledge that the Stanislaws could both operate a business

and maintain a residence on the plot.

Even if the Stanislaws had properly argued that the July 2016 ZBA action constituted an

“action[] taken by officials with final decision-making authority,” see Thomas, 398 F.3d at 429,

the evidence does not create a genuine dispute as to whether the ZBA’s action “intentionally

treated” the Stanislaws “differently from others similarly situated.” Green Genie, Inc. v. City of

Detroit, 63 F.4th 521, 527 (6th Cir. 2023) (quoting Olech, 528 U.S. at 564). The key here is the

element of intent. “[T]he unequal application of a facially neutral law is not a denial of equal

protection unless” the plaintiff can show “an element of intentional or purposeful discrimination.”

Id. (internal citation omitted). Because plaintiffs usually do not have direct evidence of

discrimination, they may “demonstrate intentional discrimination through circumstantial

evidence.” Id. at 528. For a class of one claim, this requires demonstrating “an inference of

- 10 - No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

intentional discrimination arising from the fact that the adverse treatment . . . was such a stark

outlier from an otherwise consistent pattern of favorable treatment in similarly situated cases.” Id.

(internal citation omitted). The Stanislaws cannot show that they were a “stark outlier.” Id.

True, determining whether a comparator is “similarly situated” in all material respects is

typically a question for the jury. Loesel, 692 F.3d at 463. But that is not so where the Stanislaws

have failed to create a genuine issue of material fact for a jury to consider. There is not enough

evidence in the record before us to show any similarly situated businesses (in all material respects)

that were treated more favorably. The Stanislaws assert that John Belott & Son, LLC, Hi-Speed

Auto, Duquette’s Garage, Inc., and Monster Auto are similarly situated businesses. But none of

their alleged comparators are similarly situated in all material respects. John Belott & Son has

only applied for and received a Class B license—it has never applied for a Class C or E license.

The same goes for Duquette’s Garage—it has only applied for and received a Class B license.

While Duquette’s does have both a residence and business on the same parcel, it has never sought

a Class C or E license, as the Stanislaws have. As for Monster Auto, there is no information in the

record about what business licenses it held, and the business closed in 2019. Hi-Speed is the only

business on the record that has applied for and received both Class B and C licenses; still, Hi-Speed

has never applied for a Class E license. Nor is there any evidence that Hi-Speed has served as

both a business and a residence on the same plot. As a general matter, there is a lack of concrete

detail in the record about these various businesses—for example, whether they are the same size,

whether they border residences, or whether they conduct the same business activities (for example,

used car sales versus used parts dealer versus distressed vehicle transporter). And finally, for

purposes of the July 2016 ZBA action, there is no evidence that any of the other businesses stopped

operating and functioned only as a residence for approximately 14 years before any ZBA action.

- 11 - No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

Contrary to the arguments raised by the dissent, the Stanislaws have simply not placed enough

evidence in the record about these businesses to create a genuine issue of material fact.

Nor can the Stanislaws overcome the rational basis prong of the class of one inquiry. The

rational basis standard of review is “‘a paradigm of judicial restraint,’ growing out of recognition

that ‘equal protection is not a license for courts to judge the wisdom, fairness or logic of legislative

choices.’” TriHealth, Inc. v. Bd. of Comm’rs, 430 F.3d 783, 791 (6th Cir. 2005) (quoting FCC v.

Beach Cmmc’ns, Inc., 508 U.S. 307, 313–14 (1993)). Indeed, “[t]he Constitution presumes that,

absent some reason to infer antipathy, even improvident decisions will eventually be rectified by

the democratic process and that judicial intervention is generally unwarranted no matter how

unwisely we may think a political branch has acted.” Id. As a result of this strict standard of

review, we must sustain the challenged government action “if any conceivable basis rationally

supports it.” Id. at 790 (emphasis in original). The Township “has no obligation to produce

evidence to sustain the rationality of its action; its choice is presumptively valid and ‘may be based

on rational speculation unsupported by evidence or empirical data.’” Id. (quoting Beach Cmmc’ns,

508 U.S. at 315).

The Stanislaws have not refuted every conceivable basis which may have supported the

Township’s actions here.6 See Loesel, 692 F.3d at 465. Most importantly, multiple neighboring

property owners complained to Township officials throughout the years that the Stanislaws were

operating a junk yard. See, e.g., DE 62-2, Ex. 15, Page ID 1172 (letter from a district commissioner

6 The dissent argues that the question is not whether there was a rational basis to deny the Stanislaws a license but whether there was a rational basis to treat the Stanislaws differently. See Dissent at 29–30. Ultimately, the question of whether there was a rational basis to deny the Stanislaws a license naturally merges with whether there was a rational basis to treat the Stanislaws differently. But putting that aside, for the same reasons there was a rational basis to deny the Stanislaws a license there would inevitably be a rational basis to treat them differently. - 12 - No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

about neighbor Daniel Case dated July 11, 1990, “request[ing] help in dealing with a problem next

door to” Case that “the owner has several junk cars on the lot which under [the Thetford Township]

zoning code is not allowed”); DE 62-2, Ex. 16, Page ID 1174 (letter from neighbors Daniel and

Marsha Case and Lillian Sheppard, dated September 26, 2005, writing that the Stanislaws are and

have been “operating a Junk Yard or Automobile Graveyard,” that they “feel the practices of this

business have become an eyesore and possibly a nuisance,” requesting the Township “review the

site plan requirements” and imploring that the Stanislaws’ business “comply with the applicable

State and Thetford Township Ordinances concerning storage of vehicles[] [and] equipment and

the maintenance of fencing and screening of storage areas and the correction and prevention of

encroachment on our adjoining properties,” and finally imploring “an investigation by your

offices”); DE 60-14, ZBA Meeting Minutes, Page ID 731–32 (minutes of ZBA meeting at which

Rhonda and Lillian Sheppard complained that, as late as August 30, 2017, the Stanislaws had “out

door storage” of “rubbish, junk equipment and parts,” that the Sheppards had taken photos of the

property that day demonstrating the rubbish, that “[t]his has been going on since 1984,” that the

Stanislaws were operating a “junk yard” and that “[t]here is no way the cars that are parked out

front can be runnable,” with 30 to 40 cars on the property as well as “stacks and stacks of tires”).

These detailed, consistent neighbor complaints create an adequate, rational justification for

the Township to investigate and respond to its constituents’ concerns. The complaint of multiple

neighbors that the Stanislaws were operating a junk yard next door, and in one case that it was

encroaching onto the neighbor’s property, is a rational reason for the Township to investigate the

Stanislaws and suspect a violation of the zoning ordinance. See DE 60-4, Angus Statement, Page

ID 570 (noting Marc Angus’s observation in 2005 based on his inspection that “[t]here were many

disabled, salvage or junk vehicles on the property”). Indeed, there is no evidence in the record that

- 13 - No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

any of the other businesses received neighbor complaints. Nor did the other businesses cease

operations at any point, function as a residence, yet still maintain 30 to 40 cars on the property.

The dissent inappropriately analogizes to City of Cleburne v. Cleburne Living Center where the

Supreme Court held that mere negative attitudes do not satisfy rational basis review. See Dissent

at 32–33 (citing 473 U.S. 432, 447–48 (1985)). But the “mere negative attitudes” in Cleburne

were not property nuisances, they were “mere negative attitudes, or fear, unsubstantiated by factors

which are properly cognizable in a zoning proceeding[.]” Id. at 448. Considerations of nuisances

or eye sores are exactly what is appropriate in a zoning proceeding as opposed to what the Supreme

Court made clear was inappropriate in Cleburne: the dislike of the mentally disabled. Id.; see also

id. at 461–62 (Marshall, J., concurring). As a result, we cannot say that the ZBA’s actions in this

case are “irrational” or completely “unsupported.” Trihealth, 430 F.3d at 790–91. We therefore

affirm the district court’s grant of summary judgment for the Township.

B.

We move on to Marc Angus.7 As discussed above, the Stanislaws have disclaimed that

their class of one theory is based on Angus’s 2005 or 2011 license denials. Nor could they base

their theory on each of these actions—the 2005 denial is precluded from our review by Stanislaw

I, and the 2011 denial is precluded from our review by the Genesee County Circuit Court’s

undisturbed final judgment in 2012. The Stanislaws do not assert, and the record does not reveal,

7 Plaintiffs cannot hold one official responsible for another’s actions under § 1983, so they must allege that each official engaged in unlawful conduct to survive summary judgment. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Jane Doe v. Jackson Loc. Sch. Dist. Bd. of Educ., 954 F.3d 925, 934–35 (6th Cir. 2020). We note at the outset that the Argument Section of the Stanislaws’ brief does not even name any individual defendant, let alone identify specific conduct by that defendant that violated the Equal Protection Clause. The Stanislaws thus have not created a genuine dispute of material fact about any individual defendant’s conduct. Dibrell v. City of Knoxville, 984 F.3d 1156, 1163 (6th Cir. 2021). - 14 - No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

any other action taken by Marc Angus. We affirm the district court’s order of summary judgment

for Marc Angus.

C.

Next, we evaluate Dennis Bloss and Stuart Worthing. Dennis Bloss was a member of the

Thetford Township Planning Commission, and Stuart Worthing was the Township’s building

inspector after Marc Angus. The Stanislaws appear to challenge Bloss and Worthing’s inaccurate

statements on the requirements of Ordinance No. 78 as applied to the Stanislaws—specifically,

that they could not have a business and residence on the same property.

But again, the Stanislaws have failed to show any evidence of these individuals treating

other property owners differently. Any inaction with respect to the other businesses cannot support

an inference that Bloss or Worthing discriminated against the Stanislaws, especially when none of

the other businesses received neighbor complaints as the Stanislaws did. Moreover, as discussed

above, no other business was similarly situated in all material respects, as no other business had

ceased operations yet maintained a residence on the same parcel for approximately 14 years.

Ultimately, the Stanislaws must raise some evidence of disparate treatment, and here “there is

simply no evidence to weigh.” Green Genie, 63 F.4th at 529.

IV.

While the Township’s rationales for denying the Stanislaws the licenses over the years to

operate their business may be concerning, the Stanislaws have mounted one of the most difficult

legal challenges—an equal protection class of one claim. Given the strict rational basis standard

of review and the Stanislaws’ failure to present evidence of materially similarly situated

businesses, we affirm the judgment of the district court.

- 15 - No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

HELENE N. WHITE, Circuit Judge, dissenting. For over a decade, Thetford Township

repeatedly denied the Stanislaws a vehicle dealer license based on shifting and demonstrably false

rationales. At the same time, the Township purportedly allowed other similarly situated

competitors to operate. The majority determines that there were rational bases to justify the

Stanislaws’ disparate treatment: neighbors complained about the property, and it allegedly

functioned as a junk yard. I disagree with the majority’s analysis, and accordingly dissent.

First, the Stanislaws did not abandon their municipal-liability claim. To preserve on appeal

a claim the district court rejected, a party need only “assert an argument, however limited, for

reversal.” JPMorgan Chase Bank, N.A. v. First American Title Ins. Co., 750 F.3d 573 (6th Cir.

2014). Thus, to preserve a municipal-liability claim, a plaintiff must (1) identify an official action

for which the municipality can be held liable under 42 U.S.C. § 1983, and (2) argue that the action

caused a constitutional violation. Hardrick v. City of Detroit, Mich., 876 F.3d 238, 244 (6th Cir.

2017). The Stanislaws have done so.

A municipality may be liable under § 1983 for the actions of “official[s] with final decision

making authority.” Paterek v. Village of Armada, Michigan, 801 F.3d 630, 651-652 (6th Cir.

2015) (quoting Meyers v. City of Cincinnati, 14 F.3d 1115, 1117-18 (6th Cir.1994)). In Michigan,

“[t]he ZBA is a policymaking body within the Township, because its decisions are not reviewed

by any superior officials.” Paeth v. Worth Twp., 483 F. App’x. 956, 964 (6th Cir. 2012). Thus,

Thetford Township is liable for ZBA actions that cause constitutional violations. And as this court

has previously noted, the ZBA approved the denials of the Stanislaws’ license applications in 2005

and 2011. Stanislaw II, 2021 WL 3027195, at *1-*2. The Township can thus be liable for those

- 16 - No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

denials, and the Stanislaws repeatedly argue that “Thetford’s denials” caused a constitutional

violation. See, e.g., Appellant’s Brief, at 36.

The Stanislaws also identify other ZBA actions that contributed to the unequal treatment

they faced. For example, the ZBA chairman told the Stanislaws that they could not keep a business

and a residence on the same parcel, but the Township permitted the Stanislaws’ competitor to do

so. And another ZBA member ordered the Stanislaws to remove vehicles from their property,

although competitors kept their properties in a similar condition.1 These assertions are sufficient

to preserve the Stanislaws’ claim for appeal, and it is inaccurate to say the Stanislaws failed to

“identify any municipal policy, practice, or specific ZBA action.” Majority op. at 9. The majority

further faults the Stanislaws for failing to cite Monell v. Dep’t of Soc. Servs. of the City of N.Y.,

436 U.S. 658 (1978). But a “missed citation to legal authority does not establish a forfeiture of an

argument.” United States v. Charles, 843 F.3d 1142, 1147 (6th Cir. 2016).

Indeed, it is important to remember that “the rule requiring all issues be raised in an opening

brief is a court-made rule,” and “its underlying rationale is to avoid surprise and prevent

sandbagging of appellees.” Glennborough Homeowners Assoc. v. U.S. Postal Serv., 21 F.4th 410,

414 (6th Cir. 2021) (quotations omitted). Here, the Township was not surprised by the municipal-

liability claim. In their complaint, the Stanislaws asserted that “[t]he ZBA’s decisions are the

official policy of the Township, and if its decisions to deny certain zoning approvals violate federal

1 The majority asserts that individual ZBA members’ actions cannot give rise to municipal liability because they “are not municipality actions.” Majority op. at 9–10 n.4. It is unclear whether that is true here. A municipality may be liable for an individual official’s actions where the official has enough “responsibility” that his “acts or edicts may fairly be said to represent official policy.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480-82 (1986). The ZBA’s actions “are not reviewed by any superior officials,” Paeth, 483 Fed. App’x. at 964, so it is possible that individual ZBA members have enough “responsibility” that their “acts or edicts may fairly be said to represent” Township policy, Pembaur, 475 U.S. at 480. But even if the acts of individual ZBA members do not give rise to municipal liability, the majority does not dispute that the license denials themselves—which were approved by the ZBA as a whole—are official Township actions sufficient for municipal liability under § 1983. By arguing that the Township can be held liable for those denials, the Stanislaws have preserved their municipal-liability claim for appeal.

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constitutional rights, the Township is accountable under 42 USC [§] 1983.” R. 1-1, PID 22 (citing

Monell, 436 U.S. at 690, and Paeth, 483 F. App’x at 964). The Township has had ample

opportunity to argue that it cannot be held liable under Monell for the ZBA’s actions. But it has

never done so—not in its motion for judgment on the pleadings, not in its motion for summary

judgment, and not in this appeal. Nor has the Township argued on appeal that the Stanislaws

forfeited or abandoned their municipal-liability claim.2

Further, after this court discussed the municipal-liability claim at oral argument, the

Stanislaws submitted a letter under Federal Rule of Civil Procedure 28(j), explaining that “the

ZBA ‘is a policymaking body,’ and a deliberate discretionary act, including the type the Thetford

Township ZBA took, is one to which ‘municipal liability pursuant to Monell can attach.’” CA6

R. 24, P. 1 (quoting Paeth, 483 F. App’x. at 964-65) (brackets omitted). The Township did not

respond. In sum, although the Stanislaws’ framing of the issue has not been ideal, the Township

has known all along that the Stanislaws are claiming municipal liability based on the ZBA’s

actions, “so there is no surprise to prevent.” Hurst v. Caliber Home Loans, Inc., 44 F.4th 418, 424

(6th Cir. 2022); see also Hardrick, 876 F.3d at 244 (considering an otherwise-forfeited municipal-

liability argument because the defendant-appellee had a “chance to brief” the issue).

I also disagree with the majority’s conclusion that, at oral argument, counsel for the

Stanislaws waived any claim tied to the Township’s 2011 denial. See Maj. op. at 6. It is true that,

during oral argument, counsel said that the Stanislaws were challenging Angus’s second denial

2 The Township mentions Monell in its brief in a single paragraph. It explains that the District Court held that where there is “no underlying constitutional act,” “there can be no Monell municipal liability.” Appellee Brief at 32. The Township states that the “Plaintiffs do not challenge this ruling on appeal.” Id. But the Township does not say that the Stanislaws forfeited the argument that where there is an underlying constitutional violation, the Township can be held liable for it. And the Township does not contest the proposition that municipal liability attaches to unconstitutional actions of the ZBA. Nor does it contest the assertion that it can be held liable under Monell for the license denials if the denials were unconstitutional. Its only argument is that the denials were constitutional, and thus, since there is no underlying unconstitutional act, there can be no Monell liability.

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from 2013. However, Angus’s second denial took place in 2011, not 2013, so counsel’s statement

did not make sense. The Stanislaws’ briefs make clear that they are challenging the 2011 denial,

and counsel stated repeatedly at oral argument that the Stanislaws were challenging Angus’s

second denial. Thus, it is likely that the Stanislaws’ counsel simply misspoke or misremembered

the year of the second denial. Regardless, counsel’s statements do not demonstrate a “clear and

compelling” waiver of the Stanislaws’ challenge to the 2011 denial. Id.

The majority next holds that res judicata bars this court from considering many of the

relevant facts in this case. As the majority sees it, Stanislaw I—the suit involving the Stanislaws’

prior equal protection claim against Thetford Township—precludes consideration of the

Township’s actions between 2005 and 2009. Majority op. at 6–8, 15. And the Genesee County

Circuit Court’s judgment affirming the ZBA’s approval of the Township’s 2011 license denial

precludes consideration of events surrounding that denial. Id. The result is a blinkered analysis:

In a case with relevant facts stretching back to the 1980s, the majority considers only what occurred

“between 2013 and 2018.” Id. at 8. For several reasons, I disagree with that approach.

To start, the Township appellees have not argued on appeal that res judicata bars any part

of the Stanislaws’ claim. “[R]es judicata is an affirmative defense that should be raised by the

defending party,” and “[c]ourts generally lack the ability to raise an affirmative defense sua

sponte.” Hutcherson v. Lauderdale Cnty., 326 F.3d 747, 756 (6th Cir. 2003). A court may raise

res judicata sua sponte only “in special circumstances,” Arizona v. California, 530 U.S. 392, 412

(2000), such as when “[t]he defense was not available to Defendants prior to their filing their

motion,” Hutcherson, 326 F.3d at 757.

- 19 - No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

The majority asserts that considering the issue sua sponte conserves judicial resources.

Majority op. at 7 n.2. It is unclear why that is so. Res judicata was already litigated in this case:

When the Stanislaws brought this action, the Township moved for judgment on the pleadings and

argued that res judicata precluded the Stanislaws’ equal protection claim. R. 25, PID 161. The

district court agreed and granted judgment to the Township. R. 30, PID 411-418, 425. The

Stanislaws appealed, and this court reversed—explaining in a thorough opinion that res judicata

does not bar the equal protection claim. Stanislaw v. Thetford Twp., Mich., et al. (Stanislaw II),

No. 20-1660, 2021 WL 3027195, at *3-*5 (6th Cir. July 19, 2021). The Township then declined

to raise res judicata at summary judgment and in this appeal. Thus, by raising the issue sua sponte,

the majority spends judicial resources re-litigating an issue this court settled in a prior appeal in

the very same case—an issue that neither party has asked this court to address. That undermines

the majority’s efficiency interests. See Majority op. at 7 n.2 (expressing an interest in “protecting

litigants from the burden of relitigating an identical issue” (quotation omitted)).

On the merits, the majority incorrectly concludes that res judicata precludes the Stanislaws’

equal protection claim. In Stanislaw II, this court reversed the district court’s holding that

Stanislaw I precluded the Stanislaws’ equal protection claim. This court explained that “[r]es

judicata is not applicable where a subsequent lawsuit alleges ongoing unlawful conduct, even if it

is of the same nature as the conduct giving rise to the prior action, so long as the events giving rise

to the subsequent action occurred after the first action was filed.” Stanislaw II, 2021 WL 3027195,

at *4 (citing Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322, 324, 327-28 (1955) and Whole

Woman’s Health v. Hellerstedt, 579 U.S. 582, 601-603 (2016)). While Stanislaw I involved events

between 2005 and 2009, this suit involves “post-2009 misconduct,” including “the Township’s

- 20 - No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

shifting justifications proffered after 2009 for why the Stanislaws could not operate their dealership

business on their property.” Stanislaw II, 2021 WL 3027195, at *3-*5.

The majority agrees that Stanislaw I does not preclude consideration of post-2009 conduct,

but it concludes that any events between 2005 and 2009 “are precluded from consideration now.”

Majority op. at 8 n.3. I disagree. Stanislaw II held that the Stanislaws can use pre-2009 conduct

to support their claim: “[W]hile they cannot relitigate any claims or issues solely based on the

events of 2005 to 2009,” those events “may inform the allegations of a pattern of discriminatory

treatment regarding post-2009 misconduct.” Stanislaw II, 2021 WL 3027195, at *5 (emphasis

added) (citing Bronson v. Board of Education, 687 F.2d 836, 841 (6th Cir. 1982)). Yet the majority

categorically refuses to consider any of the Township’s pre-2009 conduct. It does not consider,

for example, the Township’s 2005 denial of the Stanislaws’ licenses, or the Township’s concurrent

approval of licenses to the Stanislaws’ competitors in 2005 and 2006.3 Thus, the majority does

the opposite of what Stanislaw II instructs by refusing to consider “the events of 2005 to 2009” in

analyzing the “pattern of discriminatory treatment” the Stanislaws faced. Stanislaw II, 2021 WL

3027195, at *5.

The majority asserts that this logic would permit the Stanislaws to file endless suits against

the Township so long as they add a “new” factual allegation to each suit. Majority op. at 8 n.3.

But Stanislaw II did not hold that any new factual allegation defeats res judicata. Rather, it applied

the settled principle that res judicata does not preclude a claim “predicated on new material events

postdating the filing of the initial complaint” in the prior suit. Stanislaw II, 2021 WL 3027195, at

*4 (citing Whole Woman’s Health, 579 U.S. at 601-603, and Restatement (Second) of Judgments

3 The majority does, however, justify the Township’s post-2009 conduct using pre-2009 events, illustrating the relevance of such conduct in analyzing post-2009 events. See, e.g., Majority op. at 14 (citing 2005 neighbor complaints and Angus’ 2005 claim that the Stanislaws’ kept “junk” on the property).

- 21 - No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

§ 24 (1980)). When a party raises such a claim, she may use allegations made in a prior case to

“inform” the “pattern of discriminatory treatment” alleged in the current case. Id. at *5 (citing

Bronson, 687 F.2d at 841). Thus, for the Stanislaws to defeat res judicata in a future case, they

would need to bring claims “predicated on new material events” not litigated here; it would be

insufficient to file a new equal protection claim based on the same license denials with a few new

allegations thrown in. Id. at *4.

The majority also wrongly concludes that the Genesee County Circuit Court’s 2012

judgment precludes the Stanislaws’ claim. “Federal courts must give the same preclusive effect

to a state-court judgment as that judgment receives in the rendering state.” Abbott v. Michigan,

474 F.3d 324, 330 (6th Cir. 2007). In other words, the Genesee County Circuit Court’s judgment

is no more or less preclusive in this court than it would be in a Michigan state court. In Michigan,

res judicata applies where: (1) “the prior action was decided on the merits,” (2) “both actions

involve the same parties or their privies,” and (3) “the matter in the second case was, or could have

been, resolved in the first.” Adair v. State, 680 N.W.2d 386, 396 (Mich. 2004).

Applying those principles, the Michigan Supreme Court has held that where a state circuit

court sits in review of a local ZBA, the circuit court’s judgment “[i]s not res judicata on [a]

plaintiff's constitutional claims” arising from the same set of facts because a ZBA lacks jurisdiction

to decide constitutional claims, and “the circuit court’s review is confined to the record and

decision of the zoning board of appeals.” Houdini Properties, LLC v. City of Romulus, 743 N.W.2d

198 (Mich. 2008). As this court has explained, “res judicata does not apply to a plaintiff’s

constitutional claims arising from the same facts” “presented in an appeal from a ZBA’s decision.”

Jon Jon’s Inc. v. City of Warren, 534 F. App’x 541, 544 (6th Cir. 2013) (citing Houdini, 743

N.W.2d at 198-199).

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Here, the Genesee County Circuit Court issued its judgment on appeal from the Thetford Township

ZBA’s approval of the denial of the Stanislaws’ license applications. In issuing that approval, the

ZBA did not—and could not—consider any constitutional arguments. See R. 60, PID 596-600.

On appeal, the circuit court was thus itself “barred from ruling on constitutional issues,” Jon Jon’s,

534 F. App’x at 544, which means its judgment “was not res judicata on the [Stanislaws’]

constitutional claims,” Houdini, 743 N.W.2d at 198. Because Michigan courts would not apply

res judicata to the circuit court’s decision, this court cannot either.

The majority asserts that Michigan courts would apply res judicata to the Genesee County

Circuit Court’s decision because “the circuit court explicitly considered the equal protection

argument and rejected it.” Majority op. at 7 (citing R. 60-7, PID 638-39). But in Houdini, the

circuit court similarly purported to “rule[] on the plaintiff’s taking[s] claim” in affirming the

ZBA’s decision. 743 N.W.2d at 200 (Corrigan, J., dissenting). The Michigan Supreme Court held

that the circuit court lacked jurisdiction to “rule on takings issues in the plaintiff’s appeal,” even

though the circuit court had purported to decide those issues. Id. at 199. In other words, Houdini

declined to apply res judicata not because the circuit court failed to consider constitutional claims,

but because the circuit court lacked the power to rule on the constitutional claims it had considered.

Id. So here, it is irrelevant whether the circuit court purported to “consider[] . . . and reject[]” the

equal protection argument, as the majority asserts. Majority op. at 7. Either way, the circuit court

lacked jurisdiction to rule on the equal protection claim, so its decision cannot preclude that claim

here. Houdini, 743 N.W.2d. at 199; see also Get Back Up, Inc. v. City of Detroit, 878 F.Supp.2d

794, 806–08 (E.D.Mich. 2012) (under Houdini, a Michigan circuit court’s adjudication of a ZBA

- 23 - No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

appeal cannot preclude later constitutional claims “even if, in deciding that appeal, the state

[circuit] court resolved the very federal-law claims now before this Court”).4

The majority asserts that in Jon Jon’s v. City of Warren, 534 F. App’x 541 (6th Cir. 2013),

this court read Houdini to permit the application of res judicata where a circuit court sitting in

review of a ZBA appeal chooses to “separate” the appeal from any constitutional claims the parties

raised during litigation. Majority op. at 7-8. In the majority’s view, by “consider[ing] the equal

protection argument,” the Genesee County Circuit Court effectively “separate[d]” that argument

from the ZBA appeal—and thus the circuit court’s disposition of that issue has res judicata effect

here. Id.

I disagree with the majority’s reading and application of Jon Jon’s. In Jon Jon’s, a business

sought a zoning variance from a township ZBA. Id. at 542. While the ZBA proceeding was

pending, the township filed a parallel civil suit in a Michigan circuit court, seeking a declaratory

judgment that the business had lost its zoning status. Id. at 542. The business filed a counterclaim

in that civil suit, raising constitutional claims against the township. Id. When the ZBA denied the

zoning variance, the business amended its counterclaim to include both the constitutional claims

and “an appeal of the ZBA’s decision.” Id. The state circuit court chose to treat the matter “solely

4 It is also not clear that the Genesee County Circuit Court actually did consider or rule on the Stanislaws’ equal protection claim. The circuit court noted that the Stanislaws had “advanc[ed] [an] equal protection argument,” but the court stated that the “main issue[] before” it was “whether there’s compliance with the constitution of statutes.” R. 60-7, PID 638. The court then stated that, “other than” the equal protection argument, “the law has been followed, proper procedure has [been] followed, [and] there’s competent material and substantial evidence on the record with respect to the procedures of the Zoning Board of Appeals and Mr. Angus.” R. 60-7, PID 639. On that basis alone, the court found that it “ha[d] to affirm [the] ZBA’s decision[,] completely understanding there’s many issues.” Id. at 639. It is unclear what the circuit court meant by the “constitution of statutes.” But it appears that the court declined to rule on the equal protection argument—rather, it affirmed because the zoning decisions complied with “proper procedures” under state law, while recognizing that the equal protection argument was one of “many issues” that its ruling did not address. Id. But even if the circuit court had purported to rule on the equal protection issues, Houdini still holds that such a ruling has no res judicata effect on a future equal protection claim.

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as an appeal from the ZBA’s decision,” and affirmed the ZBA on state-law grounds. Id. at 543–

44.

When the business brought the same constitutional claims in federal court, the township

argued that res judicata applied. Id. at 544. The township asserted that Houdini was distinguishable

because “in Houdini, the state circuit court was not simultaneously confronted with both an

administrative appeal from a ZBA” and a separate lawsuit filed originally in the circuit court that

included “separately-pled [constitutional] counterclaims.” Id. at 544. This court reasoned that the

difference would have mattered if the circuit court had treated the ZBA appeal and the civil suit as

“separate” because a state circuit court ordinarily has jurisdiction to decide constitutional claims

as part of a typical civil suit—the circuit court is only barred from reaching constitutional issues

when it sits in review of a ZBA. Id. (citing Houdini, 743 N.W.2d at 198-99). So if the circuit

court had “separate[d]” the ZBA appeal from the parallel civil suit, it may have been able to address

the constitutional issues while adjudicating the civil suit. Id. But instead, the circuit court treated

the case “solely as an appeal from the ZBA’s decision,” so “the circuit court was without

jurisdiction to consider Plaintiffs’ constitutional claims.” Id. That decision is consistent with a

proper reading of Houdini.

Here, the constitutional claims were never raised as part of a parallel civil suit—rather,

they were raised only as part of the ZBA appeal. Indeed, no parallel civil suit was filed, so the

circuit court did not have the option to “separate” the ZBA appeal from some other proceeding.

For those reasons, this case is materially identical to Houdini: A party raised a constitutional claim

as part of a ZBA appeal, the circuit court purported to rule on that claim, and the party later raised

the same claim in a separate action. The circuit court’s decision is thus “not res judicata on the . . .

constitutional claims.” Houdini, 743 N.W.2d at 198.

- 25 - No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

I disagree as well with the majority’s conclusion that the Stanislaws presented no viable

comparators. In determining whether the Stanislaws are similarly situated to an alleged

comparator, we do not demand an “exact correlation,” but instead seek “relevant similarity.”

Loesel v. City of Frankenmuth, 692 F.3d 452, 462 (6th Cir. 2012) (quoting Bench Billboard v. City

of Cincinnati, 675 F.3d 974, 987 (6th Cir. 2012)). “[T]he degree to which others are viewed as

similarly situated depends substantially on the facts and context of the case.” Ercegovich v.

Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (quoting Jennings v. City of

Stillwater, 383 F.3d 1199, 1214 (10th Cir. 2004)). As a result, determining whether alleged

comparators are similarly situated to the plaintiff is “generally a factual issue for the jury.” Loesel,

692 F.3d at 463 (quoting Eggleston v. Bieluch, 203 Fed. App’x. 257, 264 (11th Cir. 2006)). Thus,

summary judgment on a class-of-one claim should be granted for a defendant only where no jury

could “reasonably conclude[]” that an alleged comparator is similarly situated, id. at 464—for

instance, where the “evidence was one-sided, leaving nothing favoring” the plaintiff, Green Genie,

Inc. v. City of Detroit, 63 F.4th 521 (6th Cir. 2023).

In the zoning context, Loesel is the best example of the comparator analysis. See id. In

that case, the Loesels intended to sell their land to Wal-Mart for a new store. Id. at 459–60. In

response, Frankenmuth created a new zoning type that prohibited retail establishments with greater

than 65,000 square feet of retail space. Id. The new zoning type applied only to the “Loesels’

property and a handful of much smaller parcels in its immediate vicinity.” Id. at 459. The Loesels

brought a class-of-one equal protection claim, citing two alleged comparators: Bronner’s

Christmas Wonderland and the Bavarian Mall. Id. at 463.

- 26 - No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

Frankenmuth first argued that the comparators were not similarly situated because the

Loesels’ property was zoned differently than Bronner’s and the Bavarian Mall. Id. at 464.

However, except for the 65,000-foot rule, the two zones were subject to “essentially the same

regulations.” Id. Thus, a jury could conclude that the “difference in ‘labels’ for these commercially

zoned properties is not material.” Id. The city next argued that the properties were not similarly

situated because the Loesels’ property was vacant, but the comparators’ properties were already

developed. Id. However, the zoning for all the land allowed development of new commercial

properties. Id. Accordingly, a “jury could have reasonably concluded that the

developed/undeveloped distinction is not material.” Id. Finally, the city argued that the properties

had different traffic capacities. Id. At the entrance to Bronner’s and the Bavarian Mall, the street

had five lanes. Id. In contrast, the road in front of the Loesel’s property had only three lanes. Id.

This court held that a reasonable jury could conclude the difference was not material, in part

because the Loesels’ could theoretically add two lanes to the road abutting their property. Id. at

465.

The majority departs from Loesel in making judgments that should be left to a jury. For

example, the majority asserts that two businesses—Belott & Son and Duquette’s Garage—are not

similarly situated to the Stanislaws’ business because they applied for a Class B license only

(which permits the sale of used cars), but the Stanislaws also applied for a Class C license (which

permits the sale of used car parts). This argument may have been compelling had the Township

granted the Stanislaws a Class B license but denied them a Class C license. Instead, however, the

Township denied the Stanislaws all the licenses they sought, including a Class B license. Thus, a

jury could reasonably conclude that this difference is immaterial because the Township still

discriminated against the Stanislaws in denying a Class B license.

- 27 - No. 23-1756, Stanislaw v. Thetford Twp., Mich., et al.

The majority also dismisses Hi-Speed as a comparator, even though the business had

applied for and received Class B and C licenses. To distinguish the two, the majority argues the

properties differ because the Stanislaws maintained a residence on the same plot as their business,

while Hi-Speed did not. However, this rationale was debunked by the state court and by the ZBA,

which acknowledged that the Stanislaws’ residence on the property could not serve as a basis to

deny the licenses. Thus, given the fact that state proceedings already established this reason was

faulty, a jury could conclude that this distinction is not relevant to the comparator analysis.5

Finally, the majority dismisses Monster Auto as a comparator because there is no evidence

in the record specifying what licenses the business held. While that may be true, the Stanislaws

produced evidence showing that Monster Auto operated as a junk yard. Pictures of the property

show piles of tires, wrecked automobiles, and trash strewn across the parking lot. Monster Auto

also advertised its scrap business. This would allow a jury to infer that Monster Auto was

permitted to operate as a junk yard while the Stanislaws were denied their licenses.

Some differences between a plaintiff and an alleged comparator disqualify the two from

being similarly situated, but it is “generally . . . for the jury” to decide whether a “distinction is . . .

material.” Id. at 463-65. A court should not take that decision away from the jury unless the

evidence is “one-sided.” Green Genie, 63 F.4th at 529. Our court applied these principles in

Lousel when it required a jury to determine whether differences between two properties—e.g.,

their zoning classification or traffic capacity—were relevant to the comparator inquiry. Because

a jury could reasonably conclude that any differences between the Stanislaws and their

5 The majority also distinguishes the two businesses by arguing that Hi-Speed never applied for a Class E license (which permits the transportation of distressed vehicles, i.e., a towing service). However, the Stanislaws only applied for a Class E license in 2005. In 2011, they applied only for Class B and C licenses, the very same ones sought by Hi-Speed.

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comparators are irrelevant (and, in the case of Hi-Speed, completely nonexistent), summary

judgment was improper.

Although the “‘rational basis’ standard is the least demanding test used by the courts to

uphold legislative action, it is not ‘toothless.’” Berger v. City of Mayfield Heights, 154 F.3d 621,

625 (6th Cir. 1998) (quoting Mathews v. Lucas, 427 U.S. 495, 510 (1976)). In our circuit, plaintiffs

have repeatedly succeeded on equal-protection claims even where the rational basis test was

applied. See id. (striking down a lawn-related ordinance that irrationally applied only to a certain

subset of properties); Johnson v. Morales, 946 F.3d 911, 940 (6th Cir. 2020) (allowing class-of-

one claim to proceed where defendant shut down the plaintiff’s establishment but not a similarly

situated one); Paterek v. Vill. of Armada, Mich., 801 F.3d 630, 650 (6th Cir. 2015) (denying

summary judgment where plaintiff’s business was prohibited from operating despite similarly

situated comparators being allowed to stay open); Loesel, 692 F.3d at 466 (denying summary

judgment where city discriminatorily zoned plaintiff’s property to prevent construction of a

Walmart despite other large retail establishments being allowed to operate). The majority’s

analysis makes four significant mistakes.

First, the majority misapplies the standard for class-of-one claims. According to the

majority, the Township had a rational basis to deny the Stanislaws’ application: The Stanislaws

had violated municipal rules by operating a junk yard. Maj. op. at 11. However, the question is

not whether there was a rational basis to deny the Stanislaws a license in isolation, but whether

there was a rational basis to treat the Stanislaws differently than other similarly situated property

owners. See Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 681 (6th Cir. 2011) (“The Equal

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Protection Clause prohibits discrimination by government which . . . intentionally treats one

differently than others similarly situated without any rational basis for the difference.” (emphasis

added)). Here, the Stanislaws cite evidence showing that their property was maintained similarly

to the comparators. See, e.g., R. 62-2, PID 926 (“Belott did not have fencing then (or now), and

at all relevant times also had vehicles in various states of disrepair on its property.”); R. 62-2, PID

927 (“Like Grand Auto Plaza and like Belott, Duquette’s has never had fencing, and also has

vehicles on its property waiting for repair and sale.”); R. 62-2, PID 927 (“Due to its parts sales Hi-

Speed frequently had vehicles in disrepair on its property and various parts in storage, but has

never had any fencing.”); R. 62-2, PID 928 (“[Monster Auto] openly dismantled vehicles,

displayed auto parts for sale and advertised auto parts sales.); R. 62-2, PID 1157–61 (photographs

of Monster Auto’s property showing junk cars, a pile of tires, and other auto parts strewn across

the area).

After considering this evidence, a jury could reasonably conclude that, because the alleged

comparators operated their businesses in a materially indistinguishable manner to the Stanislaws,

the “junk yard” rationale was not a rational basis for the disparate treatment. See e.g., Morales,

946 F.3d at 940 (allowing a class-of-one claim to proceed where the city shut down the plaintiff’s

establishment after a shooting took place there but allowed a similarly situated business to continue

operating when the same occurred). These disputed issues of material fact should preclude

summary judgment for the Township.

The very question whether the Stanislaws illegally operated a junk yard is also in dispute.

The majority cites the following evidence in favor of a finding that the Stanislaws illegally

operated a junk yard: (1) Angus’s letter citing junked vehicles as the reason for denying the

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Stanislaws’ permit, (2) Angus’s letter denying the Stanislaws a permit a second time “for the same

reason set forth in the . . . 2005 disapproval,” (3) the Township’s 2013 decision to initiate blight

proceedings against the Stanislaws, (4) the subsequent settlement in which the Township agreed

to dismiss the proceedings in exchange for the Stanislaws cleaning up their property,

(5) complaints from the Stanislaws’ neighbors about the state of the property; (6) the city’s zoning

code, which purportedly prohibited the Stanislaws from storing junked vehicles on their property,

and (7) the fact that the Stanislaws’ business was potentially on hiatus for several years due to

Joseph’s health issues.

However, the Stanislaws dispute the allegation, citing an affidavit saying that the cars on

the property were not junked because they “were in repairable condition and [Joseph] intended to

repair and sell them,” R. 62-2, PID 925. For support, the Stanislaws cite a study showing that their

business sold an average of forty-five percent of its inventory each year, even taking into account

the slower years when Joseph was sick. Further, the Stanislaws argue that because the Township’s

ordinances placed no restrictions on the types of vehicles that dealers can sell or repair, the mere

existence of vehicles in poor condition was not sufficient to meet the definition of a junk yard as

long as their business’s plan was to repair or sell them. See R. 62-2, PID 955 (ordinance defining

automobile repair as “general repair, engine rebuilding, rebuilding or reconditioning of motor

vehicles; collision service, such as body, frame, or fender straightening and repair; overall painting

and undercoating of automobiles.”).

The Stanislaws additionally argue that even if their property had junk on it, they complied

with the Township’s rules. Although the Township generally prohibits junk yards, it has an

exemption allowing individuals to store junk vehicles “upon the premises of a properly zoned

property, junk buyer, dealer in used auto parts, dealer in second hand goods or junk.” R. 62-2,

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PID 1166. The Stanislaws were licensed auto-parts dealers until they were denied a license in

2005, meaning that they were permitted to openly dismantle vehicles on their property—even

under the Township’s own rules. Although the Stanislaws were permitted to operate a junk yard

at the time, the Township still rejected their 2005 application on that purported basis.

The Stanislaws also note that the Township consistently granted them licenses from 1983

to 2005, and again after 2018, despite no material changes to their property. The Stanislaws argue

that the blight proceedings are irrelevant because they began years after their licenses were denied

and because their property largely remained in the same condition even after the city’s blight

complaint was dismissed. For evidence, the Stanislaws cite to the complaints of their neighbors,

who continued to complain about the state of the property without regard to whether their licenses

were approved or denied. Accordingly, a jury could reasonably conclude that either the Stanislaws

were not operating a junk yard or that the rationale does not explain why the Township denied the

Stanislaws a permit between 2005 and 2018, but not for the other decades when the business was

operating in the same fashion.

Alternatively, the majority concludes that the neighbors’ complaints constitute a rational

basis to treat the Stanislaws differently from their competitors. However, the Supreme Court has

held that neighbor complaints alone—absent any other legitimate government interest—cannot

serve as a rational basis for disparate treatment in zoning decisions. In City of Cleburne, Tex. v.

Cleburne Living Center, a city council required a mental-health facility to obtain a permit to

operate, even though it “freely permitted” “other care and multiple-dwelling facilities” to operate

permit-free. 473 U.S. 432, 447-48 (1985). The city argued the disparate treatment was justified

by “the negative attitude of the majority of property owners located within 200 feet” of the mental-

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health facility. Id. at 448. Applying rational-basis review, the Court rejected that argument.

“[M]ere negative attitudes,” the Court explained, “are not permissible bases” for the disparate

treatment of similarly situated properties, especially where those attitudes are “unsubstantiated by

factors which are properly cognizable in a zoning proceeding.” Id. That is because “the law

cannot, directly or indirectly, give . . . effect” to “private biases.” Id. (quoting Palmore v. Sidoti,

466 U.S. 429, 433 (1984)). Accordingly, the Township may not evade the constraints of the

Fourteenth Amendment “by deferring to the wishes or objections of some fraction of the body

politic.” Id.; see also id. (“[T]he electorate as a whole, whether by referendum or otherwise, could

not order city action violative of the Equal Protection Clause.”).

So too here: The Township cannot treat the Stanislaws differently than their similarly

situated competitors based solely on the “negative attitudes” of the Stanislaws’ neighbors. Id. By

allowing the Township to discriminate against the Stanislaws because of “neighbor complaints,”

the majority permits what Cleburne forbids. Maj. op. at 12.

The majority asserts that the Township’s treatment of the Stanislaws was not based on

“negative attitudes” alone, but also on “[c]onsiderations of nuisances or eye sores.” Majority op.

at 15. That is just a restatement of the majority’s junk-yard rationale. The Township believed the

Stanislaws’ property was an eye sore and a nuisance only because it allegedly contained car parts

and similar “junk.” But as explained above, several comparators kept their properties in a similar

condition. The real difference, then, is not that the Stanislaws’ property was allegedly an eyesore;

it is that neighbors complained about the Stanislaws, while “there is no evidence in the record that

any of the other businesses received neighbor complaints.” Id. at 14–15. Thus, the rationale that

explains the Township’s disparate treatment of the Stanislaws is “mere negative attitudes” towards

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an otherwise permitted use, which the Supreme Court has held cannot provide a rational basis for

zoning decisions. Cleburne, 473 U.S. at 448.

In response, the majority argues that Cleburne held only that it is “inappropriate” for the

government to make zoning decisions based on a “dislike of the mentally disabled.” Majority op.

at 15. But the opinion contains no such distinction. Indeed, the Cleburne plaintiffs’ primary

argument was that the challenged zoning decision was “invalid on its face” because the

government had “discriminated against” the mentally disabled. 473 U.S. at 437. Yet the Court

rejected that argument. It held that—unlike “race, alienage, or national origin”—mental disability

is not a suspect classification subject to heightened scrutiny. Id. at 441, 446-447. The Court then

proceeded to evaluate whether the zoning decision had any rational basis; it concluded that

“negative attitudes” and the “objections of some fraction of the body politic” were insufficient. Id.

at 448. In conducting that rational basis analysis, the Court did not specifically mention dislike

for the mentally disabled or limit its holding to “negative attitudes” based on that particular kind

of prejudice. Id. at 448. Here, if the Stanislaws and their comparators complied with the zoning

ordinances, the neighbors’ complaints should have been deemed irrelevant.

The Stanislaws also cite evidence to refute the assertion that the complaints were a “likely”

or “conceivable” reason for their license denial. See Andrews v. City of Mentor, 11 F.4th 462, 477-

78 (6th Cir. 2021) (quoting In re City of Detroit, 841 F.3d 684, 702 (6th Cir. 2016)). The

Stanislaws show that their licenses were denied for the first time shortly after Daniel Case, one of

the complaining neighbors, joined the Zoning Board of Appeals. From this fact, a jury could

reasonably infer that the licenses were denied not due to the neighbors’ complaints, but due to the

personal grievance of a member on the ZBA. The Stanislaws also cite evidence that the neighbors

continued to complain even during the years when they had their licenses granted. See R. 62-2,

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PID 1172 (complaint from 1990); id. at 1174 (complaint from 2005); R. 60-14, PID 731–32

(complaint from 2017); R. 62-1, PID 913–14 (detailing complaints in 2022). For example, the

Township’s attorney Otis Stout testified in 2022, the same year that the Stanislaws successfully

renewed their license, the “complaints keep coming in.” R. 62-1, PID 913–14. A jury could thus

reasonably infer that the neighbors’ complaints were not a rational basis to deny the Stanislaws’

licenses because the timing of the complaints did not correlate with the license denials.

D.

Finally, the majority ignores Loesel, a key precedent holding that a jury generally decides

whether a defendant had a rational basis to treat the plaintiff differently. 692 F.3d at 466. In that

case, the government proffered numerous rationales for its differential treatment—including, for

example, protecting the value of nearby residential property, concerns about the lot’s traffic

capacity, potential storm-water retention issues, and the goal of making the city’s downtown area

more friendly to pedestrians. Id. at 465–66. But the Loesel plaintiffs presented evidence to

“contradict[]” and “undercut” the government’s explanations, such that a jury could find that the

government’s proffered rationales were not “conceivable” bases for its actions. Id. Here too, the

Stanislaws have provided ample evidence to contradict and undercut the government’s junk-yard

and neighbor-complaint rationales. This case should go to trial too. Accordingly, I dissent.

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