Scribd Logo
Încărcați

Bine ați venit la Scribd!

  • Frederick County Response

    Încărcat de

    Tony Ortega
    14K vizualizări16 pagini
    Frederick County's response to Scientology's zoning appeal in Maryland

    Drepturi de autor

    © © All Rights Reserved

    Formate disponibile

    PDF sau citiți online pe Scribd

    Vi se pare util acest document?

    Este necorespunzător acest conținut?

    Raportați acest document
    Frederick County's response to Scientology's zoning appeal in Maryland

    Drepturi de autor:

    © All Rights Reserved
    Descărcați ca PDF sau citiți online pe Scribd
    Indicator pentru conținut neadecvat
    14K vizualizări16 pagini

    Frederick County Response

    Încărcat de

    Tony Ortega
    Frederick County's response to Scientology's zoning appeal in Maryland

    Drepturi de autor:

    © All Rights Reserved
    Descărcați ca PDF sau citiți online pe Scribd
    Indicator pentru conținut neadecvat
    din 16
    IN THE CIRCUIT COURT FOR FREDERICK COUNTY, MARYLAND Petition of Social Betterment Properties * International For Judicial Review of the DECISION OF THE FREDERICK COUNTY —*_ CIVIL ACTION NO. 10-C-15-001859 COUNCIL. In the case of the Application for Designation of “Trout Run/Richey Lodge”, located at 12929 * Catoctin Hollow Road, near Thurmont, as a listed Site on the Frederick County Register of Historic Places, Application No, CR-14-03 ee MEMORANDUM OF RESPONDENT FREDERICK COUNTY. MARYLAND Frederick County, Maryland, by and through its undersigned attorneys files this ‘Memorandum in support of the decision of the Frederick County Council by which it declined to approve Petitioner's property for placement on the Frederick County Register of Historic Places. 1. INTRODUCTION Rather than selecting a property with the appropriate zoning for its intended use as a drug rehabilitation facility — (April 7, Tr. 27:6-7)', the Petitioner, Social Betterment Properties Intemational, selected a site where the zoning of the property (Resource Conservation) did not include the intended use as a permitted use. (April 7, Tr. 19:18-22). By selecting a property with @ zoning designation that did not allow the intended use as a permitted use, Petitioner assumed the risk of finding a way to obtain approval to use the property for a drug abuse rehabilitation facility. 7 References tothe transcript contain the date ofthe proceeding, (eg. Apri 7) followed by “Tr.” ‘Then page number: Line number.) Petitioner was not successful in obtaining all of the approvals and designations required to use the Resource Conservation zoned property for a drug rehabilitation facility. Petitioner's lack of success resulted in the filing of the Petition for Judicial Review and Petition for Administrative Mandamus. IL. QUESTION PRESENTED Given The Permissive Language Of The Statute, Was The Couneil Decision An Appropriate Exercise Of Its Discretion? Ml. FACTS In May 2013, Petitioner's assignor, West Coast Property Investments, Inc.,? contracted to purchase a property zoned Resource Conservation, with the intent to use the property for a drug and alcohol abuse treatment facility, knowing its proposed use was not a permitted use in the Resource Conservation Zone. (April 7, Tr. 19:18-22; R. 1029-1047). A provision in the County Code allows certain enumerated uses in any zoning district where it is proposed to convert an existing historic structure for the enumerated use. (Frederick County Code, §1-19-8.600). Numerous steps are required to obtain final approval to convert a historic structure to a new use, and there is no guarantee that approval will ultimately be obtained. Even if the type of use is approved, Site plan review and approval would be needed and then all the state environmental regulations for its septic system and well would need to be satisfied. Petitioner's first step was to determine whether the proposed use is one identified in §1- 19-8,600 as allowed in historic structures or historic sites. If the proposed use is allowed then the applicant has to seek special exception approval from the Board of Appeals. In Petitioner's 2 Tt appears that at some point during the application process the contract was assigned to Petitioner, Social Betterment Properties Intemational. Both entities will generally be referred to herein as “Petitioner.” 2 case the proposed use as a drug and alcohol abuse treatment facility was not a use enumerated in §1-19-8.600. Therefore Petitioner had to obtain clarification from the Zoning Administrator as to whether its proposed use was allowed under §1-19-8.600. It requested that determination on July 2, 2013, (R. 1051-1052). On July 8, 2013, Petitioner submitted an application for a special exception as required by §1-19-8.600 seeking approval to use the site for an alcohol and drug abuse treatment facility, (R. 1006) a use not permitted under its Resource Conservation Zoning. By letters dated July 22, 2013, Frederick County's Zoning Administrator provided Petitioner with an opinion that the “proposed use ‘of a Maryland ~ Certified Alcohol and drug abuse treatment facility’ may be allowable at the above referenced property.” (emphasis added) (R. 1051, 1052). The validity of the Zoning Administrator's determination was not challenged. On July 23, 2013, Petitioner submitted a “County Register Nomination Form” (R. 1077). During its meeting on August 14, 2013, the Historie Preservation Commission (a recommending body without final decision making authority) made a preliminary determination that the property would be “eligible” for an historic designation. (R. 1048). ‘The contract purchaser's special exception application was processed and heard by the Board of Appeals on August 22, 2013. By written decision dated October 1, 2013 the Board of Appeals approved the Special Exception to operate a “group ‘home’ based in part on the Zoning “Administrator’s determination that the alcohol and drug treatment facility use was allowed under the “group home” designation. The Board of Appeals also incorporated into its opinion certain recommendations of the Historie Preservation Commission. (R. 985-987). T qwo letters were issued because the subject property is comprised of portions of two separate parcels of land Becuuse the lefers went to the contract purchaser, other potentially interested parties would have been unaware of the decision of the Zoning Administrator. 3 Although it had made progress, there were still additional approvals to be obtained by Petitioner before the property would be able to be used as intended. Before it had even resubmitted its County Registered Nomination Form to bring the matter to the Historic Preservation Commission for a final recommendation to the County Council and County Executive, the contract purchaser's assignee, Social Betterment Properties International, had decided to proceed with the purchase of the property.’ (R. 949-957). Approximately a full year lapsed between the granting of the special exception by the Board of Appeals and Petitioner's resubmission to the Historic Preservation Commission. (R. 927-948; 949-958). Even if Petitioner had obtained approval from both the County Council and the County Executive to place the property on the Frederick County Register of Historic Places (a fully discretionary decision under the Frederick County Code, §1-23-6) any proposal to change any of the characteristics of the property by Petitioner would require both site development plan approval by the Division of Planning and Permitting as well as a Certificate of Appropriateness from the Historic Preservation Commission (§1-23-7 of the Frederick County Code; R. 985-987). Furthermore, the property lacked approval from the Health Department or the Maryland Department of the Environment to install a septic system to serve its proposed use, another significant hurdle, (April 7, Tr. 52:5: 19-21; 67:2-4). ‘As noted by County Staff member, Mr. Denis Superezynski, during his presentation to the County Council at its initial hearing on whether to place the property on the County's Register, there are only “a handful of properties” on the Frederick County Register of Historic 4 The Purchase Agreement contained as contingencies that “Purchaser shall have received zoning reaffirmation, and all government approvals (including without imitation a special use permit) that are reasonably necessary forthe intended use of the property as a spa, health and addiction and rehabilitation facility. (R. 1029-1047, 46.2.4). 4 Places. (April 7, Tr, 4:21-22). During the initial Staff Presentation, Councilmember Donald immediately expressed his skepticism about whether the property was tuly histori or just “old”. (April 7, Tr. 15:6-9). While Petitioner claims the Council decision was wrongly influenced by other non- relevant “issues”, itis noteworthy thatthe first mention of “Narconon” was made by Petitioner's attomey, Mr, Bruce Dean, during his intial presentation to the Coun, (April 7, Tr. 27:35: 30:10-11). Petitioner cannot in good faith now complain about there being public comments about the proposed user, Narconon, when they were the first to point out and discuss the “Narconon” connection, Councilmember Donald again expressed during the Petitioner's presentation, his opinion that he did not think the property was historic, (April 7, Tx 29:7-10, 15-17). Following the taking of public testimony, the Petitioner offered rebuttal testimony through its “expert” Katherine Kuranda. In response to questions from Councilmember Donald, Ms. Kuranda admitted that “there were a number of these types of camps that were developed ‘through the Catoctins.” (April 7, Tr. 56:9-10). ‘At the conclusion of the April 7 hearing, Councilmember Delauter ably identified the issue facing the Council, whether the Couneil will vote to add the property to the Frederick County Register of Historic Places. (April 7, Tr. 67:16-20). He did not indicate which way he would vote, only that he was “prepared to vote.” (April 7, Tr. 69:6). “The Council decided to hold off making a decision until a later hearing, and did not close the record. (April 7, Tr. 78:5-21). By the time the second hearing was held on April 21, 2015, Petitioner had rallied its supporters, several from out of state, resulting in there being almost equal numbers of people testifying in favor of its proposal as spoke against it. (April 21, Tr. 5-29). During the second hearing, numerous additional documents were provided by Petitioner relating to the condition of the facilities on the property, and additional testimony was presented by the Petitioner's experts, resulting in the Council deciding to postpone its decision for 30 days to allow it time to digest all of the additional information. (April 21, Tr. 69-70). It was mentioned several times by Petitioner’s Counsel during the first and second hearings, that the basis upon which the Council was to make its decision was not clear. While likened to a zoning action, the action sought really wasn’t a zoning decision. (April 7, Tr. 23:21- 22; Tr. 27:14-17; Tr. 28:20-22). (April 21, Tr. 63:16-22; 64:1-3; 65:7-15). The correct standard to be used by the Council in making its decision was clearly articulated to the Council before the Council made its decision, (June 2, Tr. 3:5-22; Tr. 4-7) The decision whether to add the property to the Frederick County Register was within the sole discretion of the Council. The applicant (Petitioner) not only had the burden of production ~ to produce sufficient evidence demonstrating that the property met the criteria to be included in the Register of Historic Places, Petitioner also had the burden of persuasion ~ to persuade each Councilmember that its property should be added to the Frederick County Register of Historic Places. If Councilmembers were not fully persuaded to take the affirmative action to approve Petitioner’s request, they were free to decline to take action — which is exactly what occurred. Councilmember Shreve made a motion to place the property on the Frederick County Register of Historic Places. (June 2, Tr. 8:11-13). Thereafter discussion ensued whereby individual Councilmembers expressed their reasons for not voting in favor of the motion. (June 6 2, Te, 8413; Ts.16:8-22, 17:1-8). ‘The motion failed by a 6-1 vote. (June 2, Tr. 17-18). The property was not added to the Register of Historic Places. IV. STANDARD OF REVIEW Petitioner erroneously asserts that the County Council was obligated to approve its application to be added to the Frederick County Register of Historie Places, simply bevause it Put forth some testimony and documents containing self-serving assertions thatthe property contains what some individuals viewed as “historic” structures. Petitioner sets forth the standard of review applicable to rezoning, and special exception applications but this was neither a rezoning nora special exception decision, This is areview of an agency decision where the substantial evidence test, often referred to asthe “fairly debatable test” applies, Tochterman v, Baltimore County, 163 Md. App. 385, 406-410, 880 A.2d 1118 (2005). Whether the reviewing Court might have reached the same conclusion as the Council on the same evidence is not the point, the Court does not substitute its judgment for that of the administrative agency. Even a to some legal issues, a degree of deference should be accorded to the administrative agency. Tochterman v. Baltimore County, 163 Md. App. at 410. In addition, as the Court of Special Appeals explained in Angelini v. Harford County, 14 Md, App. 369, 798 A.2d 26, cer. denied, 370 Ma, 269 (2002), when the tem “may” is used ina statute, it means the decision maker is free to act or not act. The decision maker’s failure to, actin these eases is not “arbitrary and capricious.” Id at 378-379. If the decision maker has not been persuaded “to do” something affirmative then it is within its disertion to not take an affirmative action, “[a]n honest doubt is all it takes.” Jd at 378. ‘When non ~persuasion has occurred, “itis virtually, albeit perhaps not totally, impossible to find reversible error...” Angelini at 378. V. ARGUMENT The Historie Preservation Program Is Not Mandatory Unlike the Statutory mandates from the State to the local ji jons to create and adopt a Comprehensive Plan, Ann. Code of Maryland, Land Use Art, §1-405, “[a] charter ‘County shall enact, adopt, amend, and execute a plan in accordance with this part and Part Ill of this subtitle,” and zoning regulations, Land Use Art., §4-202(a) “Adoption ~ The Legislative body shall adopt zoning regulations...,” the State enables but does not mandate that local jurisdictions participate in historic recognition programs, “each local jurisdiction may designate boundaries for sites, structures and districts that are considered to be of historic, archaeological or architectural significance...” Land Use Art., §8-105. (emphasis added) L Frederick County did enact Historic Preservation Regulations So each local jurisdiction has the freedom to choose whether it will regulate changes to or demolition of structures of historical significance, and may create its own regulations and procedures. Land Use Art. §§ 8-104(a), 8-105. In 1997, Frederick County chose to avail itself of the opportunity offered by the General Assembly and adopted Chapter 1-23 of the Frederick County Code — Historic Preservation.’ (Ordinance No. 97-16-194). In so doing, the County’s enactment provided for the creation of a Historic Preservation Commission, as a reviewing and recommending body, but significantly, in its statute, the governing body reserved to itself the authority to make the final decision on whether or not to designate a property for inclusion on the Frederick County Register of Historie Places. Frederick County Code, §§ 1-23-5, 1-23-6. 5 the provisons of Tie ofthe Land Use Atl ofthe An. Code of Mayland dont aply o Carer Counties = which Frederick County became in 2014, however the Frederick County Charter, §601 provides that the provisions ofthe Land Use Article which previously applied to Frederick County will continue to apply. 8 2. ‘The regulations leave the decision whether to include a property on the Register to the sole discretion of the Governing Body County Code § 1-23-6(A) provides: “[f]he county governing body may designate boundaries for landmarks, sites, structures, or districts of historic, archeological, or architectural significance after a public hearing thereon, consistent with adopted ctteria for such designation.”* (emphasis added) By not delegating the final decision on whether to designate a property for inclusion on the Register, and by using of the word “may”, the County code does not require the County t0 make any such designation should it choose not to, “Thus the governing body may, of it may not, choose to designate a property for inclusion on the Frederick County Register of Historie Places. See, Angelini v. Harford County, \44 Md. ‘App. 369, 798 A.2d 26, cert. denied, 370 Md. 269 (2002). B. Petitioner failed to meet its Burden of Persuasion In the instant case, Petitioner makes much ado about the Historic Preservation Commission’s recommendation and that it produced “expert” testimony that at least three of the criteria had been satisfied, but that is of no import, If the County Council was simply unpersuaded, it was free to not take an affirmative action on Petitioner's request, Angelini, supra. During the intial hearing, Councilmember Donald stated early and often that he did not believe the property was historic. (April 7, Ts. 29:7-10, Tr. 70: 22, 71:1-12). ‘There was ample evidence in the record that several of the structures on the property ‘were constructed in 1960's or 1970's. (April 7, Tr. 12, 16:12-16, 26:5-8). (R. 0769, 1084, 01 120- 01122).

    S-ar putea să vă placă și