                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


JANE PUMPHREY NES; TANYARD              
SPRINGS LIMITED PARTNERSHIP,
               Plaintiffs-Appellants,
                 v.
ANNE ARUNDEL COUNTY, A chartered
county of the State of Maryland;
DEPARTMENT OF PLANNING AND CODE
ENFORCEMENT, An agency of Anne
Arundel County; JANET OWENS,
Anne Arundel County Executive;                   No. 03-1470
JEROME KLASMEIER, Chief
Administration Officer; ROBERT M.
POLLOCK, Senior Assistant County
Attorney; JOHN G. GARY, JR.,
Former Anne Arundel County
Executive; STEVE COVER, Former
Director; THOMAS ANDREWS, Former
Director; MARK WEDEMEYER, Former
Development Administrator,
              Defendants-Appellees.
                                        
           Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
             Marvin J. Garbis, Senior District Judge.
                       (CA-01-1605-MJG).

                      Argued: February 24, 2004

                       Decided: April 22, 2004

          Before WILKINS, Chief Judge, and MOTZ and
                   TRAXLER, Circuit Judges.
2                  NES v. ANNE ARUNDEL COUNTY
Affirmed by unpublished per curiam opinion.


                            COUNSEL

ARGUED: Neil Thomas Proto, SCHNADER, HARRISON, SEGAL
& LEWIS, L.L.P., Washington, D.C., for Appellants. Kurt James
Fischer, Paula Marie Junghans, PIPER RUDNICK, L.L.P., Baltimore,
Maryland, for Appellees. ON BRIEF: Steven R. Johnson, SCH-
NADER, HARRISON, SEGAL & LEWIS, L.L.P., Washington, D.C.,
for Appellants. Linda M. Schuett, County Attorney, ANNE ARUN-
DEL COUNTY OFFICE OF LAW, Annapolis, Maryland; Melissa L.
Mackiewicz, PIPER RUDNICK, L.L.P., Baltimore, Maryland, for
Appellees.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Jane Pumphrey Nes and Tanyard Springs Limited Partnership (col-
lectively Nes) filed this action seeking compensatory and punitive
damages against Anne Arundel County, its Department of Planning
and Code Enforcement, and certain County officials (collectively "the
County"). Nes alleges inter alia that the County violated her equal
protection rights in connection with her attempts to develop land in
Anne Arundel County. The district court granted summary judgment
to the County on Nes’ equal protection claim and Nes appeals. Find-
ing no reversible error, we affirm.

                                 I.

  Nes owns 277 acres of land in northern Anne Arundel County
known as Tanyard Springs. Beginning in 1982, she sought to develop
                    NES v. ANNE ARUNDEL COUNTY                        3
her property as a commercial and industrial project and took various
preliminary steps to gain approval of development, including filing
early-stage subdivision applications, or sketch plans. Nes requested
and received a series of extensions for submittal of a final plan that
extended over a number of years. During this time, the scope of the
proposed development evolved. One significant change was that Nes
applied to have portions of her property rezoned for residential use
and received approval for the requested rezoning in 1996. Thus, when
she ultimately filed a final infrastructure plat in 1997, Nes’s proposal
included plans for residential units and constituted a mixed industrial,
commercial, and residential subdivision.

   The County requires that developers demonstrate that public facili-
ties, like wastewater systems and public schools, will be adequate to
support a proposed development in order to receive approval for a
final development plan. Anne Arundel County, Md., Code §§ 2-409
- 2-419 (1985 & Supp. 2003). Thus, one major step in securing
approval for a project is to reach an adequate public facilities ("APF")
agreement with the County, which may often require that the devel-
oper commit to build or improve existing public facilities.

   From the time that Nes submitted her initial sketch plans, the
County identified certain public facilities that needed improvement to
support a development at Tanyard Springs. In seeking extensions of
time to submit a final plan, Nes indicated her "desire to resolve sev-
eral outstanding Adequacy of Facilities issues prior to proceeding
with final plans." However, after Nes received permission to rezone
a good portion of her property for residential use in 1996, she met
with County officials to "establish the final process for the review and
approval" of the Tanyard Springs development, including the APF
agreement; thereafter, negotiations regarding the APF agreement "in-
tensified."

   One issue of concern was the adequacy of wastewater facilities,
which the County determined would have to be augmented through
the construction of a sewage pumping station. As early as 1990, the
County indicated that Nes had to cooperate with CSX Corporation, a
developer that owned and proposed development on land adjacent to
Tanyard Springs, to construct one pumping station to support both
proposed developments. Nes attempted, to no avail, to work with
4                   NES v. ANNE ARUNDEL COUNTY
CSX to construct the required pumping station on CSX’s property.
Ultimately, Nes’ final APF agreement, signed in 1998, provided that
Nes would design a pumping station to be built on her property,
which the County would then construct, at its expense.

   The final APF agreement did not, however, resolve another issue
of concern relating to the adequacy of public facilities — the ability
of neighborhood schools to absorb the additional students generated
by Nes’ proposed residential development. An initial draft of the APF
agreement prepared by Nes and discussed with County officials incor-
porated Nes’ expectation, consistent with County practice at that time,
that she pay a fee to compensate for any shortfall in school adequacy.
But, prior to finalization of the APF agreement, County officials
informed Nes that the County would no longer agree to waive school
adequacy requirements in return for payment of a fee and that she
must, instead, apply for a statutory hardship waiver. Nes applied for
the statutory waiver, which was denied, with the denial upheld by the
County Board of Appeals. Thus, Nes was unable to meet the school
adequacy requirement, a prerequisite for final approval of the Tanyard
Springs development.

   Nes then filed this action, alleging in relevant part that the County
denied her equal protection of the laws by imposing development
conditions on her not imposed on other developers. Specifically, Nes
argues that the County did not compel other developers to (1) cooper-
ate with and locate sewage pumps on another landowner’s property
or (2) satisfy the stringent statutory hardship showing to meet the
school adequacy requirement.

                                  II.

   When Nes commenced this action on June 1, 2001, attorneys prac-
ticing with the firm Verner, Lipfert, Bernhard, McPherson & Hand,
Chartered ("Verner") represented Nes. In March 2002, Nes’ counsel
left Verner and joined a new firm, Schnader, Harrison, Segal & Lewis
("Schnader"). Nes continued to be represented by her original coun-
sel, only through Schnader. Thereafter, in August 2002, the County,
which had from the outset been represented by Piper Rudnick, LLP
("Piper"), moved for summary judgment seeking dismissal of Nes’
                     NES v. ANNE ARUNDEL COUNTY                         5
equal protection claim. On September 23, 2000, Verner merged with
Piper.

   Nes then moved to have Piper disqualified on the ground that when
Verner merged into Piper, Verner’s conflicts (specifically, its prior
representation of Nes) were imputed to Piper, thereby precluding
Piper from continuing to represent the County. The district court
denied Nes’ motion to disqualify Piper because it found that Piper put
in place safeguards sufficient to protect Nes’ interests and comport
with the standard set forth in Rule 1.10(b) of the Maryland Code of
Professional Responsibility.

   After denying Nes’ disqualification motion, the district court con-
sidered the County’s motion for summary judgment on Nes’ equal
protection claim. The court determined that Nes was a "class of one"
and that to establish a prima facie case, she must show that (1) the
County treated her differently than other, similarly situated individu-
als; (2) the differential treatment was intentional; and (3) the differen-
tial treatment was not rationally related to a legitimate government
interest.

   The district court first rejected Nes’ claim with regard to the con-
struction and siting of the sewage pump. The court reasoned that the
County had an interest in limiting the number of pumping stations,
which it furthered by requiring developers to cooperate in building
pumping stations and that the County applied this policy equally to
Nes and other similarly situated developers. The court further rea-
soned that the County’s initial focus on having the pumping station
built on CSX’s property was justified because the CSX site was
located at a lower elevation than the Tanyard Springs property.

   The district court also rejected Nes’ claim with regard to school
adequacy. It ruled that, although the County did at one point permit
some developers to satisfy the school adequacy requirement early in
the application process by negotiating fee waiver agreements, it only
made this expedited process available to developers who applied for
and were granted Planned Unit Development ("PUD") status. Because
Nes neither applied for nor received PUD status, the court concluded
that she could not establish disparate treatment.
6                    NES v. ANNE ARUNDEL COUNTY
   The district court similarly ruled that Nes failed to demonstrate that
she was subjected to disparate treatment because the County did not
process her school adequacy requirement pursuant to its broader fee
waiver policy, which supplanted the PUD policy, pursuant to which
non-PUD developers could enter into fee waiver agreements to satisfy
the school adequacy requirement. The court concluded that Nes’
development plans were not sufficiently far along while the fee
waiver policy was in effect for school adequacy to be determined and
for an agreement relating thereto to be signed. The district court fur-
ther noted that the County discontinued the fee waiver policy in 1997,
so that by the time Nes applied for a waiver pursuant to the hardship
exception in 1998, the County no longer granted new waivers, except
in rare and unusual circumstances. Thus, the court concluded that the
County treated Nes in a manner consistent with its policy and did not
treat her differently than other similarly situated landowners.

                                   III.

   After carefully considering the record, the briefs, and the applica-
ble law, and having the benefit of oral argument, we conclude that the
district court properly granted the County summary judgment on Nes’
equal protection claim and properly denied Nes’ disqualification
motion. We affirm for the reasons stated by the district court, and
engage in further discussion only to add one point.

   In addition to the reasons offered by the district court, we note that
the County filed its motion for summary judgment on August 28,
2002 and the merger that forms the basis for Nes’ disqualification
motion did not occur until September 23, 2002. The County filed only
a limited brief on the summary judgment motion after the merger
date; this undisputed fact, therefore, constitutes an additional "practi-
cal reason[ ]" why the merger did not taint the summary judgment
proceedings in a manner requiring disqualification. See Shaffer v.
Farm Fresh, Inc., 966 F.2d 142, 146 (4th Cir. 1992).

                                   IV.

    Accordingly, the judgment of the district court is in all respects

                                                           AFFIRMED.
