                         UNPUBLISHED

               UNITED STATES COURT OF APPEALS
                   FOR THE FOURTH CIRCUIT


                         No. 11-1871


DEERFIELD    PLANTATION    PHASE   II-B   PROPERTY   OWNERS
ASSOCIATION, INCORPORATED,

               Plaintiff - Appellant,

          v.

UNITED STATES ARMY CORPS OF ENGINEERS, CHARLESTON DISTRICT;
ROBERT L. VAN ANTWERP, Lieutenant General, in his official
capacity as Chief of Engineers, US Army Corps of Engineers;
TREY JORDAN, Lieutenant Colonel, in his official capacity
as   District  Engineer,   US   Army  Corps  of   Engineers,
Charleston District; UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY; LISA P. JACKSON, in her official capacity as
Administrator of the US Environmental Protection Agency; A.
STANLEY MEIBURG, in his official capacity as Acting
Regional   Administrator,   Region   IV,  US   Environmental
Protection Agency; DEERTRACK GOLF, INC.,

               Defendants - Appellees.


                         No. 11-2253


DEERFIELD    PLANTATION    PHASE   II-B   PROPERTY   OWNERS
ASSOCIATION, INCORPORATED,

               Plaintiff – Appellee,

          v.

DEERTRACK GOLF, INC.

               Defendant – Appellant,

and
UNITED STATES ARMY CORPS OF ENGINEERS, CHARLESTON DISTRICT;
ROBERT L. VAN ANTWERP, in his official capacity as Chief of
Engineers, US Army Corps of Engineers; TREY JORDAN,
Lieutenant Colonel, in his official capacity as District
Engineer, US Army Corps of Engineers, Charleston District;
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; LISA P.
JACKSON, in her official capacity as Administrator of the
US Environmental Protection Agency; A. STANLEY MEIBURG, in
his official capacity as Acting Regional Administrator,
Region IV, US Environmental Protection Agency

                Defendants.


Appeals from the United States District Court for the District
of South Carolina, at Florence.    R. Bryan Harwell, District
Judge. (4:09-cv-01023-RBH)


Argued:   October 25, 2012            Decided:   December 26, 2012


Before MOTZ and KEENAN, Circuit Judges, and James K. BREDAR,
United States District Judge for the District of Maryland,
sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Amy Elizabeth Armstrong, SOUTH CAROLINA ENVIRONMENTAL
LAW PROJECT, Pawleys Island, South Carolina, for Deerfield
Plantation Phase II-B Property Owners Association, Incorporated.
Elizabeth Ann Peterson, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Federal Appellees; Mary Duncan Shahid,
NEXSEN PRUET, LLC, Charleston, South Carolina, for Deertrack
Golf Inc.      ON BRIEF: Michael G. Corley, SOUTH CAROLINA
ENVIRONMENTAL LAW PROJECT, Pawleys Island, South Carolina, for
Deerfield Plantation Phase II-B Property Owners Association,
Incorporated.    Ignacia S. Moreno, Assistant Attorney General,
Aaron P. Avila, Jennifer Scheller Neumann, Adam J. Katz, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal
Appellees.     Stephen P. Groves, Sr., NEXSEN PRUET, LLC,
Charleston, South Carolina, for Deertrack Golf, Inc.


Unpublished opinions are not binding precedent in this circuit.

                              2
PER CURIAM:

             In this appeal, we consider whether the United States

Army Corps of Engineers (the Corps) properly determined that it

did not have jurisdiction under the Clean Water Act, 33 U.S.C.

§§ 1251 through 1387 (the Clean Water Act, or the Act), over

certain ponds, ditches, and other waters on a former golf course

located     in   South   Carolina.         Deerfield   Plantation     Phase    II-B

Property Owners Association, Inc. (the Homeowners’ Association,

or the Association) filed this action against the Corps, the

Environmental Protection Agency (the EPA), and Deertrack Golf,

Inc.   (the      Property     Owner)       (collectively,    the    defendants),

challenging as arbitrary and capricious the Corps’ determination

that   it    did   not   have   jurisdiction       over   such     waters.      The

district     court   upheld     the    Corps’    decision,   and    awarded     the

defendants summary judgment.               Upon our review, we affirm the

district court’s judgment.



                                           I.

             This case arises from the planned redevelopment of a

parcel of property in Horry County, South Carolina.                          A now-

defunct golf course, known as the “Old South Golf Course,” was

located on this 152-acre parcel (the Deerfield Tract).                  In 2005,

the Property Owner entered into a contract to sell the Deerfield



                                       3
Tract to Bill Clark Homes, which in turn planned to redevelop

the parcel as a residential subdivision.

            The      Homeowners’         Association       is    a       nonprofit

organization whose membership is composed of property owners in

Deerfield       Plantation,     Phase    II-B,     a    residential      community

developed alongside the old golf course.                Thus, the residences,

roads, and common areas owned by the Homeowners’ Association

directly border or are located close to the Deerfield Tract.

The Homeowners’ Association opposed Bill Clark Homes’ proposed

redevelopment, alleging that the plan will increase flooding on

nearby properties and will result in the destruction of wildlife

habitat, diminishing the Association members’ use of the land

and enjoyment of wildlife.

            The      Corps      is      authorized       to     “issue      formal

determinations concerning the applicability of the Clean Water

Act” to “tracts of land.”            33 C.F.R. § 320.1(a)(6).            The Corps

may decide whether a tract of land is subject to the agency’s

regulatory jurisdiction under Section 404 of the Clean Water

Act.    33 C.F.R. § 331.2.

            Section 404 requires, among other things, a permit for

the “discharge of dredged or fill material into the navigable

waters,” which are defined in turn as “waters of the United

States.”    33 U.S.C. §§ 1344(a), 1362(7).               The term, “waters of

the    United    States,”     includes    not    only   traditional      navigable

                                     4
waters, but also other water features that maintain a sufficient

connection      with    “waters      of   the       United       States”      in       their   own

right,    under    standards        provided        by    regulations,         33       C.F.R.   §

328.3(a), and articulated by the Supreme Court, most recently

in Rapanos v. United States, 547 U.S. 715 (2006).

              In February 2006, a consultant for Bill Clark Homes

filed    a    request   for    a    jurisdictional           determination              from   the

Corps regarding whether any portion of the 152 acres comprising

the   Deerfield     Tract     contained         “waters      of    the     United        States”

subject to the Corps’ jurisdiction under the Clean Water Act.

In August 2006, the Corps issued a jurisdictional determination

that the Deerfield Tract did not contain any “waters of the

United States” (the initial determination).                          By its terms, the

Corps’ initial determination was valid for five years from the

date of its issuance.

              In   March       2010,          the        Corps     issued          a     revised

jurisdictional determination (the revised determination).                                      The

revised       determination        considered        whether        85     acres         of    the

Deerfield Tract were subject to the Corps’ jurisdiction, because

the   Property     Owner      had    modified         the    scope       of    its       request

following the Corps’ initial determination.

              The Corps consulted a variety of sources before it

reached a conclusion regarding the waters found on the Deerfield

Tract.       These sources included: (1) infrared aerial photography;

                                          5
(2)   agency      records;     (3)    a       Horry     County    soil       survey       (Soil

Survey);    (4)    a    topographic       map     for      Surfside     Beach      (Surfside

Beach    map);    and    (5)   a   wetland       inventory        for      Surfside      Beach

(Wetland Inventory).           To resolve conflicts in the evidence, the

Corps also conducted two site visits.

            In the Soil Survey, the Corps found some evidence of

the “potential presence of hydric soils onsite,” which “could be

an indicator that wetlands or other jurisdictional waters are

present    on    the    site.”       However,         given   the     age    of    the     Soil

Survey,    this     evidence       was    not     considered        “conclusive”          that

hydric soils presently were located on the Deerfield Tract.

            The Corps did not find any evidence of wetlands on the

Deerfield Tract in the more recent Surfside Beach map or in the

Wetland    Inventory.          Those      areas       that    the     Soil       Survey     had

indicated    might      qualify     as    wetlands         were   shown     in    those    two

sources as “upland, or dry land.”                 Moreover, on its site visits,

the Corps did not find any “relic hydrophytic vegetation that

would     indicate       whether      this       site        historically          contained

wetlands.”         Accordingly,       the       Corps      “could     not    conclusively

determine whether the [Deerfield Tract] was ever a wetland.”

            The        Corps     ultimately        asserted         Clean        Water     Act

jurisdiction      over    only     .37    acres       of   waters     on    the    Deerfield

Tract.      The bases for this conclusion were as follows.                                  The

Corps found that two non-navigable tributaries were “relatively

                                          6
permanent waters,” in that they “typically flow year-round or

have       continuous      flow    at     least      seasonally    (e.g.,    typically   3

months).” 1        The Corps concluded that the two relatively permanent

waters      each     had   a   firm,      sandy      bottom   with   a    clearly-defined

channel       that     was     free       of       vegetation,    which     “demonstrates

continuous flow more than seasonally, because vegetation will

not have a chance to establish itself due to the water’s flow.”

The Corps also cited evidence of a clearly-defined ordinary high

water mark, groundwater influx, and the degree of the curvature

(or “sinuosity”) of the tributaries, as indicia that they have a

“relatively permanent flow.”

               The    Corps       noted    that      the   two    relatively   permanent

waters flow out of the Deerfield Tract through a single point of

exit, and empty into Dogwood Lake.                      The Corps identified Dogwood

Lake as “an impounded reach of a relatively permanent water,”

and thus, a “water of the United States” that flows into the

Atlantic Ocean.


       1
        The Corps rendered the revised determination based upon
the standards articulated in the Clean Water Act Jurisdiction
Following the U.S. Supreme Court’s Decision in Rapanos v. United
States & Carabell v. United States (Dec. 2, 2008) (the Rapanos
Guidance)).   The Rapanos Guidance was jointly prepared by the
Corps and the EPA, and it “instructs Corps and EPA personnel on
how to make jurisdictional determinations that comply with the
new rules for [Clean Water Act] jurisdiction announced by the
Supreme Court in Rapanos.” Precon Dev. Corp., Inc. v. U.S. Army
Corps of Eng’rs, 633 F.3d 278, 283 (4th Cir. 2011).



                                               7
                 Roughly     one     mile       separates       the     two     relatively

permanent waters on the Deerfield Tract from the Atlantic Ocean.

In light of evidence of “continuous” or “perennial flow” and of

“a surface connection with the Atlantic Ocean,” the Corps found

that the .37 acres of waters of the Deerfield Tract constituted

non-navigable tributaries of traditional navigable waters, which

had    a    relatively      permanent       flow    of    water.       Accordingly,      the

Corps asserted Clean Water Act jurisdiction over these waters.

                 The   Corps    did     not      assert       jurisdiction      over     the

remaining waters on the Deerfield Tract, describing them as “a

series of ponds that are interconnected by a series of ditches

and swales” (collectively, the Contested Waters). 2                             Generally,

the Corps does not consider swales, ditches, or ponds created to

retain      water      primarily      for   aesthetic         reasons    as   within     its

jurisdiction, if such waters are excavated from uplands and do

not carry a relatively permanent flow to a traditional navigable

water.          (citing     Rapanos    Guidance,         at   11-12;    Final     Rule   for

Regulatory Programs of the Corps, 51 Fed. Reg. 41,206, 41,217

(Nov.      13,    1986)).      The    Corps      only    asserts      jurisdiction       over

“non-navigable, not relatively permanent tributaries” when they

have       “a    significant       nexus    to     traditional        navigable    water.”

       2
       A “swale” is a “low tract of land, especially when moist
or marshy.”    The American Heritage Dictionary 1811 (3d ed.
1992).



                                            8
According to the Corps, the Contested Waters did not meet this

standard.

            In its reasoning relating to the ditches and swales of

the Deerfield Tract, the Corps found that they lacked indicia of

relatively continuous flow, because they had no ordinary high

water mark, no clear channel without vegetation, no significant

channel   sinuosity,       and     no    influx      of    groundwater.       The    Corps

determined that, instead, the ditches and swales “convey water

from ponds and surrounding upland areas during and following

storm events.”

            Next, the Corps considered the ponds on the Deerfield

Tract, and determined that they were “man-made in uplands,” and

that there was no evidence of wetlands or other tributaries on

the   Tract        other    than        the    .37        acres    identified       above.

According to the Corps, the ponds were small bodies of water

that were constructed primarily for aesthetic reasons associated

with the design of a golf course.                 Significantly, the ponds were

connected     to    the    ditches       and   swales        by    elevated   culverts.

Therefore, the Corps found that the ponds were “constructed to

maintain a certain water level and would flow only if the pond

levels fluctuated above a certain point.”

            The       Corps        concluded              that     individually        and

collectively,       the    Contested      Waters      were       characterized    by   low

volume, duration, and frequency of water flow, and did not have

                                          9
a significant nexus with traditional navigable waters of the

United States.             Accordingly, the Corps declined to assert Clean

Water Act jurisdiction over the Contested Waters.

               In    May     2010,    the     Homeowners’       Association       filed     an

amended complaint in the district court seeking a declaration

that    the         Corps’     revised       determination           was    arbitrary      and

capricious,          and     was     issued       in    contravention       of    both     the

Administrative Procedure Act, 5 U.S.C. §§ 701 through 706, and

the    Clean    Water        Act.     The     Association      challenged        the   Corps’

decision       to    assert     jurisdiction           over   only    the   .37   acres     of

“relatively permanent waters,” and sought a judgment that all

the Contested Waters on the Deerfield Tract qualified as “waters

of the United States.”                  The parties filed cross motions for

summary judgment.



                                                 II.

               The district court began its analysis of this case by

discussing      the        meaning    of    the    phrase,     “waters      of   the   United

States,” as used in the Clean Water Act, 33 U.S.C. § 1362(7),

and    in     the     Corps’        implementing         regulations,       33    C.F.R.     §

328(a).       Deerfield Plantation Phase II-B Property Owners Ass’n,

Inc. v. U.S. Army Corps of Eng’rs, 801 F. Supp. 2d 446, 449-51

(D.S.C. 2011).             The district court addressed the two standards

articulated by the Supreme Court in Rapanos regarding whether

                                            10
certain    water    features        were        “waters       of   the    United       States,”

namely, the standard provided by the four-Justice plurality (the

relatively permanent waters standard), and the standard provided

by Justice Kennedy in his concurrence (the significant nexus

standard).       Id. at 451-53.

            Under        the     relatively         permanent            waters       standard,

“waters of the United States” include “only those relatively

permanent,      standing       or   continuously          flowing         bodies      of    water

forming    geographic          features      that       are    described        in    ordinary

parlance     as      streams           .     .      .     oceans,          rivers,          [and]

lakes.”    Rapanos, 547 U.S. at 739 (plurality opinion) (internal

quotation marks omitted).               The plurality stated that “[e]ven the

least substantial of the definition’s terms, namely, ‘streams,’

connotes a continuous flow of water in a permanent channel,” and

“[n]one    of     these        terms       encompasses         transitory         puddles      or

ephemeral flows of water.”                 Id. at 733 (plurality opinion).                     In

fact, the plurality wrote that “relatively continuous flow is

a necessary condition for qualification as a ‘water.’”                                     Id. at

736 n.7 (plurality opinion) (emphasis in original).

            By contrast, the significant nexus standard provides

that “a water or wetland must possess a ‘significant nexus’ to

waters    that     are    or     were      navigable          in   fact    or     that      could

reasonably be so made.”                Id. at 759 (Kennedy, J., concurring).

Justice    Kennedy       stated     that     the    required        nexus       for    wetlands

                                           11
would be established if “alone or in combination with similarly

situated lands in the region, [they] significantly affect the

chemical, physical, and biological integrity of other covered

waters    more      readily    understood         as    ‘navigable.’”        Id.   at    780

(Kennedy, J., concurring).              However, when the “wetlands’ effects

on    water    quality        are     speculative         or    insubstantial,”         such

wetlands “fall outside the zone fairly encompassed by the term

‘navigable waters.’”           Id. (Kennedy, J., concurring).

              The district court concluded that it did not have to

address which of the Rapanos tests governed, because the parties

agreed that if either test was satisfied, the Contested Waters

qualified as “waters of the United States.”                          Deerfield, 801 F.

Supp. 2d at 452-53 & n.7.                  The district court also noted that

the   Rapanos       Guidance        provided      that    “regulatory       jurisdiction

under the [Clean Water Act] exists over a water body if either

the      plurality’s          or       Justice           Kennedy’s         standard       is

satisfied.”         Id. at 453.

              The      district        court           rejected      the     Homeowners’

Association’s        argument       that    the    Corps       relied    exclusively      on

“flow”      characteristics           and       disregarded        the     presence       of

“standing” water in the ditches, swales, and ponds that had a

connection with the Atlantic Ocean.                      Deerfield, 801 F. Supp. 2d

at 462.       The district court observed that “flow” was a factor

for   the     Corps’    consideration           under     the   relatively     permanent

                                           12
waters standard, because “[e]ven the least substantial of the

definition’s terms [streams, oceans, lakes, and rivers,] namely,

‘streams,’ connotes a continuous flow of water in a permanent

channel.”       Id.    (quoting       Rapanos,          547   U.S.      at   733    (plurality

opinion))      (emphasis       in     Deerfield).               Indeed,       the    plurality

in Rapanos noted that “relatively continuous flow is a necessary

condition       for      qualification              as        a      ‘water.’”                 Id.

(quoting     Rapanos,        547    U.S.    at     736    n.7     (plurality         opinion))

(emphasis in Deerfield).

              The    district       court       found    persuasive          in   the   present

case   the    Corps’     findings          that    the    ditches        and      swales       only

contained flowing water after “storm events,” and that the ponds

were constructed to “maintain a certain water level” and would

flow   into    the     ditches       and     swales       only    if     the      water    level

increased beyond a certain point.                        Id. at 462-63.             Given the

evidence that the Contested Waters were characterized by a lack

of   flow,    the     district      court       held     that     the    Corps      reasonably

concluded     that     the    Contested         Waters    were     not       “waters      of   the

United       States”      under           the     relatively            permanent         waters

standard.      Id. at 463.

              The district court also disagreed with the Homeowners’

Association’s        challenge       to    the    Corps’      decision         regarding        the

location along the second tributary where the Corps determined

that its jurisdiction ended.                      The court held that the Corps

                                           13
reasonably determined the boundaries of its jurisdiction based

on    factors    that        were       supported         by     the    record,         including

differences in vegetation, evidence of groundwater influx, and

the presence of an ordinary high water mark.                            Id. at 463.

            Finally,         the        district         court        disagreed         with     the

Homeowners’ Association’s argument that the Corps’ significant

nexus    analysis          was     erroneous,           as     well     as    arbitrary          and

capricious.       After          the     Corps     determined          that   the       Contested

Waters did not satisfy the relatively permanent waters standard,

the Corps further concluded that the significant nexus standard

likewise was not satisfied.                  The district court held that it was

not arbitrary or capricious for the Corps to determine that,

based upon “low volume, duration and frequency of water flow,”

the   Contested       Waters’       ability       to     affect       downstream        navigable

waters    was    limited,          and      did     not      constitute       a    significant

nexus.     Id. at 464-65.               In sum, the district court found that

“the methodology and procedures used by the Corps to arrive at

its   decision,       as    well       as   its   findings        and    conclusions,          were

reasonable      and    not       arbitrary        and     capricious.”            Id.    at    465.

Accordingly,      the      district         court       awarded       summary      judgment       in

favor of the Corps and the EPA.                   Id.

            The district court denied the Property Owner’s motion

for     costs    and       attorneys’         fees        made     under      33        U.S.C.     §

1365.     Deerfield Plantation Phase II-B Property Owners Ass’n,

                                            14
Inc. v. U.S. Army Corps of Eng’rs, No. 4:09-cv-01023, 2011 WL

4943914 (D.S.C. Oct. 17, 2011).               The court declined to find that

the   Homeowners’         Association’s          claims      were        “frivolous,

unreasonable,        or   without         foundation.”             Id.    at     *2-4

(citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 415

(1978)).     The court noted that the Association initially was

successful      in   obtaining     the    revised    determination        from    the

Corps, and that an environmental expert had provided evidence

supporting the claim that the Contested Waters were “waters of

the United States.”

           The       Homeowners’    Association          appeals    the     district

court’s award of summary judgment in favor of the defendants.

The Property Owner appeals the district court’s denial of its

request for attorneys’ fees and costs.



                                         III.

           We    review    de    novo     a   district    court’s    ruling      on   a

motion for summary judgment.             Higgins v. E.I. DuPont de Nemours

& Co., 863 F.2d 1162, 1167 (4th Cir. 1988).                 Summary judgment is

appropriate only when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.”                   Fed. R. Civ. P. 56(a).                In

conducting our review, we consider the evidence in the light



                                     15
most favorable to the nonmoving party.                   Pueschel v. Peters, 577

F.3d 558, 563 (4th Cir. 2009).

               We will set aside a challenged agency action if it is

“arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.”             5 U.S.C. § 706(2)(A).              In making this

assessment,       we     consider    “whether      the    agency      considered    the

relevant       factors    and     whether    a   clear   error     in    judgment   was

made.”     Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d

177, 192 (4th Cir. 2009) (citing Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).                         Our review of

agency action under § 706(2)(A) is deferential.                           Id. at 192.

Thus,    “recognizing       the     Corps’    expertise    in    administering      the

[Clean Water Act], we give deference to its interpretation and

application” of the two standards articulated in Rapanos for

ascertaining “waters of the United States.”                        See Precon, 633

F.3d at 290.

               Initially, we consider the defendants’ contention that

the Homeowners’ Association did not establish the elements of

standing, although the Corps raises this argument for the first

time on appeal.          See Smith v. Cnty. of Albemarle, 895 F.2d 953,

954     (4th    Cir.     1990).       Given      the   timing    of      the   standing

challenge, we will consider additional evidence submitted by the

Homeowners’ Association on the issue.                  See Ouachita Watch League

v. Jacobs, 463 F.3d 1163, 1170-71 (11th Cir. 2006) (supplemental

                                       16
declarations      permitted    when     standing        is   first   challenged    on

appeal).

            We have reviewed the record, and conclude that the

Homeowners’ Association demonstrated that the Association, and

several of its members individually, have standing to bring the

present    action.      The    Association        has    demonstrated     that    its

members have a factually-supported concern of flooding and of

injury to their aesthetic and recreational interests as a result

of the proposed redevelopment of the Deerfield Tract.                    See Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (stating

elements of standing).

            With     regard     to     the     merits        of   the   Homeowners’

Association’s action, like the district court, we conclude that

the Corps did not err or abuse its discretion in determining

that the Contested Waters were not “waters of the United States”

under either the relatively permanent waters standard or the

significant     nexus       standard        articulated      in   Rapanos.        The

Association’s      argument    that     the     Corps    “completely     failed   to

apply the ‘significant nexus’ standard,” is undermined by the

plain language of the Corps’ revised determination.                     Our review

of the revised determination also leads us to conclude that the

Corps did not improperly emphasize the “flow” of the Contested

Waters as a factor in its analysis.                Rather, we think that the

Corps   engaged    in   a    careful    analysis        of   numerous   permissible

                                       17
factors.       After consulting a multitude of sources and conducting

site   visits,        the    Corps   reached    a   well-supported       conclusion

locating the boundary between the two jurisdictional tributaries

on the Deerfield Tract, and the Contested Waters over which the

Corps ultimately found that it did not have jurisdiction.

            We also hold that the district court did not abuse its

discretion in denying the Property Owner’s motion for attorneys’

fees and costs.         See Johnson v. City of Aiken, 278 F.3d 333, 336

(4th Cir. 2002) (attorneys’ fees award reviewed for abuse of

discretion).         We credit the reasons given by the district court

in reaching its conclusion.                The Association had obtained from

the    Corps     a    revised     jurisdictional     determination,       and    had

presented expert evidence tending to show that portions of the

Deerfield       Tract       contained   “waters     of   the    United    States.”

Despite    the       Property    Owner’s     arguments   to    the   contrary,   we

discern no abuse of discretion.                Thus, we affirm the district

court’s award of summary judgment in favor of the defendants for

the reasons well stated by the court, and we affirm the court’s

denial of the Property Owner’s request for attorneys’ fees and

costs.



                                                                           AFFIRMED




                                        18
