TABLE OF CONTENTS Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Table of Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Questions Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  8 I. THE TOWN OF THURMONT, TOWN ATTORNEY, TOWN ZONING ADMINISTRATOR, AND TOWN BOARD OF APPEALS VIOLATED APPELLANTS' CONSTITUTIONAL DUE PROCESS RIGHTS . . . . . . . . . . . A. The Town Planning Commission's Closed Meeting on August 21, 2000 Violated Appellant's Due Process Rights and the Maryland Open Meetings Act . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Appellants' Due Process Rights Were Violated by the Town Attorney Who Simultaneously Represented and Advised the Town of Thurmont, the Town Zoning Administrator, the Town Planning Commission, and the Town of Thurmont Board of Appeals Throughout the Appeal Process . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Appellants' Due Process Rights Were Violated by the Town of Thurmont Zoning Administrator Who Simultaneously Worked For the Town of Thurmont, an Interested Party to the Antenna Application, and Advised the Independent Thurmont Planning Commission, and Also Made the Decision to Grant Nextel a Zoning Certificate D. Appellants' Due Process Rights Were Violated by the Town of Thurmont and the Thurmont Board of Appeals Through the Procedures and Limitations Imposed, and Inadequate Time to Prepare For, the Board of Appeals Hearing on Oct. 12, 2000 II. THE THURMONT PLANNING COMMISSION'S SITE PLAN DENIAL WAS SUPPORTED BY SUBSTANTIAL EVIDENCE IN A WRITTEN RECORD III. THE CIRCUIT COURT ERRED BY DENYING APPELLANTS' MOTION TO SUPPLEMENT THE RECORD IV. NEXTEL'S AND SPRINT'S ANTENNAS, CONCRETE PAD, EQUIPMENT, BUILDING, WIRES, AND FENCE DO NOT CONSTITUTE "MINOR UTILITY INSTALLATIONS" IN THE THURMONT ZONING ORDINANCE 1. Nextel and Sprint Are Not Public Service Utilities 2. Nextel and Sprint Are Not "Minor Utility Installations" V. THE TOWN OF THURMONT AND ZONING ADMINISTRATOR ILLEGALLY FAILED TO STAY ANTENNA CONSTRUCTION AND OPERATION AS REQUIRED BY THE ORDINANCE AND ARTICLE 66B VI. THE 1996 TELECOMMUNICATIONS ACT DOES NOT PREEMPT LOCAL CONTROL OVER THE "HEALTH EFFECTS" OF WIRELESS RADIATION VII. THE BOARD'S DECISION VIOLATES SUBSTANTIVE DUE PROCESS BY PLACING APPELLANTS IN AN UNCONTROLLED MICROWAVE RADIATION EXPERIMENT Conclusion Text of Constitutions, Statutes, Ordinances, Regulations, Other Authorities, Rules and Definitions Appendix: Photos of the Sprint and Nextel Wireless Antennas, Building, Wires, and Ground Equipment at the Town of Thurmont Water Tower site app. p. 1 March 4, 1999 Engineering Report

TABLE OF CITATIONS Cases Cited: Page American Telephone And Telegraph Co. v. State Dept. of Assessments and Taxation, 345 Md. 596, 603 (1997) Anne Arundel County v. A-Pac Limited, 67 Md. App. 102, 506 A.2d 671 (1986) AT&T Wireless PCS, Inc. v. Virginia Beach, 155 F.3d 423 (4th Cir. 1998) AT&T Wireless Services v. Mayor and City Council of Baltimore, Board of County Commissioners of Cecil County v. Gaster, 285 Md. 233 (1979) Board of County Commissioners Of Garrett County v. Bell Atlantic-Maryland, Inc., 346 Md. 160, 173 (1997) Boulden v. Mayor, 311 Md. 411 (1988) City of New Carrollton v. Rogers, 287 Md. 56, 72 (1980) Crown Communications v. Zoning Hearing Board Of The Borough Of Glenfield, Freeman v. Burlington Broadcasters, Inc., 204 F.3d 311 (2nd Cir. 2000) Harbor Island Marina v. Calvert Co., 286 Md. 303, 311 (1979) Harford County v. McDonough, 74 Md. App. 119, 536 A.2d 724 (1988) Heath v. Mayor of Baltimore, 187 Md. 296, 305 (1946) Hillsborough County, Florida v. Automated Med. Lab., Inc., 471 U.S. 707 (1985) Howard Research and Dev. Corp. v. Concerned Citizens for the Columbia Concept, 297 Md. 357, 363 (1983) Iowa Wireless Services, L.P. v. City of Moline, Ill., 29 F. Supp. 2d 915 (C.D. Ill. 1998). 29 J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, Mauer v. Hamilton, 309 U.S. 598, 614 (1940) Miller v. Pinto, 305 Md. 396, 403 (1986) Mistretta v. United States, 488 U.S. 361, 371-372 (1989) Moseman v. County Council Of Prince George's County, 99 Md App. 258, 636 A.2d 499 (1993) Wharf at Handy's Point, Inc. v. Dept. of Natural Resources, 92 Md. App. 659 (1992) Constitutions U.S. Constitution, 1st Amendment U.S. Constitution, 5th Amendment U.S. Constitution, 14th Amendment   Maryland Declaration of Rights, Art. 6 Maryland Declaration of Rights, Art. 8 Maryland Declaration of Rights, Art. 19 Maryland Declaration of Rights, Art. 40

Statutes Md. Code. Ann., Public Utility Companies, § 1-101(p) (Supp. 2001) Md. Code. Ann., Public Utility Companies, § 1-101(bb)(2) (Supp. 2001) Md. Code. Ann., Public Utility Companies, § 8-201(p) (Supp. 2001)   Md. Code. Ann., State Government, § 10-501(b)(1) (1999) Md. Code. Ann., State Government, § 10-501(b)(2) (1999) Md. Code. Ann., State Government, § 10-503(b) (1999) Md. Code. Ann., State Government, § 10-505 (1999) Md. Code. Ann., State Government, § 10-506(a) (1999) Md. Code. Ann., State Government, § 10-506(b) (1999) Md. Code. Ann., State Government, § 10-508(a)(7) (1999) Md. Code. Ann., State Government, § 10-508(a)(8) (1999)   Md. Ann. Code. art. 66B (1998) Md. Ann. Code. art. 66B, § 2.08 (1998) Md. Ann. Code. art. 66B, § 3.08 (1998) Md. Ann. Code. art. 66B, § 4.07(d) (1998) Md. Ann. Code. art. 66B, § 5.03 (1998)

Ordinances Town of Thurmont, Maryland Zoning Ordinance, March 2000 Revision Art. I, § 2 Art. V, § 1.0-1.6 Art. VIII, § 2.4 Art. IX, § 1.1 Art. IX, § 3.4 Art. XI, § 2 Art. XI, § 3.2 Art. XI, § 3.5 Art. XI, § 4.2 Art. XIV Art. XIV, § 2.0

Regulations   Thurmont Subdivision Regulations, Art. I, § 1.1

Other Authorities Maryland Open Meetings Compliance Board Opinion 92-1, October 15, 1992 Maryland Open Meetings Compliance Board Opinion 93-11, November 30, 1993 Maryland Open Meetings Compliance Board Opinion 95-09, November 21, 1995

Rules Page Second Memorandum Opinion and Order, 12 F.C.C.Rcd. 13494 (1997) at Paragraph 111 Maryland Rule of Professional Conduct 1.7 Definitions Page "Minor Utility Installations" (MUI) Passim

STATEMENT OF THE CASE This case is about residents opposed to two wireless telecommunication systems constructed on a water tower on an adjoining residential lot in Thurmont, Maryland. Appellants challenge illegal aspects of the process used to obtain the zoning approval to construct and operate the systems, and the Thurmont Zoning Ordinance at issue in the case. In May 2000 the Commissioners of the Town of Thurmont, Maryland entered into contracts with Nextel Communications off the Mid-Atlantic, Inc. (Nextel) and Sprint PCS (Sprint) to lease an existing 84 foot tall water tower in a residential lot zoned R-1 and located at 109 Sunhigh Drive in Thurmont, Maryland for wireless communications antennas, buildings and equipment. Record Extract ("E") at On July 27, 2000 the Thurmont Planning Commission ("Commission") held a public hearing to evaluate the wireless system site plans proposed by Nextel and Sprint for the Thurmont water tower site. The Commission voted to deny the site plans. E70. On Aug. 21, 2002 a closed meeting of the Commission was held. Three days later, on Aug. 24, 2000, a second public hearing before the Commission was held. The Commission voted to approve the site plan. E101. On September 7, 2000 a Zoning Certificate was issued to Nextel. E105. Appeals were taken, and on Oct. 12, 2000 the Thurmont Board of Appeals held a public hearing. The Board voted 3-2 to approve Nextel's Zoning Certificate. E178. Appellants appealed to the Circuit Court of Maryland for Frederick County. On Jan. 13, 2001 Appellants filed a Motion for TRO and Stay. The motion was denied on Jan. 24, 2001. On Feb. 3, 2001 the Appellants filed a Motion to Supplement the Record with the transcript of the Commission public hearings. This motion was denied on Feb. 26, 2001. On Feb. 20, 2001 Daniel P. Meyer, Esq. was admitted pro hac vice to represent Appellants. On Oct. 17, 2001 a hearing was held before the Honorable John H. Tisdale of the Frederick County Circuit Court. Judge Tisdale issued an Opinion and Order on Nov. 9, 2001 denying Appellants' appeal. Appellants filed a Motion for Reconsideration. Judge Tisdale denied this on Dec. 11, 2001. On Dec. 17, 2001 Appellants timely noted an appeal from the Circuit Court for Frederick County to the Court of Special Appeals.

STANDARD OF REVIEW The standard of review of an administrative decision is whether the administrative agency's decision is in accordance with the law or whether it is arbitrary, illegal or capricious. Moseman v. County Council Of Prince George's County, 99 Md App. 258, 636 A.2d 499 (1993). When the issue is concerns solely the interpretation of a County Zoning Code, it is "an issue of statutory construction and a question of law. . . [and in] such a case the court's review 'is expansive, that is, the appellate court may substitute its judgment for that of the administrative agency.' " Harford County v. McDonough, 74 Md. App. 119, 536 A.2d 724 (1988) (internal citations omitted). However, a court may not substitute its judgment for the zoning body, absent an agency abuse of discretion, if the agency's action is based upon substantial evidence and the issue is fairly debatable: "If the issues before the zoning board are 'fairly debatable,' that is, that its determination involved evidence from which a reasonable man could come to different conclusions, the courts will not substitute their judgment for that of the administrative body." Anne Arundel County v. A-Pac Limited, 67 Md. App. 102, 506 A.2d 671 (1986). Under Maryland law, "[t]he construction of a statute is a question of law, and as between agency and court, the question is ultimately decided by a court." American Telephone And Telegraph Co. v. State Dept. of Assessments and Taxation, 345 Md. an agency permits a witness to testify concerning the meaning of a statute, and even if the agency agrees with the conclusion of the witness, that process does not convert the agency's statutory construction into a factual determination by the agency to which a court must defer." Id. at 604.

STATEMENT OF FACTS In May 2000 the Town of Thurmont, Maryland Commissioners contracted with Nextel and Sprint to lease an 84 foot tall water tank in an R-1 zoned lot at 109 Sunhigh Drive in Thurmont, MD for wireless communications antennas and buildings. E12-26. A public hearing was held before the Thurmont Planning Commission ("Commission") on July 27, 2000 to evaluate the Nextel and Sprint site plans for the water tower site. The Town Staff Report advised that communications equipment on the ground must be relocated, evergreen screening should be place around the ground equipment, and the Thurmont Zoning Ordinance ("Ordinance") does not permit the six foot chain link fence proposed around the site. E27. At the July 27, 2000 hearing Nextel (Jack Andrews) and Sprint (Norman Ray) representatives described the facilities. Mr. Ray stated that the equipment building compound, even if moved to the back, would be visible from neighboring properties, that Sprint's equipment was five feet tall and 3 foot wide, and that the area Sprint was trying to cover was Route 15. E34-35. Route 15 is a designated scenic byway. E41. Nextel's equipment would generate noise from an air conditioner. E36. Sprint's antennas are over five feet tall, and require a 7 ft. high platform on the top of the water tower. E38. Sprint would have six antennas transmitting or receiving 100 watts each, and Nextel would have 12 antennas at 80 watts each. E39. Nextel's equipment building is 12 ft x 20 ft. x 10 ft. for proposed and expanded use. E39. The County staffer likened Nextel's building to a two-car garage, which would be "substantial" according to Mr. Ray. E39-40. A six foot chain link fence would be placed around the equipment building. E40. At the July 27, 2000 hearing 25 persons signed in and/or testified in objection to the applications. Appellant Joseph Barbour objected to and expressed concerns about the six foot fence next to his property, neighborhood kids getting hurt on the fence, and liability. E41. His spouse Tracy Barbour reiterated the concerns about the fence. E44.  Appellant LaTrelle Remington testified that she was very upset since the water tower was essentially in her back yard. E54. She expressed concern for the health of her three young children who stay at home 24 hours a day seven days a week. E54. She testified that she would have not bought her house if she knew the antennas would be installed, because her family wanted to live in a strictly residential area. E54. Regarding aesthetics, she testified that her children enjoy the view of the water tower as it is because it looked like the moon. E54. She expressed concern that eventually she would not be able to contain her 3-year-old child from investigating the site. E54. She challenged the applicants as to why studies were still on going if the radiation was safe. E54.   Numerous residents raised these and other concerns or questions: why couldn't the antennas be located up in the hills rather than in the middle of a residential neighborhood (E44-45); whether there was enough room for the fence taking into account all required setbacks (E45); reservations about health effects, whether alternative sites were adequately considered (E45-46); the propriety of running a commercial business in a residential neighborhood (E47-50); concern about the health of children who would be 150 feet from microwave antennas (E50); that their house across the street from the tower was their "dream home," (E51); objections to the sight of the building and a desire for pretty streets and for another site to be found (E51); concerns from a cancer survivor requesting proof the radiation would be safe (E51); opposition to the tower as just about in their front yard and a suggestion that the town should study the issue some more (E56); objections to the antennas due to health effects on the brain, motor functions, memory, and increases in leukemia, which occur even at exposures below the allowable level, and the numerous studies still coming out in the past few months (E56); the visual impact on their property purchased earlier the same year and located caddy corner to the tower, and objection to a commercial entity now moving in to the area (E56); objection to the view from a bedroom window facing the tower and in visible range even with trees planted, and that the antennas would be noticed all the time (E58); that all they had talked about for weeks was where to move now that the antennas were proposed (E59); questions about expansion plans for the 12 ft. x 20 ft. x 10 ft. Nextel equipment building (E59); testimony from Dolores Munafo that her family moved in the previous December and paid over $200,00 for her house and they objected to the ugly nature of the antennas on the tower which could bring property values down or make it hard to sell a house, and her concern as a cancer survivor over the antenna radiation (E60); amazement at the size of the Nextel building (E63); concern about lack of information about the power of the antennas, and to giving the companies carte blanche to come in and putting in whatever they wanted (E63); and concern about Town liability exposure for damages due to health effects (E64). Thurmont Zoning Administrator (ZA) Richard May stated that there was no guidance for the planning process regarding the water tower. E49. Mr. May stated that there are no written restrictions "to indicate one way or another whether it's permissible or not." E57. Commissioner Moore expressed reservations over whether the water tower property was zoned for the proposed antenna operation. E58. After the public testimony, Glenn Muth, the Planning Commission Chair, stated the restrictions to be placed on the site: (1) no generator back up, to address complaints about noise; (2) no nighttime contractor access to the site (daytime access only); (3) no external lighting; (4) no external equipment at all, any equipment would have to be in shelters surrounded by board on board fence or something comparable, just around the equipment; (5) antennas would have to match the color of the tank; (6) Sprint would have to provide call in numbers with a human voice rather than voice mail for the neighboring residences for when a problem arises; (7) the call in number would assign a traceable trouble ticket number, with a 24 hour response from Sprint or Nextel. E60-61. Commission Chairman Muth pointed out that just a week earlier the Commission had required a water tower moved due to a single resident's concern, and that on this night (July 27, 2000) there was "a whole room full of residents with concerns and we need to take them into account I think." E61. Commissioner Blakeslee questioned whether the applicants had tested alternative sites, stating a preference for the applicants to use a second tower to reduce the amount of microwaves exposure that so many residents were concerned about, and that this should be looked at. E62. Chairman Muth stated that "I also have real concerns about a business operating in a residential area." E62. Further Commission discussion centered on security, and how an animal could set off an automatic security light, which Chairman Muth had prohibited. E63. Commissioner Hooper asked if the project was denied, would the applicants search for other sites, and Mr. Ray (Sprint) replied "Or appeal the decision." E65. Commissioner Blakeslee stated that he would not approve the site plan because there were changes requested on it, requesting assurance the antennas could not be located on another tower, and recognized that "you got all the neighborhood against it it's going to be a problem the entire time it's there." E68. The Commission then discussed the commercial nature of the antennas in a residential zoned area. E68. The Commission the voted to deny both site plans. Nextel and Sprint both sent letters dated August 1, 2000 to Thurmont Mayor Eileen R. Waesche to request reconsideration and to transmit a revised site plan. E74-75. On Aug. 21, 2000, ZA Richard May called for a closed door meeting of the Planning Commission. E136. Town Attorney Clifford Bridgford ran the meeting and advised the Commission. E136, 139. As a result of the closed door meeting, the Commission held a second public hearing on August 24, 2000. The hearing was limited to a reconsideration of the site plan originally submitted. E80, middle. The Town Attorney prohibited the public from speaking about their concerns over the health effects of microwave radiation from the proposed antennas. E87. The Town Attorney claimed that a reason for the second meeting on August 24 was that no reasons were stated for the denial of the site plan at the July 27, 2000 hearing. E80. The Town Attorney participated in and advised the Commission on what to do throughout the August 24, 2000 hearing. E80-82, 87-88, 100. At the hearing a petition with about 200 names in opposition was presented to the Commission. E81. Commissioner Blakeslee moved to continue the site plans to review the change to the character and nature of the neighborhood regarding safety and aesthetics. E101. Ultimately the Commission voted to approve the Nextel and Sprint site plans by a 2-1 vote. E101.  On August 31, 2000, Nextel applied for a Zoning Certificate. E104. On Sep. 7, 2000 Thurmont issued Nextel a Zoning Certificate. E105. Several appeals followed. E184-195. On Sep. 27, 2000 the Town sent out a notice of appeal. E199. On Sep. 28, 2000 a newspaper notice for the Oct. 12, 2000 Thurmont Board of Appeals hearing was published. E197. Counsel for Appellants requested an extension of time on Sep. 30, and October 9, 2000, but this was denied by the Board on October 10. E211. On Oct. 12, 2000 a public hearing lasting about five hours until midnight was held before the Board of Appeals. At the beginning of the hearing Appellants' counsel requested to postpone the hearing, to move to a larger room, the recusal of the Town Attorney who was advising the Board in a proceeding in which the Town was a party, and objected to conflicts regarding Richard May who as Town Zoning Administrator wore many hats for the Town and was to testify as on behalf of the Town. E108-109. During Appellant's opening statement the Board Chair forced a television camera and reporter to leave the hearing room. E111. The Board voted to limit each witness to five minutes, over Appellants objection. E119-120. Appellants and several witnesses testified in opposition, expressing many of the same concerns voiced at the Planning Commission meetings.   Additional facts from the Record Extract (E) will be added as needed for argument.

ARGUMENT I. THE TOWN OF THURMONT, TOWN ATTORNEY, TOWN ZONING ADMINISTRATOR, AND TOWN BOARD OF APPEALS VIOLATED APPELLANTS' CONSTITUTIONAL DUE PROCESS RIGHTS The Town of Thurmont and its officials and attorney violated Appellant's due process rights under the U.S. Constitution and Maryland Declaration of Rights in several distinct ways. The combined effect was to deny Appellants fair hearings, and a fair process overall. This could have been easily avoided if the Town had appointed special counsel or recused the Town Attorney from participating from a zoning matter to which the Town was an interested party. A. The Town Planning Commission's Closed Meeting on August 21, 2000 Violated Appellant's Due Process Rights and the Maryland Open Meetings Act. After the Planning Commission ruled against the Town, Nextel and Sprint, the Thurmont Zoning Administrator, Town Attorney, and Thurmont Planning Commission held a closed meeting on Aug. 21, 2000. There was no public notice of this meeting. The Maryland Open Meetings Act, codified in the Maryland Code in the State Government (SG) Article, § 10-501(b)(1) (1999), requires open decision-making by governmental bodies. The purpose is to ensure "the accountability of government to the citizens of this State," and because "[t]he conduct of public business in open meetings increases the faith of the public in government and enhances the effectiveness of the public in fulfilling its role in a democratic society." SG Art. § 10-501(b)(2) (1999). The general rule is that if a public body is meeting on the subject matter covered by the Open Meetings Act then the body must meet in open session. SG Art. § 10-505 (1999). The Court of Appeals has observed that "every step of the process . . . constitutes the consideration or transaction of public business," and quoted with approval a Florida case, stating: One purpose of the government in the sunshine law was to prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance. Rarely could there be any purpose to a nonpublic premeeting conference except to conduct some part of the decisional process behind closed doors. The statute should be construed so as to frustrate all evasive devices. This can be accomplished only be embracing the collective inquiry and discussion stages within the terms of the statute. City of New Carrollton v. Rogers, 287 Md. 56, 72 (1980) (citing Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (1974)).  The Thurmont Planning Commission is a public body subject to this Act. Its meetings must be open to the public. The Act applies to a public body when it is meeting to consider granting license or permits, or a special exception, variance, conditional use, zoning, classification, enforcement of any zoning law or regulation, or any other zoning matter. SG Art. § 10-503(b) (1999). The Town Attorney admitted that the subject of the closed meeting was the Commission's site plan denial, the reconsideration requests by Nextel and Sprint, and the possibility of litigation between Sprint and the town. E139. Even if the Act's litigation exception (SG Art. § discussing potential litigation, the rest of the meeting should have been open. The "legal advice" exception, SG Art. § session, but this exception "is to be narrowly construed to cover only the interchange between the clinic public body and its lawyer in which the client seeks advice and the lawyer provides it." Maryland Open Meetings Compliance Board Opinion 92-1, at 5, October 15, 1992. This "exception does not allow for closed discussion among members of the public body merely because an issue has legal ramifications. Nor does the exception apply to a discussion between the public body and anyone other than its lawyer." Compliance Board Opinion 93-11, at 2 November 30, 1993 (citing Board Opinion 92-1, at 3) (emphasis added). The Town Attorney and Planning Commission Chair testified that the closed meeting was called by the Zoning Administrator (ZA). Appellants argue that meeting was actually initiated by the Town Attorney, based on his de facto running of the subsequent August 24, clear that the Commission did not call the meeting, and was receiving, rather that seeking, advice. It is the seeking of advice which is required to invoke the exception. The Commission is not a client of the Town Attorney from whom it could seek or receive advice. Finally, the ZA is an official distinct from the Commission body, so discussions between the ZA and the Commission do not fall under the "legal advice" exception.  Even if a session may be closed under an exception, the public body must give "reasonable advance notice of the session." SG Art. § 10-506(a) (1999). The public body should give a written notice that includes the date, time, and place of its meeting, and state if all or part of the meeting will be a closed session. SG Art. § 10-506(b) (1999). No advance notice of the closed session meeting was provided, so the Town committed a second violation of the Open Meetings Act. In addition, without an adequate public record, the division of legislative, executive and adjudicatory powers created by Article 66B of the Maryland Code may have been violated. Even if it did not violate the Open Meetings Act, this closed meeting violates Appellants' due process and equal protection rights. If the Town or the applicants were dissatisfied with a vote of the Planning Commission, it is up to them to appeal, not for the Town to use its attorney to twist the arms of the Commission in a secret meeting. Sprint even recognized that appeal was the proper next step after site plan denial. E65. The Town's process unfairly forces Appellants to file an appeal if they lose before the Commission, as happened at the second hearing on Aug. 24, 2000, but works a secret deal and process for itself and its contract partners (Nextel and Sprint) when they lose before the Commission as they did on July 27, 2000. B. Appellants' Due Process Rights Were Violated by the Town of Thurmont Attorney Who Simultaneously Represented and Advised the Town of Thurmont, Town Commissioners, Town Mayor, Town Zoning Administrator, Town Planning Commission, and the Town Board of Appeals Throughout the Application and Appeal Process. Clifford Bridgford is the Town Attorney for Thurmont. Mr. Bridgford gave legal advice to determine who could appeal the Zoning Administrator's decision. E27. He gave legal advice throughout this case to the Town Mayor and Commissioners, the Town Zoning Administrator, the Town Planning Commission, and the Town Board of Appeals. These institutions all wield a variety of legislative, executive, and adjudicatory powers delegated by the General Assembly of Maryland. While they may wield these powers in a similar manner, no institution may unconstitutionally exert undue influence on another institution's exercise of its Article 66B duties and responsibilities. While some of this advice might be proper in a typical zoning case, it is not in the instant case. This is because the Town of Thurmont was an interested party to the Nextel and Sprint applications, since the Town Commissioners signed contracts with Nextel and Sprint. The Town stood to financially benefit if the site plans were approved. Mr. Bridgford's role as both the attorney advising the Mayor on the executive action (contracting) and as the attorney advising the ZA on the exercise of legislative powers (issuing of certificate, permits, special exceptions, etc.) usurped the constitutional systems of checks and balances established by the Maryland General Assembly. To further complicate matters, the Town Attorney was advising an interested party to the application while simultaneously advising the Planning Commission (adjudicatory powers) and the Zoning Administrator (legislative powers), two supposedly independent entities or bodies entrusted to perform an unbiased and independent review of applications. The Town Attorney's dual roles violates Art. due process and equal protection rights under the 5th and 14th Amendments of the U.S. Constitution. These rights, and the structure of Maryland planning and zoning law, are designed to give Appellants a fair, objective and independent hearing during the entire application review process. The Town Attorney's multiple representations also appears to violate Maryland Rule of Professional Conduct 1.7. The rule requires lawyers to obtain informed consent from each client after consultation if the representation of a client will be directly adverse to another client. No informed consent was apparently obtained from the various clients represented. The Town had an interest in gaining approval of the site plans that is adverse to the interests of the Planning Commission and the Board of Appeals, whose interests, and duty, is an objective and independent review of the site plan, and appeals, respectively. His unsolicited legal advice and pressure exerted on the independent Commission behind closed doors heightens the due process denied to Appellants. The Town Attorney, and the Commission which followed his advice, prevented residents from speaking about health effects at the Aug. and Planning Commission violated due process and Appellants' First Amendment right to petition their government for a redress of grievances. U.S. Const. amend. I. C. Appellants' Due Process Rights Were Violated by the Town of Thurmont Zoning Administrator, Who Simultaneously Worked For the Town of Thurmont, a Party in Interest to the Antenna Application, and Advised the Independent Thurmont Planning Commission, and Also Made the Decision to Grant a Zoning Certificate. Richard May is the Thurmont Zoning Administrator (ZA). He is also the Town Secretary and Treasurer. He was present at and took an active part in the Planning Commission hearings on July 27 and Aug. 24, 2000 to evaluate the site plans, called the closed door meeting held on Aug. 21, 2000, is the official who issues Zoning Certificates, and helps determine whether appeals will be accepted for hearing before the Board of Appeals. See July 27, Aug. 24, and October 12, 2000 Minutes. It violates due process for the same individual who works for a party in interest in a planning and zoning matter to simultaneously take an active role in secretly advising a supposedly independent reviewing body - the Planning Commission - when that same individual is also the administrative official who ultimately determines the outcome of that very same contested matter. Appellants' constitutional due process and equal protection rights under the 5th and 14th Amendment were violated by the dual role Mr. May played in this matter. D. Appellants' Due Process Rights Were Violated by the Town of Thurmont and the Thurmont Board of Appeals Through the Procedures and Limitations Imposed, and Inadequate Time to Prepare For, the Board of Appeals Hearing on Oct. 12, 2000. Prior to and during the October 12, 2000 hearing the Board and its counsel (Town Attorney Clifford Bridgford) engaged in several acts which both individually and cumulatively denied Petitioners due process. The Town of Thurmont received the first appeals shortly after the ZA issued a Zoning Certificate to Nextel on September 7, 2000. The ZA, Board and Town Attorney then waited until September 27, 2000 to send letters to all appellants stating that their appeal had been approved, and that a Board hearing was set for October 12, 2000. E199. Appellants' counsel did not learn of the Oct. 12 Board hearing until Sep. 30, 2000, leaving only nine business days to prepare for the Oct. 12 Board hearing. Considering the large number of protestants previously appearing and testifying at both the July and August Planning Commission hearings, the length of those meeting minutes, the confusion about how to proceed evident even among the Commissioners themselves (reflected in the transcripts), the need to analyze conflicting sections of the Thurmont code, state law (Art. 66B; Open Meetings Act), and federal law (the 1996 Telecommunications Act), this was not a simple zoning case. A mere nine days for a single attorney to prepare for this hearing was grossly inadequate. The burden of understanding federal telecommunications law in addition to local and state zoning law is highlighted in the Town Attorney's requests at the end of the Oct. 12 Board hearing for Appellants' counsel to provide him with the cite for AT&T Wireless PCS, Inc. v. Virginia Beach, 155 F.3d 423 (4th Cir. leading case in the country regarding what constitutes substantial evidence and an adequate written record in appeals of wireless communications applications. Appellants had to seek counsel from outside Thurmont to handle this case dealing with federal telecommunications issues, counsel who would naturally be as unfamiliar with the Thurmont Ordinance - an essential part of this case - as the Town Attorney obviously was with the controlling federal law under the 1996 Act. Addressing the ambiguity of the Thurmont Ordinance on Minor Utility Installations (discussed infra) is a major issue in this case requiring more attorney preparation. Additionally, nine business days is inadequate time to identify all persons to be subpoenaed as witnesses (including potential experts), to get subpoenas issued, and to have the subpoenas served with reasonable notice to the person served. Appellants' counsel received notice just two days before the hearing that subpoenas had been issued. The short time was also inadequate for other affected property owners or interested persons to find and retain counsel. In short, once the Town had all but forced the Planning Commission, through both illegal closed door and public meetings run by its own Town Attorney, to grant the site plan approval the Town desired, the Town then made every effort to rush the process through as quickly as possible. The Town Attorney advised the ZA in deciding what appeals would be allowed, withheld these from the appellants until the last possible day (Sep. 27, 2000), and also advised the Board of Appeals which denied, without any explanation, protestant's Dawn DeVere-Hill's requests to postpone the hearing. At the Oct. 12, 2002 Board of Appeals hearing, the Board Chair ejected a TV reporter and camera from the hearing. E111-112. This clearly violated both the Town Ordinance and the Maryland Open Meetings Act. The Ordinance requires that "All meetings of the Board shall be open to the public." Ordinance, Art. XI, § ability of the public, its representatives, and the media to attend, report on, and broadcast meetings of public bodies. . . ." SG Art. § 10-501(b)(1) (1999). A public body may not bar the use of recording and transmitting devices. "[A] rule restricting videotaping or other similar activities is 'reasonable' only if it satisfies two criteria: (i) that the rule is needed to protect the legitimate rights of others at the meeting and (ii) that the rule does so by means that are consistent with the goals of the Act." Open Meetings Compliance Board Opinion 95-09 (Nov. 21, 1995). The "legitimate rights" of attendees at an open meeting does not include a right to avoid photography: "There is no right to be protected against the gaze of an observer in a public forum, or against the lens of the observer's camera." Id. at 141. The Town of Thurmont regularly allows videotaping of Town Commissioner meetings in the same room the Board hearing was in. E119. Notably, the Board Chair did allow print reporters to stay. E111. There was no justification for the Board Chair, backed by the Town Attorney, to force TV reporters and cameras to leave this public hearing. This violates Article 40 of the Maryland Declaration of Rights as well as the Open Meetings Act.  Appellants need not demonstrate prejudice by the Board's actions, but they were prejudiced through subsequent Board actions during the meeting. As one example, the same Chair who ejected the TV reporter cast the tie-breaking vote, thus upholding an extremely unpopular decision. The Chair presumably would not like his vote broadcast over the news, but he must accept this at a public meeting. Perhaps he or others voting that way would vote differently had they had their actions publicly broadcast on TV. However, we will never know, because the Board ejected the TV reporter, apparently for the first time in Thurmont's history. This violates the Open Meetings Act and Appellants' due process rights to have a fully public hearing on their appeal. Another due process violation at the Oct. 12 hearing was the Board's vote to limit testimony to five minutes per witness, to which Appellants' counsel objected. E120. There was no prior notice to the public on this limitation, to which attendees, including Town Commissioner Burns, complained. The Board Chair speciously claimed it had no idea there would be so many persons present, despite the large opposition, including 200 signatures from residents in opposition, at previous Planning Commission meetings, the minutes of which the Chair and other Board members had clearly read. Appellants' counsel suggested that if the meeting ran too long, it could be continued at a future date, as is the practice in other localities, but the Board did not even respond. E120, top. Additionally, the hearing room for the Town of Thurmont was very inadequate in size, with no tables for attorneys or parties to sit at or to place papers on. Appellants' counsel was cramped in a small folding chair between other attendees during the five hour long hearing. The Board Chair did not rule on objections intelligibly, and openly criticized counsel's questioning. E137. Closing arguments were not made until about midnight. This is simply not a fair process for Appellants, their counsel, or others.

II. THE THURMONT PLANNING COMMISSION'S SITE PLAN DENIAL WAS SUPPORTED BY SUBSTANTIAL EVIDENCE IN A WRITTEN RECORD. The unanimous opposition at the July 27, 2000 Planning Commission hearing was substantial evidence for the Commission to have legally denied the site plan. The main objection raised by residents was placing commercial facilities in a residential zone. This violates Art. V, § 1.0-1.6, which does not allow commercial uses in an R-1 zone. Secondly, the Commission could have based its denial on the lack of off-site parking. The Ordinance, Art. IX, § 1.1, OFF-STREET PARKING, (a) states that "No structure shall be erected, substantially altered, or its use changed unless off-street parking and loading spaces have been provided in accordance with the provisions of this section." The site plans did not show off-street parking spaces. Sub-paragraph (c) of the same section states that "No parking for non-residential uses will be permitted in the front yard of any residential district." Since the gate to the corral and the driveway at the water tower site are in the front of the tower structure, it was natural to assume that the parking will be there, in violation of Art. IX, § 1.1(c). A third ground for denying the site plan was the six foot fence, which on the original site plan would be located around the entire tower and equipment compound, in violation of Art. VIII, § Report rejected the Site Plan's chain link fence. Even an alternate fence limited to enclose just the Nextel building faced the same objections. Residents expressed repeated concerns about their children climbing over the fence, and to the aesthetics of the fence. A fourth grounds for denying the site plan is that the commercial facilities did not meet the purpose of the Thurmont Ordinance, which is "to promote the health, safety, morals and general welfare of the community, . . . to secure safety from fire, panic and other dangers; to conserve the value of property." Ordinance, Art. 1, § 2. There was overwhelming and unanimous opposition testimony at the July 24, 2000 hearing from residents. There were also unanswered questions among the Commissioners regarding the application, including whether alternative sites were adequately investigated, whether commercial antennas were permitted in an R-1 zone, and the need for the Chair's announced list of changes to be incorporated. E68. The lead case regarding what constitutes substantial evidence and a written record during wireless facility reviews is AT&T Wireless PCS, Inc. v. Virginia Beach, 155 F.3d 423 (4th Cir. observed that "[c]onsistent with its usual practice, the [Virginia Beach] Council did not generate findings of fact concerning its vote, nor did it produce a written explanation of the basis for its vote." Id. at 425. The court held that the 1996 Act's provision at 47 U.S.C. § 332(c)(7)(B)(iii) does not require a written decision to include findings of fact and an explanation of the decision. Id. at 430. The court found adequate a decision "reflected 'in writing' both in the condensed minutes of the March 25 meeting and in the letter from the Planning Commission describing the application, with the word "DENIED" and the date of decision affixed." Id. Notably, the court found even just condensed minutes to be an adequate writing. In the instant case, the July 27, 2000 Commission Minutes clearly meet the Fourth Circuit's standard for a written record. Regarding substantial evidence, the Fourth Circuit reviewed Supreme Court decisions in this area, stating that substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" and "is more than a scintilla, but less than a preponderance." Id. (citations omitted). It noted that a court may not substitute its judgment for the agency's or legislature's, and must uphold a decision that has substantial support in the record as a whole, even if it would have decided differently as an original matter. Id. at 430.  The Fourth Circuit found the Council decision in Virginia Beach was supported by substantial evidence in the record, including the application, the Planning Department's report, and transcripts of hearings before the Planning Commission and the City Council. Notably, these three key items were left out of the Record by the Town of Thurmont.(1) The Fourth Circuit stated that it was standard practice for the deciding body to issue "a verbatim transcript of its hearing after it made its decision and incorporating that transcript into the record," Id. at 431, which is what occurred with the Thurmont Planning Commission in this case. Most notable about the Virginia Beach decision and applicable to the instant appeal is the court's observation that in that case the: "evidence surely would have justified a reasonable legislator in voting to approve the application, and may even amount to a preponderance of the evidence in favor of the application, but the repeated and widespread opposition of a majority of the citizens of Virginia Beach who voiced the views - at the Planning Commission hearing, through petitions, letters, and at the City Council meeting - amounts to far more than a 'mere scintilla' of evidence to persuade a reasonable mind to oppose the application." Id. at 431 (emphasis added). Thus, even if the preponderance of evidence had favored Nextel and Sprint, as long as more than a scintilla of evidence was presented at the Planning Commission meeting, the application denial meets the substantial evidence standard. To view otherwise was wrong, the court concluded, and would "effectively demand that we interpret the Act so as always to thwart average, nonexpert citizens; that is, to thwart democracy. . . . Congress, in refusing to abolish local authority over zoning of personal wireless services, categorically rejected this scornful approach." Id. at 431. Maryland courts agree, and recognize the value of citizen testimony, even over that of experts. AT&T Wireless Services v. Mayor and City Council of Baltimore, 123 Md. App. 681, 693 (1998) ("We agree with the trial court that the Board could, on remand, reject the opinion of the real estate appraiser hired by AT&T and accept the testimony of the property owners in the Ten Hills community who testified that the value of their property would be adversely affected by the presence of the tower facility."). Applying this law to the instant case means that the Planning Commission's July 27, 2000 denial was backed by substantial evidence and valid as a matter of law. Article 66B of the Maryland Annotated Code, § 3.08, provides in pertinent part that: . . . .no street, square, park or other public way, ground, or open space, or public building or structure, or public utility, whether public or privately owned, shall be constructed or authorized in the jurisdiction or major geographic section thereof until the location, character, and extent of such development shall have been submitted to and approved by the commission as consistent with the plan . . . . (Emphasis added). Obviously, if a planning commission can approve plans, then it can deny plans. In Board of County Commissioners of Cecil County v. Gaster, 285 Md. 233 (1979), the Court of Appeals examined this issue with respect to a non-charter county, and found that a planning commission acting under subdivision regulations "can properly disapprove establishment of a proposed subdivision which met all zoning requirements but failed to comply with the master plan." Id. at 235. This means that even absent zoning violations, a planning commission can still invalidate a site plan. This basis of a planning commission's power is because: zoning is almost exclusively concerned with use regulation, whereas planning is a broader term and indicates the development of a community, not only with respect to the uses of lands and buildings, but also with respect to streets, parks, civic beauty, industrial and commercial undertakings, residential developments and such other matters affecting the public convenience and welfare as may be properly embraced within the police power. Id. at 246 (citation omitted). Thus, the July 27, 2000 Commission denial, based in part on the widespread objection of neighboring residents, was well within the Commission's power under Art. 66B. The wrongful interception and bypassing of the process through a closed meeting defeats the purpose behind Art. 66B, and would reduce the entire Commission to a mere hand servant of the Town Attorney and Zoning Administrator. The posture of the case before the Board should have been the applicants appealing, rather than protestants. At both the second Commission hearing and the Board hearing, not more than a scintilla of evidence was presented that the application would promote the health, safety, morals and general welfare of the community, and the applications should also have been denied at both of those hearings. The Board did not consider all of the factors required in the Ordinance, Art. XI, § 4.2, particularly the "orderly growth of the neighborhood and community" (C); the "most appropriate use of land and structures" (D); the "effect of such use upon the peaceful enjoyment of people in their homes" (G); the "conservation of property values" (L); and the contribution the proposed use or building would make toward the deterioration of the neighborhood and community (N). Heath v. Mayor of Baltimore, 187 Md. 296, 305 (1946) ("... there was no supporting evidence upon which to base a rational judgment.") Finally, the Board's Oct. 12 decision was not backed by written findings of fact.

III. THE CIRCUIT COURT ERRED BY DENYING APPELLANTS' MOTION TO SUPPLEMENT THE RECORD. Appellant LaTrelle Remington filed a timely appeal pursuant to Art. XI, § 3.2. Her Sep. 12, 2000 appeal letter clearly stated that "this is an appeal of the August 24, 2000 decision of the Planning and Zoning Commission." E184. A planning commission is "an administrative official" under Art. 66B, § 4.07(d) whose decisions may be appealed. Wharf at Handy's Point, Inc. v. Dept. of Natural Resources, 92 Md. App. 659, 672-73 (1992) ("§ 4.07(d) does provide the Kent County Board of Appeals with the power to hear appeals from orders of the Planning Commission"); Howard Research and Dev. Corp. v. Concerned Citizens for the Columbia Concept, 297 Md. 357, 363 (1983). Thurmont, as a local legislative body: is required to enact local laws authorizing the county's board of appeals to exercise the powers provided by § 4.07(d). . . .Section 4.07(d) states that "[t]he board of appeals shall have the following powers", and this mandatory language requires that the local legislative body implement these measures." Miller v. Pinto, 305 Md. 396, 403 (1986). Thurmont may not pass or interpret its local Ordinance to directly or indirectly contravene a public general law. Boulden v. Mayor, 311 Md. 411 (1988). Therefore, the Town and Board of Appeals are required by law to process and hear Appellants' appeal of the Planning Commission decision. Unfortunately, instead, the Town illegally changed Appellants' appeal from an appeal of the Commission decision, to an appeal of the ZA's decision to issue Nextel a Zoning Certificate. E197. Counsel for Appellants and the Town discussed differences over this issue at the October 12, 2000 Board hearing. E113. Obviously in an appeal of a Planing Commission decision the Commission hearing minutes are a necessary part of the Record. The Town wrongly left these and other clearly relevant materials (lease, Staff Report) out of the Record. Virginia Beach makes clear that these materials are relevant in applying and evaluating the substantial evidence standard under the 1996 Act. The Circuit Court erred by denying Appellants' motion to supplement the Record with these clearly relevant and necessary materials.

Foot Notes:
		Sprint did not file an application until after the Planning Commission hearings, and therefore lacks standing to participate in this appeal. Nonetheless, the Town placed a Sprint consultant's report in Record transmitted to the Circuit Court. App. at 2.