                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-1433


R.J. INVESTMENTS, L.L.C.,

                Plaintiff - Appellant,

          and

MARIE E. ROBINSON; TERRI SORRELL; ENTERPRISE HOMES, INC.;
LACROSSE HOMES, INC.,

                Plaintiffs,

          v.

THE BOARD OF COUNTY COMMISSIONERS FOR QUEEN ANNE’S COUNTY,
MARYLAND; ERIC S. WARGOTZ, M.D., in his personal capacity,
in his capacity as Board Member of the County Commissioners
for Queen Anne’s County Maryland, and in capacity as
Sanitary Commissioner; COURTNEY M. BILLUPS, in his personal
capacity, in his capacity as Board Member of the County
Commissioners for Queen Anne’s County, Maryland, and in his
capacity as Sanitary Commissioner; PAUL L. GUNTHER, in his
personal capacity, in his capacity as Board Member of the
County Commissioners for Queen Anne’s County, Maryland, and
in his capacity as Sanitary Commissioner; GENE M. RANSOM,
III, in his personal capacity, in his capacity as Board
Member of the County Commissioners for Queen Anne’s County,
Maryland, and in his capacity as Sanitary Commissioner;
CAROL R. FORDONSKY, in her personal capacity, in her
capacity as Board Member of the County Commissioners for
Queen Anne’s County, Maryland, and in her capacity as
Sanitary   Commissioner;  QUEEN   ANNE’S   COUNTY  SANITARY
COMMISSION,

                Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:07-cv-01903-RDB)


Argued:   January 25, 2011                Decided:   March 4, 2011


Before KING, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam decision.


ARGUED: Anthony Gene Gorski, RICH & HENDERSON, PC, Annapolis,
Maryland, for Appellant.     Victoria M. Shearer, KARPINSKI,
COLARESI & KARP, PA, Baltimore, Maryland, for Appellees.   ON
BRIEF: James J. Doyle, III, Warren K. Rich, RICH & HENDERSON,
PC, Annapolis, Maryland, for Appellant.     Richard Colaresi,
KARPINSKI, COLARESI & KARP, PA, Baltimore, Maryland, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     R.J. Investments, L.L.C. (“R.J.”) appeals from the judgment

of the United States District Court for the District of Maryland

in favor of the Board of County Commissioners for Queen Anne’s

County, Maryland (“the Board”), the Queen Anne’s County Sanitary

Commission, and the members of the Board of County Commissioners

in their official capacities (collectively, “the Defendants”) on

its Fair Housing Act and Equal Protection claims. Finding no

error, we affirm.



                                     I.

     Queen Anne’s County (“the County”) is a rural agricultural

county located on Maryland’s Eastern Shore. To build on land in

the County, a developer must demonstrate to the Board that the

property   can    be   adequately   served   by   the   County’s    water   and

sewer systems. Having executed a contract to purchase property

in the County, R.J. applied for an amendment to the County’s

Comprehensive Water and Sewerage Plan which would allow R.J. to

continue with the development process for the property. After

two public hearings on the matter, the Board unanimously denied

R.J.’s proposed amendment. In so doing, Board members expressed

their   concern    that   the   existing     water   and   sewage   treatment

facilities were insufficient to meet the needs of the proposed

development.

                                      3
       Shortly thereafter, R.J. 1 filed suit, alleging, among other

things, violations of the Fair Housing Act, 42 U.S.C. §§ 3601-

3619, and the Equal Protection Clause under 42 U.S.C. § 1983.

R.J.       claims      that   by    denying       its   proposed    amendment,      the

Defendants negatively affected potential minority homebuyers and

prevented       the     expansion    of   affordable      housing.     Following      a

four-day bench trial, the district court entered judgment in

favor of the Defendants; thereafter, R.J. noted a timely appeal.

We have jurisdiction under 28 U.S.C. § 1291.



                                           II.

       On appeal from a bench trial, “[w]e review a judgment . . .

under      a   mixed    standard    of    review    —   factual    findings   may    be

reversed only if clearly erroneous, while conclusions of law . .

. are examined de novo.”             Roanoke Cement Co., LLC v. Falk Corp.,

413 F.3d 431, 433 (4th Cir. 2005) (citing                    Williams v. Sandman,

187 F.3d 379, 381 (4th Cir. 1999); Scarborough v. Ridgeway, 726

F.2d 132, 135 (4th Cir. 1984)).




       1
        Enterprise Homes, Inc., Reverend Marie Robinson, Terri
Sorrell, and Lacrosse Homes, Inc. also were named plaintiffs in
the   suit.   The  district  court,   however,  dismissed these
additional parties for lack of standing prior to holding its
bench trial; hence, they are not parties to this appeal.



                                              4
                                    III.

                                     A.

      We utilize the four-prong analysis set forth in Smith v.

Town of Clarkton to evaluate Fair Housing Act claims advanced

against governmental entities. 682 F.2d 1055 (4th Cir. 1982);

see also Betsey v. Turtle Creek Assocs., 736 F.2d 983, 988 n.5

(4th Cir. 1984) (“[T]he Clarkton test has been applied only in

situations where a public body is the defendant.”). Pursuant to

this inquiry, we assess:

      (1)   how  strong   is   the plaintiff’s  showing  of
      discriminatory effect; (2) is there some evidence of
      discriminatory intent, though not enough to satisfy
      the constitutional standard of Washington v. Davis[,
      426 U.S. 229 (1976)]; (3) what is the defendant’s
      interest in taking the action complained of; and (4)
      does the plaintiff seek to compel the defendant to
      affirmatively provide housing for members of minority
      groups or merely to restrain the defendant from
      interfering with individual property owners who wish
      to provide such housing.

Clarkton, 682 F.2d at 1065 (quoting Metro. Hous. Dev. Corp. v.

Vill. of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977),

cert. denied, 434 U.S. 1025 (1978)(“Arlington Heights II”)).

      R.J. contends the district court erred in applying each of

the   Clarkton   factors. 2   For   the   purposes   of   this   opinion,   we


      2
       As it does with its Fair Housing claim, R.J. argues with
respect to its Equal Protection claim that the district court
erred   in  concluding  that   it  presented   no  evidence   of
discriminatory intent. As we conclude below, however, the
district court did not err in so finding. Because “[a] violation
(Continued)
                                      5
assume, 3   without   deciding,    that   the    district   court   erred   in

finding that R.J. failed to establish the Board’s actions had a

disparate impact on potential minority homeowners. 4 Of course,

not   “every   action   which     produces      discriminatory   effects    is

illegal.” Arlington Heights II, 558 F.2d at 1290. We therefore

turn to the remaining Clarkton factors to evaluate whether the

Board’s denial of R.J.’s proposed amendment violated the Fair

Housing Act.




[of the Equal Protection Clause] is established only if the
plaintiff can prove that the state intended to discriminate,”
Sylvia Dev. Corp. v. Calvert Cnty., 48 F.3d 810, 819 (4th Cir.
1995)(emphasis in original), R.J. plainly fails to establish an
Equal Protection violation. We therefore do not discuss the
issue further.
      3
       We note that our assumption is constrained by the evidence
offered by R.J. at trial. It is clear from our review of the
record that the district court did not err when it found that,
if it were to accept the entirety of the evidence submitted by
R.J., any showing of disparate impact would be minimal, at best.
J.A. 2360. Thus, the outer limit of our assumption is that R.J.
established a minimal disparate impact.
      4
        R.J. further contends that the district court erred by
admitting the testimony of Peter Scanlon, Director of Housing
and Community Services for the County and the Executive Director
of the County’s Housing Authority, under Federal Rule of
Evidence 701.     Scanlon’s improper testimony, R.J.’s argument
goes, led the district court to find that R.J. did not establish
a disparate impact. We need not address the issue here, however,
because in resolving this appeal we assume without deciding that
R.J. has satisfied the first Clarkton factor regarding disparate
impact.



                                      6
                                        B.

      Our review of the record indicates that the district court,

at a minimum, did not err in applying the second and third

Clarkton factors. The district court, as to the second factor,

explicitly found “there is not a scintilla of evidence that the

Board . . . acted with racially discriminatory intent. . . .

[T]his Court finds . . . that the Plaintiff’s case was based on

conjecture and supposition.” J.A. 2361-62. We have thoroughly

examined the record and find the district court’s conclusion to

be   amply   supported   by    the   record     and   certainly    not   clearly

erroneous.    Further,   the    district      court   did   not   commit   clear

error when it found that the Board’s concern over the lack of

sewer capacity presented a legitimate basis for denying R.J.’s

proposed amendment.       Moreover, we agree with the district court

that the Board made its decision while acting within the scope

of   its   authority.    The   record       plainly   supports    the    district

court’s conclusion that “the Board possessed a significant and

legislative interest in exercising [its] legislative prerogative

to protect and preserve the County’s valuable sewer treatment

resources . . . .” J.A. 2363. 5

      5
        Having concluded that the district court correctly
determined R.J. failed to meet the second and third Clarkton
factors, it is unnecessary to address the fourth factor, which
the district court found did “not favor either party.” J.A.
2363.


                                        7
     Thus,    even     assuming    that       R.J.   established      a    minimal

disparate    impact,   because    the    district    court    did    not    err   in

finding     that     R.J.   failed      to     produce      any     evidence      of

discriminatory intent and the Board made its determination while

exercising    its    legislative     prerogative       to    preserve      and    to

protect the county’s sewer treatment resources, we agree with

the district court that R.J. failed to establish a violation of

the Fair Housing Act.



                                        IV.

     For the foregoing reasons, the district court did not err

in concluding that R.J. failed to establish a violation of the

Fair Housing Act or the Equal Protection Clause. We therefore

affirm the judgment of the district court.

                                                                           AFFIRMED




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