A Frederick County judge will decide whether the County Council acted properly last year when six members voted against the historic designation for a Catoctin Mountain property where the Church of Scientology hoped to open a Narconon treatment facility.

Social Betterment Properties International, a company acting as a real estate arm of the Church of Scientology, filed an application with Frederick County to have a property known as Trout Run added to the county’s Register of Historic Places. A zoning loophole would have allowed a Narconon treatment center to operate there if the site were deemed historic.

The council voted 6-1 in June against the designation, and Social Betterment appealed the decision to Frederick County Circuit Court.

Circuit Judge William R. Nicklas Jr. heard oral arguments in the case Monday morning.

In filing a petition for judicial review, attorneys representing Social Betterment Properties and the Church of Scientology said the council’s vote showed religious animosity and was not in line with the evidence they presented in favor of a historic designation.

Attorneys for Frederick County have countered that the historic designation program is voluntary and the council reached its decision appropriately.

In court filings and at Monday’s hearing, attorneys for Social Betterment said the council’s June 2 vote against the designation was the first time in the register’s 17-year history that a recommendation for approval from the Historic Preservation Commission was denied. That denial, they said, showed a departure from established protocol and rendered the council’s decision arbitrary and capricious.

“An agency cannot change the game” on applicants, Social Betterment attorney Jennifer Kneeland said.

However, Senior Assistant County Attorney Wendy S. Kearney said the vote represented the first such decision since Frederick County took on the charter form of government with the council and executive.

Nicklas questioned the attorneys on whether the council’s vote represented a legislative or zoning decision, which have different legal standards for review by the courts.

“The fact that we have a totally new form of government is not enough, in your opinion?” Nicklas asked Kneeland.

She responded that council members had received different instructions from a county attorney during the proceedings — first that their scope of review was narrow, and later that they were allowed to conclude they were unpersuaded by the testimony and could deny the designation.

Kearney said the instructions were part of an ongoing conversation of the council, which is still learning its role.

Testimony at the public hearings relating to the designation was also debated Monday.

Kneeland said the council’s final vote was an attempt to appease the “whims and fears” of the community. She read statements — from letters sent to the council and the public hearings — about the Church of Scientology and Narconon that she felt were derogatory.

“Those reasons to motivate a decision are improper. An agency is not allowed to discriminate on the basis of religion,” she told Nicklas.

Kearney said it should be expected that those testifying at a council meeting without an attorney may introduce irrelevant ideas in their testimony, just as happens in court, she said. That doesn’t discredit the council’s analysis of the property’s historic significance, she said.

Kearney said Social Betterment put its own plans at risk when the organization bought property not already zoned to allow a Narconon center to open.

“They took on a project that didn’t have a good prognosis,” she said at Monday’s hearing.

Several people who testified against the designation appeared in court Monday, lining up behind Kearney as she spoke. The five Maryland residents, including three people from Frederick County, filed to become listed as interested parties in the case. While the residents were not allowed to take part in Monday’s hearing, Nicklas ruled that they may remain listed in court records for now.

After the hearing, the residents gathered in a courthouse hallway. “I feel confident the judge understands the case,” said Katherine McBride, of Hancock.

Representatives from Social Betterment International attended the hearing, but declined to speak outside the courtroom. Kneeland gave a brief statement: “We believe that, particularly in today’s day and age when we are encouraged to express tolerance for other religions, it is regrettable that detractors have said the things they have about Narconon and the Church of Scientology.”

Nicklas said he will aim to release the written opinion within a month.

Follow Danielle E. Gaines on Twitter: @danielleegaines.

Danielle E. Gaines covers politics and government in Frederick County, splitting her time between Winchester Hall and The State House. Having grown up in Illinois, she lived in New York and California before settling in Maryland.

(8) comments

kimberlymellon

Nice Job Danielle Gaines. This is a well written reporting of the hearing.

BlueDawn666

Judge William R. Nicklas Jr. is expected to rule in 30 days. SBPI has asked the judge not to remand the case back to the county but to make a decision himself.

Circuit Judge William R. Nicklas Jr., is the same judge that ruled on that F.A.C.T letter and sent it back to the Council to be decided if there was taint behind it. SBPI paid it's own historians to say that Trout Run was historic, the HPC didn't even make one site visit before deciding Trout Run was historic, they listened to the paid historians that SBPI presented. To me there is a lot of taint going on here.

http://www.nbcwashington.com/news/local/Frederick-Co-Scientology-Backed-Group-at-Odds-364168211.html

BlueDawn666

So if the Council's decision was lawful it stands, if the judge decides the Council's decision was unlawful then what? That still does not make Trout Tun historic, only the Council can make that decision right? The Judge cannot decide that Trout Run is historic, only if the Council's decision was lawful or not? Who will be the ultimate decider?

kimberlymellon

SBI is arguing that this was a zoning decision, like the MTC, which, btw, this same judge remanded for the council's clarification on Smith's ex-parte letter before he would proceed with the appeal (the council then voted to restart the zoning application). In this case, if the judge determines the historic designation to be an administrative zoning matter in where all the proper checkboxes for qualifying for designation where met, he can over-rule the Council for bias, or remand it for correction likely due to new charter government confusion.
If the judge decides it is a legislative matter, then the applicant has not met its burden of proof to the satisfaction of the council and their decision cannot be over-ridden. I believe I read that they may reapply for the designation in two years. Their zoning application cannot proceed without it, per the current ordinance requiring this designation for a special exception group home use in a resource conservation district. Additionally, the county atty argued that the applicant's plan for accomplishing a historic designation for the purposes of a Narconon drug rehab facility stating, "It was clear from the get go that this kind of facility is not allowed in a resource conservation zone. They intentionally put under contract a property that was not properly zoned. They took on a project that did not have a good prognosis. This is a legislative decision and the burden of proof has not been met. There is no basis for remand."

BlueDawn666

Thank for this information Kim. Yes it is the same judge.

"if the judge determines the historic designation to be an administrative zoning matter in where all the proper checkboxes for qualifying for designation where met, he can over-rule the Council for bias, or remand it for correction likely due to new charter government confusion." so he would remand it back to the Council ? The Council would have the final say right?

So the judge is deciding if it is a legislative matter or a zoning matter? Gotcha. If the judge decides it is a zoning matter the process would have to start all over right?

kimberlymellon

Put politely, then we're screwed. Per the historic designation ordinance and it's 10 qualifying factors, we could all file and receive some sort of Assignment or historic registration plaque for our properties and obtain special exceptions for resource conservation areas. Our elected officials better have pen in hand ready to modify the zoning ordinance!

kimberlymellon

Correcting my recall quote of the county atty in my notes. I believe she said "it was not clear from the get go that this type of property is allowed in a resource conservation zone." There's a "not" in that statement somewhere. :0)

DickD

How can an organization that claims to be secular claim religious discrimination? This should be thrown out of court.

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