Moulding Investments v. Box Elder County

2024 UT App 23
THE UTAH C OURT OF APPEALS
M OULDING I NVESTMENTS , LLC AND
F RANKLIN HILL R EGIONAL LANDFILL, LLC,
Appellants,
v.
BOX ELDER C OUNTY , JEFF HADFIELD,
JEFF S COTT, AND S TAN S UMMERS ,
Appellees.
Opinion
No. 20220433-CA
Filed February 23, 2024
First District Court, Brigham City Department
The Honorable Spencer D. Walsh
No. 200100101
Chris R. Hogle and Michelle Quist,
Attorneys for Appellants
Barton H. Kunz II, Attorney for Appellees
JUDGE R YAN D. T ENNEY authored this Opinion, in which
JUDGES R YAN M. HARRIS and A MY J. O LIVER concurred.
TENNEY, Judge:
¶1 	Moulding Investments, LLC (Moulding1) wants to operate
a landfill on property that it owns in Box Elder County (the
County). After the County denied Moulding’s request for a
necessary 	zoning 	change, 	Moulding 	sued, 	alleging 	that 	the
1. The case at issue was also brought on behalf of Franklin Hill
Regional Landfill, LLC, the entity that would assume “ownership
and control of the property” from Moulding “upon final approval
of 	the 	landfill.” 	Moulding 	and 	Franklin 	have 	referred 	to
themselves collectively as Moulding in their briefs, and we’ll do
the same.

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County had violated Moulding’s equal protection rights by
improperly favoring another proposed landfill within the County.
The district court dismissed Moulding’s complaint for failure to
state a claim upon which relief could be granted. Moulding now
appeals. For the reasons set forth below, we affirm.
BACKGROUND2
The Promontory Point Landfill
¶2 	In 2003, some landowners petitioned the County for a
conditional use permit to operate a commercial landfill that
would be referred to as the Promontory Point Landfill (the PPL).
The PPL would be located near the Promontory Point peninsula
in the southernmost portion of the County and “within a half-mile
from the Great Salt Lake.” The PPL would be accessible by rail,
but it would otherwise be accessible only “by several miles of
county road,” the last few miles of which were unpaved. When
the 	Box 	Elder 	County 	Planning 	Commission 	(the 	Planning
Commission) held a public meeting on the petition in June 2003,
there was some opposition. After the Planning Commission
discussed access, public safety, and environmental concerns with
the owners, the Planning Commission recommended approving
the petition. The petition then went to the Box Elder County
Commission 	(the 	County 	Commission), 	which 	unanimously
approved it. The proposed PPL was not subsequently put into
operation, however, and this conditional use permit expired by
2009.
¶3 	Around the time that this conditional use permit expired,
the County Commission adopted Ordinance 319. This ordinance
2. “On appeal from a motion to dismiss, we review the facts only
as they are alleged in the complaint. We accept the factual
allegations as true and draw all reasonable inferences from those
facts in a light most favorable to the plaintiff.” Lewis v. U.S. Bank
Trust, 2020 UT App 55, n.1, 463 P.3d 694 (quotation simplified).

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required all landfills to be located in a newly created Municipal
Solid Waste (MSW) zone. The PPL had a new owner by this point,
and this owner applied to have the PPL property rezoned as an
MSW zone. The Planning Commission discussed this application
at a November 2009 meeting. The minutes from this meeting
show that just a single comment was made about the MSW
application, with a citizen asking “if re-zoning this property
would have any effect on the land value of his property in the
area.” The Planning Commission ultimately voted to recommend
that the County Commission approve the rezoning request. When
the matter was brought to the County Commission in January
2010, another citizen expressed concern about the effects that the
proposed zoning change (and, presumably, a landfill) would
“have on private property.” At the close of the discussion, the
County Commission voted to approve the PPL’s request for a
zone change to a MSW zone. In September 2011, the PPL received
a permit from the Utah Department of Environmental Quality
(the DEQ) to operate a landfill. After receiving this permit,
however, the PPL did not obtain another conditional use permit
at that time, which was necessary to allow it to begin operating
the landfill.
Moulding’s Proposed Landfill
¶4 	Moulding owns 2,200 acres of private property in the
County, located approximately eight miles southeast of Snowville
within the Hansel Valley. The property has been and still is
unzoned. In April 2014, Moulding submitted an application to the
County seeking to rezone 225 acres of its property as an MSW
zone, with the intent to operate a landfill on it. That same day,
Moulding also applied to the DEQ for a permit to operate the
proposed landfill. At that time, the PPL was still not operating,
and the County had only one operating landfill.
¶5 	During a May 2014 meeting, the Planning Commission
considered Moulding’s application for an MSW zoning change.
During 	the 	public 	comment 	period, 	several 	people 	raised
concerns about culinary water contamination, seismic activity,

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flooding, local wildlife, the location of the landfill, and traffic to
the site. At Moulding’s request, the Planning Commission tabled
Moulding’s application so “that the concerns raised at the public
hearing could be addressed by the appropriate agency within” the
DEQ.
The PPL Receives a Conditional Use Permit
¶6 	In March 2015, the PPL and the County signed a letter of
intent for the County to purchase the PPL. The letter laid out the
general terms of a proposed purchase agreement, but it was not
binding on either party. In August 2015, as part of ongoing
negotiations, the County contemplated the possibility of instead
entering into a profit share agreement by which the County would
own 60% of the PPL and share in its profits. But after the county
attorney expressed concerns about the proposal and the public
mounted considerable opposition, the County decided not to go
through with this purchase, leaving the PPL fully private.
¶7 	In 	November 	2015, 	the 	County 	Commission 	was
comprised of Jeff Hadfield, Jeff Scott, and Stan Summers. Of some
note for this appeal, these commissioners were not the same
commissioners who 	had approved the PPL’s earlier zoning
application. This new County Commission approved Ordinance
414, which essentially overhauled the County’s MSW zoning
ordinances. Among the changes was a reclassification of the MSW
zone to a Solid Waste (SW) zone.
¶8 	Due to an “oversight,” the PPL’s zone was not updated
when Ordinance 414 was enacted, meaning that it was still zoned
as 	the 	now-defunct 	MSW 	zone. 	The 	Planning 	Commission
approved a rezoning of the PPL to a SW zone at a June 2016
meeting, noting that the PPL was “overlooked when the other
MSW zones in the county were re-zoned correctly.” The Planning
Commission 	unanimously 	recommended 	approval 	of 	the
proposed rezoning, and the County Commission approved it a
month later.

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¶9 	In March 2017, the Planning Commission approved a
second conditional use permit (replacing the one that had expired
in 2009) for the PPL to operate a landfill.
Moulding’s Renewed Request for a Zone Change
¶10 	In the fall of 2019, the DEQ issued a decision granting
Moulding a Class I landfill permit. Despite public comments that
raised 	concerns 	about 	potential 	environmental 	or 	wildlife
impacts, 	DEQ 	officials concluded 	that 	none 	of 	these 	issues
warranted denial of the request.
¶11 	After Moulding’s DEQ permit was issued, the relevant
County 	authorities 	again 	considered 	Moulding’s 	previously
tabled 2014 application for a zone change. On August 20, 2020, the
Planning Commission met to consider Moulding’s application. At
that meeting, Planning Commission members discussed several
potential reasons for denying the application, including the
likelihood of flooding in the area, potential safety impacts on the
groundwater, public opposition to the possibility of bringing
other counties’ garbage into the County, and the fact that “the
existing capacity of the landfill presently in Box Elder County . . .
has a 100-year lifespan.” At the close of the discussion, the
Planning 	Commission 	unanimously 	recommended 	denying
Moulding’s application based on the following findings:
public 	opposition, 	aquifer 	recharge 	area 	issue,
elevation of the watershed being prone to flash
flooding, it is a known seismic zone, adverse effect
on neighboring properties, property values and
future growth of the area . . . no existing need for an
additional landfill in Box Elder County[, and] . . . the
proposal is not harmonious with the general plan
and presentation of Box Elder County.
The motion recommending denial passed unanimously.

Moulding Inv. v. Box Elder County
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¶12 	On September 2, 2020, the County Commission met and
reviewed the Planning Commission’s recommendation to deny
Moulding’s application for a zone change. At that meeting, a
commissioner stated that “the Planning Commission doesn’t take
anything lightly and they do their due diligence when making
decisions.” Another commissioner noted that he “was at the
public hearing and saw the public outcry against” Moulding’s
proposed landfill and that he thought there were “legitimate
concerns” 	with 	the 	application. 	And 	another 	commissioner
pointed out that even if concerns with the application were
“mitigated,” 	there 	was 	“still 	overwhelming 	opposition[] 	to
[Moulding’s] landfill.”
¶13 	At the close of the discussion, a commissioner made a
motion to deny Moulding’s application based on the following
findings:
Public opposition; Located in an aquifer recharge
area; Location is prone to flash flooding; Location is
in an area prone to seismic activity; Adverse effects
on 	neighboring 	properties 	(value, 	litter, 	smell,
traffic); Not a need (especially when considering
existing capacity in the county, the adverse impacts,
and 	public 	opposition); 	[and] 	Adverse 	impact
(visual, 	litter) 	on 	the 	I-84 	corridor, 	a 	corridor
frequently used by travelers in the western U.S.
This motion passed unanimously.
Procedural History
¶14 	In October 2020, Moulding sued the County as well as
Commissioners Jeff Hadfield, Jeff Scott, and Stan Summers.3 In an
3. Throughout the litigation (including in this appeal), the County
and these individual commissioners have been represented and
have proceeded together. Going forward, we’ll refer to them
(continued…)

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amended complaint that ultimately governed the case (and
which, for simplicity, we’ll refer to as “the complaint” moving
forward), Moulding alleged that the County had violated its equal
protection rights under both the Utah and the United States
Constitutions. 	The 	complaint 	alleged 	that 	the 	County 	had
violated Moulding’s rights “under [the] color of state law” by
treating Moulding “differently from others similarly situated”—
namely, the PPL—and that the County had “done so with ill will
and without any rational or legitimate basis.”
¶15 	The complaint identified some similarities between the
proposed Moulding landfill and the PPL, such as that “both
landfills [are] located within Box Elder County, both landfills
were publicly opposed on similar concerns, and both landfills are
not situated within a landfill corridor as required by” ordinance.
The complaint also acknowledged the differing chronologies and
approval histories of the two projects, noting that the PPL had first
sought “a conditional use permit . . . to operate . . . as a commercial
landfill” in 2003 and then detailing the history of the zoning
approvals 	that 	the 	PPL 	had 	obtained 	through 	2016. 	When
recounting that history, the complaint referred to and quoted
from a series of minutes from Planning Commission and County
Commission meetings spanning from 2003 to 2020, and many of
those minutes were attached as exhibits to the complaint.
¶16 	The County filed a motion to dismiss the complaint under
rule 12(b)(6) of the Utah Rules of Civil Procedure. In this motion,
the County argued that Moulding had not adequately alleged
“totally 	illegitimate 	animus 	unrelated 	to 	the 	County
Commissioners’ positions” and that the PPL did not qualify as a
similarly situated comparator as required to support an equal
protection claim. As exhibits to its motion, the County attached
minutes 	from 	several 	County 	Commission 	and 	Planning
collectively as “the County” unless the distinction is relevant to a
particular point.

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20220433-CA 	8 	2024 UT App 23
Commission meetings, as well as copies of relevant County
ordinances.
¶17 	After a hearing, the district court issued a written decision
granting the County’s motion to dismiss. The court concluded
that Moulding had “failed to identify a comparator that is
similarly situated in all material respects,” and it also concluded
that Moulding had failed “to establish that the County acted out
of a totally illegitimate animus unrelated to their official duties in
denying [Moulding’s] application.”
¶18 	With respect to the “similarly situated” element of this
claim, the court concluded that the PPL was not a similarly
situated comparator for several reasons. First, “a decade passed
between the time the County Commission considered [the PPL’s]
application and Moulding’s application.” Second, the “County
Commissioners making the decision were different.” Third, when
the owners of the PPL applied, there was only one other “landfill
operating 	in 	the 	unincorporated 	County,” 	whereas 	when
Moulding applied, the PPL had already been approved, which the
court 	viewed 	as a 	“material 	distinction.” 	Finally, 	the 	court
referred to the “vastly different public responses” to the two
applications.
¶19 	With respect to the animus element, the court further
found that “Moulding relie[d] on conclusory allegations” and
failed to “marshal[] specific facts that show that the County
Commissioners were motivated by the required animus.” And the
court also was not persuaded that “Moulding’s allegation that the
County was motivated by a financial stake in the [PPL]” would be
enough to establish that the County acted based on animus
toward Moulding.
¶20 	Based on these conclusions, the district court dismissed
Moulding’s complaint. Moulding timely appealed.

Moulding Inv. v. Box Elder County
20220433-CA 	9 	2024 UT App 23
ISSUE AND STANDARD OF REVIEW
¶21 	Moulding appeals the district court’s dismissal of its
complaint, challenging the court’s conclusions relating to both the
“similarly 	situated” 	and 	“animus” 	elements 	of 	the 	equal
protection claim. “Because a trial court’s grant or denial of a
motion to dismiss is a question of law, the standard of review is
correctness.” South Jordan City v. Summerhays, 2017 UT App 18,
¶ 5, 392 P.3d 855 (quotation simplified). This standard of review
grants “no deference to the decision of the district court.” Hudgens
v. Prosper, Inc., 2010 UT 68, ¶ 14, 243 P.3d 1275; see also Helf v.
Chevron U.S.A., Inc., 2009 UT 11, ¶ 14, 203 P.3d 962.
ANALYSIS
¶22 	The district court dismissed Moulding’s complaint under
rule 12(b)(6) of the Utah Rules of Civil Procedure. A rule 12(b)(6)
motion “should be granted only if, assuming the truth of the
allegations in the complaint and drawing all reasonable inferences
therefrom in the light most favorable to the plaintiff, it is clear that
the plaintiff is not entitled to relief.” Hudgens v. Prosper, Inc., 2010
UT 68, ¶ 14, 243 P.3d 1275 (quotation simplified). When reviewing
a motion to dismiss, “neither the district court nor this court is
required to review voluminous extraneous materials in an effort
to address deficiencies in the complaint and identify facts that
support a plaintiff’s legal theories. Instead, the factual allegations
made in the complaint must be the focus of the inquiry.” Rusk v.
University of Utah Healthcare Risk Mgmt., 2016 UT App 243, ¶ 7, 391
P.3d 325 (per curiam) (quotation simplified).
¶23 	Moulding’s 	complaint 	alleged 	an 	equal 	protection
violation under both the Utah and United States Constitutions.
“Equal protection of the law requires that similarly situated
persons be treated alike.” Brian High Dev., LC v. Brian Head Town,
2015 UT App 100, ¶ 9, 348 P.3d 1209 (quotation simplified).
“When persons are similarly situated, it is unconstitutional to
single out one person or group of persons from among a larger

Moulding Inv. v. Box Elder County
20220433-CA 	10 	2024 UT App 23
class on the basis of a tenuous justification that has little or no
merit.” Salt Lake City Corp. v. Haik, 2019 UT App 4, ¶ 72, 438 P.3d
913 (quotation simplified).4
¶24 	On appeal, Moulding suggests that its equal protection
claim is a class-of-one claim. A class-of-one claim exists when a
plaintiff 	brings 	an 	equal 	protection 	claim 	without 	alleging
membership in a class or group. Village of Willowbrook v. Olech, 528
U.S. 562, 564 (2000). A plaintiff properly pleads a class-of-one
claim “where the plaintiff alleges that [it] has been intentionally
treated differently from others similarly situated and that there is
no rational basis for the difference in treatment.” Id.; see also
Patterson v. American Fork City, 2003 UT 7, ¶ 33, 67 P.3d 466; Haik,
2019 UT App 4, ¶ 73. “It is insufficient to allege an uneven
enforcement of the law; what is required is a showing of a totally
illegitimate animus toward the plaintiff by the defendant.” Haik,
2019 UT App 4, ¶ 73 (quotation simplified).
¶25 	As an initial matter, Moulding argues that because the
district court was considering a rule 12(b)(6) motion to dismiss,
certain portions of its ruling were erroneous because the court
improperly relied on facts outside the complaint. “The rules are
clear that documents attached to a complaint are incorporated
into the pleadings for purposes of judicial notice and are fair game
4. Our supreme court has held that the Utah Constitution’s
“uniform operation of laws provision” and the United States
Constitution’s Equal Protection Clause “embody the same general
principle: persons similarly situated should be treated similarly,
and persons in different circumstances should not be treated as if
their circumstances were the same.” ABCO Enters. v. Utah State
Tax Comm’n, 2009 UT 36, ¶ 14, 211 P.3d 382 (quotation simplified).
The ruling below did not meaningfully differentiate between the
state and federal constitutions, and the parties on appeal likewise
have not suggested that there’s a difference that would matter to
this case either. Given the decision and briefing, we have no need
to decide whether there might be such a distinction that might
matter in some future case.

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20220433-CA 	11 	2024 UT App 23
for 	this 	court 	to 	consider 	in 	addition 	to 	the 	complaint’s
averments.” Oakwood Vill. LLC v. Albertsons, Inc., 2004 UT 101,
¶ 10, 104 P.3d 1226. In the rule 12(b)(6) context, courts are also
“permitted to consider documents referred to in the complaint or
that are central to the complaint, as well as certain types of public
records.” Calsert v. Estate of Flores, 2020 UT App 102, ¶ 12 n.4, 470
P.3d 464 (quotation simplified). In the County’s view, the various
documents identified by Moulding fit within this rule and do not
require the motion to dismiss to be treated “as one for summary
judgment.” See Utah R. Civ. P. 12(b). We need not resolve the
parties’ disputes about which documents were or were not
appropriately 	considered. 	For 	purpose 	of 	this 	appeal, 	we’ll
confine 	our 	consideration 	to 	the 	complaint 	itself 	and 	the
documents Moulding directly referenced therein.5
¶26 	Against that backdrop, Moulding argues that the district
court 	erred 	in 	three 	respects: 	first, 	by 	affording 	too 	much
deference to the County’s decision in violation of Utah’s liberal
pleading standard; second, by concluding that Moulding had not
alleged sufficient facts to show an illegitimate animus; and third,
by concluding that Moulding had not alleged sufficient facts to
show that there was a similarly situated comparator. We agree
with the district court that Moulding did not allege sufficient facts
to establish that there was a similarly situated comparator. As a
result, we need not reach the other arguments, and we offer no
opinion as to their merit.
¶27 	As noted, this element of a class-of-one equal protection
claim turns on whether the government treated the plaintiff
5. 	Of 	note, 	the 	complaint 	specifically 	referred 	to 	Planning
Commission meetings that occurred in June 2003, May 2014, June
2016, and August 2020, as well as County Commission meetings
that occurred in July 2003, January 2010, August 2015, July 2016,
and September 2020. The complaint also included as exhibits the
minutes of the May 2014 Planning Commission meetings, the
August 2015 County Commission meeting, and the September
2020 County Commission meeting.

Moulding Inv. v. Box Elder County
20220433-CA 	12 	2024 UT App 23
“differently from other similarly situated persons.” Patterson, 2003
UT 7, ¶ 34. We’ve held that to support this element, the plaintiff
“must identify comparators that are similarly situated in all
material respects, which is a substantial burden” in the land use
context “because each property has unique characteristics.” Farley
v. Utah County, 2019 UT App 45, ¶ 31, 440 P.3d 856 (emphasis
added, quotation otherwise simplified). While Utah’s caselaw is
otherwise somewhat sparse with respect to this element, the First
Circuit has persuasively held that “plaintiffs must show an
extremely high degree of similarity between themselves and the
persons 	to 	whom 	they 	compare 	themselves.” 	Cordi-Allen 	v.
Conlon, 494 F.3d 245, 251 (1st Cir. 2007) (quotation simplified). In
the First Circuit’s view, the “proponent of the equal protection
violation must show that the parties with whom he seeks to be
compared 	have 	engaged 	in 	the 	same 	activity 	vis-à-vis 	the
government entity without such distinguishing or mitigating
circumstances as would render the comparison inutile.” Id. In
language similar to that which we used in Farley, the First Circuit
explained 	that 	the 	“similarly 	situated 	requirement 	must 	be
enforced with particular rigor in the land-use context because
zoning decisions will often, perhaps almost always, treat one
landowner differently from another.” Id. (quotation simplified).
¶28 	The Tenth Circuit has expressed a similar view. In Kansas
Penn Gaming, LLC v. Collins (a case that we cited favorably in
Farley, 2019 UT App 45, ¶ 31), the Tenth Circuit held that the
“similarly situated” requirement “is inevitably more demanding
where a difference in treatment could legitimately be based on a
number of different factors.” 656 F.3d 1210, 1218 (10th Cir. 2011).
The Tenth Circuit explained that this requirement prevents “a
flood of claims in that area of government action where discretion
is high and variation is common.” Id.
¶29 	In 	this 	case, 	Moulding’s 	complaint 	alleged 	that 	its
proposed landfill was “similarly situated with [the PPL] in that
both are landfills located within Box Elder County, both landfills
were publicly opposed based on similar concerns, and both
landfills are not situated within a landfill corridor as required by”

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20220433-CA 	13 	2024 UT App 23
a County ordinance. But even with these alleged similarities, there
were still several key differences.
¶30 	The principal difference was timing. The owners of the PPL
first applied for a conditional use permit in 2003, and they
received it that year. Although that conditional use permit later
expired, the owners maintained the PPL’s ability to eventually
function as a landfill by seeking and obtaining necessary zoning
changes in 2010 and again in 2016. By contrast, Moulding did not
submit any landfill-related applications until the request for a
zone change in 2014; after that request was tabled, it wasn’t
renewed for consideration again until 2020. Thus, while Moulding
claims that it is similarly situated to the PPL, the timing alone
shows 	otherwise. 	The 	owners 	of 	the 	PPL 	had 	obtained 	a
conditional use permit over a decade before Moulding even
applied for a zoning change, and the PPL owners had also
obtained zoning changes a decade before the County denied
Moulding’s zoning request, which is the government action that
ultimately led to Moulding’s suit.6
¶31 	As a related matter, different decision makers have been
involved in making some of the relevant decisions. The PPL
received a conditional use permit in 2003 and a zoning change in
2010, and those approvals were issued by prior versions of the
County 	Commission 	(and 	comprised 	of 	entirely 	different
commissioners) 	than 	the 	County 	Commission 	that 	denied
Moulding’s request for a zoning change in 2020. Thus, while
Moulding is now suing Commissioners Hadfield, Scott, and
6. As we noted in the Background, the record indicates that the
PPL received a second conditional use permit in 2017. But as
discussed, 	for 	purposes 	of 	our 	Analysis, 	we’re 	confining
ourselves to the allegations set forth in the complaint, and the
complaint itself does not allege that the PPL received this second
conditional use permit. The complaint does allege, however, that
the PPL received both an initial conditional use permit in 2003 as
well as zoning approvals in 2010 and 2016—which, as discussed,
place the PPL on different ground than Moulding.

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Summers for treating Moulding differently than the PPL has been
treated, the earlier decisions to grant the PPL’s initial requests
were made by different elected officials who may well have had
entirely different political agendas.
¶32 	Finally (and again relatedly), the PPL stands on different
footing from Moulding because the PPL came first. Like the
district court, we think it significant that the governmental
decisions in question turned on whether to approve a proposed
landfill. A local government could of course rationally decide that
it should only have a certain number of landfills within its
borders, and Moulding does not contend that the County here
was constitutionally required to approve every such proposal.
Indeed, as noted, one of the findings that the County Commission
made in support of its denial of Moulding’s zoning application
was: “Not a need (especially when considering existing capacity
in the county . . . ).”
¶33 	To be clear, the question of whether the County’s decision
to draw the line at two landfills was so irrational that it could
support an equal protection claim turns on a different element
than the one we’re considering, which is whether the two
proposed comparators were similarly situated. But even on that
element, it still matters that the PPL had already been approved for
a conditional use permit and for the necessary zoning change
before Moulding had applied for a zoning change, much less
before the County denied Moulding’s request. In this sense, these
were not two competitors who were contemporaneously vying
for a single available permit. Rather, in the moments that form the
basis for Moulding’s suit (i.e., the County’s consideration and
denial of Moulding’s request for a zoning change in 2020), the PPL
already had the approvals that Moulding was now requesting.
Simply put, an applicant who has already obtained an approval
to conduct an activity is not similarly situated to an entity who
begins seeking its own approval later. So here, when Moulding
sought the necessary governmental approvals, it was doing so in
a climate in which the PPL already had them; but when the PPL
sought those approvals, the converse was not true. In this sense,

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the PPL and Moulding applications were submitted to different
County officials in different climates with respect to the number
of approved landfills within the County’s borders.
¶34 	In the briefing, the County argued that there are other
potential differences as well, such as differences of location and
topography. Perhaps most notably, the County has also alleged
that there were different levels of public opposition to the two
proposals. 	But 	these 	arguments 	rely 	to 	some 	measure 	on
documents and exhibits that at least arguably fall outside the
scope of a proper analysis under rule 12(b)(6). In any event, we
need not decide whether these additional differences also support
the district court’s ruling. Instead, we think those identified above
are enough—namely, these proposals were filed at different
times, 	they 	were 	considered 	(in 	part) 	by 	different 	sets 	of
commissioners, 	and 	the 	PPL’s 	initial 	application 	had 	been
approved before Moulding ever submitted a proposal. In light of
these differences, all of which are apparent on the face of the
complaint alone, we agree with the district court that the PPL and
Moulding were not similarly situated for purposes of a class-of-
one claim. As a result, Moulding’s complaint fails.
CONCLUSION
¶35 	For the foregoing reasons, we affirm the district court’s
dismissal of Moulding’s complaint.