IN THE CIRCUIT COURT FOR FREDERICK COUNTY, MARYLAND PETITION OF SOCIAL BETTERMENT PROPERTIES INTERNATIONAL FOR JUDICIAL REVIEW OF THE DECISION OF THE FREDERICK COUNTY COUNCIL CIVIL ACTION NO. 10-C-15-001859 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 PETITIONER'S REPLY Social Betterment Properties International (“Petitioner”) submits this Reply to the Memorandum (the “Opposition”) of Respondent Frederick County, Maryland (“County”), in further support of its appeal of the denial of Petitioner’s application (“Petitioner's Application”) to designate the Trout Run/Richey Lodge property, located at 12929 Catoctin Hollow Road (‘Trout Run”), as a historic site on the Frederick County Register of Historic Places (“County's Register”) by the Frederick County Couneil’s (“Council”), and states: I. PRELIMINARY STATEMENT Petitioner files this Reply to address the County’s Opposition. Petitioner is affiliated with the Church of Scientology International. The Scientology religion is a recognized religion in the United States founded upon the principles and writings of L. Ron Hubbard. Petitioner wishes toopen a Narconon drug and rehabilitation center at Trout Run. Narconon is a program based upon Mr, Hubbard’s writings, discoveries, and techniques for overcoming drug addiction. It is notable that the Opposition ignores and glosses over the overwhelming oral and written testimony from witnesses who attended hearings on Petitioner's Application and the Opposition provided biased and untrue opinions about the Church of Scientology in an effort to cause the Council to deny Petitioner's Application. See, e.g., Record, p. 00156 (Apr. 7 Hrg. Tr. 39:13-14) (“it’s Scientology . . . I don’t know what you all know about that, but that is a cult”); p. 00154 (Apr. 7 Hrg. Tr. 37:8-11) (“I have documentation here . . . where Narconon, who promoted this particular Trout Run facility, was being promoted as funded by the International Association of Scientologists”) In addition to discriminatory testimony about the Church of Scientology, these same witnesses also provided similar opinions about the Church of Scientology’s Narconon program. ‘The County does not address these statements at all in its Opposition. Similarly, the Opposition does not address the Council’s departure from its prior practices and review of HPC’s recommendations regarding Petitioner's Application. Since 1998, the County has operated a historic preservation program. Record, p. 00121 (Apr. 7 Hrg. Tr.' 4:20-21). ‘The aforementioned historic preservation program, as explained in detail infra, § IV, is a program that allows property owners to apply for historic designation pursuant to the HP Ordinance.” Under the HP Ordinance, the Historie Preservation Commission (the “HIPC”) is responsible for reviewing all petitions and recommending properties for designation to the County's Register. Record, pp. 00124-126 (Apr. 7 Hrg. Tr.7:21-14), In carrying out its duties, ‘Apr, 7 ing, Tr” refers to the transcript forthe April 7, 2015, public hearing held by the Council on Petitioner's Application. ‘The April 7, 2015, public hearing shall hereinafter be refered to asthe“ 2 See Frederick County Code (2015), §§ 1-231, et seq. (the “HP Ordinance”) 2 \pr. 7 Hearing.”the HPC thoroughly investigates the properties for which applications are filed. Id. Since its inception, the Council has approved every application that the HPC has recommended for addition to the County's Register.’ The HPC and the Council have historically followed this process, Petitioner's Application is the first application to be denied and it is the first application wherein the Council apparently departed from its historical procedures for review of the HPC’s recommendations to the County's Register. See Record, pp. 00121-126 (Apr. 7 Hrg. Tr.4:14- :14); see Exhibit A; see also infra § IV. At the beginning of the public hearings on Petitioner's Application, the County Attorney instructed the Council that its role in deciding to approve Petitioner's Application was “small” and limited to only whether the HPC had done its due diligence in recommending Trout Run for historic designation. Record, p. 00083 (Apr. 21 Hrg. Tr.‘ 58:8-22). The County Attomey’s instructions to the Council and its review of Petitioner's Application changed afier it became evident that certain citizens of the County held an unfayorable view of Petitioner's religion. Rather than remaining consistent with the Council’s previous process and level of review, which ‘was small and limited to only whether the HPC had done its due diligence in recommending Trout Run for historic designation, the Council decided to use a new standard. Id. The County Attomey instructed the Council, “you can just say that ‘you're not persuaded.” Jd. at 00004 (June 2 Tr.’ 4:12-13), The departure from the treatment that all prior applicants under the HPC were afforded, coupled with the clear, religious animus exhibited against Petitioner, shines a > A tue and corect copy ofthe Frederick News-Post article written by Jennifer Fifield (published on June 4, 2015) {s atached hereto and incorporated herein as Exhibit “A. “Ape. 21 Hr, Tr” refers to the wanseript forthe April 21, 2015, public hearing held by the Council on Petitioner's ‘Application. The April21, 2015, public hearing shall hereinafter be referred to as the “Apr. 21 Hearing.” 5 Sjune 2 Tr.” refers to the transcript for the June 2, 2015, Council session during which the Council voted on Petitioner's Applicaton. The June , 2015, Council session shal hereinafter be refered to asthe “June 2 Session.” 3light on the “Not in My Back Yard” mentality that improperly guided the Council’s decision against Petitioner. Petitioner asks this Court to reverse the determination of the Council and decide as the HPC, the Board of Appeals, and the Staff of the County had concluded, that Petitioner's Application be granted. It should be noted that the decision of the Court has important significance not only to the Petitioner but to all religious organizations, particularly in this day ‘and age in which we are all reminded to practice tolerance for different religions and not to stand in judgment of beliefs that may be different from others. If the Council’s decision is left to stand, the Court will be sending a message to the Council that itis acceptable to value and treat a group differently because of what it is alleged to believe or not believe, and adherents of different religions could be in jeopardy of future unequal treatment. UL. THE PARTIES AGREE THAT THE SUBSTANTIAL EVIDENCE TEST 1S THE APPLICABLE STANDARD OF REVIEW, BUT DISAGREE AS TO WHETHER THE RECORD 1S SUFFICIENT TO MEET THE SUBSTANTIAL EVIDENCE TEST. The parties agree that the substantial evidence test applies to the factual findings and conclusions of an administrative agency acting in a quasi-judicial capacity. See Opposition, p. 7; Petitioner's Memo. of Law, pp. 19-21. The substantial evidence test is met when “there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” Kane v. Bd. of Appeals for Prince George's County, 390 Md. 145, 159, 887 A.2d 1060, 1068 (2005) (quoting United Parcel v. People's Counsel, 336 Md. 569, 576, 650 A.2d 226, 230 (1994)). The Court of Appeals describes substantial evidence as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Jordan Towing, Inc. v. Hebbyille Auto Repair, Inc., 369 Md. 439, 451, 800 A.2d 768, 775 (2002) (citations omitted). 4This test requires review of the record as a whole to determine whether it supports the agency's findings and conclusions. Division of Labor v. Triangle, 366 Md. 407, 416, 784 A.2d 534, 539 disagree, however, on whether the substantial evidence test is satisfied in Upon review of the Record, a reasonable mind cannot support the Council’s decision to deny Petitioner's Application. The Record’ does not contain sufficient evidence to make the Council’s denial so much as fairly debatable, The probative and material evidence in the Record overwhelmingly supports a finding that Trout Run satisfied multiple criteria for listing on the County’s Register, and that the HPC’s recommendations of Trout Run was sound, To start, the Council failed to issue findings of fact to support their denial. The only reasons for the decision that the Council gave were that they were not persuaded by Petitioner's Application. The County's expert, the HPC, and the Petitioner's experts made findings that Trout Run satisfied three different criteria for designation on the County’s Register. Record, pp. 00057-72 (Apr. 21 Hrg, Tr. 32:1-47:22), pp. 00174-175 (Apr. 7 Hrg. Tr. 57:8-58:12) (Testimony and expert opinions prepared by Katherine Kuranda and Michael Proffitt), pp. 00233, 00237-239 (HPC’s Determinations and Recommendations to the Council). Prior to the Council’s review of Petitioner's Application, the Council approved every application for listing on the County’s Register that was recommended by the HPC. See Exhibit Although immaterial because the parties agree on the standard of review in this Appeal, the County incorrectly states that the Council's June 2, 2015, decision denying Petitioner's Application “was neither a rezoning nor special exception decision.” See Opposition, p. 7. Section 1-23-1 of the Historic Preservation Ordinance states that the “County derives authority . . , (under its Historic Preservation Ordinance] by virtue of its conformance with provisions of the State of Maryland Enabling Act for Historic Area Zoning (Md. Code Ann., Land Use Article, Title 8, as amended)” The State's enabling authority provides that “each local jurisdiction may designate boundaries for sites, structures, and districts that are considered to be of histori, archaeological, or architectural significance, by following the procedures of the local jurisdiction for establishing or changing zoning districts and classifications.” ‘See Md. Code Ann., Land Use § 8-105. Thus, the Council was reviewing a rezoning application when it considered Petitioner's Application, The “Record” refers to the official record of testimony presented to the Council in advance of its June 2, 2015, decision denying Petitioner's Application. 5A. Moreover, many of these prior applications that the Council approved satisfied fewer criteria for designation than Trout Run. Record, p. 00176 (Apr. 7 Hrg. Tr. 59:9-60:1). Specifically, the County's expert unequivocally testified that “some of the other properties on the [County’s Register] only met a single eriteria[.]” /d., pp. 00176-177 (Apr. 7 Hrg. Tr. 59:9-60:46). ‘The only “evidence” submitted in opposition to Petitioner's Application was not evidence relating to the question of whether Trout Run met the criteria for designation, but rather discriminatory opinion and religious bias against the Church of Scientology, and Trout Run’s intention to open a state licensed alcohol and drug rehabilitation facility. As such, the Council improperly relied on matters that bear no relationship to the statutory criteria mandated by the HP Ordinance, and thus these matters cannot be used to satisfy the substanti evidence test. Il. THE RECORD DEMONSTRATES THAT THE SUBSTANTIAL EvipeNce Test Was Not MET AND THAT THE COUNCIL SHOULD HAVE APPROVED PETITIONER'S APPLICATION. The Potomac Elec. Power Co. decision of the Maryland Court of Appeals is instructive because the Council’s decision in this case is analogous to the administrative decision at issue in Potomac Elec. Power Co. See generally, 263 Md. 159, 282 A.2d 113 (1971). In Potomac Elec. Power Co., Pepco sought a special exception under the zoning ordinance so that Pepco could build an electric substation. In Potomac Elec. Power Co., the Prince George’s County District Couneil’s (“District Council”) denied a special exception application despite Pepco’s submission of extensive testimony, including expert testimony, in support of its application, Pepco presented testimony in support of its application over the course of three public hearings. At the first hearing, several Pepco employees testified about the substation and Pepco’s studies in support thereof. In addition, two government entities recommended approval of the application. ‘The opposition was a local citizens group, which presented the testimony of an individual who was an electrical engineer. However, the record indicated that he did not have 6experience with the precise issues Pepco was encountering. Nonetheless, the District Council denied Pepco's application without issuing findings of fact and conclusions of law. Pepco successfully appealed the denial. Id. at 166-67, 282 A.2d at 116. Thereafter, the District Council commissioned its own study and the results supported Pepco. At the second hearing, a staff’ member testified in support of the study and its results. The local government once again recommended Pepco’s application. However, this time the District Council raised questions about the noise ambiance causing a third hearing on the issue of noise, At the third hearing, Pepco presented an expert that was “qualified as an expert.” Id. at 172-73, 282 A.2d at 119-20. The expert concluded that the noise level would be well below ambient. Jd. The expert was exter ively cross-examined and he still maintained his conclusions, Id. Opponents offered their prior witness’s testimony; however, the record demonstrated that this witness had no relevant experience. The District Council once again denied the application. Pepco appealed, the trial court reversed the District Council’s decision, and the Court of Appeals affirmed the reversal. Id. at 174-75, 282 A.2d at 120-21. In upholding the reversal, the Court of Appeals noted the general rule for applying the substantial evidence test: “when there is no sufficient probative evidence, so that the issues are not fairly debatable, the action of the District Council is arbitrary and capricious and hence a denial of due process of law.” Id. at 162, 282 A.2d at 114 (emphasis added). The Court of ‘Appeals found that the record “overwhelmingly” demonstrated that Pepco had satisfied the statutory criteria for the special exception. 1d. at 175-76, 282 A.2d at 121. In fact, the Court of Appeals noted that “[t]here [was] no probative evidence” or even “credible evidence” disputing the proposed site’s satisfaction of the statutory criteria, Id.Similar to the facts in Potomac Elec. Power Co., the Petitioner presented substantial stimony from two qualified and well-known experts that Trout Run met three criteria for designation on the County's Register. See Record, pp. 000S7-72 (Apr. 21 Hrg, ¥. 32:1-47:22), pp. 00174-175 (Apr. 7 Hrg. Tr. 57:8-58:12) (Testimony and expert opinions prepared by Katherine Kuranda and Michael Proffitt). Additionally, as in Potomac Elec. Power Co., a local government entity ~ the HPC — conducted its own review and fwice made a determination that Trout Run satisfied the same three criteria for designation as a listed site on the County's Register. See id, at 00238-239 (HPC’s Determinations and Recommendations to the Council) Notably, the HPC is comprised of twelve individuals specifically selected because of their particularized knowledge, experience, skill, or expertise of historic structures, properties, and sites. Jd. at 00090 (Apr. 21 Hrg. Tr. 65:7-21). Moreover, the Division of Community Development for the County’s Department of Planning and Development Review (the “Department of Planning”) submitted a staff report (the “Staff Report”) recommending approval of Petitioner's Application. See id, at 00233-2337. In contrast, no probative or credible evidence disputing the recommendations and findings of Ms. Kuranda, Mr. Proffitt, the HPC, or the Staff’ Report were presented to the Council, In fact, the only information submitted in opposition to Petitioner’s Application was (1) opinions grounded in religious discrimination;* (2) information that was not relevant to the statutory criteria set forth in the HP Ordinance;? or (3) opinion testimony from individuals with no background or experience in historical preservation.'” * See, e.g, Record, p. 00156 (Apr. 7 Hrg. Tr. 39:13-14); p. 00154 (Apr. 7 Hrg, Tr. 37:8-11), * See, ex, Opposition, p. ‘See, ¢g,, Record, p. 00346, 00453,IV. THe RECORD SHOWS THAT THE COUNTY’s HISTORIC DESIGNATION PROCESS WAS ‘Nor FOLLOWED IN THIS CASE. To help guide the Court as to the custom and practice of historic preservation in the County, Petitioner quotes below Mr. Denis Superczynski’s testimony to the Council at the Apr. 7 Hearing on Petitioner's Application. Mr. Superezynski is independent. He works for the Planning and Permitting Division of the County Government. His role is to support the HPC. He is involved with historic preservation planning for the County at large. He explained the process to place a property on the County’s Register that has been followed since 1998. He stated: [The] County's historic preservation program has been running since 1998. We have a handful of properties that are on the register. The register in {the] County isa list of individual properties. It functions mostly as would a historic district. So, for instance, the City of Frederick, which has a geographic area defined as their historic district, and properties are either in or out. On the County side, we don't have a defined geography for a specific district. Instead, we have individual properties whose owners have voluntarily come forward to place their properties on the register. The program is voluntary to get in. However, once you're in, the property is in. I's not a voluntary program to back out. And folks that participate in the program, properties that are listed on the county register, are free to do whatever they may on the interior of their buildings and structures; but anything that is proposed for changes on the outside, anything that's visible -- in some cases that includes landscaping. We have several properties on the County Register that incorporate not just building or house, but the property around it. And in many cases that property, that land around it, forms the context for historic significance. So anything that is occurring that is an exterior change to that property comes before the [HPC] in an application process that is referred to as certificate of appropriateness. Until 2011, we had eight properties on the County Register, and that was pretty steady for several years. In recent years, we've added a few.Council Member Delauter was here as a County Commissioner for the previous two that had been entered onto the register, bringing our number to 10. If this property is successful, the Trout Run property, this would be No. 11 in the County, and we have a few more that will be coming to you probably in the coming months. So we're approaching almost a doubling in size of our modest County Register list, and we're very proud of that Specifically to this application before you, I mentioned that the application has previously come before the [HPC] and the Board of Appeals. Our zoning ordinance in {the] County has a provision by which a property owner may seek to operate or engage in uses that otherwise aren't permitted in their zoning district if they place their property on the {County's Register] ‘Those uses are uses that are conducive to operations in an historic property or on an historic site. So they include things like antique shops, restaurants, country inns. In this case and in some of the other cases you will be seeing soon, event facilities, for instance. In this particular case we're looking at a group home for drug and alcohol rehabilitation. ‘That is one of the uses that has been deemed by our zoning administrator to be included in that listing of uses that could be conducted if this property were placed on the County Register. So we have a multi-part process for a property owner wishing to get [to] that point and actually operate. The first part of that process is, they come to the [HPC] and seck a determination of eligibility. So they come to the HPC and say, “Is our property even eligible for the county register?” In this case, the Trout Run folks ‘a positive determination of eligibility. They then went to the special - for their special exception application with the Board of Appeals. So the Board of Appeals looks at the specific use being requested on an historic site, and they ask, “Do you have your determination of eligibility?” “Yes.” ‘They then take it through the special exception process to see if there are any mitigating circumstances, any conditions that need to be placed on the use to mitigate for impacts on the neighborhood. In this particular case, Trout Run and the property owners received their special exception on October Ist 2013. 10After a nine or ten-month gap, the applicants came back to the HPC for the last part of the process before it comes to you, which is to get a formal recommendation from the [HPC]. So they actually had to make two trips to the HPC to get to this point. The process is split in half so the property owners who want to do this don't get themselves listed on the County Register without necessarily locking down their special exception. So the process is split into two so that people can progress through the process with some certainty that they will be actually able to operate with the use they intended to.'! ‘The last part of the process for applicants is to come before our County Council and seek a formal listing on the County Register. Record, pp. 00121-126 (Apr. 7 Hrg. Tr. 4:20-9:14). Here, the Council was called upon at the last step of the above-referenced process to approve HPC’s recommendation, after prior approvals were given as described in Mr. Superezynski’s testimony. ‘The HP Ordinance guides the HPC. It lists ten criteria for the HPC to consider when determining if « nominated property should be placed on the County's Register: "Five of the ten properties currently on the County's Register have a special exception use under the Historie Preservation Ordinance. Trout Run would be the sixth property subject to a special exception. See Exhibit A, (une 1. The property has significant character, interest, or value as part of the development heritage, or cultural characteristics of the county, state, or nation; 2. The property is the site of a historic event; 3. The property is identified with a person or group of persons who influenced society; 4, The property exemplifies the cultural, economic, social, political, or historic heritage of the county and its communities; 5. The property embodies the distinctive characteristics of a type, period, or method of construction or architecture; 6. The property represents the work of a master craftsman, architect, or builder, 4, 2015, Frederick Post-News Article). u7. The property possesses significant artistic value; 8. The property represents a significant and distinguishable entity whose components may lack individual distinetion; 9. The property represents an established and familiar visual feature of the neighborhood, community, or county, due to its singular physical characteristics, landscape, or historical event; or 10, The property is a rare example of a particular period, style, material, or construction technique, HP Ordinance, § 1-23-6(B). Notably absent from the HP Ordinance is any reference to the proposed use for a property after it is placed on the County’s Register. Other examples of inquiries that are not relevant to the HPC and the HP Ordinance are: the proposed private versus commercial use of a property; a party’s motives to put the property to a use other than its originally intended use; environmental concerns; or whether a property owner intends to avail itself of tax credits to repair structures on the property. The County contends these wholly irrelevant and immaterial factors form the basis for the Councit’s decision to deny Petitioner's Application. See, e.g., Opposition, pp. 9-10, 15-16. Moreover, these impermissible reasons that ostensibly support the Council’s denial are thinly veiled attempts to cover the critical issue — Trout Run is owned by an entity affiliated with a Church of Scientology related organization and the Council and some citizens of the County do not want the Church of Scientology to be in their neighborhood. See, e.g., Record, p. 00156 (Apr. 7 Hrg. Tr. 39:13-14) (“it’s Scientology . . . I don’t know what you all know about that, but that is a cult”); p. 00154 (Apr. 7 Hirg. Tr. 37:8-11) (“I have documentation here. . . where Nareonon, who promoted this particular Trout Run facility, was being promoted as funded by the Intemational Association of Scientologists”), 12conclusory, and discriminatory statements that are not credible. Rather, the witnesses” statements show that the County's reliance thereon led to the Council's arbitrary and capricious decision, For example, the County cites to Shannon Green’s written testimony (Opposition, p. 10), which states ~ Then there's Scientology’s role, which should not be discounted. This organization has a long, horrid history of abuses and no valid medical research has shown that their program will in any way, shape or form help the heroin problem we are currently experiencing. Please do not allow this nefarious organization to set up shop in our beautiful county. Record, p. 00384 (emphasis added). Similarly, the County also cites to Eric Holt’s written testimony to support the Council’s decision. Opposition, p. 10. Mr. Holt’s written testimony also includes biased statements against Petitioner and the Church of Scientology. He wrote, Additionally, I believe the use proposed for a property should support and complement the asserted historic significance. In this I also believe the applicants fall short. Substance abuse is a noble cause but the Narconon program is notorious for it [sic] use of highly questionable, if not illegal, Scientolo; ‘methods to treat its inmates. Record, p. 00480 (emphasis added). Additionally, although Mr. Holt testified that the proposed use should be considered, the proposed use is not one of the ten criteria set forth in the HP Ordinance and should not have been considered. ‘The County also points to Steve McKay’s oral testimony at the Apr. 21 Hearing in support of the Council’s denial. Opposition, p. 10. Mr. McKay opposed Trout Run’s designation because the property would be private and closed to the public. Record, p. 0051-52 (Apr. 21 Hrg. Tr. 26:21-22, 27:12-17). This point is not helpful because the proposed use for placing a property on the County’s Register is irrelevant under the HP Ordinance. Notably, 1BPetitioner adds that six of the ten properties currently listed on the County's Register are private residences Even Councilmember Donald was swept up with Petitioner's “motives” for secking historic designation. Jd., p. 00137 (Apr. 7 Hrg. Tr. 20:1-3) (“So they're not trying to save it from history. ‘They're trying to change it so they can do something with it?”). ‘The County place great weight on Councilmember Donald’s opinions because “he does teach history.” Opposition, p. 11, However, Councilmember Donald’s own words qualified his experience; he teaches “some history.” Record, p. 00132 (Apr. 7 Hrg. Tr. 15:7-8). He did not state that he studied the history of Trout Run or was qualified to discuss it. The Record is devoid of any other information about Councilmember Donald’s education or experience in history or what area of history he teaches other than his own statement that he teaches “some history.” Other testimony that the County highlighted to the Court in its Opposition is factually inconsistent, further demonstrating the arbitrary and capricious nature of the Council’s decision. ‘The County points to written testimony submitted by a lay witness, Chuck Farmer.'? Mr, Farmer’s “written testimony” was a letter that attempted to characterize a letter purportedly written by William G, Renner, an alleged old caretaker of Trout Run. However, Mr. Renner’s letter is barely legible. See id. at 00457-464, Mr. Farmer asserts that the buildings on Trout Run were not built after the Hoover-era. Jd at 00452. Mr. Farmer’s testimony is directly contradicted by the written testimony submitted by another lay witness that the County espouses in its Opposition, Mark Long. Opposition, p. 10. Mr. Long submitted testimony that buildings were erected in the 1920s. Record, p. 00375. Mr, Farmer's credibility is undermined by his own admission that “I testified to things I believed to be true and deseribed some things that I didn't have ‘hard evidence” to support.” Record, p. 00453, 14Both Mr. Farmer's and Mr. Long’s testimony are factually inconsistent. Petitioner's expert, Mr, Proffitt, submitted written testimony responding to Mr. Farmer's testimony." Jd, at 00085 (Apr. 21 Hrg. Tr. 60:8-14). Mr. Proffitt stated: T have reviewed the letters to the County Council regarding the proposed designation . . . I was particularly impressed [with] the historical documentation provided by Mr. Chuck Farmer, which was submitted by email on April 20, 2015. ‘The memoir from Mr. William G. Renner, who purportedly worked at Trout Run for four years, documents the use of the private camp as a rural retreat visited by prominent Washingtonians. I agree with Mr. Farmer’s assertion that the visitors to Trout Run are an interesting footnote in its history, but not the basis for its significance under the county’s designation criteria, Mr. Farmer also notes the span of construction on the property. The period of significance for Trout Run extends from its purchase in 1929 through the construction of the last lodge in 1970, " Buildings, landscape elements and structures have been added throughout that period. As noted in the nomination, the core of the complex was constructed in the early twentieth century. Id. at 00418 (emphasis added). Indeed, Mr. Superezynski, supporting the HPC, echoed the findings of Trout Run's experts: “most of [the] buildings were indeed built prior to the Second World War.” Jd, at 00128 (Apr. 7 Hrg. Tr. 11:19-21). His testimony further shows that Messrs. Farmer and Long were factually inconsistent in their statements. V. THERE IS NOT A SCINTILLA OF EVIDENCE TO SUFPORT THE COUNCIL'S DECISION. A. Trout Run’s Experts Presented Opinion Based on Well-Established Facts. The County's characterization of Petitioner's expert testimony as “weak” and “conclusory” is nothing more than a desperate attempt to justify a “Not in My Back Yard” decision by the Council. To support its fallacious argument, County takes testimony wholly out of context to fabricate “facts” that are not supported by the Record, such as (j) calling Trout Run as nothing more than a “fishing hole”, when it is not (Opposition, p. 10); (i) arguing that it ' Mr. Proffitt is employed by Goodwin & Associates, “a known company that makes decisions like this all over the country.” Record, p. 00014 (June 2 Tr. 14:2-4). The Couneil was instructed to give greater weight to Mr, Proffit’s testimony above other witnesses because he was qualified by the Council as an expert. 15‘would be the only facility closed to the public, when other facilities on the County's Register are private residences (id.); and (ii) stating that Trout Run lacks historical significance because of a lay person’s biased opinion (id), despite overwhelming evidence and certifications from the HPC that Trout Run is, indeed, historic. ‘The Record clearly shows the strength of Trout Run’s expert testimony. The Council accepted the expert testimony and was instructed to give the testimony of experts, Ms. Kuranda and Mr. Proffitt, greater weight because their “expertise, experience, knowledge, and skill [is] greater than that of the ordinary person{.J” Id. at 00085 (Apr. 21 Hrg. Tr. 60:8-14). Ms. Kuranda is an expert in historic preservation, and Michael Proffitt is an expert in architecture. Id. at 0056-57 (Apr. 21 Hrg. Tr. 31:2-12, 32:8-11). The Council qualified them as such: Mr. Dean: [W]e would like them to be qualified as experts, that their vse be given the weight of an expert. Is there any objection to President Otis: No. It’s fine. Mr. Dean: Our two speakers this evening who have been qualified as experts is [sic] Michael Proffitt, who is our architect, and Katherine Kuranda, who is our historic preservation consultant. Id. The Council agreed and acknowledged that Ms. Kuranda’s and Mr. Proffitt's testimony was to be given the weight given expert testimony. In fact, the County Attomey instructed the Council as follows: Mr. Chomel: Both Mr, Proffitt and Ms, [Kuranda] [were accepted by experts by the Board. They are deemed experts, have a degree of expertise, experience, knowledge, and skill greater than that of the ordinary person in the fields in which you've accepted them to be experts. 16Id. at 00085 (Apr. 21 Hrg. Tr. 60:8-14) (emphasis added). Councilmember Shreve sought clarification to better understand the weight of the testimony provided by Ms. Kuranda and Mr. Profiitt. He asked: Mr. Shreve: So really, our role is to take the expert advice from the applicants, the recommendation from the historic district - HPC, and then make a decision as to if we agree with it; and we're supposed to take this expert testimony and hold it higher than any other testimony. Mr. Chomel: That's the value of expert testimony. Id. at pp. 00091 (Apr. 21 Hirg. Tr. 66:7-14) (emphasis added). Councilmember Shreve clarified that the Council's role is to decide whether it agrees with the HPC, and to hear Petitioner's expert testimony and hold it higher than any other testimony. In its Opposition, the County describes Ms. Kuranda and Mr. Proffitt as experts with quotations around the word expert. See Opposition, pp. 9, 13-15 (“Petitioner's ‘expert”). The County’s disparaging treatment of Ms, Kuranda and Mr. Proffitt is distinctively different from how the Council viewed their testimony during the hearings on Petitioner’s Application when the Council was instructed to hold their testimony higher than that of any other testimony. ‘Now, in a transparent attempt to attack the experts and discount the Record, the County relies on citizen testimony that consists of unsubstantiated opinions rooted in fear, rumor, and innuendo about Petitioner's religious affiliations. See infra §§ V, VLB. The County also attempts to point the Court to citizen testimony about Trout Run that is factually inconsistent, see, e.g, Opposition, p. 10, and was corrected by Ms. Kuranda’s and Mr. Proffitt’s testimony whose opinions and reports were to be held higher than anyone else. Record, p. 00091 (Apr. 21 Hirg. Tr. 66:7-14). For example, the County cites to the testimony of Ms. Shannon Green who called Trout Run “an old ‘fishing hole’ where nothing of significance happened” and who opined that Trout 7Run did not deserve a historical designation. Opposition, p. 10. Ms. Green’s opinion that Trout Run is nothing more than an old “fishing hole” has no basis in fact. In fact, as discussed supra, Ms, Green’s testimony is highly biased against Scientology, She wrote to the Council that to consider “Scientology's role, which should not be discounted. . Please do not allow this nefarious organization to set up shop in our beautiful county.” Record, p. 00384 (emphasis added). The County relies upon the testimony of Charles Farmer who testified regarding “environmental concerns” about Trout Run. Jd However, environmental concerns are not germane to a historic designation Additionally, Mr. Farmer admits himself that “I have not much ‘Environmental training’ on these issues.” Jd. at 00346. ‘The County also cites to an email received from Mark Long “who did not agree with the characterization of the property as having ‘historical significance’” and the testimony of Steve McKay who opposed the designation because “the facility would be private and closed to the public.” Jd. (intemal citation omitted). However, again, Messrs. Long and McKay’s opinions are just that ~ opinions that are not based upon expertise, knowledge, skill, or experience in the area of historical properties, architecture, or sites. In contradiction to the opinion testimony of Ms. Green, Messrs. Farmer, Long, and ‘McKay, Ms. Kuranda took great care to explain her opinion that Trout Run met two of the criteria set forth in the HP Ordinance:"* it (i) embodied the distinctive characteristics of a type, period, or method of construction or architecture; and (ii) exemplifies the cultural, economic, social, political, or historic heritage of the County and its communities: [I]t’s associated with the historical significance of the Catoctin area during the development of the early 20th Century, when this place was being promoted as a ‘See supra § IV (listing the ten criteria to be considered by the Council). 18recreational retreat for both Washington and as an economic engine for the ‘Thurmont area. . During the summer, there were a number of places that basically became guest houses. There were a number of these types of camps that were developed through the Catoctins. During the Depression, the National Park Service looked at this very seriously, how can we develop these areas so we can encourage development in areas that were economically impacted by the Depression. This was one of the ways that they were encouraging this. This is one of the last camps that’s left. ‘The anecdotal information, associations with Hoover and his deputy and people that may have stayed there overnight or been entertained there is a side light. It’s a nice little historical footnote, but it does have some real significance in terms of the development of local history in this area. It started out as part of this whole ~ Catoctin Mountains was going to be the Adirondacks of Maryland mountains. ‘That’s where they looked for architectural precedence in developing these camps. ‘The Adirondacks were developed in the late 19th Century by New Yorkers who are mostly millionaires, who went to the Adirondacks, developed these residential camps with a unique rustic type of architecture, which was adopted to the Catoctin Mountains and the use of the stone, multiple small buildings. They're camps. That's one —It has locat significance to the Thurmont region. Id, at 0172-174 (Apr. 7 Hrg. Tr. 55:21-56:4, 56:7-57:1, 57:8-20). She further explained Trout Run’s historical relationship to the development of the region during the Apr. 21 Hearing: [T}he property is a rare surviving example of a private recreation camp associated with the early 20th Century efforts to develop the Catoctin Mountains as a rural retreat for the metropolitan Washington area. This development was made possible by two factors; improvement. in ‘transportation, both rail and roads, and the Nationwide popularity of outdoor recreation, including hiking and fishing. Improved transportation made Catoctin Mountains accessible, and the recreational potential of the area was soon discovered. Id, at 00069-00070 (Apr. 21 Hing. Tr. 44:22-45:11). 19Similarly, Ms. Kuranda supported her conclusion that Trout Run met a third criterion under the HP Ordinance because Trout Run represents the work of master craftsmen, architect, or builder: []f you look at these properties is the obvious work of [a] master craftsman. It’s a very well designed, well integrated landscape with both buildings, natural features, as well as during the first period of development in the late 1920s and then extended through the 1940s and ‘SOs and finally to the 1970s. Id, at 00175 (Apr. 7 Hrg. Tr. 58:3-9); see also id, at 0078-79 (Apr. 21 Hrg. -. 54:2-6) (“Trout Run has had a recognizable landmark along Catoctin Hollow Road for the last 82 years. It is a very special, well-integrated design that respects the landscape and is about standing architectural value.”), Furthermore, the County’s argument that Ms, Kuranda’s opinions were based “only [on] ‘anecdotal’ information that Hoover ‘may have stayed there overnight or been entertained there” is an outright falsehood. See Opposition, p. 14. Councilmember Keegan-Ayer specifically questioned Ms, Kuranda about her investigation into President Hoover’s relationship with Trout Run: Ms. Keegan-Ayer: In the tape when you were testifying in front of the HPC, you said that you had planned to go back and review the Richey papers at the Herbert Hoover Historical Museum. Did you ever have a chance to do that? Ms. Kuranda: Yes. We coordinated with the library for both the Eisenhower Papers and the Hoover Library. As we discussed before and as mentioned in the nomination, President Hoover did visit the site, and it was discovered by his aide while he was looking for a retreat for the President while he was in the White House. But it’s a side note as opposed to why it’s important on a local level to Frederick County history. Ms. Keegan-Ayer:. Okay. But you did go back, and did you find references in ‘ies or papers or writings about him visiting the site or no? 20Ms. Kuranda: Yes, we do. We have the documentation.'* See Record, p. 00079-80 (Apr. 21 Hrg. Tr. 54:11-55:8). Each of Ms. Kuranda’s conclusions was supported by the facts she discovered and supported by the work that she did to investigate the historic nature of Trout Run. ‘The County also argues in its Opposition about subsequent approvals the Petitioner needs to obtain to operate a Narconon facility, such as approval from the Health Department (Opposition, p. 4); septic approvals (id); or approval from the HPC to make exterior changes (id). However, these approvals are not related to the issue of historic designation or satisfaction of the HP Ordinance; nor are they germane to why Trout Run is historic. What is more, these points raised in the Opposition have no bearing on Petitioner's Application. They are simply red-herrings. Ina ilar vein, the County's argument that Petitioner's “motives were not to preserve the structures for history, but rather to change [Trout Run] and put it to another use” are wrong. See Opposition, p. 11. The Council’s fears that Petitioner will not preserve Trout Run are unfounded because the very purpose of an historic designation is to preserve the property’s history, In fact, Mr. Superezynski explained that for properties listed on the County's Register proposed changes on the outside, anything that’s visible — in some cases that includes landscaping [that] forms the context for historic significance . comes before the [HPC] in an application process that is referred to as certificate of appropriateness. Record, pp. 0012-23 (Apr. 7 Hrg. Tr. 5:13-6:6). Once on the County’s Register, the HPC’s approval was required for changes to Trout Run’s exterior, including, in some cases, even landscaping. Id. "S The documentation was presented to the HPC and made available to the Council. Record, p. 00080-81 (Apr. 21 Hig, Te. 35:20-56:7). aIn sum, the Council qualified Ms, Kuranda and Mr. Proffitt as experts. Ms. Kuranda supported her opinions with analysis and factual background, including explaining her investigation into President Hoover's papers. Mr, Proffitt testified to address the Petitioner's plans for restoring the buildings. At no point did anyone, whether the Council or another witness, question Ms. Kuranda’s and Mr. Profiitt’s experience or their methodology. As such, ‘the County’s argument now that Ms. Kuranda and Mr. Proffitt are not experts and their testimony was weak is without merit, B. The County’s Staff and HPC Supported Trout Run’s Expert Testimony. In trying to discredit Trout Run’s expert testimony, the County completely ignores the expert testimony and opinions of those completely unrelated to and independent from Petitioner — the testimony of Mr. Superezynski and the HPC’s recommendations. As stated, supra, ‘Mr. Superczynski is an employee of the County and well versed in the County’s historical planning process. Jd, at 00121-127, Mr. Superczynski testified as to the historical qualities of Trout Run, including its relationship with President Hoover and its rustic camp architecture that is representative of the time period. Id. at 00127-135. Mr. Superezynski’s testimony echoed the findings of the HPC, Mr. Superezynski emphasized that “the [HPC] found [Trout Run] eligible based on three of those criteria that are laid out in the [HP Ordinance] for the County.” Jd. at 00138 (Apr. 7 Hrg. Tr. 21:18-22). Indeed, the Council repeatedly hailed the findings and due diligence of the HPC: Mr. Chmelik: In fact, I think the HPC has done a wonderful job in documenting this property, I can’t imagine many applicants go through what they have done to show the historic value of the structures. Id, at 00083 (Apr. 21 Hrg, Tr. $8:14-18) (emphasis added); see also id. at 00092 (Apr. 21 Hrg. ‘Tr. 67:17-19) (Councilmember Shreve stating “it’s already been through an HPC [] full of people 22that know much more about historic stuff than we do”). Despite the diligence conducted by the HPC, Mr. Superezynski, and Petitioner's experts, the Council backpedalled from their own approving statements and conclusion. Then, they ignored the facts and denied Petitioner’s Application because of prejudices against the Scientology religion and irrelevant testimony that has no bearing on the criteria set forth in the HP Ordinance. See, e.g., Exhibit “B.”'® C. Petitioner’s Application is the Only Application to be Denied for Historic Designation. In the 17 years that the County has offered the historic designation, Petitioner's Application was the first application to be denied by the Council. Record, p. 00121 (Apt. 7 Hg. ‘Tr. 4:20-21); see also Exhibit A. The County's historic preservation program has been operating since 1998, Jd. at 00121 (Apr. 7 Hrg. Tr. 4:20-21); see also Exhibit A. Since 1998, the HPC recommended ten properties to the Council for approval. Id.; see also Exhibit A. The Council approved all ten properties recommended by the HPC and listed on the County's Register. Jd. at 00123 (Apr. 7 Hrg. Ts. 6:7-18); see also Exhibit A. Trout Run was the eleventh property submitted to Council for approval. Id, at 00175-76; see also Exhibit A. Trout Run is the first property recommended by the HPC that was not approved by the Council. Id. at 0175-76; see also Exhibit A. When the Council inquired as to the precedent for approval, they were instructed that some of the prior properties were approved after only meeting a single criterion under the HP Ordinance, Record, p. 00176 (Apr. 7 Hrg. Tr, 59:9-60:1). Specifically, the Council was instructed that sxhibit B is attached hereto and incorporated herein. Exhibit B is a compilation of charts comparing the statements made by the Councilmembers over the course of the public hearings and the June 2 Session. It also ‘compares the legal advice given by the County Attomeys present atthe hearings and the June 2 Session. 23‘Some of the other properties on the register only met a single criteria, criterion. Some of them met multiple criteria. You can see from the ten listed on the [HP Ordinance] that there’s some overlap, a little bit of overlap on both{.] Id. (emphasis added). In fact, Mr. Superezynski told the Council that “it is typical, if not a little —I would say it’s typical to have one or two, and we have a few that have more than three.” Id. (emphasis added). Furthermore, the Council was instructed regarding its role in the designation process: So your role in the process is to decide whether the [HPC] was correct in determining that the property was eligible for listing on the [County’s Register], and if'so, to designate the site... This is a very limited role of yours in the process. Some processes, you have big roles. This is a small role, the [HPC] is, I think, 12 people, all of whom are selected for their particular knowledge, experience, skill, or expertise with historic structures, properties, sites, et cetera. Jd. at 00090 (Apr. 21 Hig. Tr. 65:7-21). In fact, Councilmember Shreve clarified the Council's role with the County Attomey: So really, our role is to take the expert advice from the applicants, the recommendation from the historic district - HPC, and then make a decision as to if we agree with it] Id. at 00091 (Apr. 21 Hirg. Tr. 66:7-9) (emphasis added). In other words, all that remained for the Council was to accept the recommendation of the HPC: [There are 10 criteria they have to meet. They met three of them. They only need to meet one. I have to agree that we probably shouldn't stand in judgment of the HPC, who has definitely done their due diligence on this one. Td. at 00083 (Apr. 21 Hrg. Tr. $8:18-22) (emphasis added). ‘The Record shows that the Council followed a procedure for review of applications to the County's Register that was established through the previous ten applicants. First, only one criterion was necessary to receive designation, although some properties met two or three 24criteria. Jd Second, the Council would limit its role in the approval process to confirming that the HPC had done its job. Jd. In general, the Council would not stand in judgment of the HPC, which is a commission of twelve people selected because of their particularized knowledge, experience, skill, or expertise of historic structures, properties, and sites. Jd. ‘Thus, the Co established a very limited role for itself in the approval process and maintained this role from 1998 until now when it departed from the manner in which it treated prior applicants. In fact, Councilmember Chmelik stated that “[the HPC] has definitely done their due diligence on this one.” Id, at 00083 (Apr. 21 Hrg. Tr. $8:8-22).!7 Despite its very limited and well-established role, the Council chose instead to treat Petitioner differently from previous applicants. For example, the Council voted to delay its decision on Petitioner’s Application not once, but twice in departure of the Council's precedent. ‘See id. at 00187 (Apr. 7 Hrg. Tr. 70:14-16) (“I think we can handle this tonight. Maybe in the future we should do that, but up to this point we don’t have precedent [for voting on applications. at the following meeting]”), Indeed, Councilmember Chmelik commented, “I can’t imagine many applicants go through what they [Petitioner] have done to show the historic value of the structures.” Id at 00083 (Apr. 21 Hrg. Tr. 58:10-13). Moreover, the proposed use of Trout Run was a significant issue for Councilmembers Donald and Fitzwater. Id at 0176-78 (Councilmember Fitzwater inquiring into the proposed use of the Trout Run and Narconon); Id. at 00137 (Councilmember Donald questioning Petitioner's motives for seeking the historic designation), ‘The County Attorney attempted to corral the Council stating that: ‘See also Record, p. 00083 (Apr. 21 Hirg. Tr. $8:14-18) (“in fact, I think the HPC has done a wonderful job in documenting this property”). 25[T]he issue of the connection, if any, between the Church of Scientology and the applicant is an absolute non-issue before you. ‘The Federal — let's call it RLUIPA. Federal Religious Land Use and Institutionalized Persons Act .. . It says that you cannot discriminate against any recognized group of - I don’t want to say religious, but an organized belief group. So you have to treat this applicant, any applicant, whether it’s the Little Sisters off Mercy or the American [S]atanist [S]ociety, equally. You cannot simply ~ that is not before you to decide. Td, at 00086 (Apr. 21 Hrg. Tr. 61:4-17). However, the County Attomey’s instructions fell on deaf ears, Despite the unrebutted testimony of Petitioner's experts, the HPC’s recommendations, and the precedent set by the Council of limiting its role to a perfunctory approval of the HPC’s recommendation, the Council denied Petitioner's Application. In fact, the Council’s decision so clearly resulted in disparate treatment of Petitioner that Councilmember Shreve felt inclined to ‘comment at the June 2 Session that “this application, has been clouded because the record does reflect that there was testimony based on Narconon and Scientology[.]" See id. at 00014 (June 2 Hearing Tr, 14:5-8). The result is that the Petitioner is the first and only applicant in seventeen years to have been denied a historic designation. VI, THE CouNTY’s RELIANCE ON ANGELINIS MISPLACED. A. Angelini v. Harford County 1s Factually and Legally Distinguishable from the ‘Council’s Decision, and As Such Does Not Validate the Couneil’s Decision. ‘The County's reliance on Angelini v. Harford is misplaced and does not support the Couneil’s June 2, 2015, decision denying the Petitioner's application for a number of reasons. In Angelini, the Court of Special Appeals reviewed whether the HC Board of Appeals (the “HIC Board of Appeals”) properly interpreted the term “may” as used in Section 267-10 of the HC Code to mean that the HC Board of Appeals was vested with discretion in deciding whether Ms. Angelini was entitled to the requested zoning extension. 144 Md. App. 369, 798 A.2d 26. 26Although Ms. Angelini satisfied the criteria identified in Section 267-10, the HC Board of sion was warranted and Appeals was unpersuaded that the applicant's requested zoning exte denied the application. The Court of Special Appeals held that the use of the term “may” was permissive and discretionary, and that the Board of Appeals “enjoyed the discretion to act or not to act.” Id. at 379, 798 A.2d at 32. The Court concluded that when an “agency is not persuaded to do anything, and as result, take no action, there is no such predicate required . . . an honest doubt is all it takes.” Id. at 378, 798 A.2d at 31. In rendering its decision, the Court of Special Appeals stated that “an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by the reviewing courts,” and that “the expertise of the agency in its own field should be respected.” Id. at 373, 798 A.2d at 29. Even if Angelini was applicable, which it is not, courts only afford deference to an administrative agency when it follows its established rules and procedures. See Marriott Employees Federal Credit Union v. Motor Vehicle Admin., 346 Md. 437, 445, 697 A.2d 455, 459 (1997). In Marriot Employees Federal Credit Union, the Court of Appeals stated that “the weight given an agency's construction of a statute depends on several factors—the duration and consistency of the administrative practice, the degree to which the agency's procedure was made known to the public[.]” Jd. Here, the Council’s treatment of Petitioner lacks consistency and is at ods with its prior administrative procedure made known to the public on prior applications. ‘The Record demonstrates that the Council’s longstanding practice had been to review the HPC’s recommendation and defer to the HPC’s expertise.’ The County Attorney acknowledged "The experienced individuals serving on the HPC include: a preservation architect, a professional engineer, a landscape architect specializing in historic preservation, a former Maryland State Archeologist, leadership of historic preservation advocacy groups, and members with demonstrated special interest in the field. Record, p. 00291. 27this past practice and told the Council that its “role in the process is to decide whether the HPC ‘was correct in determining that the property was eligible for listing on the [County’s Register], and if so, to designate the site.” See Record, p. 00090 (Apr. 21 Hrg. Tr. 65:7-12). The Council accepted the recommendation of the HPC on all prior historic designation applications prior to reviewing Petitioner's Application. See Exhibit A. Again, “some of the other properties on the [County's Register] only met a single criteriaf.J” See Record, pp. 00176-177 (Apr. 7 Hrg. Tr. 59:9-60:46). The Council deviated from this longstanding practice and rejected the recommendation of the HPC without any probative or credible evidence in the Record to support such a finding, and failed to make any factual findings or conclusions to support this decision. In addition to the foregoing, the Harford County Code (“HC Code”) section analyzed in the Angelini case is distinguishable in a number of material ways from the HP Ordinance involved with this appeal. The Court of Special Appeals reached its interpretation of the HC Code based on “ihe illogical and unreasonable consequences that could readily follow” from the applicant's interpretation of the HC Code. 144 Md. App. at 382, 798 A.2d at 34. The Court of Special Appeals found that: [If this Court were to find the fulfillment of the two (2) statutory criteria alone required the Board to grant the Petitioner's request... the statute could be used as ‘an end-run to zoning essentially any landowner who meets the two (2) statutory criteria could keep coming back for another 100 foot extension until their property effectively rezoned as they wished, even if that rezoning ran contrary to a comprehensive rezoning. Id, at 383, 798 A.2d at 34 (internal citation omitted). The applicant’s interpretation of the HC Code potentially allowed property owners to subvert the Harford County’s ordinary rezoning process by repeatedly requesting a 100-foot extensions until their entire property was rezoned. In contrast to the “slippery slope” interpretation of the HC Code, the longstanding interpretation and application of the HP Ordinance would not lead to such “illogical and 28unreasonable consequences.” See id. at 382, 798 A.2d at 34. Specifically, the County's designation of a specific structure, site, or property on the County’s Register does not provide the applicant or property owner with the unfettered ability to make repeated requests to expand the area designated as a historic. Accordingly, the rationale behind the Court of Special Appeals decision in Angelini does not support a similar holding in this matter. Another important distinction between the facts in Angelini and the Council’s June 2, 2015, decision is that the HC Board of Appeals issued a written decision with particularized findings of fact that identified concrete examples of why the HC Board of Appeals was ‘unpersuaded that the applicant’s zoning extension was warranted. 144 Md. App, at 381, 798 A.2d at 33. Asa result, the Court of Special Appeals in Angelini appropriately credited the fact that the HC Board of Appeals issued findings and conclusions to support its state of non- persuasion and denial of Ms. Angelini’s request. In this case, the Council failed to issue any ‘written findings or conclusions. B. Even if Angelini is Applicable, Angelini Does Not Stand for the Proposition that the Council Has Discretion to Discriminate and Consider Immaterial Evidence. A review of the Record clearly demonstrates that the Council considered discriminatory statements and testimony that had no relationship to the ten criteria listed in the HP Ordinance. Substantially all of the testimony submitted in opposition to Petitioner’s Application contained discriminatory animus or sentiment toward the Scientology religion or the intended use of Trout Run as a State licensed aleohol and drug rehabilitation facility. ‘The Council received and improperly relied upon the following testimony: ‘© “I have documentation here . . . where Narconon, who promoted this particular Trout Run facility, was being promoted as funded by the International Association of Scientologists[.]” See Record, p. 00154 (Apr. 7 Hrg, Tr. 37:8-11) (Testimony of K. McBride). 29© “It is a Church of Scientology non-profit group, just like Narconon basically their intent is to do much more on the property.” Jd. at 00195 (Apr. 7 Hig. Tr. 38:17-20) (Testimony of K. McBride). © “It’s Scientology... I don’t know what you all know about that, but that is a cult.” See Record, p. 00156 (Apr. 7 Hearing 39:13-14) (Testimony of A. Landahl) (emphasis added). ‘© “Treally don’t think that’s what the group in California .. . the scientologists that own it care about,” and “I know there are many people . . . concerned about this group itself. .. they’re not actually a very good group . . . they're not very honest.” See id. at 00157-158 (Apr. 7 Hrg. Tr. 40:18-41:6) (Testimony of L. Summers-Stay) (emphasis added). ‘© “Thave my own thoughts about Narconon, and not good.” Jd. at 00049 (Apr. 21 Hirg. Tr. 24:7-8) (Testimony of K. Mellon), In light of these discriminatory statements and other immaterial testimony submitted, at the Apr. 21 Hearing, the County Attomey advised the Council of its role in reviewing Petitioner’s Application, The County Attorney advised the Council “RLUPA . . . says you cannot discriminate against any recognized group of ... an organized belief group. So you have to treat this applicant, any applicant, whether it’s the little sisters of Mercy or the American [Slatanist [SJociety, equal . . . simply, that is not before you to decide.” Id. at 00086 (Apr. 21 Hig. Tr. 61:7-17). Moreover, the County Attomey stated “the issue of the connection, if any, between the Church of Scientology and the applicant is an absolute non-issue before you.” Id. at 00086 (Apr. 21 Hrg. Tr. 61:4-6). The County Attorney further advised the Council that “the Board of Appeals determines whether to grant the use; and in this case the Board of Appeals has held a public hearing, duly advertised, posting the property, and has determined that the uses fits within the scope of the section . .. so that decision is not before you tonight, the use of the property.” Id. at 00088 (Apr. 21 Hrg. 63:8-15). Based on the foregoing, the County Attomey advised the Council its “role in the process is to decide whether the HPC was correct in 30determining that the property was eligible for listing on the [County’s Register], and if so, to designate the site.” Jd. at 00090 (Apr. 21 Hg. Tr. 65:7-11). Many of the Councilmembers acknowledged the overwhelming and sufficient material evidence submitted in support of Trout Run’s eligibility for the County’s Register during the public hearings. At the Apr. 7 Hearing, Councilmember Delauter concluded that “we're here for one issue... I haven’t heard any evidence that we have not met that criteria . .. have heard evidence from staff, from yourself that we have [met the criteria for designation].” Id. at 00185 (Apr. 7 Hrg. Tr. 68:6-9) (emphasis added). Moreover, at the Apr. 21 Hearing, Councilmember Chmelik stated: I think the HPC has done a wonderful job in documenting the property... to that nd, there are 10 criteria... they meet three of them .. . they only need to meet one ... [have to agree that we probably shouldn't stand in the judgment of the HPC, who has definitely done their due diligence on this one. Jd. at 00083 (Apr. 21 Hrg. Tr. 58:8-22) (emphasis added). Similarly, Councilmember Delauter stated “I agree with Councilman Chmelik . .. I've seen enough to know that the designation of . historic designation exists .. . [and] it is pretty clear.” Id. at 00084 (Apr. 21 Hrg. Tr. 59:9-14) (emphasis added). ‘After the Record closed at the Apr. 21 Hearing, it is apparent that the Council utilized the Angelini case as a tool to promulgate religious discrimination. Despite the County Attorney's previous advice that the Council’s role was only to decide whether the HPC was correct in determining that Trout Run should be listed on the County’s Register, he substantially changed course and advised the Council that under Angelini, “since the ordinance in 1-23-6(a) says that you may designate boundaries, that you can be non-persuaded or persuaded.” Compare Record, p. 00090 (Apr. 21 Hrg. Tr. 65:7-12), with p. 00007 (June 2 Tr. 7:9-12). However, assuming arguendo that this instruction was correct, since there was no credible or probative evidence to 31contradict the HPC’s recommendation and Petitioner's showing thereon, there could be no basis for the Council to find it was “unpersuaded” with respect to the narrow question before it, Further, not only was the County Attorney’s instruction to the County a change in course in Petitioner's case, it was also a change in course from every other historic designation application since the inception of the program in 1998. As the County Attomey explained, the Council’s role in the matter is “small.” Jd. at 00090 (Apr. 21 Hrg, Tr. 65:14-15). All the Council had been charged with was to decide if they agree or disagree with the HPC’s, recommendation “that the property was eligible for listing on the [County’s Register.]” Id. at 00090 (Apr. 21 Hrg. Tr. 65:7-12). The Council was not going to sit in judgment of the HPC. Id. ‘at 00083 (Apr. 21 Hirg. Tr. 58:14-18). In fact, the Council thought the “HPC has definitely done their due diligence on this one.” Id. The Record glaringly demonstrates that the Council considered discriminatory and immaterial statements directed at the Church of Scientology. ‘The Record patently demonstrates, that the Council departed from its procedures used to consider prior applications in order to cloak a decision influenced by religious bias under the imprimatur of their “discretion.” Thus, the Council’s use of Angelini is an improper and highlights the arbitrary and capricious nature of the Council's June 2, 2015, decision. C. The Couneil Could Not Have “Honest Doubt” About Petitioner’s Application. Although the facts of Angelini are distinguishable from the facts in this case, it is those distinctions that demonstrate the Council’s use of “burden of persuasion” to justify a “Not in My Back Yard” decision. The standard for non-persuasion or unpersuasive is “a state of honest doubt.” Angelini, 114 Md. App. at 378, 798 A.2d at 31 (internal citations omitted). An honest doubt that a party should or should not take a certain course of action. Jd However, there is 32nothing honest about the Couneil’s alleged doubt — the “doubt” is a smokescreen for sanctioning discrimination. As discussed, supra § VILA, the Board of Appeals in Angelini issued particularized findings that contained concrete examples of why it was unpersuaded by the movant’s zoning request. 144 Md. App. at 381, 798 A.2d at 33. Here, the Council failed to make written findings of fact or conclusions of law. It made only blanket statements that parroted the language of the Angelini case with no further reasoning. ‘These boilerplate statements have been found to lack meaning by the Court of Appeals. See Bucktail, LLC, 352 Md, at $53, 733 A.2d at 450-451 (‘findings of fact must be meaningful and cannot simply repeat statutory criteria, broad conclusory statements, or boilerplate resolutions”) (internal citations omitted). Here, the Council’s references to “persuasion” are synonymous with “Not in My Back Yard” sentiments about the drug rehabilitation program affiliated with the Church of Scientology. ‘Not surprisingly, the Record aptly demonstrates how the Council used its “Get of Jail Free” card to justify its discriminatory decision. For example, compare Councilmember Delauter’s comments at the Apr. 21 Hearing with his comments at the June 2 Session. On April 21 he stated that: Pve seen enough to know that the designation of historic — historic designation exists, Beyond that, you know, I may have some other reservations beyond that, but the historic designation is pretty clear. Record, p. 00084 (Apr. 21 Hrg. Tr. 59:11-14) (emphasis added). On June 2, 2015, he changes his mind and states: (W]hen you talk about persuasion, I haven’t met one constituent that’s been persuaded, So if I’m going to represent my district, I’ve got some reservations about it. 33Jd, at 00011 (June 2 Tr. 11:18-21), Mr, Delauter’s constituents included many of the citizens who voiced views about the Church of Scientology. Further, the issue of whether a “constituent” is persuaded that Trout Run is historic is not the standard established by the Council during the past 17 years in which the HP Ordinance has been enacted. What Mr. Delauter is really saying is that he has not met one constituent who was persuaded to allow a Narconon drug rehabilitation center that is affiliated with the Church of Scientology. But this, of course, was not the matter that the Council should have been deciding, although regrettably it is exactly what it tumed out to be. Councilmember Chmelik made a similar disturbing change in position. On April 21, 2015, Councilmember Chmelik stated that: I think the HPC has done a wonderful job in documenting this property. I can't imagine many applicants go through what they have done to show the historic value of the structures. To that end, there are 10 criteria they have to meet. I have to agree that we probably shouldn’t stand in the judgment of the HPC, who has done their due diligence on this one. Id. at 00083 (Apr. 21 Hg. Tr. 58:14-22) (emphasis added). Then, on June 2, 2015, he voted to deny Petitioner’s Application ~ without any explanation for why he suddenly went from accepting the HPC’s findings to denying the denying the Application. While Councilmembers Chmelik’s and Delauter’s turnabouts are most striking, the Record shows that the other Councilmembers were concerned with irrelevant issues, i.c., the relationship with the Church of Scientology, the proposed use by Narconon, the licensure process, and the historic designation process generally. See, e.g, Exhibit B. With these issues clouding the Council's judgment, the Council cannot honestly say that it had doubts about the 34historic value of Trout Run.’ The burden of persuasion cannot, and should not, be used to sanction religious discrimination by the Council. VI. ConcLUsiON For the foregoing reasons, Petitioner's appeal should be granted and the Council’ June 2, 2015, decision denying Petitioner's Application should be reversed. WHEREFORE, the Petitioner respectfully requests that this Court (i) find that the Couneil’s decision was arbitrary and capricious; (ii) the Couneil’s decision improperly discriminates against the Petitioner for its religious affiliations; (iii) remand this matter back to the Council with instructions that Petitioner's Application be granted and Trout Run be designated on the County’s Register; and (iv) grant any and other such relief as the Court's deems proper and just. [SIGNATURES ON THE NEXT PAGE] " Councilmember Shreve noted: “I believe this item, this application, has been clouded because the record does reflect that there was testimony based on Narconon and Scientology. So I think that has clouded our decision a few times and has led us to probably go a lot further into this decision than it really merited.” Record, p. 00014 (June 2 Tr 146-11). 35Respectfully Submitted, LINOWES AND BLOCHER LLP (30¥) 961-5205 (phone) ikneeland@linowes-l py: Ma ttiour!N. Garde Matthew M, Gordon 01) 961-5233 (phone) mgordon@inowes-law.com DY d py: Vauguticls s Margueritg Lee DeVoll (301) 961-5140 (phone) mdevoll@linowes-law.com 7200 Wisconsin Avenue, Suite 800 Bethesda, Maryland 20814 (B01) 654-2801 (fax) 36‘Aer Trot Rum, council concemed propsty owners ying to evade rues | Politics & goverument|federicknewspost com Obits Classifieds Jobs Businesses Subscribe Nintendo Wi U 3268 Mavi Kart & Deluxe Set in $309.00 Prine FERC 5 Choose a product taka -Onias. 0 TAMER} BQ? shoomacnn The Frederick News-Post After Trout Run, council concerned property owners trying to evade rules Jen Fifleld jileld@newspostcom Jun 4, 2015 19 ‘The Frederick County Council wants to make sure property owners aren't asking the county to designate their properties as historic just so they can use the land in ways the county's zoning rules do not normally allow. anpulhvon federichnewspost ony, -couei-concened-propery-ownes-tyingto-cradelrticle 96489206-6576520e-a6Ta 87300 Je‘Afer Trou Run, council concemed propety aames tying 0 evade rales | Politics & government] federiknewspost com ‘The council voted 5-2 Tuesday to send a letter to County Executive Jan Gardner asking her to have county staff stop accepting applications for the Frederick County Register of Historic Places until the council has a chance to look at the county's law on the topic. Councilmen Kirby Delauter and Billy Shreve voted against sending the letter The move came less than two hours after the council voted against placing Trout Run, a rustic camp in the Catoctin Mountains near Thurmont, on the register. Residents against Trout Run's historic designation had told the council they were concemed that the owner of Trout Run had applied just so it could get a special exception from county zoning laws that would allow it to operate Narconon, a substance abuse rehabilitation center, on the site, Narconon’s attorney told the council that was not the case. Councilman Jerry Donald brought up the idea for the letter, saying that he thought the county would get a flood of applications if the council didn't act now. The council needs to take a look at the county's processes before moving forward, as there may be “side effects” to the historic preservation ordinance that weren't expected when it was passed, he said, The letter, which was being drafted Wednesday afternoon, will have to be reviewed by the entire council before being sent to Gardner, said Lori Follmer, Gardner's executive assistant Although Gardner hadn't seen the letter as of Wednesday night, she said she would honor the council's request to place a hold on the applications. She said she has heard from people concerned that the historic designation to “create kind of a loophole for Uses to come in on resource conservation or [agricultural] land.” “| think itis a valid topic of debate for the council... | think we need to address the issues citizens have raised about it,” she said, County law allows the Board of Appeals to grant a special exception in any zoning district ifthe property is historic and will be converted into a restaurant, inn, antique shop, museum, information center, business or professional office, group home use, or an event facility, and if off-street parking requirements are met. The only way a property is considered historic is ifitis on the national, state or county historic register. ‘The Board of Appeals would have allowed Narconon to operate as a “group home" at Trout Run, resource conservation land, ifit were on the register, although some questioned whether a rehabilitation center met the definition of group home. npn federicknewspost con, -coune-concemed-propery-ovmers-tying-o-vadelnsl_ 964S9206-657F520e-a7e-S76307 3d hm 12/1072015 2 08:58 PM]Afr Trout Ran, council coucemed propsty owners trying to evade rls | Politics & goverment | fredevicknewspast.com Trout Run is nat the only case that residents have been concerned about, Gardner said. Another example is the event venue at Sugarloat Mountain, which is also on resource conservation land and operates through a special exception, she said. It's Important that the original intention of historic preservation in the county is maintained, said Councilman Tony Chmeiik There are currently two applications for the historic register pending council review after receiving a positive recommendation from the Historic Preservation Commission, and one of those is for a property receiving a special exception, according to a county planning document last updated May 7, There are 10 properties on the register, and five of them have received a special exception, according to the document Until Tuesday, the elected officials had approved every property the Historic Preservation Commission had recommended for the register Follow Jen Fifield on Twitter: @JenAFifel. Should Frederick County stop taking applications for the county's register of historic places until the council can debate the process? O Yes No (© Doesn't matter View Results MORE INFORMATION Frederick County Council's decision on Trout Run questioned in court Lip reerisknewspostcony..ouneiL concerned proparty-ownersyng t-cvadeartcle 96459206-6576-S20e-a67s-S7b3011 ed ul[1210/2015 2:08:58 PM]Chart of Irrelevant and/or Church of Scientology/Narconon Based Comments Made by Council ‘Member Shreve Demonstrates that the Council's Decision was Arbitrary and Capricous! [ Speaker | April 7,201 | April 21, 2015 Public Hearing | June 2, 2015 Public Hearing ____| Public Hearing | (Record Closed) | Council Council Member ‘My comments are...this is one of | “I'll make a motion that the | Member | Billy Shreve didnot | the easier decisions we'll ever | County Council affirms the Shreve attend the April 7, make, and I don’t think it’s that recommendation of the Historic 2015, Public Hear- ing, See Admin Record, p. 00119 (April 7 Public Hearing Tr.). difficult, and we should vote. I would ask our attorney, Mr. Chomel, how we should look at the testimony of experts.” See Admin. Record, p. 00084 (April 21 Public Hearing Tr. 59:16-20). “So iffan expert testifies before this Board, do we take that opinion to ‘be an expert opinion, or do we take it upon ourselves to become the experts?” See Admin. Record, p. (00085 (April 21 Public Hearing Tr. 60:1-4). “So really, our role is to take the expert advice from the appli- cants, the recommendation from the historic district —HPC, and then make a decision as to if we agree with it; and we're supposed to take this expert testimony and hhold it higher than any other testimony.” See Admin, Record, p. (00091 (April 21 Public Hearing Tr. 66:7-12) (emphasis added), Preservation Commission, Trout ‘Run, and place it on the Fred- erick County Register of Historie Places ....” See Admin. Record, p. (00008 (June 2 Public Hearing Tr. 8:9-15) (emphasis added). “The only expert testimony we have are from staff recommend- ing that we move forward and confirm the decision of the HPC. ‘The HPC looked at this twice and | said, yes, itis historic, Also, we | have a private report from Good- ‘win & Associates, a known com- pany that makes decisions like this all over the country.” See Admin. Record, pp. 00013-00014 (une 2 Public Hearing Tr. 13:19-14:4) (emphasis added). “This item, this application, has been clouded because the record | does reflect that there was testi- | mony based on Narconon and | Scientology. So I think that has clouded our decision a few times See Admin. Record, p. 00014 Gune 2 Public Hearing Tr. 14:5- 11) (emphasis added). * See County Council for Prince George’s County v. Potomac Elec. Power Co., 263 Md. 159, 282 A.2d 113 (1971); Lewis v. Dept. of Natural Res., 377 Md. 382, 409, 833 A.2d 563 (2003).April7 Public Hearing April 21 Public Hearing June 2 Public Hearing Council Member Shreve ‘ag 513428601/2461,0002 *So I don’t see any reason why we shouldn’t move forward and vote on this tonight. This is not a diffi- cult decision ... this is one of the easier decisions in my opinion.” 21 Public Hearing Tr. 66:15-20) (emphasis added), “So this applicant has vested thou- | sands of dollars in this already, and now we can’t make a decision when we're supposed to take the expert testimony and hold it higher, and its already been through the HPC commission full of people that know much more about historie stuff than we do.” See Admin. Record, p. 00092 (April 21 Public Hearing ‘Tr. 67:14-20) (emphasis added). “Lknow we're going through the County process to change the slogan. The old slogan was “Open for Business.” I suggest we change the new one to, “We will make a | decision eventually.” See Admin. Record, p. 00095 (April 21 Public Hearing Tr. 70:9-13) (emphasis added). “0S a very simple decision. I's based on the recommendation of the Historie Preservation Commis- sion ... I think Ihave seen every argument now. When someone is | See Admin. Record, p.00091 (April | trying to build houses, everything | is historic; you can’t tear it down; | can’t do anything to it... When ‘you're trying to make something historic, nothing is historic ... so here, you have someone trying to save something that probably, if it’s not purchased, it’s going to deteriorate ... I think it would be 1 ‘great if we could preserve a historic structure in Frederick County, but it sounds like this one is not going to be preserved, which is sad .. ‘when you have pages upon pages of testimony by experts, inelud- ing the Historie Preservation ‘Commission, I think by law, that testimony is supposed to have more weight than the testimony or opinion of the Board members «++ $0 I think it’s a sad day in Frederick County history if this fails.”....” See Admin, Record, pp. 00014-00016 (June 2 Public | Hearing Tr. 14:12-16:6) (emphasis | added)Chart of Irrelevant and/or Church of Scientology/Narconon Based Comments Made by Council ‘Member Delauter Demonstrates that the Council’s Decision was Arbitrary and Capricous' Speaker | April 7, 2015 Public Hearing ‘April 21, 2015 Public Hearing (Record June 2, 2015 Public Hearing 68:5) (emphasis added). criteria. Ihave heard from yourself that we well. Imean, if we're 00185 (April 7 Public Hearing Tr. 68:6-14) (emphasis added). does meet the criteria of these criteria, two, See Admin Record, (00186 (April 7 Public Hearing Tr. 69:1-6) (emphasis added). Council | “Pm not here to judge Member | Scientology ... that’s not Delauter | an issue. I don’t care what kkind of drapes you hang, ‘what kind of flooring you have. That's not why we're here.” See Admin Record, pp. 00184 -00185 (April 7 Public Hearing Tr. 67:21- “Til just say Tagree with Councilman Chmelik. I think we've seen atleast, I have seen enough to may have some other reservations beyond that, but the historic designa- tion is pretty clear.” See Admin, Record, p. 00084 (April 21 Public Hearing Tr, 59:9-14) (emphasis “We're here for one issue. ‘As you placed earlier, I haven’t heard evidence that we have not met the evidence from the staff, have... And from your historic representative, as | going to have something in front of us, if that’s what we've got to vote on, I just don’t want to get offtopic ” See Admin Record, p. “Lmean, I'm not prepared | to judge any other aspect of | this from...an opinionated standpoint... P've heard it | from staff. If we meet one three, four, ten, and it suffices, then that’s what I'm prepared to vote on.” "See County Council for Prince George's County v. Potomac Elec. Power Co. | “Wy comments we tat weigh | on the historical value of i, it's a very subjective argument, Some people say its. Some people say it isn’t, Ifyou listen to the experts, they come to the conclusion that leaning on the side that itis...” See Admin. Hearing, p. 00011 (une | 2 Public Hearing Tr. 11:10-15). “It's in my district, so this is very | close to where Five. It's very close to where many constituents have contacted me about it ‘when you talk about persuasion, I hhaven’t met one constituent that’s been persuaded. So if ’'m going to represent my district, you know, I’ve got some reservations about it ... if anybody in my district was persuaded, they sure didn’t contact me.” See Adin Hearing, pp. 00011-00012 (June 2 Public Hearing Tr. 10:15-11:2) | (emphasis added), 163 Md. 159, 282 A.2d 113 (1971); Lewis v. Dept. of Natural Res., 377 Md. 382, 409, 833 A.2d S63 (2003).Chart of Irrelevant and/or Church of Scientology/Narconon Based Comments Made by Council ‘Member Chmelik Demonstrates that the Council's Decision was Arbitrary and Capricous' Speaker | April, 2015 Public ‘April 21, 2015 Public Tune 2, 2015 Public Hearing Hearing (Record Closed) Hearing | ‘Council | “You mentioned here that the | “Ijust want to voice my opinion | Although Couneil | Member | intent isto be a drug rehabili- | thatT don't think this needs to. | Member Chmelik Chmelik | tation center. However, the | be continued. We've had a voted against design- | | approval by the appeals folks is | wealth of information.” See nating the Subject | for a group home facility. Admin, Record, p. 00083 (April | Property on the Now, is that a typo, or is the | 21 Public Hearing Tr. 58:8-10) | County's Register of designation going to be fora _| (emphasis added), Historic Properties, he ‘group home facility or drug | made no comments to rehabilitation.” See Admin “J think the HPC has done a won- | support his decision on Record, p.00148 (April 7 | derful job in documenting this | June 2, 2013. See Public Hearing Tr. 31:6-10) | property. Tean’t imagine many | Admin, Record, (emphasis added), applicants go through what they | p.00017 (June 2 Public have done to show the historic | Hearing Tr. 1 | {don’t know if it’s true or not | value of the structures.” See in terms of the COMAR, that | Admin. Record, p. 00083 (April drug rehabilitation may be | 21 Public Hearing Tr. 58:14-17) prohibited underneath a | (emphasis added), group home facility according 10 COMAR regulations.” See | “To that end, there are 10 criteria Admin Record, p. 00148 (April | they have to meet. [have to agree 7 Public Hearing Tr. 31:18-22) | that we probably shouldn’t (emphasis added). stand in the judgment of the HPC, who has definitely done “in terms of designation and | their due diligence on this one. criteria that HPC put on here. | See Admin. Record, p. 00083 Could we add to that eriteria | (April 21 Public Hearing Tr. 21), or limitations they put on the | 58:18-22) (emphasis added). Property...” See Admin Record, pp. 00181-00182 “We've had four weeks. This is (April 7 Public Hearing Tr. | documentation we have had given 64:21-6 21 (emphasis added). | to us. The information that was given to us tonight ... could have “Tean't say that I'm in ‘been 22 pages shorter, but in all | disagreement with Council | candor, it’s just a resume of the Member Delauter...I cannot. | folks sitting in front of us .. 1 disagree with what Council | would just like to reiterate that I man Delauter just said, but | do, too, believe this isn’t some- the idea was to give use a litle | thing the Couneil should continue. | bit more time for considera- | We should vote tonight. I think. tion.” See Admin Record, p. | it’s inappropriate to continue.” 00186 (April 7 Public Hearing | See Admin. Record, p. 00093 ‘Tr. 69:7-15) (emphasis added). | (April 21 Public Hearing Tr. 68:1- 13) (emphasis added), See County Council for Prince George’s County v. Potomac Elec. Power Co., 263 Md. 159, 282. A.2d 113 (1971); Lewis v. Dept. of Natural Res, 377 Ma. 382, 409, 833 A.2d 563 (2003).Chart of Irrelevant and/or Church of Scientology/Narconon Based Comments Made by the County Attorney Demonstrates that the Council’s Decision was Arbitrary and Capricous! Speaker | April 7, 2015 Public ‘April 21, 2015 Public Hearing (Record Closed) | Hearing County, “You know, this is one of Attorney. | the very few ones of these | Mathias | that has any contentious- and ‘ness to it at all ... this Chomel | record of evidence kind of ‘case, where it needs to be decided on the record before the Board.” See Admin Record, pp. 00190- 00191 (April 7 Public Hearing Tr. 73:20-74:2) (emphasis added). “We'll have to get [sic] the introduced into the record in some fashion, if you want to rely on those deci- sions, making those deci- sions, so we probably have something in writing from Denis Superezynksi or ‘someone responding to | those questions.” See Admin, Record, p. 00192 (April 7 Public Hearing Tr. 15:5-9). “The issue becomes, if there’s additional informa- tion that you obtain be- tween now and April 21st, it would need to be in- cluded in the record if it's going to be the basis for a decision.” See Admin. | Record, p. 00194 (April 7 Public Hearing Tr. 78:6-9) “Jn Tight of the fact that a substan- ‘tial amount of material has come in since last hearing, I think that needs | to be included in the record because ‘you did not affirmatively close the record at the last meeting.” See Admin. Record, p, 00029 (April 21 Public Hearing Tr. 4:2-6) “The testimony of experts is to be given greater weight. Both Mr. Proffitt and Ms... were accepted | .. by the Board. They were deemed experts, have a degree of oxpertise...that of the ordinary per- son in the fields in which you've accepted them to be experts.” See Admin, Record, p. 00085 (April 21 Public Hearing Tr. 60:8-14) (emphasis added). | “The issue of the connection, if any, between the Church of Scientol- ogy and the applicant is an abso- ute non-issue before you. The Federal ~ let's call it RLUPA... says you cannot discriminate against any recognized group of,..an organized belief group. So you have to treat this applicant, any applicant, whether it’s the Little | Sisters of Mercy or the American Satanist Society, equal...simply, that is not before you to decide.” See Admin. Record, p. 00086 (April 21 Public Hearing Tr. 61:4-17) (emphasis added). “The Board of Appeals determines Whether to grant the use; and inthis | June 2, 2015 Public Hearing "Section 1-23-6(a), it says the county governing body may designate boundaries for landmark sites, struc- tures, or districts of his- | toric, archeological or architectural significance after a public hearing, The ‘word “may” is not man- datory. It’s discretionary .” See Admin. Record, pp. 00003-00004 (June 2 Public Hearing Tr. 3:20 - 433) (emphasis added), “The applicant here before | ‘you has both the burden of | production...and then be- ‘yond that, the burden of persuasion, to persuade ‘you that, in fact, this prop- erty in question is deserv- ing of being placed on the County’s Register of Historie Places...the Appellate Courts of Maryland...have said that to be persuaded of some- thing requires a requisite degree of certainty on the part of the fat-finder... mere non persuasion requires nothing but a state of honest doubt .. ‘See Admin, Record, pp. (00004-00005 (une 2 Public Hearing Tr. 4:4 5:1) (emphasis added). “in light of the substantial amount of extraneous * See County Council for Prince George's County v. Potomac Elec. Power Co., 263 Md. 159, 282 A.2d 113 (1971)s Lewis v. Dept. of Natural Res., 371 Md, 382, 409, 833 A.2d 563 (2003).April 7 April 21 June2 Public Heariny Public Hearin; Public Hearing ‘County ‘case the Board of Appeals has held | information and mate- | Attomey a public hearing, duly advertised, | rial which is not relevant Mathias posting the property, and has de- | to your determination and termined that the uses fits within | tonight relating to the use ‘Chomel the scope of the section. So that | and the user, because the | “This is a very limited role of decision is not before you tonight, | use and user are deter- the use of the property.” See mined under a separate Admin. Record, p. 00088 (April 21 | section of the County Public Hearing Tr. 63:10-15) Code ... and the Board of (emphasis added), | Appeals is entrusted with making those determi “So your role in the process isto | tions ... I think it would decide whether the Historie be appropriate for you to, | Preservation Commission was | for the benefit ofthe judi- correct in determining that the | cial review, give the property was eligible for listing | Judge. on the Frederick County Register | that your non-persuasion of Historic Places, and if so, to _| or professed non-persua- designate the site.” See Admin. _| sion are based on the Hearing, p. 00090 (April 21 Public | historical, archeological, Hearing Tr. 65:7-12) (emphasis | or architectural merits or added). lack thereof of this Prop- yours in the process some assurance erty ... it would be appro- priate to go slightly be- {and] the | yond merety saying, we Historie Preservation Commission | are not persuaded ....” is, Ithink, 12 people, all of whom | See Admin. Record, pp. are selected for their particular (00005-00006 (June 2 knowledge, experience, skill, or | Public Hearing Tr. 5:6 expertise with historic structures, | 6:3) (emphasis added). properties ....” See Admin, Hearing, | . 00090 (April 21 Public Hearing | “But suffice it to say that, Tr. 65:13-31) (emphasis added). | since the ordinance in 1- 23-6(a) says that you may designate boundaries, that ‘you can be non-per- suaded or persuaded.” See Admin. Hearing, p. (00007 (une 2 Public Hearing Tr. 79-12) (emphasis added) sya sassrosvisi2461.0002Chart of Irrelevant and/or Church of Scientology/Narconon Based Comments Made by Council ‘Member Fitzwater Demonstrates that the Council’s Decision was Arbitrary and Capricous! ‘Hearing Tr. 58:17-19) (emphasis added). “You mentioned that there are ten other properties that are already historic — on our registry. Do you know how ‘many criteria those other properties met in order to become listed? Is there an average, or is three typical? I mean, having a minimum of one of ten does also seem odd to me ... But would be curi- ous as to how this [Trout Run] matches up to the criteria that have had to have ‘been met by other historic properties on the registry.” See Admin Record, pp. 00175 -00176 (April 7 Public Hearing Tr. 58:17-59:8) (emphasis added), “We heard some conflicting information on the licensure that is required for \Narconon to operate in the proposed use | based on what they're planning to do ... I | would like some clarification as to what licensure already exists and what is needed.” See Admin. Record, p. 00178 (April 7 Public Hearing Tr. 61:3-8) | (emphasis added), “I think we need to vote on this at our next meeting. But I would like to, when possible, set the precedent for this group to vote at the following meeting after public hearing... I think obviously sometimes there’s things that are time- sensitive or things where it’s automat cally — you know, it’s already clear it’s unanimous, but I think setting the precedent for having that time is a good thing.” See Admin Record, pp. 00186 — (00187 (April 7 Public Hearing Tr. 69:16 =70:11) (emphasis added). 30 days in the future, but made no other com- ments at the April 21, 2015 Public Hearing. See Admin. Record, p. (00094 (April 21 Public Hearing Tr. 69:21-22). Speaker | April 7, 2015 Public Hearing April 21, 2015 Public | June 2, 2015 Hearing (Record Public Hearing ie ba — Closed) 7 Council | “Actually you just answered one of my | Council Member Jessica | “Based on my review Member | questions, which is how many criteria, | Fitzwater voted in favor | of the record ... and Fitawater | So the minimum is one of ten (criteria | of continuing Pet the past HPC record, for designation as a historic site.” See | er’s application adate | Ido not feel that Admin Record, p. 00175 (April 7 Public | certain being more than | this property deems a historic designa- tion, nor should it be placed on the County Register of Historic Places.” See Admin. Record, p.00016 (une 2 Public Hear- ing Tr. 16:10-17) (emphasis added). " See County Council for Prince George's County v. Potomac Elec. Power Co., 263 Md. 159,282 A.2d 113 (1971); Lewis v. Dept. of Natural Res., 377 Md. 382, 409, 833 A.2d 563 (2003).Chart of Irrelevant and/or Church of Scientology/Narconon Based Comments Made by Council ‘Member Donald Demonstrates that the Council's Decision was Arbitrary and Capricous' Speaker | April 7, 2015 Pu ‘April 21, 2015 Public ‘June 2, 2015 Public Hearing Hearing (Record Closed) | Hearing Gouneit | “These three things that were | “When we first got this, we | “If you read the applica- Member | mentioned on this, I get the | heard about Herbert Hoover _| tion, and I’ve read through Donald | tast one, it looks beautiful. | and fishing, right? And that | this, the key to the argu- It’s the other two that throw | got dropped pretty quickly... | ment from beginning to end me alittle.” See Admin Record, | Tbelieve in reading your ‘made by the historian is pp. 00130-00131 (April 7 letter, you mentioned that’s | this ... tis arare example Public Hearing Tr. 13:21-14:1) | not relly germane to it it's | of private Adirondacks (emphasis added). about the buildings them- | style camp built in the early selves, that they are, you said | 20" century.” See Admin, | “Let’s play what if. What if we | rare surviving examples. But | Record, p. 00009 (June 2 do nothing? What happens to | on that same hill, just running | Public Hearing Tr. 9:5-10) it...At will still be historic? | through, you’ve got Misty ‘We just won't give it a desig- | Mount, Greentop, Camp “My first reaction was, nation?” See Admin Record, p. | David, Gambrill ... I'mkind | well, it’s not rare 00135 (April 7 Public Hearing | of lost on how that’s rare.” | you've got Camp David. Tr. 18:14-19) (emphasis See Admin. Record, pp. You've got Gambrill Tea added), (00076 - 00077 (April 21 Room. You've got Mar-Lu- Public Hearing Tr. 51:21- | Ridge ... but those are “think we can handle this | 2:11). public ... Idon’t see how tonight. Maybe in the future public differs from a pri- we should do that, but upto | “So it doesn’t change the _| vate [camp] in the sense of this point we don’t have pre- | building itself, it’s just who _| its architecture except who cedent [for voting on applica- | built it that’s Key to your per- | pays for it.” See Admin, tions at the following meet- | ception of this?” See Admin. | Record, p. 00009 (Sune 2 ing).” See Admin. Record, p. | Record, p.00078(April21 | Public Hearing Tr. 9:13- 00187 (April 7 Public Hearing | Public Hearing Tr. 53:4-6). | 19). ‘Tr. 70:18-21) (emphasis | added). “Whereas last time Iwas | “Ilive in Braddock Heights | interested in voting at the .. fyou walk within 2 moment, since today we were | miles of my house, you're handed very huge packets of | going to bump into pri- | information, Ihaven’thad a | vate camps ... If ean chance to go through all of it | find three of these 2” See Admin. Record, p. | two miles of my house | 00084 (April 21 Public and I’m not looking for Hearing Tr. 59:2-7). Note: | them, it’s not rare, in ‘The new documents sub- | addition to all the public mitted were primarily ‘ones we've mentioned.” resumes for the Petitioner’s | See Admin. Record, p. expert witnesses. 00009 - 00010 (Fune 2 Public Hearing Tr. 9:20 10:21), "See County Council for Prince George’s County v. Potomac Elec. Power Co., 263 Ma. 159, 282. A.2d 113 (1971); Lewis v. Dept. of Natural Res., 377 Ma. 382, 409, 833 A.2d 563 (2003).