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 MEMORANDUM OF LAW Social Betterment Properties International (“Petitioner” or “Appellant”), by and through undersigned counsel, pursuant to Maryland Rule 7-207, submits this Memorandum of Law in support of its appeal of the decision of the Frederick County Couneil (the “Council”) denying Petitioner's application to designate the Trout Run/Richey Lodge property, located at 12929 Catoctin Hollow Road (the “Subject Property” or “Trout Run”), as a historic site on the Fred- erick County Register of Historic Places (the “County's Register”), and states: I. PRELIMINARY STATEMENT ‘This administrative appeal arises out of the Council's June 2, 2015, arbitrary and capri- cious decision denying the Petitioner's application (the “Petitioner's Application”) to designate ‘Trout Run as a historic site listed on the County’s Register. The Council is entrusted with the“very limited . .. [and] small role” of deciding whether “the Historic Preservation Commission! ‘was correct in determining that the [Subject] [PJroperty was eligible for listing on the Frederick County Register of Historic Places.” In considering Trout Run’s eligibility for the County’s Register, the Council is required to consider ten criteria identified in Section 1-23-6 of the County’s Preservation Ordinance.” Despite clear instruction from Section 1-23-6 for criteria to be considered in determining eligibility for the County's Register, the Council inappropriately considered “evidence” outside and within the Record’ that consisted of nothing more than irrelevant and discriminatory testimony about the Petitioner’s relationship with the Church of Scientology, gossip and rumors about the Church of Scientology's religious beliefs, and unsubstantiated claims about the effectiveness of the Narconon drug and alcohol rehabilitation program. Petitioner seeks reversal of the Council’s failure to accord Trout Run a historic site designation as arbitrary, capricious, and not based on substantial evidence. Trout Run is a bucolic, forested retreat set amidst the Catoctin Mountains consisting of forty acres and several buildings. It once served as a “stand-in” location for Camp David in an episode of The West Wing. Developed in the 1920s as a fishing camp for an affluent family, Trout Run stands today as a remarkably well-preserved, early 20th century mountain retreat with beautifully crafted mason-work and wood buildings. Indeed, the HPC — whose job it was to evaluate a property for ' Hereinafter referred to as the “HPC”. The HPC is responsible for reviewing all petitions for designation to the County's Register and making recommendations to the Council. See Admin. Record, p. 00090. 2 true and correct copy of the Historic Preservation Ordinance is attached hereto and incorporated herein as Exhibit “A”. in advance of its, 3 The “Record” refers to the official record of evidence presented to the Coun June 2, 2015, decision denying the Petitioner's Application. 2designation — readily found that Trout Run met three separate criteria for historic site designation (any one of which would have sufficed to receive HPC’s recommendation):’ it is a property that (i) embodies the distinctive characteristics of a type, period, ot method of construction ot architecture; (ii) exemplifies the cultural, economic, social, political, or historic heritage of the County and its communities; and (iii) represents the work of master craftsmen, architect, or builder. See Exhibit § 1-23-6(B), The HPC, itself possessing substantial expertise, devel- oped an extensive administrative record including unrebutted testimony from multiple additional experts, supporting their findings, Despite the inarguable qualification of Trout Run for historic site designation, the Council failed to approve it. Even more bafling than the result was the manner in which the Council disregarded the Record before it, which contained substantial and material evidence, including unrebutted expert assessments, that Trout Run satisfied three separate qualifications for listing on the County's Register. The Record before the Council and the proceedings of the Council itself are devoid of any probative evidence that would undermine the qualifications and characteristics of the Subject Property for historic site des nation. ‘The Court of Appeals in County Council for Prince George's County v. Potomac Elec. Power Co., 263 Md. 159, 282 ‘A.2d 113 (1971) teaches that where a council action is based upon no substantial evidence, the action is infirm and must be reversed. Accordingly, the Council's denial of historic site designa- tion for Trout Run must be reversed. ‘The Petitioner's Application was the third and final step related to the Petitioner's request to operate a group home for an alcohol and drug abuse treatment facility at the Subject Property. 4 Admin. Record, pp. 00176-177 (April 7 Public Hearing Tr. 59:9-60:46) (“some of the other properties on the [County’s] register only met a single criteria...) 3Petitioner, an affiliate of the Church of Scientology, seeks to use the Subject Property to support {ts mission for alcohol and drug rehabilitation for people of all origins, faiths, and creeds. The only “negative” part of the Record concerns not Trout Run, the property, at all; rather, the negativity in the Record is the invectives aimed strictly at Scientology and reflecting animus towards it. The Record is replete with evidence that the Council’s June 2, 2015, decision is im- properly influenced by discriminatory statements and bias directed at the Petitioner by virtue of its connection to the Church of Scientology. For example, the Council inappropriately consid- ered public comments stating “it’s Scientology. I don’t know what you all know about that, but that is a cult,” and that Scientologists “had a lot of lawsuits against them . . they're not actually avery good group... they're not very honest.” See Admin, Record, pp. 00156, 00158 (April 7 Public Hearing Tr.° 39:13-15, 41:3-5) (Testimony from Ann Landahl and Leslie Summers-Stay to the Council) (emphasis added). In fact, Council Member Billy Shreve also stated that “the other thing 1 wanted to point out is that I believe this item, this application, has been clouded because the record does reflect that there was testimony based on Narconon and Scientology . ..” See Admin. Record, p. 00014 (June 2 Public Hearing Tr.* 14:5-8). In addition, the Council inappropriately considered evidence that was not part of the Record, including comments from constituents after the Record was closed. See infra.at pp. 33-35. To be fair, the County Attorney tried to corral the Council and advised that “the issue of the connection, if any, between the Church of Scientology and the applicant is an absolute non- 5 “April 7 Public Hearing” refers to the April 7, 2015, public hearing held by the Council References to the transcript for the April 7 Public Hearing shall be hereinafter referred to as “April 7 Public Hearing Tr.” © The June 2, 2015, meeting is hereinafter referred to as the “June 2 Meeting.” References to the transcript for the June 2 Meeting shall be hereinafter referred to as “June 2 Meeting Tr.” 4sue before you,” and warmed the Council that “RLUPA . . . says you cannot discriminate against any recognized group of ... an organized group. So you have to treat this applicant, any applicant, whether it’s the Little Sisters of Mercy or the American [SJatanist [SJociety, equally.” See Admin. Record, p. 00086 (April 21 Public Hearing Tr.’ 61:7-17). But this attempt came to no avail Baseless fears about Scientology swayed the Council to deny the Petitioner's Application. This is the only possible explanation for how the Council “overeame” an unrebutted Record supporting the HPC’s recommendation on the Subject Property. ‘The HPC’s two unanimous votes for eligibility, the testimony by the HPC and the Petitioner's expert witnesses, and the other material and probative evidence submitted to the Record clearly supports a finding that Trout Run satisfies the criteria for designation on the County’s Register. Despite this overwhelming evidence, the Council denied the Petitioner's Application based on purely discriminatory, arbitrary and capricious grounds, which are not only wholly irrelevant to the Subject Property’s historic determination under Section 1-23-6 of the Historic Preservation Ordinance, but in violation of state and Federal law. Il, PETITIONER'S BACKGROUND ‘The Petitioner is affiliated with the Church of Scientology International (“CSI”), a non- profit religious organization recognized by the IRS as tax exempt under IRC 501(c)(3). CSI is the mother church of the Scientology religion. The Church of Scientology practices Scientology, a recognized religious belief system in the United States. ‘Thus, the Petitioner enjoys and is entitled to the protections afforded by the U.S. Constitution, applicable Federal laws, and the laws of the State of Maryland to practice its religious beliefs without bias and discrimination, 7 “April 21 Public Hearing” refers to the April 21, 2015 public hearing held by the Council. References to the transcript for the April 21 Public Hearing shall hereinafter be referred to as the “April 21 Public Hearing Tr.”On or about September 16, 2013, the Petitioner purchased the Subject Property, which is commonly known as Trout Run/Richey Lodge. See Admin. Record, p. 00289 (State Department of Assessments and Taxation Record for the Subject Property). The Subject Property includes ‘two parcels of land that consist of approximately forty acres, and is located along Little Hunting ‘Creek on Catoctin Hollow Road, See Admin. Record, p. 00127 (April 7 Public Hearing, 10:11- 16), p. 00249 (Trout Run/Richey Lodge Historical Significance Report). Developed in the late 1930s as a fishing retreat by Lawrence Richey, an aide to President Herbert Hoover, the Subject Property is a “rare surviving example of a private residential camp developed in the Catoctin Mountains during the early to late twentieth century.” See Admin, Record, pp. 00249-50 (Trout Run/Richey Lodge Historical Significance Report), p. 00127 (April 7 Public Hearing Tr. 10:6- 18). Moreover, “the design of the complex reflects the national pattern for the private camp property type as defined by its orientation towards natural features, rustic architectural style utilizing local materials, and integration of multiple specialized buildings, including guest cottages, centralized dining and recreational facilities.” Id. It is this rich history that qualifies Trout Run for designation on the County’s Record because it satisfies three of the ten criteria for designation Trout Run: (1) “exemplifies the cultural, social and historic heritage of the Catoctin Mountain Area during the early twentieth century;” (2) “embodies the character defining features of the private camp property type . . . [and] retains its overall integrity from the 1930's,” and (3) “represents the work of master crafisman, architect, or builder . . . [as] the quality of masonry in both buildings and landscape features attest to their work as master craftsmen.” Id. Although the Petitioner's intended use should not be relevant to its historic designation, the historic designation itself is crucial for the Petitioner's use of Trout Run, The Petitioner desires to operate a group home at Trout Run, specifically, an aleohol and drug abuse treatment 6facility employing a program called Narconon. See Admin. Record, p. 0035 363 (Narconon Program Studies and Background). Narconon is a drug and alcohol rehabilitation program that will be established at Trout Run, Narconon is delivered in over forty facilities throughout the world and has been operating for over fifty years. It is a program based on the discoveries and writings of L. Ron Hubbard, the Founder of the Scientology religion. Mr. Hubbard was also a humanitarian whose works include discoveries in the fields of education and criminal reform, as well as drug addiction, He has developed techniques to overcome the adverse effects of virtually every type of drug. Wanting to help those individuals who are lost to addiction, Mr. Hubbard made his iscoveries and techniques broadly available to followers and non-followers alike, which resulted in the establishment of Narconon. Il. STATEMENT OF FACTS 1. On July 8, 2013, the Petitioner submitted an application for a special exception for the conversion of an existing historic site into a group home for an alcohol and drug abuse treatment facility at the Subject Property. See Admin, Record, pp. 01003-1012 (Petitioner's Application). 2, In connection with Petitioner’s Application, the Petitioner submitted a request to the HPC on August 5, 2013, for a determination of the Subject Property’s eligibility for place- ‘ment on the County's Register. See Admin. Record, pp. 01054, 01074-01075. 3. On August 19, 2013, the HPC issued a written letter confirming “the unanimous vote of the [HPC] at its public meeting on August 14, 2013 determining the [Subject Property] . . to be eligible for listing on the Frederick County Register of Historie Places.” See Admin. Record, pp. 00238-239 (HPC’s Determination of Eligibility). More specifically, the HPC made ‘a determination that Trout Run should be designated on the County's Register because it 7(i) embodies the distinctive characteristics of a type, period, or method of construction or architecture; (ii) exemplifies the cultural, economic, social, political, or historic heritage of the County and its communities; and (iii) represents the work of master craftsmen, architect, or builder, Id Additionally, the HPC “specifically noted in its decision” that if the Petitioner was successful, then the HPC “ encourage a broadening of the period of significance for certain resources on the site.” Jd. (emphasis added), 4, On October 1, 2013, following proper notice of the Petitioner’s Application and a full evidentiary hearing on the Petitioner's Application, the Board of Appeals for Frederick County (the “Board of Appeals”) “voted unanimously (5-0) to grant the Applicant's request for a Special Exception to use a Historic Structure or site for use as a group home for an aleohol and drug abuse treatment facility.” See Admin, Record, pp. 00985-987 (Board of Appeals’ Approval of Special Exception) (emphasis added). S. During its public meeting on December 3, 2014, the HPC unanimously voted to recommend Trout Run to the Council “for listing on the Frederick County Register of Historie Places.” See Admin, Record, p. 00237 (HPC’s Recommendation to the Council to Designate Trout Run on the County's Register). The HPC made its recommendation “noting that the [Subject Property] should be designated based on the following criteria: (i) the property embodies the distinctive characteristics of a type, period, or method of construction or architect- ture; (ii) the property exemplifies the cultural, economic, social, political, or historic heritage of the County and its communities: and (iii) the property represents the work of master craftsmen, architect, or builder.” /d. Additionally, the HPC reaffirmed its earlier Determination of Eligibility. Id6. On February 16, 2015, the Division of Community Development for the County's Department of Planning and Development Review (the “Department of Planning”) submitted a copy of the staff report and a request for a public hearing on the Petitioner's Application for designation of Trout Run on the County's Register. See Admin. Record, p. 00233 (Department of Planning’s Staff Report Recommending that the Subject Property be placed on the County's Register). 7. On April 7, 2015, the Council held a public hearing (the “April 7 Public Hear- ing”) to consider the Petitioner's Application to designate Trout Run on the County's Register. During the April 7 Public Hearing, the Historie Preservation Staff from the Department of Planning “briefed the Council on the request to add the [Subject Property] to the Frederick County Register of Historic Places” and “noted that the HPC recommended listing the property on the Frederick County Register of Historic Places.” See Admin, Record, pp. 0025-226 (Meeting Minutes from April 7 Public Hearing). Katherine Kuranda, an expert witness in architectural history, testified that the Subject Property satisfied three separate criteria for designation as a listed site on the Frederick County’s Register, See Admin. Record, pp. 00174- 175 (April 7 Public Hearing Tr. 57:8-58:12) (Expert witness testimony showing that the Subject Property satisfies three separate criteria for designation on the County’s Register) 8. During the April 7 Public Hearing, testimony was offered by the Department of Planning that “some of the other properties on the [County's] register only met a single criteria. . | it’s typical to have one or two [eriteria], and we have a few [properties on the County's Register] that have more than three [eriteria] ....” See Admin. Record, pp. 0176-177 (April 7 Public Hearing Tr. 59:9-60:4) (Denis Superezynski’s guidance and testimony to the Council that a property only needs to meet one criterion to be designated on the County Register). 99. ‘The Council received public comments from several individuals opposed to the Petitioner’s Application at the April 7 Public Hearing; however, none of these comments were probative or material to Trout Run's eligibi for designation on the County’s Register. See Admin, Record, pp. 0152-167, 00168 (April 7 Public Hearing 51:11-15). 10. ‘Although there were no public comments showing that Trout Run failed to meet the criteria for designation on the County’s Register, many public comments were discriminatory and biased against the Church of Scientology. More specifically, the following public comments ‘were made: “T have documentation here . . . where Narconon, who promoted this par- ticular Trout Run facility, was being promoted as funded by the International Association of Scientologists... .” See Admin. Record, p. 00154 (April 7 Public Hearing Tr. 37:8-11) (Testimony of Katherine McBride). . “It is a Church of Scientology non-profit group, just like Narconon . . . basic~ ally their intent is to do much more on the property.” See Admin. Hearing, p.00155 (April 7 Public Hearing Tr. 38:17-20) (Testimony of Katherine McBride). ‘it’s Scientology . .. I don't know what you all know about that, but that is a cult.” See Admin. Record, p. 00156 (April 7 Public Hearing 39:13-14) (Testi- mony of Ann Landahl). |. “Lreally 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've had a lot of lawsuits against them . . . they’re not actually a very good group . . . they're not very honest.” See Admin. 10Record, pp. 00157-158 (April 7 Public Hearing Tr. 40:18-41:6) (Testimony of Leslie Summers-Stay). “I'm not saying that [Trout Run is] not historic . .." See Admin. Record, p. 00158 (April 7 Public Hearing Tr. 41:20) (Testimony of Leslie Summers- Stay). “Scientology is the religion that they will be operating under faith based,” and “we know what's going on in the news right now with Scientology. We've heard about the lawsuits, We know about the people that are missing, the deaths that have taken place.” See Admin. Record, p. 00160 (April 7 Public Hearing Tr. 43:14-19) (Testimony of Jackie Jenkins). “Scientology is trying to squeak in under the name of group home as a faith based program, and they will be free to do willy-nilly whatever they want.” See Admin. Record, p. 00161 (April 7 Public Hearing Tr. 44:7-9) (Testimony of Jackie Jenkins). . “First of all, none of this is being done for tax credits. They've got more money than God, so to speak, and they ean fix up the buildings any way they want to, and they will.” See Admin, Record, p. 00165 (April 7 Public Hearing Tr, 48:20-22) (Testimony of Kai Hagen). “My first experience with Scientology was 38 years ago . . . if you haven't done the research on Narconon, and if you haven't done the research on Scientology . .. you owe it to the growing number of constituents ... not [to] make a decision now. You don't have to.” See Admin, Record, pp. 00166- 167 (April 7 Public Hearing Tr. 49:22-50:19) (Testimony of Kai Hagen). iW11. After receiving testimony and evidence at the April 7 Public Hearing, Council Member Kirby Delauter stated that “we have an issue here that’s in our packet... Should the County Council add the... [Trout Run] to the. . . {County's Register] . . . that’s why we're here.” See Admin. Record, p. 00184 (April 7 Public Hearing Tr. 67:15-20). Council Member Kirby 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].” See Admin. Record, p. 00185 (April 7 Public Hearing Tr. 68:6-9) (emphasis added). 12, Subsequent to receiving evidence and public comments at the April 7 Public Hearing, Council Member Tony Chmelik made a motion “to move this and table it for the time being for further discussion at a later date,” which passed by a 4-2 vote, See Admin. Hearing, p- 00184 (April 7 Public Hearing Tr. 67:8-10), pp. 0025-226 (Meeting Minutes from April 7 Public Hearing). 13. During the April 7 Public Hearing, legal counsel to the Council advised that “this is a record of evidence kind of case, where it needs to be decided on the record before the Board.” See Admin. Record, pp. 0190-191 (April 7 Public Hearing Tr. 73:22-74:2) (John Mathias, County Attomey, providing advice to the Council). Legal counsel to the Council also stated “if there’s additional information that you obtain between now and April 21st, it would need to be included in the record if it’s going to be the basis for a decision.” See Admin. Record, p. 00195 (April 7 Public Hearing Tr. 78:6-9) (John Mathias, County Attorney, providing advice to the Council). 14, On April 21, 2015, the Council held a second public hearing (the “April 21 Public Hearing”) on the Petitioner’s Application for designation of the Subject Property on the County's 12Register. During the April 21 Public Hearing, the Council received additional testimony and public comments from individuals. Specifically, the Council recognized Katherine Kuranda, an architectural history consultant, and Michael Proffitt, an architect, as experts. Both of these expert witnesses provided testimony thet Trout Run met the criteria for designation as a listed site on the County's Register. See Admin. Record, pp. 00057 — 00072 (April 21 Public Hearing Tr) (Testimony from the Petitioner's experts demonstrating Trout Run's satisfaction of neces- saty criteria to be designated on the County's Register) 15, The record of the April 21 Public Hearing is devoid of public comments demon- strating that Trout Run failed to meet the criteria for designation on the County’s Register. Rather, similar to the April 7 Public Hearing, many public comments were discriminatorily charged against the Church of Scientology. More specifically, the following public comments were made: ‘a. “What I understand is, this is a meeting to decide history and preservation of it . Trout Run has stories that have greatness interwoven through its existence, stories of presidents, great statesmen, movie stars, and even the property itself was the star of a show.” See Admin, Record, p. 00040 (April 21 Public Hearing Tr, 15:6-20) (Testimony of Patty Worsley). . “I feel that each of these stories lends a source of pride to each citizen of our community . . . Trout Run’s stories should be preserved and heard . . . I hope that you vote to Keep it that way.” See Admin. Record, p. 00041(April 21 ic Hearing Tr. 16:2-14) (Testimony of Patty Worsley). 13c. “I have my own thoughts about Narconon, and not good.” See Admin, Record, p. 00049 (April 21 Public Hearing Tr. 24:7-8) (Testimony of Kimberly Mellon). d, “It’s really easy to get into the value judgments with respect to Church of Scientology and the Narconon program . . . You've heard testimony for and against.” See Admin. Record, p. 00051 (April 21 Public Hearing Tr. 26:17- 19) (Testimony of Steve McKay). 16. After receiving testimony and evidence at the April 21 Public Hearing, Council Member Tony Chmelik stated “I think the HPC has done a wonderful job in documenting the property ... to that end, there are 10 criteria... they meet three of them . . . they only need to meet one . .. I 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.” See Admin. Record, p. 00083 (April 21 Public Hearing Tr, 58:8-22). Similarly, Council Member Kirby 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.” See Admin. Record, p. 00084 (April 21 Public Hearing Tr. 59:9-14). 17. Atthe end of the April 21 Public Hearing, the Council approved a motion by a 4- 3 vote, to “close the record on the [Subject Property's] request for historic designation and continue the issue to a council meeting more than 30 days from today to allow the Council Members to review” the administrative record. See Admin. Record, pp. 00223-224 (April 21 Public Hearing Meeting Minutes). 418. The Council considered the Petitioner's Application for designation of the Subject Property on the County's Register during its June 2, 2015, meeting (the “June 2 Meeting”), See Admin. Record, p. 00222 (Meeting Minutes from June 2 Meeting). 19, At the June 2 Meeting, Council Member Kirby Delauter stated that the Subject Property is “in my district, so this is very close to where I live. It’s very close to where many constituents have contacted me about it,” and “when 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.” See Admin. Record, pp. 0011-12 (June 2 Meeting Tr. 11:1-12:22) (Council Member Kirby Delauter’s position changing after the Record has been closed for over 30 days. Cf Admin Record, p. 00084 (April 21 Public Hearing Tr. 59:9-14), Mr. Delauter stating, 1 agree with Council Member Tony Chmelik . .. I've seen enough to know that the designation of .. . historic designation exists ... itis pretty clear.”) 20, During the June 2 Meeting, Council Member Jerry Donald made comments that demonstrate that he conducted research and considered information that was not part of the Record. Specifically, Mr. Donald stated “if you walk within 2 miles of my house, you're going to bump into private camps . . . if I can find three of these within two miles of my house . .. it’s not rare...” See Admin. Record, p. 00010 (June 2 Meeting Tr. 10:18-21) (Council Member Jerry Donald’s acknowledgement that he conducted a site visit outside the scope of the Record and based his decision on that visit) 21. Prior to voting on the designation of the Subject Property, Council Member Billy Shreve stated “the only expert te: jony we have are from staff recommending that we move forward and confirm the decision of the HPC. The HPC looked at this twice and said, yes, it is historic.” See Admin. Record, pp. 00013-14 (June 2 Meeting Tr. 13:19-14:1). Council Member 15Billy Shreve also stated that “the other thing I wanted to point out is that 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...” See ‘Admin, Record, p. 00014 (June 2 Meeting Tr. 14:5-9). 22. At the June 2 Meeting, Council Member Billy Shreve “moved to affirm the recommendation of the [HPC] to place the [Subject Property] on the Frederick County Register of Historie Place,” which failed by a 1-6 vote “with Members Otis, Keegan-Ayer, Chmelik,* Delauter, Donald, and Fitzwater opposed.” See Admin. Record, p. 00010 (June 2 Meeting Tr. 10:18-21). The Council has not issued a written decision with findings of fact and conclu- sions of law to date, 23. On July 1, 2015, Petitioner noted this Petition for Judicial Review. I. RELIEF REQUESTED Since the Council's decision was arbitrary and capricious, and not supported by sub- stantial evidence, the Petitioner respectfully requests that this Honorable Court reverse the Couneil’s June 2 decision, and direct the Council to grant the Petitioner’s Application for design- nation of Trout Run on the County’s Register as recommended by the HPC. IV. _ FREDERICK COUNTY HISTORIC PRESERVATION ORDINANCE ‘The HPC was established in 1997 and consists of “12 people, all of whom are selected for their particular knowledge, experience, skill, or expertise with historic structures, properties, 8 Although Council Member Chmelik voted against affirming the HPC’s recommendation that Trout Run receive a historic designation on June 2, Mr. Chmelik stated at the April 21 Public Hearing that “I think the HPC has done a wonderful job in documenting the property .. . to that end, there are 10 criteria .. . they meet three of them .... they only need to meet one... . | have to agree that we probably shouldn't sand in judgment of the HPC, who has definitely done their due diligence on this one.” See Admin. Record, p. 00083 (April 21 Public Hearing Tr. 58:8-22). 16sites, et cetera.” See Admin, Record, p. 00090 (April 21 Public Hearing Tr. 65:16-21) (Michael Chomel’s advice to the Council that the members of the HPC are qualified experts). The experi- cence of those individuals serving on the HPC include, a preservation architect, a professional engineer, a landscape archi- tect specializing in historic preservation, a former Maryland State Archeologist, leadership of historic preservation advocacy groups, and members with demonstrated special interest in the field See Admin. Record, p. 00291. The HPC is responsible for reviewing all petitions for designation to the County’s Register and making recommendations to the Council. ‘The Historic Preservation Ordinance was enacted in 1997. The Historic Preservation Ordinance was enacted to “safeguard the heritage of the county by preserving sites, structures, or districts which reflect elements of the county's cultural, social, economic, political, architectural, or archaeological history,” and “enable the county to identify and officially designate sites, structures, and districts of historical, archaeological, or architectural importance to the county in order to make such sites, structures, and districts eligible for specific benefits that may be available from various local, state, or federal programs.” See Exhibit “A”, § 1-23-2. In connection with these responsibilities, the Historic Preservation Ordinance states the following criteria shall be considered in designating properties on the County's Register: 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 an 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, politi- cal, or historic heritage of the county and its communities; 7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, archi- ‘cet, or builder; 7. The property possesses significant artistic value; 8. The property represents a significant and distinguishable entity whose components may lack individual distinction; 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 particular period, style, material, or construction technique. See Exhibit “A”, § 1-23-6(B). During the April 7 Public Hearing, Denis Superezynski of the Planning Department, testified to the past practices of the HPC and Council in reviewing and approving applications for sites or properties to be listed on the County's Register. Mr. Superezynski testified that the County has “individual properties whose owners have voluntarily come forward to place their properties on the register .. . however, once you're in . .. it's not a voluntary program to back out.” See Admin. Record, p. 00122 (April 7 Public Hearing Tr. 5:7-12). Additionally, Mr, Superezynski testified that “until 201 1, we had eight properties on the County Register... in recent years we've added a few . .. if this property is successful, the Trout Run property, this would be No. 11 in the County...” See Admin. Record, p. 00123 (April 7 Public Hearing Tr. 6: 14). Although there is a total of ten criteria that determine a property's eligibility for designation on the County's Register, Mr. Superezynski testified that “some of the other properties on the register only met a single criterion.” and “it’s typical to have one or two, and 18.we have a few that have more than three [eriteria for designation].” See Admin. Record, p. 00176-177 (April 7 Public Hearing Tr. 59:9, 60:4). Consistent with the past practice of reviewing requests for designation on the County's Register, various Council Members stated that the standard only required that a property or site satisfy a single criterion for designation, See Admin. Record, p. 00083, 00084 (April 21 Public Hearing Tr, 58:8-22, 59:9-14). V. STANDARD OF REVIEW Pursuant to Section 1-23-1 of the Historic Preservation Ordinance, the “County derives authority for this chapter 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 enabling authority states that “each local jurisdiction may designate boundaries for sites, structures, and districts that are considered to be of historic, archaeological, or architec- tural 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. There- fore, the Council was required to adhere to the standards and procedures applicable to the action of zoning or the reclassification of zoning and remain consistent with the Couneil’s past practice for reviewing requests of previous applicants for designation on the County's Register when it considered the Petitioner's Application for designation of the Subject Property on the County's Register. ‘The Court of Appeals has repeatedly “held that the action of zoning or reclassification of zoning is a legisl fe function.” Bucktail, LLC v. County Council of Talbot County, 352 Md 530, 544, 733 A.2d 440, 446 (1999) (internal citations omitted). However, the Court of Appeals has found that “piecemeal rezoning involves adjudicatory procedures, including administrative fact-finding, that form the basis of the legislative decision whether to approve or deny a rezoning 19application.” Jd. at $44, 733 A.2d at 446, Significantly, the Court of Appeals has held that “where the Council was holding a hearing, ree: ing written and oral testimony, and considering evidence to determine the specific amount of special benefit o a particular piece of property, the Council at that point was acting in a quasi-judicial capacity, even if... the final act .. . [eonsti- tutes} legislative functions.” Mayor and Council of Rockville v. Woodmont Country Club, 348 Ma. 572, 585, 705 A.2d 301, 307 (1998). ‘The Council was clearly acting in a quasi-judicial capacity when it held two public hearings concerning the Subject Property's eligibility for designation as a listed site on the County's Register and received written and oral testimony. Similarly, legal counsel to the Council acknowledged that it was acting in a quasi-judicial capacity by stating that “this is a record of evidence kind of case, where it needs to be decided on the record before the Board.” See Admin, Record, pp. 00190-191 (April 7 Public Hearing Tr. 73:22-74:2) (Legal advice pro- vided by the County Attorney John Mathias to the Council). ‘To uphold findings of fact, a reviewing court must find more than a scintilla of evidence, Carriage Hill-Cabin John, Ine, v. Maryland Health Res. Planning Comm'n, 125 Md. App. 183, 212, 724 A.2d 745, 760 (1999). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Jordan Towing, Ine. v. Hebbville Auto Repair, Inc., 369 Md. 439, 451, 800 A.2d 768, 775 (2002) (citations omitted). ‘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 (2001). More~ over, “a court . .. may apply the weight of the evidence test to the factual findings of the agency, without exercising nonjudicial functions, provided it does not .. . substitute its judgment for that 20of the agency.” Jd. at 226, 334 A.2d at 524, (quoting State Insurance Commissioner v. National Bureau, 248 Md, 292, 310, 236 A.2d 282 (1967) In contrast to factual challenges, in cases where it is claimed that an agency erred as a matter of law, the reviewing court owes no deference to the administrative decision and may substitute its judgment for that of the agency. See Carriage Hill-Cabin John, Inc., 125 Md, App. at 213-14, 724 A.2d at 761 (1999). Therefore, “an agency determination of a question of law must be closely scrutinized.” Littell v. Morton, 369 F. Supp. 411, 424 (D. Md. 1974), aff'd 519 F.2d 1399 (4" Cir. 1975) (citations omitted). Where an administrative agency acting in a quasi-judicial capacity applies an incorrect, egal standard or its conclusion is not sufficiently supported by the evi ince, the decision is considered arbitrary and capricious and, therefore, must be reversed. Lewis v. Dept. of Natural Res., 377 Md. 382, 409, 833 A.2d 563 (2003). VI. LEGAL ARGUMENT Because the Council could not and did not articulate any basis for its denial other than alluding to the mob mentality of constituents with stated religious bias against the Church of Scientology, the Council acted in an arbitrary and capricious manner, and not on the basis of substantial evidence. ‘A. The Couneil’s decision is not supported by any substantial, probative evidence; unrebutted expert testimony was contrary to the Council's action. In Potomac Elec. Power Co., the Court of Appeals affirmed the Circuit Court’s decision to reverse the County Couneil’s denial of a special exception application where the applicant had presented extensive, unrebutted expert testimony in support of its application. County Council ‘for Prince George's County v. Potomac Elec. Power Co., 263 Md, 159, 282 A.2d 113 (1971), 2‘The applicant, Pepco, requested that the Board of County Commissioners for Prince George’s County, sitting as the District Council, grant “a special exception for the purpose of erecting and maintaining an electric substation on a 29.275 acre tract of land in College Park...” Id. at 160, 282 A2d at 113. Pepco presented evidence from various qualified expert witnesses clearly demonstrating that the noise generated would be below the ambient level. Id. at 172 -174, 282 A.2d at 118-20, The College Park Woods Citizens Association opposed the special exception and attempted to rebut the expert witness testimony provided by Pepco through the testimony of Dr. Birch. But Dr. Birch admitted that he had absolutely no experience as “an electrical engineer in the designing of substations or transformer sites such as the one proposed.” Jd. at 174, 282 ‘A2d at 120. Despite the fact the Pepco presented unrebutted testimony that clearly showed its application satisfied the requisite standard, two of the County Commissioners “were of the opinion that Pepco had failed to prove that noise would not adversely affect the nearby residential properties.” /d, at 175, 282 A.2d at 120. The Court of Appeals readily found that “there is no probative evidence to support the position of the two Commissioners who voted against the granting of the application for a special exception” because “there is no credible evidence that the noise will affect surrounding properties.” Jd. ‘The decision and logic of Pofomac Elec. Power Co, compel the same outcome here, The Record before the Council contained: (1) two experts’ opinions that Trout Run met the criteria for historic site designation; and (2) the HPC’s determination that Trout Run met ‘the quali- fications for the designation. The expert testimony here is especially important as it provides substantial evidence that validates the HPC’s decision, and it was unrebutted. The experts presented are leaders in their field, and no experts were presented by the opposition. See Admin. Record, pp. 00233, 0237-239. 2Specifically, Michael Proffitt and Katherine Kuranda were both recognized as experts, and testified to the Subject Property’s eligibility for listing on the County's Register. See Admin, Record, pp. 00057-00072; 00248-266. Specifically, Katherine Kuranda testified that the Subject Property satisfied three separate criteria that the HPC adopted. See Admin, Record, pp. 00174, 00175 (April 7 Public Hearing Tr. 57:8, 59:12). When asked by the Council what weight to afford expert testimony, the County Attorney stated “the testimony of the experts is to be given greater weight,” and acknowledged that both Katherine Kuranda and Michael Proffitt were accepted as expert witnesses. See Admin, Record, p. 00085 (April 21 Public Hearing Tr. 60:8- 14). Furthermore, the HPC itself possesses substantial expertise. The County Attorney admitted this and advised the Council that the “Historic Preservation Commission is . .. 12 people, all of whom are selected for their particular knowledge, experience, skill, or expertise with historic structures..." See Admin. Record, p. 00090 (April 21 Public Hearing Tr. 65:16-21). In contrast to the expert opinion and the HPC findings, the Record before the Council opposing designation contained merely sporadic lay comments such as “I don’t think this is a good use for the designation of historic building” and “this is a beautiful stip of land ... it needs to be preserved in a good way” See Admin. Record, pp. 00157-158 (April 7 Public Hearing Tr. 40:12-15, 41:8-10) ‘These are non-substantive comments with respect to the characteristies of the Subject Property and whether it might qualify it for historic site designation. Thus, these comments fail to counter the expert testimony regarding the Subject Property's characteristics and qualifications. Accordingly, there was no probative evidence in support of a position taken by Council Members that Trout Run did not meet the qualifications for designation as an historic site, As such, the decision of the Council to deny the Petitioner's Application is not supported by the Record in any respect and thus must be reversed. 2B1. The Petitioner presented evidence and demonstrated that it satisfied at least three separate criteria for designation as a listed site on the County’s Register under Section 1-23-6 of the Historic Preservation Ordinance. ‘There is substantial evidence in the Record that Trout Run satisfies three separate criteria for designation on the County's Register. Trout Run (i) embodies the distinctive characteristics of a type, period, or method of construction or architecture; (ii) exemplifies the cultural, econ- omic, social, political, or historic heritage of the County and its communities; and (ii) represents the work of master craftsmen, architect, or builder. See Exhibit “ § 1-23-6(B). As such, the Subject Property must be designated a historic sit. First, the HPC determined that the Subject Property satisfied these three separate criteria ‘on multiple occasions. On August 19, 2013, the HPC issued a written letter confirming “the unanimous vote of the [HPC] at its public meeting on August 14, 2013 determining the [Subject Property] . .. to be eligible for listing on the Frederick County Register of Historic Places.” See Admin, Record, pp. 00238-239 (HPC’s Determination of Eligibility) (emphasis added). In fact, the HPC noted two elements that “are critical to [the Subject Property’s] historic significance” 1. Landscaping of the [Subject Property] is deliberate and well- designed and should be maintained in its current state to the extent possible; and 2. The historic nature of the overall site design, including the relationship between structures, delineation of distinct activity areas, the sequencing o arrival and departure areas, and the design of site infrastructure (lighting, pathways, signage, bridges, etc.), is a fundamental contributing characteristic and critical feature of the [Subject Property]. ‘See Admin. Record, p. 00238 (HPC’s Determination of Eligibility), Indeed, the HPC encouraged a broadening of the period of significance for certain resources” at the Subject Property. Id. 24Subsequently, on December 3, 2014, the HPC affirmatively and unanimously voted to recommend the Subject Property to the Council “for listing on the Frederick County Register of Historic Places” based on the three separate criteria, See Admin. Record, p. 00237. Similarly, testimony and written reports from multiple experts were submitted in the Record that demon- strated that the Subject Property satisfied the same three criteria identified by the HPC. See Admin, Record, pp. 0057-72 (April 21 Public Meeting Tr. 32:1-47:22), pp. 00248-266. More specifically, Katherine Kuranda, an expert witness in architectural history, testified that the Subject Property satisfied the requisite criteria for designation on the County's Register. See Admin. Record, pp. 00174-175 (April 7 Public Hearing Tr. 57:8-58:12). Consistent with these findings, the Department of Planning forwarded a staff report to the Couneil that recommended that the Subject Property be designated on the County's Register because it met the eligibility criteria identified by the Historic Preservation Ordinance, See Admin. Record, p. 00233. Furthe- rmore, the Record makes it abundantly clear that the County Council had previously affirmed the HPC’s recommendation based on previous applicants’ satisfaction of only one criterion and designated the property as a listed site on the County’s Register, See Admin. Record, pp. 00176- 177 (April 7 Public Hearing Tr. 59:9-60:4). Yet, the Council still denied the Petitioner's Appli- cation when it had satisfied three separate criteria for designation on the County's Register. Moreover, during the course of the public hearings, even many of the Council Members repeatedly acknowledged that there was substantial evidence in support of the Subject Property's designation on the County's Register. During the April 7 Public Hearing, Council Member Kirby Delauter stated 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}.” See Admin. Record, p. 00185 (April 7 Public Hearing Tr. 68:6-9) 25(emphasis added), Even Council Member Jerry Donald, the Council Member most vocal in ‘opposition to the Petitioner’s Application, acknowledged that the Subject Property represented the work of master craftsmen, architect, or builder when he stated “I get the last one, it looks beautiful.” See Adinin. Record, p. 00130 (April 7 Public Hearing Tr. 13:22) (emphasis added). Similarly, at the April 21 Public Hearing, Council Member Tony Chmelik stated “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,” and that “to that end, there are 10 criteria they have to meet. J 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.” See Admin. Record, p. 00083 (April 21 Public Hearing Tr. 58:14-22) (emphasis added). Following these comments, Council Member Kirby Delauter stated “I'll just say J agree with Councilman Chmelik . . . | have seen enough to know that the . . . historic designation exists,” and that “I may have some other reservations beyond that, but the historic designation is pretty clear.” See Admin. Record, p. 00084 (April 21 Public Hearing Tr. 59:9-14) (emphasis added). Last, during the June 2 Meeting, Council Member Billy Shreve stated “the only expert testimony we have are from staff recommending that we move forward and confirm the decision of the HPC. The HPC looked at this twice and said, yes, it is historic.” See Admin. Record, pp. 0013-14 (June 2 Meeting Tr. 13:19-14:1) (emphasis added). Accordingly, the Record overwhelmingly supports a finding that the Subject Property satisfied three separate criteria for designation on the County’s Register. 2. All evidence presented in opposition to the Petitioner’s application was not probative or relevant evidence, of Trout Run's qualifications as a 26historic property but merely evinced religious di toward the Church of Scientology. crimination and animus In contrast to the substantial, material, and relevant evidence presented to support designating the Subject Property on the County's Register, opponents presented no evidence that the Subject Property failed to satisfy any criteria for designation on the County’s Register. Rather, the only “evidence” presented was testimony regarding lay persons’ opinions about ‘Narconon and the Church of Scientology, which are wholly immaterial and unrelated to the characteristics of Trout Run and whether, as a property, it meets the ia for designation contained in the Historie Preservation Ordinance. Indeed, Section 1-23-6(b) of the Historic Preservation Ordinance makes absolutely no reference to the purposed use or the ultimate user. Therefore, such “evidence” should have been disregarded by the Council as wholly immaterial and unrelated to the criteria for designation contained in the Historic Preservation Ordinance. Furthermore, many of these public comments were discriminatory and biased against the Church of Scientology. For example, the Council received public comments that included “ really 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've had a lot of lawsuits against them . .. they're not actually a very good group... they're not very honest.” See Admin. Record, pp. 00157-158 (April 7 Public Hearing Tr. 40:18-41:6) (emphasis added). Similarly, the Council received oral public comment that “it’s Scientology . . . I don’t know what you all know about that, but that is a cult.” See Admin, Record, p. 00156 (April 7 Public Hearing Tr. 39:13-14) (emphasis added); see also Infra § 3, Findings of Fact, 10. The Couneil also received numerous written comments evincing religious discrimination and bias: “Scientology runs this front group called Narconon, a fake relhab, as one of their ways to keep 21