The South Mountain Battlefields, which include the land around Crampton's, Turner's and Fox's gaps, were submitted for consideration because the Civil War conflicts that occurred there Sept. 14, 1862, set the stage for the larger Battle of Antietam three days later, according to the application.
The Washington County Commissioners declined Tuesday to give the battlefields' nomination their recommendation, saying they had not heard support from enough of the property owners whose land would be included in the listing.
The commissioners' support was not needed for the application to move forward and the lack of a recommendation from them probably will not influence the final decision, Kurtze said.
"The register makes its decisions based on the merits of the property nominated, so I don't think the lack of a recommendation from the commissioners would affect the consideration of the nomination at all," he said.
The application was taken before the commissioners as part of a local review process that requires notification of property owners, and hearings before the local historic preservation commission and the local governing body.
"If either the historic preservation commission or the chief elected official or commissioners make a positive recommendation, the nomination can continue to be processed, and that's what's happened in this case," Kurtze said.
Because the battlefields' listing would span Washington and Frederick counties, local reviews were conducted in both counties, he said.
The Washington County Historic District Commission, the Frederick County Historic Preservation Commission and the Frederick County Commissioners all recommended approval of the listing, he said.
The Washington County Commissioners' reluctance to extend their recommendation arose amid questions about whether a listing on the National Register posed any potential limitations for property owners.
According to a Maryland Historical Trust fact sheet, listing "does not mean the federal government or the State of Maryland wants to acquire the property, place restrictions on the property, or dictate the colors or materials used on individual buildings."
Listing "does not require the owner to preserve or maintain the property or seek approval of the federal government or the State of Maryland to alter the property," the fact sheet says. "Unless the owner applies for and accepts special federal or state tax, licensing or funding benefits, the owner can do anything with his property he wishes, so long as it is permitted by state and local law."
It was this "unless" clause that led some of the Washington County Commissioners to conclude there might be potential limitations associated with listing and to seek more information about whether the affected property owners wanted to be included.
However, Kurtze said, listing does not create any new limitations on property rights.
Whenever a project involves state or federal funding or permits, that triggers a review of whether the project will affect historic resources, regardless of whether the property is listed on the historic register, Kurtze said.
Jonathan Sager, preservation officer for the Maryland Historical Trust, said this review process, known as "section 106," can compel the agency issuing the funding or permit to "consider alternatives that might avoid, minimize or mitigate adverse impacts."
The process treats properties that are eligible for listing in the national register, but not listed, the same as properties that are actually listed on the register.
"So actual listing doesn't affect that review at all," Sager said. "The actual listing is just an honor that might make a place eligible for more grants or tax credits."
Jeremiah Hornbaker, president of Friends of South Mountain State Battlefield, said he carefully researched the effects of listing before his group initiated the application process.