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Two Emory Church Road residents have filed an appeal to a higher state court following a Circuit Court judge's decision to grant county and state's motions to dismiss a lawsuit that will likely determine if the First Baptist Church of Wheaton can relocate to the rural neighborhood.

David Reile and Barbara Suddarth, his wife, filed a lawsuit May 26 in Montgomery County Circuit Court, alleging that the County Council violated state law when it granted conditional approval for a water/sewer category change for the site on Emory Church Road, known as the Doherty property, in April 2008.

After both the state and the county asked the court to dismiss the case, a hearing on that request was held Sept. 17 at which the judge opted to study the case and file a written decision instead of ruling from the bench.

Judge Ann Harrington on Sept. 24 entered a decision granting Montgomery County and the State of Maryland's motions to dismiss the suit.

Reile said that Harrington's handwritten grounds for dismissal were that "the complaint fails to state or allege a violation of Maryland law."

County and state officials have said they will not comment while the case is making its way through the court system.

Reile was frustrated, as he believes their complaint specifically states a number of separate and distinct violations of state law.

Michele Rosenfeld, an attorney representing the plaintiffs, confirmed two of the violations.

"The County Council did not hold a public hearing as required by state law," she said. "They held a hearing but then the scope of the project changed substantially, and we believe they need to hold another hearing as a result."

She said that state law requires final decision on water and sewer category changes to be made by the state, but in this case the state and county left the final decision up to the Planning Board.

"Again, this was in violation of state law," she said.

Reile said the decision was surprising and disappointing.

"We still think we have a good case, so we will continue to press forward and are confident that we will prevail," he said.

The appeal goes before the Maryland Court of Special Appeals.

Reile and Suddarth are hoping that the lawsuit will halt the proposed development.

"We understand the church's perspective, but they will erect a church and come once a week," he said. "But prior to, during and after development, this will destroy our little community, and we can't just sit back and let this happen."

Reile and Suddarth live next door to a 14.3-acre parcel of land at 3110 Emory Church Road that is served by a private well and septic system. First Baptist Church of Wheaton has purchased the property and seeks to build a two-story, 50,000- square-foot building on the site.

The lawsuit also contends that the Olney Master Plan, adopted in 2005, recommends that water and sewer not be extended to the property.

Katherine Nelson, environmental planner for the county Planning Department, said that when the Planning Board considered the case to recommend water and sewer extension in the environmentally sensitive area, it agreed to make sure that certain criteria were met at the preliminary plan stage.

That decision was forwarded to the County Council.

"The County Council echoed that decision, that the Planning Board would provide detailed scrutiny at the preliminary plan stage," she said. "They had full assurance that the environmentally sensitive issues would be addressed."

To date, no preliminary plan for the Doherty property has been filed with the county.