source: Caselaw Access Project

author: Kehoe, J.

license: Public Domain

text:
    148 A.3d 36
    FORKS OF THE PATUXENT IMPROVEMENT ASSOCIATION, INC., et al. v. NATIONAL WASTE MANAGERS/CHESAPEAKE TERRACE
    No. 361,
    Sept. Term, 2015
    Court of Special Appeals of Maryland.
    October 25, 2016

      Argued by: P. Tyson Bennett (Carney, Kelehan, Bresler, Bennett & Scherr, LLP on the brief) all of Annapolis, MD, for Appellant.
    Argued by: Susanne K. Henly & Steven P. Resnick both of Annapolis, MD and both on the brief, for Appellee.
    Krauser, C.J., Kehoe, Leahy, JJ.
   Opinion by

Kehoe, J.

This judicial review action is the latest episode of a prolonged effort by National Waste Managers/Chesapeake Terrace (“National”) to construct and operate a rubble landfill on a large tract of land near Odenton, Maryland. In 2013, National applied for a variance to extend the time period for obtaining construction permits for the project. The variance application found its way to the Anne Arundel County Board of Appeals. The Forks of the Patuxent Improvement Association, Inc. (the “Association”), as well as several individuals, opposed the variance.

Four members of the Board participated in the hearing. After the hearing, the Board was evenly divided: two members of the Board (the “Approving Members”) were in favor of granting the application and two members (the “Denying Members”) voted to deny it. The Board concluded that the evenly-divided vote constituted a denial and entered an administrative order to that effect.

National filed a petition for judicial review in the Circuit Court for Anne Arundel County. The court concluded that: (1) the evenly-divided Board decision had the effect of denying the application; (2) the court’s focus should be on the reasoning and findings of the Denying Members because their decision was dispositive on the application; and (3) the Denying Members applied erroneous standards to the evidence. The court set out its view of the appropriate legal standards, vacated the Board’s decision, and remanded the matter to the Board for further proceedings consistent with its opinion.

The Association appealed the court’s judgment and poses one issue, which we have re-worded:

Did the Board’s evenly-divided 2-2 vote constitute a denial of National’s application for a variance?

National filed a cross-appeal and presents three questions, which we have consolidated and re-phrased:

Did the circuit court err in vacating and remanding the Board of Appeals’ decision rather than reversing the Board’s decision and ordering the Board to approve the variance application?

As we will explain, we agree with the circuit court’s conclusions that the case must be remanded but see the relevant legal issues somewhat differently than did the circuit court and the members of the Board. Therefore, we will vacate the court’s judgment and remand this case for further proceedings consistent with this opinion.

Background

National owns a 481-acre tract of land in Anne Arundel County (the “Project Site”). In 1993, National applied for and received a special exception and variances from the Board to construct and operate a rubble landfill and a sand and gravel operation on the Project Site. The Board’s approval was affirmed by the Court of Appeals in Halle v. Crofton Civic Ass’n, 339 Md. 131, 661 A.2d 682 (1995). After obtaining the zoning approval, National had 18 months to obtain a construction permit for the project; if it failed to do so, the special exception would lapse, unless it obtained a variance for an extension of time. See Anne Arundel County Code § 18-16-405.

In order to obtain a construction permit from the County, National needed a solid waste refuse disposal permit from the Maryland Department of the Environment (the “MDE”). The MDE’s review process for such permits consists of five phases. In summary, the phases are as follows:

1. Phase I centers on gathering basic information, such as the project’s intended objectives, location, etc. This phase also gathers and compiles existing data about the site. The MDE circulates this information to various local, State, and Federal agencies for review and comment and to determine whether the site is suitable for the intended use. See CO-MAR 26.04.07.14.
2. Phase II consists of a hydrogeological investigation. The applicant is required to identify and analyze groundwater and geological conditions on the site. This report is also sent to local, State, and Federal agencies for review and comment. See COMAR 26.04.07.15.
3. Phase III entails engineering design. This phase takes all of the information gathered, especially the hydrogeological information from Phase II, and designs a landfill with these considerations in mind. See COMAR 26.04.07.16.
4. Phase IV is a review stage. The MDE uses this period to review all the information from Phases I—III to ensure that all of the statutory and regulatory requirements have been met. It then begins to prepare any and all documents it will need to present to the public on the proposed permit. During this phase, the MDE also drafts a proposed permit for the site.
5. Phase V is the public comment stage. The MDE advertises and holds a hearing on the draft permit and invites the public to submit comments on the proposal. After the public comments are received, the MDE engages in a final review, and then either issues the permit as is, issues it with modifications, or denies the permit.

National began this process in 1991, in conjunction with its then-pending application for a special exception. In 1994, however, the MDE suspended review because the County had amended its Solid Waste Management Plan to omit any reference to the Project Site. Litigation between National and the County on the amendment culminated in National’s favor by means of an unreported decision of a panel of this Court in National Waste Managers, Inc. v. Anne Arundel County, No. 810, September Term, 1997, filed March 25, 1998 (“National I”). The County then took the position that National’s special exception permit had lapsed pursuant to a prior version of what is now County Code § 18-16-405. This resulted in another lawsuit, which was also finally resolved in National’s favor by our decision in National Waste Managers, Inc. v. Anne Arundel County, 135 Md.App. 585, 763 A.2d 264 (2000) (“National II”). In National II, we held that the 18-month time limit in what is now County Code § 18-16-405 was tolled during the pendency of the litigation between National and the County. Id. at 614, 763 A.2d 264.

In 2001, MDE resumed its process of reviewing National’s proposal. MDE was unable to complete its review within the 18-month period set out in County Code § 18-16-405. Therefore, National filed for a variance for an extension of time to begin construction in 2008. In 2004, the variance was granted. The Board of Appeals found that exceptional circumstances, namely MDE’s ongoing review of the Project Site, made it impossible for National to implement the previously approved special exceptions and variances within the allotted time and that an extension of two years was the minimum necessary to afford relief to National.

Between 2004 and 2013, National filed three more variance applications for extensions of time, each based upon assertions that, although it had pursued its permit from MDE with due diligence, the agency had been unable to complete its review and approval process. The Board of Appeals approved the first two variance requests in 2006 and 2011. The extension granted in 2011 expired on January 3, 2013.

In its current variance application, National sought an additional two year extension to obtain the necessary permits. An administrative hearing officer granted the application after a public hearing. The County Code provides that aggrieved persons may appeal an AHO’s decision to the Board, which conducts its own de novo proceeding. County Code § 18-16-402. Appellants filed such an appeal.

The Board’s hearing in this case began on June 6, 2013 and was completed on October 15th of that year. The Board issued an evenly divided 2-2 decision on December 27, 2013. The Approving Members voted to grant the application and the Denying Members voted to deny it. After summarizing the evidence presented to the Board, and explaining the differing conclusions that each group drew from that evidence, the Board concluded:

The legal effect of the inability of the Board to reach a majority is that [National] did not meet [its] burden of persuasion and the request for variances for time extension must be denied. When an appeal of this nature is placed before the Board, it is heard de novo, and the burden of proof and persuasion is placed upon [National]. See Montgomery County Board of Appeals v. Walker, 228 Md. 574, 180 A.2d 865 (1962); Lohrmann v. Arundel Corp., 65 Md. App. 309, 500 A.2d 344 (1985). If a majority is not persuaded upon substantial evidence, the application must be denied. Id.

National filed a petition for judicial review of the Board’s decision in the circuit court. It presented a variety of arguments to the circuit court, but only two of them are relevant to the current appeal: (1) whether the Board’s evenly-divided vote had the legal effect of denying National’s application; and (2) whether the Denying Members applied the correct legal standard in assessing the evidence. On the first issue, the circuit court concluded that the Board’s 2-2 vote constituted a denial of the application. However, on the second issue, the court concluded that the Denying Members relied on an erroneous legal standard. Thus, the court vacated the Board’s decision and remanded the case for reconsideration. The Association has appealed, and National cross-appealed, the circuit court’s judgment.

Analysis

Standard of Review

When this Court reviews the final decision of an administrative agency, we “look through” the circuit court’s decision, and, although applying the same standards of review, independently evaluate the agency decision. People’s Counsel for Baltimore County v. Surina, 400 Md. 662, 681, 929 A.2d 899 (2007). In this exercise, our review is “limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” Id. at 682, 929 A.2d 899 (citation and quotation marks omitted). Finally, “[a] reviewing Court may not uphold the agency order unless it is sustainable on the agency’s findings and for the reasons stated by the agency.” Eastern Outdoor Advertising Co. v. Mayor & City Council of Baltimore, 128 Md.App. 494, 516, 739 A.2d 854 (1999) (quotation marks and citation omitted).

I.

The Association contends that the Board’s 2-2 evenly-divided vote on National’s application had the legal effect of denying National’s variance application. The Association relies on this Court’s decision in Lohrmann v. Arundel Corp., 65 Md.App. 309, 500 A.2d 344 (1985) for support. We agree that our prior decision is dispositive as to the legal effect of an evenly-divided decision by an administrative agency.

Lohrmann was not a judicial review proceeding but rather was an appeal from a declaratory judgment to the effect that an evenly-divided decision of the Anne Arundel County Board of Appeals left the decision of the administrative hearing officer in effect. Id. at 311-12, 500 A.2d 344. In our analysis, we began by noting that, pursuant to the County’s charter, the Board of Appeals exercises original de novo jurisdiction over all matters that come before it. Id. We concluded that, because the Board was exercising original jurisdiction:

[i]t was as though the zoning officer had made no decision. In that situation, [the applicant] had the same burden it had before the zoning officer—“the burden of proof (including the burden of going forward with the evidence and the burden of persuasion) of all questions of fact.” [County Code] § 13-341.2(a)_The evenly-divided Board decision demonstrates that it did not meet that burden. Accordingly, the effect of the Board’s action was to deny [the applicant’s] request for a special exception.

Lohrmann, 65 Md.App. at 319-20, 500 A.2d 344 (citation omitted, emphasis added).

In its cross-appeal, National asserts that Lohrmann is not controlling because “the Court of Appeals on two occasions addressed cases involving ‘split votes’ in de novo appeals to Boards of Appeal, from decisions of zoning hearing officers.” National cites Levy v. Seven Slade, Inc., 234 Md. 145, 198 A.2d 267 (1964) and Stocksdale v. Barnard, 239 Md. 541, 212 A.2d 282 (1965), in support of this proposition. National concedes, however, that the Lohrmann Court distinguished both Levy and Stockdale because in neither case “was an issue raised as to the effect of a split decision on a de novo administrative appeal. No doubt for that reason the Court of Appeals did not address that issue, instead of treating the cases as though they involved non-de novo appeals.” Lohrmann, 65 Md.App. at 316 n.3, 500 A.2d 344.

Lohrmann’s scholarly and well-reasoned analysis is as cogent today as it was when the opinion was filed more than thirty years ago. We see no reason to depart from our long-established holding. Because the Denying Members prevailed in rendering their decision on National’s application, it is their factual findings and conclusions of law that we will review in determining whether the Board erred in denying the application. See Mombee TLC, Inc. v. Mayor and City Council of Baltimore, 165 Md.App. 42, 884 A.2d 748 (2005) (“[N]o principled legal distinction can be drawn between what is required of a prevailing majority in rendering its decision and that which is required of a prevailing minority in imposing its will _Therefore, ... just as a prevailing majority must do, a prevailing minority must ... issue findings of fact and conclusions of law.”).

We now turn to what is the dispositive issue in this case, namely, whether the Denying Members’ decision was supported by a “reasonable basis in fact” and was not arbitrary or capricious.

II.

Our analysis begins with County Code § 3-1-207, which sets out the criteria by which the Board is to decide whether to issue a variance. The statute states in pertinent part:

(a) Generally. The Board of Appeals may vary or modify the provisions of Article 18 of this Code when it is alleged that practical difficulties or unnecessary hardships prevent carrying out the strict letter of that article, provided the spirit of law shall be observed, public safety secured, and substantial justice done. A variance may be granted only upon an affirmative finding that:
⅜ ⅜ ⅝ ⅜
(2) because of exceptional circumstances other than financial considerations, the grant of a variance is necessary to avoid practical difficulties or unnecessary hardship, and to enable the applicant to develop the lot.
* * * *
(e) Required findings. A variance may not be granted under subsection (a) or (b)[] unless the Board finds that:
(1) the variance is the minimum variance necessary to afford relief;
(2) the granting of the variance will not:
(i) alter the essential character of the neighborhood or district in which the lot is located;
(ii) substantially impair the appropriate use or development of adjacent property;
(iii) reduce forest cover in the limited and resource conservation areas of the critical area;
(iv) be contrary to acceptable clearing and replanting practices required for development in the critical area or bog protection area; or
(v) be detrimental to the public welfare.[]

As the applicant, National “has the burden of proof, including the burden of going forward with the production of evidence and the burden of persuasion, on all questions of fact.” County Code § 18-16-301.

The Denying Members found that:

(1) there were no “exceptional circumstances that would create practical difficulties or unnecessary hardship for [National] to develop the lot within the time frames previously granted by the Board” because National had not been diligent in pursuing the MDE application;
(2) the two year variance requested by National was insufficient to complete the review process with MDE and obtain final County permits; and
(3) the prolonged uncertainty created by the application, already pending for 12 years, has negatively affected the surrounding community and “[b]y allowing further time extensions, this project, which has no end in sight, will continue to burden this community and alter the essential character and development of the surrounding neighborhoods.”

In its brief, the Association asserts that Lohrmann requires reversal of the circuit court’s judgment because “the evenly-divided Board of Appeals decision means that [National] did not meet its burden of proof or persuasion[.]” For its part, National contends that the Denying Members’ findings were entirely unsupported by evidence in the record, were irrelevant, or both.

In addressing these contentions, we will examine each of the bases that the Denying Members relied on in arriving at their conclusion and in so doing will address: (1) the weight the Board should give to National’s “due diligence,” or the lack thereof, in deciding whether exceptional circumstances exist that have created practical difficulties for National’s development of Project Site; (2) the meaning of the requirement that the variance be the “minimum necessary to afford relief;” and (3) the proper frame of analysis to determine whether granting the variance would either “alter the essential character of the neighborhood,” or “substantially impair the appropriate use or development of adjacent property[.]”

Diligence

On January 3, 2011, the Board granted a variance which allowed National two additional years, that is, until January 3, 2013, to obtain the necessary permits. The Denying Members concluded that National failed to demonstrate that it would suffer unnecessary hardship because it had failed to diligently pursue its approvals in this period. The evidence before the Board was mixed.

At the hearing, National called Edward Dexter, the chief of MDE’s landfill review program, as a witness. Dexter testified that the period of time MDE took to review landfill applications varied, “but usually ... three to seven [years] is typical.” Although his testimony was guarded as to the specifics, Dexter indicated that a previous environmental consultant hired by National to coordinate its application process had not been entirely satisfactory but that National had hired a different consultant shortly after the Board granted the 2011 variance.

Veronica Foster, a registered civil engineer who is the current “team leader” for National’s efforts to obtain the MDE permits, testified that the prior team leader retired in 2011 “for a number of reasons, including his health.” A letter dated December 20, 2012 from Dexter to National’s counsel stated that “[o]ver the last year, ... National has been actively pursuing this application.” Foster took charge of the project in January, 2012. Additionally, Dexter testified that National had, “generally speaking,” been diligent in pursuing approval since 2001. With regard to the past two years, Dexter further testified that National had “been aggressively pursuing” the project.

John Fury, a member of the County’s planning staff, prepared a report for the Board’s use in the variance hearing. The report stated that “[i]t is evident that the applicant has been diligently pursuing project approval through the [MDE] since the original special exception and variance approvals were granted in 1993.”

None of this evidence was contradicted or challenged by the opponents to the variance. Even so, the Denying Members were not convinced. Their opinion identified two reasons for their conclusions. First, the Denying Members identified what they saw as a pattern of foot-dragging on National’s part in response to requests for additional information from MDE:

[National] received a letter from MDE on March 3, 2011 raising 28 specific items. [National] did not respond until over a year later on March 22, 2012. MDE responded on July 19, 2012 with a request to supplement data from 2004. [National] did not meet with MDE until September 2012 and it took until March 1, 2013 to receive approvals to begin the process necessary for [National] to supply MDE with additional information requested.

Second, the Denying Members referenced National’s failure to pursue the remaining County permits while MDE’s review was on-going.

National had the burden of production and persuasion. Our assessment of the evidence before the Board is that National met its burden of production, but that National’s failure to pursue the County permits at the same time as it was seeking the MDE approvals was a basis from which a fact-finder could conceivably conclude that National had not been diligent in pursuing the permits with MDE in 2011.

Nonetheless, the Denying Members’ conclusion was problematic because it did not connect any lack of diligence on National’s part with the unnecessary hardship standard under County Code § 3-1-207(a)(2). A lack of diligence in itself is insufficient to conclude that National did not face an unnecessary hardship. A lack of diligence is relevant only if National could have obtained the permits within the 2011-2013 time period if it had acted diligently. The Denying Members did not address this issue.

The Minimum Variance Necessary

The Denying Members concluded that a variance for an additional two years was not the minimum variance necessary to grant relief to National. They reasoned that, if the past is an accurate predictor of the future, National will have neither MDE nor final County approval within two years. Therefore, they reasoned, the application failed to satisfy County Code § 3-l-207(e)(l)’s requirement that the Board grant only the minimum variance necessary to afford relief to the applicant. We disagree with the Denying Members’ interpretation of the “minimum variance necessary” requirement and with their application of that statutory standard to the evidence in this case.

We will start with the evidence. Dexter, the MDE official supervising the review of National’s application, testified that he anticipated that the MDE would complete its Phase III review in calendar year 2013, and all of the remaining phases within two years. Veronica Foster, National’s land fill design expert and the team leader for the project, agreed. Linton Pumphrey, the Association’s expert, testified that the project also required additional permitting from the County and that the County process would take approximately three years. Finally, Fury, the representative of the County’s planning staff, testified that he agreed with Pumphrey and that obtaining all necessary permits could take up to four to six additional years. Nonetheless, Fury recommended that any variance granted by the Board be for two years, to be consistent with the Board’s prior practices. (Fury’s recommendation also had the perhaps not entirely coincidental effect of holding National’s feet to the fire with regard to diligently pursuing the necessary permits.) We turn to the applicable law.

Section 3-l-207(a) authorizes the Board to grant variances to alleviate “practical difficulties or unnecessary hardships ... provided the spirit of law shall be observed, public safety secured, and substantial justice done[.]” In the context of the facts before the Board in this case, the variance can be granted only if there are “exceptional circumstances other than financial considerations[.]” Section 3-l-207(a)(2). If these criteria, as well as the others contained in the statute, are satisfied, then the Board may grant a variance that is the minimum necessary to avoid the “practical difficulties or unnecessary hardship[s]” that have been demonstrated by the applicant. In other words, the “minimum variance necessary” provision prohibits the Board from granting more relief than is necessary to avoid the relevant practical difficulty or relevant hardship.

When we apply the appropriate legal test to the evidence before the Board, we conclude that there was no evidence that the permitting process could be completed in less than two years. But the Denying Members turned the statutory standard on its head, concluding that the “minimum necessary” requirement was not satisfied because it was likely that MDE would require more than two years to complete its review of the Project Site. This is not the proper frame of analysis, and thus the Denying Members’ denial of the variance based on the “minimum necessary” criterion was error.

The Essential Character of the Neighborhood/Impairing the Use and Development of Surrounding Properties/Detrimental to the Public Welfare

The Denying Members concluded that granting “the requested variances to the time limits for the implementation and completion” of the landfill project “will alter the essential character of this neighborhood,” “will substantially impair the appropriate use or development of surrounding properties,” and will therefore be “detrimental to the public welfare.” Their reasoning for each conclusion was essentially the same (emphasis added):

This community has been evolving and changing in the 20 years since the initial grant of the special exceptions and the variances for this project. As such, the community has been actively awaiting the finalization of this project during that time frame and diligently pursued [its] status[.] By allowing further time extensions, this project, which has no end in sight, will continue to burden this community and alter the essential character and development of the surrounding neighborhoods.
* * * *
By allowing further extensions, the development of adjacent properties will continue to be affected as community members and developers of the area wonder whether or not they will eventually live near or adjacent to a landfill.
‡ ⅜ ⅜ ‡
The time extension will be detrimental to the public welfare.

As we understand the Denying Members’ analysis, they concluded that:

(1) the continuing pendency of National’s rubble landfill application by itself would alter the essential character of the neighborhood; and
(2) granting the variance—and thus extending the period in which National’s application will be pending—would be detrimental to the public welfare because property owners and residents of the surrounding area would remain uncertain as to whether the project will be constructed.

We do not agree with the Denying Members’ logic. That the application is pending, by itself, does not change the character of the neighborhood. We doubt that residents’ uncertainty as to whether the rubble landfill project will ever be operational is a sufficient basis to deny the application without evidence that the uncertainty has affected property values.

In this context, our predecessors’ analysis in the landmark decision of Anderson v. Sawyer, 23 Md.App. 612, 613, 329 A.2d 716 (1974), is instructive. In Anderson, this Court examined a decision by the Baltimore County Planning Board denying a special exception application to build a funeral home in an area zoned for residential use. At issue was whether the psychologically depressing effect of living next to a funeral home, and the potential effect that a funeral home might have on the value of surrounding properties, was sufficient to deny the application. Id. at 624, 329 A.2d 716. We determined that “the bald allegation that a funeral home use is inherently psychologically depressing and adversely influences adjoining property values, as well as other evidence which confirms that generally accepted conclusion, is insufficient to overcome the presumption that such a use promotes the general welfare of a local community.” Id. at 625, 329 A.2d 716.

All pending development projects, at least projects as massive as the one proposed by National, create uncertainty among neighboring property owners. Nonetheless, the County Council has authorized the Board to extend the time frame for obtaining permits through the variance process. Anderson was a special exception case and this appeal involves a variance, and we recognize that the statutory criteria are somewhat different. Nonetheless, Anderson’s underlying logic remains pertinent. We conclude that uncertainty created by National’s pending application among neighboring property owners is not, by itself, a sufficient basis to deny the variance.

However, we do not agree with the Approving Members’ reasoning as to the statutory criterion that the variance must not “alter the essential character of the neighborhood.” The Approving Members concluded that it was inappropriate to consider whether the proposed use will adversely impact the surrounding neighborhood (emphasis added, citation omitted):

The granting of the requested variance to the time limits ... will not alter the essential character of this neighborhood. [W]e find that the character of the neighborhood is that of mixed uses that range from rural residential to commercial resources in the Odenton community. The Petitioners have an approved, lawful special exception on this site. The approved use of this property as a sand and gravel operation and a rubble landfill is known within the community and, we believe is part of the character of the community. Our focus here is not on the special exception for the rubble land fill ... but rather, on whether a variance to permit a 2 year extension mil change the character of the neighborhood. The current variance does nothing more that give Petitioners additional time to finalize State approval and obtain County permits. Therefore, we do not find that the time extension will alter the essential character of the neighborhood.
⅜ # ‡ ⅜
The time extension will not be detrimental to the public’s welfare. No traffic will result from the grant of the time extension. No impacts to water will result from the grant of the time extension. ... The variances merely permit the applicant to complete the application process. ... The original 1993 decision determined that these uses have public benefit and are needed. We make no decision on the merit of the underlying special exception and associated variances.

The problem with the Approving Members’ analysis is that it treated the variance as an end in itself and overlooked the fact that the purpose of the variance is to permit National to build its project if it eventually obtains the necessary permits.

From our perspective, both the Denying Members and the Approving Members missed the proper frame of analysis for determining whether granting the variance will alter the character of the neighborhood, adversely impact adjacent properties, or be detrimental to the public welfare. The Denying Members noted in their opinion that the “community has been evolving and changing in the 20 years since the initial grant of the special exceptions and variances for this project.” The Approving Members, in effect, concluded that changes in the neighborhood were irrelevant. Neither faction of the Board examined whether changes in the community rendered National’s proposed use of the Project Site as a rubble landfill incompatible with the surrounding neighborhood as it currently exists. We conclude that this is the proper frame of analysis for deciding whether granting the variance will alter or adversely impact the surrounding neighborhood or be detrimental to the public welfare.

Our conclusion is grounded in Maryland case law which requires that a special exception only be granted when the proposed use is compatible with the use and the uses of surrounding properties. As the Court explained in People’s Counsel for Baltimore County v. Loyola College, 406 Md. 54, 106, 956 A.2d 166 (2008) (emphasis added):

The local legislature, when it determines to adopt or amend the text of a zoning ordinance with regard to designating various uses as allowed only by special exception in various zones, considers in a generic sense that certain adverse effects, at least in type, potentially associated with (inherent to, if you will) these uses are likely to occur wherever in the particular zone they may be located .... That is why the uses are designated special exception uses, not permitted uses. The inherent effects notwithstanding, the legislative determination necessarily is that the uses conceptually are compatible in the particular zone with otherwise permitted uses and with surrounding zones and uses already in place, provided that, at a given location, adduced evidence does not convince the body to whom the power to grant or deny individual applications is given that actual incompatibility would occur.

The critical importance of compatibility between existing uses and the proposed use is certainly reflected in Anne Arundel County’s variance criteria. An incompatible project will “alter the essential character of the neighborhood ... in which the lot is located,” and will “substantially impair the appropriate use and development of the surrounding property.”

The reasoning of the Board when it granted National’s special exception application in 1993 conformed to this principle. The judicial review proceeding arising out of the Board’s grant of National’s special exception and variance application in 1993 culminated in Halle v. Crofton Civic Association, 339 Md. 131, 661 A.2d 682 (1995). In its opinion affirming the Board’s decision, the Court commented:

After three months of deliberation, an on-site visit by the members of the Board to the property, and a review of the record taken as a whole—consisting of more than 2,000 pages of transcribed testimony and voluminous documents—the Board determined that the landfill would advance the public welfare of the County. It recognized the need for the landfill, concluded that its location was well suited to the use, and determined that the special exception and variance proposals would benefit the vicinal community by reclaiming and restoring previously mined ravines and properties “cratered” up to the property line.

Id. at 137, 661 A.2d 682 (emphasis added).

The Approving Members were concerned about the propriety of relitigating the 1993 special exception application in the 2013 variance hearing. But deciding whether the landfill project remains compatible with the surrounding neighborhood is not an attack upon the validity of the Board’s 1993 decision. Instead, it is a recognition that a neighborhood may change over time and that a use that was compatible when the special exception was originally granted may no longer be compatible when the variance to extend the time to obtain the permits is sought.

We conclude that the requirements for granting a variance in County Code § 3-1-207 pertaining to the surrounding neighborhood, adjacent properties, and public welfare are intended to ensure that a variance for an extension of time should be granted only if the previously approved special exception use continues to be compatible with the surrounding area. The applicant bears the burden of demonstrating to the Board that its proposed project remains compatible. To the extent that surrounding properties have been developed in ways that may not be compatible with a rubble landfill, the validity of the Board’s determination of compatibility is undercut. At some point, the disconnect between what is currently in the neighborhood and what had been in the neighborhood when the permit was granted will become significant enough that it will no longer be appropriate to continue to extend the time for National to obtain its permits. At that point—and sooner or later that point will be reached—it will be necessary for National to start again from scratch. In this regard, National cannot be faulted for any delay prior to 2001 because that delay was the result of unsuccessful legal challenges mounted by the County. See National II, 135 Md.App. at 614, 763 A.2d 264. Therefore, the 20 year time-frame used by the Denying Members was inappropriate.

On remand, as part of its analysis of the statutory criteria contained in § 3-l-207(e), the Board must consider whether there have been sufficient actual changes to the neighborhood surrounding the Project Site that occurred during or after 2001 to render National’s special exception no longer compatible with the current established character of the neighborhood.

f—Í HH

In its cross-appeal, National argues that the Board s decision constitutes an “impermissible change of mind” from the prior decisions of the Board. We do not agree.

The cases cited by National—Gerachis v. Montgomery County Board of Appeals, 261 Md. 153, 156, 274 A.2d 379 (1971); Whittle v. Board of Zoning Appeals, 211 Md. 36, 49-50, 125 A.2d 41 (1956); Polinger v. Briefs, 244 Md. 538, 541, 224 A.2d 460 (1966); and Surkovich v. Doub, 258 Md. 263, 274-75, 265 A.2d 447 (1970)—stand for the proposition that if a zoning board denies an application, the principle of administrative res judicata bars the board from subsequently granting an identical application absent a showing of changed circumstances. See, e.g., Gerachis, 261 Md. at 156, 274 A.2d 379.

These cases all involve situations in which the initial application was denied. In this case, the initial applications were granted. National points no case holding that administrative res judicata applies to such cases. Moreover, its argument overlooks the fact that additional evidence was presented to the Board in this case by both parties. Additionally, as we have explained, one of the issues that the Board must address is whether the proposed rubble landfill meets the compatibility criteria of County Code County § 3-l-207(e)(i)and (ii). In that context, administrative findings as to compatibility made in prior variance proceedings years earlier may be stale.

IV.

In conclusion, we hold that:

(1) The Board was correct when it concluded that the evenly-divided vote of its members constituted a denial of National’s variance application.

(2) The relevant period to measure National’s diligence or lack thereof is 2011-2013, which was the extension period granted by the Board’s most recent variance. Furthermore, a finding of a lack of diligence is insufficient to deny a variance; the Board must also find that the lack of diligence caused an undue delay in MDE’s review process.

(3) National’s requested relief in the variance application, namely, that the Board allow it two additional years to obtain all required permits, did not violate the “minimum variance necessary” restriction of County Code § 3-1-207. The Denying Members’ conclusion to the contrary was legally erroneous.

(4) Both the Denying Members and the Approving Members used incorrect legal analyses to determine whether granting the variance application would change the essential character of the neighborhood, impair the use and development of surrounding properties or otherwise be detrimental to the public welfare. The proper frame, of analysis must take into account whether the special exception remains compatible with the surrounding area as the area has changed since 2001.

THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY IS VACATED AND THIS CASE IS REMANDED TO IT IN ORDER FOR THE CIRCUIT COURT TO REMAND THIS CASE TO THE BOARD FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. APPELLEE TO PAY COSTS.

      . Several individuals, Ulis Fleming, Catherine Fleshman, Robert Flesh-man, Sr., Diana Lane, Gregory Lane, Andrew Meyer, Sue Ellen Meyer, Michael Murphy, Stacy Murphy, Ann Marie Thomas, and Leon Thomas, also appealed the court’s judgment. We gather that they are members of the Association.

      . The Anne Arundel County Zoning Ordinance has been amended on numerous occasions in the years since National’s application was first granted. Neither party suggests any of these amendments affect the appropriate legal analysis. We will refer to the current version of the County Code,
      County Code § 18-16-405 states in pertinent part:
      § 18-16-405. Time period after which variances and special exceptions are void.
      (a) Expiration by operation of law. A variance or special exception that is not extended or tolled expires by operation of law unless the applicant within 18 months of the granting of the variance or special exception (1) obtains a building permit or (2) files an application for subdivision. Thereafter, the variance or special exception shall not expire so long as (1) construction proceeds in accordance with the permit ....
      4» 4» 4*
      (c) Extension by variance. An applicant may file an application for a variance to extend the time periods set forth in subsection (a).

      . MDE may not issue a permit for a proposed landfill unless the project is consistent with the county's Solid Waste Management Plan. See Environmental Law Article § 9-201 (a)(3)(ii).

      . There was additional litigation regarding National's proposed rubble fill. It is described in National II, 135 Md.App. at 591-97, 763 A.2d 264.

      . Because of the passage of time and changing regulations, MDE required National to perform additional geological and groundwater studies. Evidence before the Board in the current proceeding indicated that obtaining this information took several years.

        . Section 603 of the County Charter provides, in pertinent part, that "[a]ll decisions by the County Board of Appeals shall be made after notice and hearing de novo upon the issues before said Board.”

      . Subsection (b) sets out criteria for variances from the County’s critical area and bog protection program.

      . The parties do not dispute that the Board has the authority to grant a time variance. See Lanzaron v. Anne Arundel County, 402 Md. 140, 143, 935 A.2d 689 (2007) (“We hold that the variance power at issue in this case authorized the Board to issue time variances, and that under the language used here, the general variance power found in Article 3 reaches all provisions in Article 28 of the Anne Arundel County Code (the Zoning Code) except where the general power is restricted by specific language limiting the general variance power.”).

      . The record indicates that Phase III is the most complex and time-consuming stage of MDE’s review process.

      . Section 3-l-207(e)(2)(i).

      . Section 3-l-207(e)(2)(ii).

      . Section 3-l-207(e)(2)(v).

      . BCC § 3-l-207(e)(2)(i).

      . BCC § 3-1-207(e)(2)(ii).

      . County Code Section 3-l-207(e) states in pertinent part:
      (e) Required findings. A variance may not be granted ... unless the Board finds that:
      (1) the variance is the minimum variance necessary to afford relief;
      (2) the granting of the variance will not:
      (i) alter the essential character of the neighborhood or district in which the lot is located',

      (ii) substantially impair the appropriate use or development of adjacent property;

      (iii) reduce forest cover in the limited and resource conservation areas of the critical area;
      (iv) be contrary to acceptable clearing and replanting practices required for development in the critical area or bog protection area; or
      (v) be detrimental to the public welfare.

      . National also cites Gaywood Ass’n v. Metropolitan Transit Authority, 246 Md. 93, 227 A.2d 735 (1967), but the relevant issue in Gaywood Ass’n was whether a decision by one administrative agency, the Public Service Commission, constituted administrative res judicata with regard to an application made to a separate agency, the Metropolitan Transit Authority. Id. at 100, 227 A.2d 735. The Court did not resolve the question because it decided the appeal on other grounds. Id.


author: Berger, J.

text:
    148 A.3d 51
    Timothy Alan MOATS v. STATE of Maryland
    No. 1219,
    Sept. Term, 2015
    Court of Special Appeals of Maryland.
    October 25, 2016

      Argued by: John N. Sharifi of Rockville, MD, for Appellant.
    Argued by: Daniel J. Jawor (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, for Appellee.
    Krauser, C.J., Berger, Leahy, JJ.
   Berger, J.

On July 23, 2015, Timothy Alan Moats (“Moats”), appellant, was convicted in the Circuit Court for Garrett County of one count of possession of child pornography based on an agreed statement of facts. Moats was subsequently sentenced to serve eighteen months of incarceration with all but the time he had already served suspended. Moats was placed on supervised probation for two years and was required to register as a sexual offender. In his timely filed appeal, Moats raises two questions for our consideration, which we have consolidated and restated as follows:

Did the circuit court err in denying appellant’s pre-trial motion to suppress evidence?

Discerning no error or abuse of discretion, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL HISTORY

One night in early January of 2015, Moats and three other teenagers were riding around Garrett County in Moats’s car. During the drive, Moats, then age eighteen, provided marijuana and suboxone, an addictive prescription medication used to treat opioid addiction, to the other teenagers. Moats, along with the three other teenagers, went to a party where one of them, A.D.C., then age seventeen, was sexually assaulted.

About two-weeks later, A.D.C. reported the sexual assault to the police. In the course of investigating the sexual assault, Sergeant Robert A. Zimmerman of the Garrett County Sheriffs Office interviewed Moats. Moats admitted that he distributed marijuana and suboxone to the other teenagers who were riding in his car on the relevant night in January of 2015, but denied any involvement in the sexual assault of A.D.C. Moats’s admissions were corroborated by the statements the other teenagers made to the police.

On January 23, 2015, the police sought and obtained a warrant for Moats’s arrest on charges related to his distribution of drugs. Moats was arrested and transported to the Garrett County Jail. The arresting officer conducted a search of Moats’s person incident to his arrest and found his cellular phone. After it was seized, the phone was stored in the Sheriffs Office. On January 24, 2015, Moats was released from the detention center. The Sheriffs Office retained his cell phone, however, believing that it might contain evidence related to Moats’s distribution of drugs and the sexual assault of A.D.C.

On January 26, 2015, Sergeant Zimmerman applied for a warrant to search Moats’s phone for evidence related to the drug offenses and the sexual assault of A.D.C. The affidavit in support of the application provided, in pertinent part:

On January 21, 2015 your Affiant responded to Garrett Memorial Hospital and met with complainant [A.D.C.], 17 years of age. [A.D.C.] stated approximately 2 weeks ago she was in a vehicle with Timothy “Timmy” Moats, [T.B.], and a white male only known as “[C.].” The four of them drove around the Oakland, Mt Lake Park and Pleasant Valley areas of Garrett County. While out riding around, they stopped and Timmy provided each of them with suboxone. Timmy crushed the suboxone and snorted it with a dollar bill. He then passed it around and provided it to all the individuals in the vehicle, all of them except Timmy are under the age of 18. She then stated they ended up at a party where she was sexually assaulted. She cannot remember where the party was at and does not know who sexually assaulted her. She said she was “high” from the drugs used, that were provided to her by Timmy and mentioned that at some point she used heroin as well.
On January 28, 2015, your Affiant interviewed Timothy Moats. Timothy admitted that he was with all of the above listed individuals a few weeks ago and identified [C.] as [C.O.]. He further stated that they were all out riding around and he did in fact bring with him suboxone and marijuana. He said that he crushed the suboxone on a CD case using a lighter and snorted it with a dollar bill. He then provided the suboxone to all the individuals in the vehicle. Furthermore, he admitted to smoking marijuana, bringing it with him and providing it to all the individuals in the vehicle. Timothy denied any knowledge and/or involvement with the sexual assault.
Your Affiant then interviewed [C.O.] and [T.B.]. Both provided the same information as listed above regarding the use and distribution of CDS. They also denied any involvement with the sexual assault, only stating that when [A.D.C.] got into the vehicle with them she said that she was sexually assaulted the night before at a party.
Your Affiant then spoke with [R.W.]. [A.D.C.] stated she had told [R.] about the sexual assault. [R.] stated that [A.D.C.] told him she was with the above listed individuals, and [T.] and Timmy got her “high” and shot her up with heroin. He stated that she was later sexually assaulted, and he believes that [T.] and/or Timmy have knowledge and/or are involved. He stated that he saw marks and injuries on [A.D.C.] after the incident, which was not reported at the time.
Your Affiant knows through his training and experience as a Criminal Investigator that individuals who participate in such crimes communicate via cellular telephones, via text messages, calls, e-mails etc.
Your Affiant avers, based on the information received from the aforementioned sources, your Affiant’s observations, training, knowledge and expertise as a member of the Garrett County Sheriffs Office, Criminal Investigation Division, that there is probable cause to believe and does believe, that evidence of violations of the laws relating to Sexual Offense and related crimes, as well as the Possession and Distribution of controlled Dangerous Substances as herein before cited, is contained in and upon the aforementioned cellular telephone.

A district court judge approved the application and issued the search warrant authorizing the police to search the electronic data contained in Moats’s cellular phone. In the course of the search, the officers discovered sexually explicit photos and a video of a young woman that had been saved on the cellular phone. The officers later identified the young woman in the photos and video as Moats’s then fifteen-year-old girlfriend.

On March 10, 2015, Moats was charged with three counts related to his possession of child pornography and one count of second degree assault. Prior to trial, defense counsel filed a motion to suppress the photos and videos recovered from Moats’s cellular phone, arguing, in part, that the search warrant was not supported by sufficient facts to establish probable cause. Following a hearing on June 18, 2015, the trial court denied the defense motion to suppress, reasoning:

The purpose of this hearing is to determine whether this evidence is admissible in court and the standard to be used at this hearing is to look at all the facts and circumstances in the light most favorable to the State. The burden is not as high as the burden of proof in proving criminal guilt or innocence.
* * *
... Mr. Moats was arrested on January 23, 2015. As part of that procedure of arrest, he is taken into custody. He is searched. His personal property is confiscated, and he’s put into a jail cell.
The next day he was released, and his phone was not released to him. I think that to try and make this analogous to a case with a firearm does not really carry a lot of weight here. In addition to that, trying to make this analogous to a search of a home, which is really just a storage repository, the home itself wouldn’t be evidence; it would be what you could find in that home. That’s not the case with a cell phone.
A cell phone is a portable items [sic]. It’s something that we have to take recognition in the 21st Century in our lives today, it’s an integral part of how many of us live. Certainly, the younger you are, it seems it becomes an even more integral part. It’s probably not as important to me, since I’m older, but I think to a lot of young people, it would be very hard to live without it, and it’s something that becomes part of their lifestyle.
In looking at the search warrant that was issued on the January 26th, and I think Defense Counsel has even alluded to it, that the affiant, through his training and experience as a criminal investigator, that individuals who participate in such crimes, typically drug crimes—at January 26th, we’re talking about drug activity, because that’s what he had been arrested for—that people who participate in such crimes typically communicate via cellular phone, text messages, calls, e-mails, et cetera. And I think that while that may not always be an accurate statement, I think that it does show that the person submitting the search warrant, Sergeant Zimmerman, was acting in good faith. There was no bad faith here in asking for this search warrant, that the search warrant application was submitted in good faith.
And, in addition, in reviewing the search warrant that was signed by Judge Stephan Moylan, in reviewing that, it—if I can find it here, it specifically indicates that the phone can be searched for evidence of drug or sexual crime violations. It’s not a general warrant. It doesn’t say just take Mr. Moats’ phone and look at it and see what you can find. The warrant that was signed by Judge Moylan is specific to looking for evidence of crimes of drug activity, illicit drug activity, or sexual offenses. So, I think that the search warrant application and the search warrant of January 26th was valid.

On July 23, 2015, Moats agreed to plead not guilty to an agreed statement of facts on one count of possession of child pornography. As part of the agreement, all other charges pending against Moats, including the drug charges, were dropped. The court found Moats guilty and sentenced him to eighteen months of incarceration, suspending all but the time he had already served. Moats was ordered to serve two years of supervised probation and was required to register as a sexual offender. Moats noted a timely appeal on July 30, 2015.

ANALYSIS

Moats contends that the circuit court erred in denying his motion to suppress the photographs and videos of his teenage girlfriend that were saved on his cellular phone. Specifically, Moats asserts that the court erred by concluding that the warrantless seizure of his phone after he was released from jail following his initial arrest on drug charges was legal. Moats further contends that the court erred when it upheld the validity of the search warrant for his phone, “because the application for the warrant did not provide any nexus between the alleged criminal activity and the phone.” Moats also questions whether the suppression court utilized the correct standard of review in assessing the merits of his pretrial motion to suppress.

The standard of review for motions to suppress is well-established:

Our review of a circuit court’s denial of a motion to suppress evidence under the Fourth Amendment, ordinarily, is limited to the information contained in the record of the suppression hearing and not the record of the trial. When there is a denial of a motion to suppress, we are further limited to considering facts in the light most favorable to the State as the prevailing party on the motion. Even so, we review legal questions de novo, and where, as here, a party has raised a constitutional challenge to a search or seizure, we must make an independent constitutional evaluation by reviewing the relevant law and applying it to the unique facts and circumstances of the case. We will not disturb the [circuit] court’s factual findings unless they are clearly erroneous.

State v. Wallace, 372 Md. 137, 144, 812 A.2d 291 (2002) (internal citations omitted).

In this case, it was necessary for the trial court to apply different standards of review when it was addressing the warrantless seizure of Moats’s cell phone and the subsequent search of the data contained in the cell phone pursuant to a warrant. Our review of the record demonstrates that the suppression court’s comments on the record were primarily directed at the second question regarding the search of the phone pursuant to a warrant. As such, the court correctly, albeit perhaps inartfully, noted that the court was to consider the evidence contained in the affidavit in the light most favorable to the State and that the burden of proof was less than the “beyond a reasonable doubt standard” necessary to prove that an individual is guilty of a criminal offense. Indeed, as we shall discuss below, substantial basis review is highly deferential and requires viewing evidence in the light most favorable to the State. Accordingly, the trial court did not err in denying Moats’s motion to suppress the evidence.

The suppression court did not clearly explain its ruling regarding the warrantless seizure of Moats’s cell phone for two days before the police obtained a warrant for their search. We note, however, that the facts presented in this case regarding when and why the police seized Moats’s cell phone are not in dispute. Because we review the court’s legal conclusions de novo, whether or not the suppression court applied the correct standard of review is of little consequence to our determination of this appeal.

Regarding the merits of Moats’s motion to suppress, we first consider whether the suppression court erred by determining that the warrantless seizure of Moats’s cellular phone following his arrest and the retention of the cellular phone after he was released from jail was legal.

The Fourth Amendment of the United States Constitution guarantees individuals the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures_” U.S. Const. amend. IV, cl. 1. This constitutional mandate is made applicable to the states through the Fourteenth Amendment and is embodied in Article 26 of the Maryland Declaration of Rights. Corbin v. State, 428 Md. 488, 499, 52 A.3d 946 (2012). Subject only to a few specifically established and well-delineated exceptions, a war-rantless search or seizure that infringes upon the protected interests of an individual is presumptively unreasonable. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Belote v. State, 411 Md. 104, 112, 981 A.2d 1247 (2009) (citations omitted). The government bears the burden of overcoming the presumption that a warrantless search or seizure is illegal. Southern v. State, 371 Md. 93, 105, 807 A.2d 13 (2002).

An individual demonstrates that he or she had a protected interest in a place or property by showing that “he or she maintained ‘a legitimate expectation of privacy’ in the house, papers, or effects searched or seized.” Whiting v. State, 389 Md. 334, 346, 885 A.2d 785 (2005) (citing Katz, 389 U.S. at 353, 88 S.Ct. 507 (additional citations omitted)). The individual must “demonstrate an actual (subjective) expectation of privacy in the item or place searched, [and] prove that the expectation is one that society is prepared to recognize as reasonable.” Williamson v. State, 413 Md. 521, 534-35, 993 A.2d 626 (2010) (citing Katz, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J. concurring)).

In the last several years, various courts have noted the unique role cellular phones play in our lives and have recognized the protected interest individuals have in the data contained in their cellular phones. See e.g. Riley v. California, — U.S. -, 134 S.Ct. 2473, 2484, 2489, 189 L.Ed.2d 430 (2014) (characterizing cell phones as “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy” and acknowledging that these “minicomputers that also happen to have the capacity to be used as a telephone” also function as “cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers”); State v. Andrews, 227 Md.App. 350, 354, 134 A.3d 324 (2016) (describing cell phones as “a piece of technology so ubiquitous as to be on the person of practically every eitizen”). Accordingly, courts have extended the protection of the Fourth Amendment to cellular phones and now require that, in most cases, the police obtain a warrant before searching the digital contents of a cell phone even when that phone was validly seized incident to a legal arrest. Riley, 134 S.Ct. at 2493; Sinclair v. State, 444 Md. 16, 38-39, 118 A.3d 872 (2015) (discussing Riley).

In this case, prior to his arrest, Moats had confessed to the police that he had distributed marijuana and suboxone to the other teenagers and that he was present at the party where A.D.C. was purportedly sexually assaulted. His drug distribution and his presence at the party were corroborated by the accounts of the other witnesses. In addition, his participation in the distribution of heroin and his knowledge of and/or involvement in the sexual assault of A.D.C. was alleged by more than one witness. The police obtained a warrant and arrested Moats on January 23,2015.

In his appeal, Moats does not contend either that his arrest on the drug charges was illegal or that the initial seizure of his cellular phone during the search incident to his arrest on January 23, 2015, was unreasonable. Instead, he asserts that the police did not have probable cause to retain his phone after he was released from jail on January 24, 2015, and that the suppression court utilized the wrong standard of review to assess whether the warrantless seizure of his phone was improper.

At the motions hearing, Sergeant Zimmerman testified that he kept Moats’s cell phone “to obtain further information on the investigation -with [A.D.C.] and the sex offense, along with the CDS case.” As Sergeant Zimmerman noted in the affidavit that accompanied his request for a warrant to search the phone, he knew “through his training and experience that individuals who participate in such crimes communicate via cellular telephones_”

Certainly, from our case law, it is clear that individuals use their cell phones to document all kinds of criminal behavior on a rather regular basis and that data recovered from cellular phones is frequently admitted as evidence of guilt in criminal trials. See e.g. Demby v. State, 444 Md. 45, 46, 118 A.3d 890 (2015) (drug-related text messages); Spence v. State, 444 Md. 1, 8, 118 A.3d 864 (2015) (drug-related text messages); Sinclair v. State, 444 Md. 16, 18, 118 A.3d 872 (2015) (screen images from cellular phone of custom wheel rims of stolen car); Cortez v. State, 220 Md.App. 688, 691, 105 A.3d 589 (2014), cert. denied, 442 Md. 516, 113 A.3d 624 (2015) (cell phone video showing a sexual assault on a woman by several men). Based on the evidence known to the police at the time Moats was arrested, we conclude that the police, reasonably believing that the phone could contain evidence that was pertinent to two active police investigations, had probable cause to seize and retain Moats’s cell phone for the period of time necessary to obtain a warrant.

Two days after Moats was released from jail, on January 26, 2015, the police obtained a warrant and searched the digital content on Moats’s phone. In the course of the search, the police recovered photographs of an explicitly sexual nature portraying an unidentified female subject as well as a video of a young woman engaged in sexual intercourse with a man the police believed to be Moats. By seizing the cell phone incident to Moats’s arrest and then subsequently obtaining a warrant before conducting any search of the phone’s contents, the police acted in accordance with the Constitution and Article 26 of the Maryland Declaration of Rights. Riley, 134 S.Ct. at 2486 (advising that it is permissible for the police to seize and hold a cell phone “to prevent destruction of evidence while seeking a warrant”). Accordingly, we discern no error in the trial court’s denial of Moats’s motion to suppress the evidence recovered from his cell phone based on the warrantless seizure of the phone incident to his arrest or the police’s failure to return the phone to Moats when he was released from jail.

We shall next consider whether the district court judge who issued the search warrant had a rational basis for concluding that the evidence sought would be discovered in Moats’s cellular phone.

The Fourth Amendment of the United States Constitution prohibits the issuance of any warrant except “upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV, cl. 2. To demonstrate probable cause, the affidavit that accompanies a request for a search warrant must show that “the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found” in a particular place. Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The test does not require that the affidavit establish a prima facie showing of criminal activity or that the police have personal knowledge or direct evidence that contraband will be found in the location to be searched, but only that there is a nexus between the objects to be seized and the place to be searched from which a person of reasonable caution would believe that the articles sought might be found there. See Holmes v. State, 368 Md. 506, 522, 796 A.2d 90 (2002) (advising that probable cause “may be inferred from the type of crime, the nature of the items sought, the opportunity for concealment, and reasonable inferences about where the defendant may hide the incriminating items.”).

A warrant-issuing judge is tasked with reaching “a practical and common-sense decision, given all of the circumstances set forth in in the affidavit, as to whether there exists a fair probability that contraband or evidence of a crime will be found in a particular search. Greenstreet v. State, 392 Md. 652, 667-68, 898 A.2d 961 (2006) (citing Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The warrant-issuing judge’s consideration is limited to only “the averments contained in the search warrant application.” Ferguson v. State, 157 Md.App. 580, 592, 853 A.2d 784 (2004) (citing West v. State, 137 Md.App. 314, 322, 768 A.2d 150 (2001)). The judge is permitted to accept and rely upon statements made by the affiant regarding information gained through his or her knowledge, training, and experience. See State v. Johnson, 208 Md.App. 573, 606-616, 56 A.3d 830 (2012) (discussing State v. Coley, 145 Md.App. 502, 530-31, 805 A.2d 1186 (2002); State v. Faulkner, 190 Md.App. 37, 44, 52, 985 A.2d 627 (2010); and Behrel v. State, 151 Md.App. 64, 96-97, 823 A.2d 696 (2003)).

Nevertheless, the role of a suppression court or this Court when we subsequently undertake to review the sufficiency of a warrant, is quite different. “The question before us is not whether probable cause existed that evidence would be found in the [place] to be searched but whether the judge who issued the search warrant had a ‘substantial basis’ for so finding.” Johnson, 208 Md.App. at 580, 56 A.3d 830. See also Gates, 462 U.S. at 236, 103 S.Ct. 2317 (“after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review”); Ramia v. State, 57 Md.App. 654, 660, 471 A.2d 1064, cert. denied, 300 Md. 154, 476 A.2d 722 (1984) (“reviewing courts ... have no business second-guessing the probable cause determinations of warrant-issuing magistrates by way of de novo determinations of their own”). Critically, the substantial basis test is highly deferential. See Gates, 462 U.S. at 236, 103 S.Ct. 2317 (“A magistrate’s ‘determination of probable cause should be paid great deference by-reviewing courts’ ” (citation omitted)); Johnson, 208 Md.App. at 583-84, 56 A.3d 830. (“Once a duly authorized judicial officer has issued a search (or arrest) warrant, any subsequent review of that decision ,.. must be appropriately deferential.”); State v. Amerman, 84 Md.App. 461, 463, 581 A.2d 19 (1990) (“The issue is no longer the familiar one of whether probable cause exists; that has already been determined by someone else.”).

The evidence necessary to demonstrate a “substantial basis” is less than that which is required to prove “probable cause.” See Johnson, 208 Md.App. at 586-87, 56 A.3d 830 (“A substantial basis is less weighty and less logically probative than probable cause ... some warrant applications will [pass] muster under the lesser test that would not pass muster under the more demanding test.”); Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) (“[W]hen a search is based upon a magistrate’s, rather than a police officer’s, determination of probable cause, the reviewing courts will accept evidence of a less ‘judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.’ ”).

This deferential review is motivated by the Courts’ express desire to encourage police officers to seek warrants before conducting any search or seizure. See Gates, 462 U.S. at 236, 103 S.Ct. 2317 (“ ‘A grudging or negative attitude by reviewing courts toward warrants’ is inconsistent with the Fourth Amendment’s strong preferences for searches conducted pursuant to a warrant” (citation omitted)); Volkomer v. State, 168 Md.App. 470, 486, 897 A.2d 276 (2006) (“The presumption that a search warrant is valid provides an incentive to police officers to seek judicial approval before effectuating a search.”). “[I]f warrants are subjected to too tight a scrutiny, the police may deem it inappropriate to rely on them.” Johnson, 208 Md.App. at 591, 56 A.3d 830. We have, therefore, adopted a policy that “we read possibly ambiguous language with an eye toward upholding the warrant rather than toward striking it down.” Hignut v. State, 17 Md.App. 399, 413, 303 A.2d 173 (1973). See also United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (“the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants”).

In this case, the affidavit that accompanied Sergeant Zimmerman’s request for a search warrant did not include any direct evidence that Moats’s cell phone contained data that was relevant to proving his involvement in dealing drugs or participating in sexual offenses. The affidavit does not indicate that any of the witnesses who were interviewed about the night in question asserted that they had communicated with Moats by phone, text, or email, or that they had observed Moats taking any pictures at the party they attended. As the Court of Appeals has made clear, however, “[d]irect evidence that contraband exists in the [place to be searched] is not required for a search warrant[.]” Holmes, 368 Md. at 522, 796 A.2d 90. “[P]robable cause may be inferred from the type of crimes, the nature of the items sought, the opportunity for concealment, and reasonable inferences about where the defendant may hide the incriminating items.” Id.

The police recovered the cell phone in question from Moats when he was arrested. Since the phone was in Moats’s sole possession, it was reasonable to infer that the phone belonged to Moats and that he personally utilized it to conduct his business and personal affairs. Moreover, Moats had already confessed that he had committed criminal acts, possessing marijuana and suboxone and distributing those drugs to other people. The warrant affidavit further indicated that there was reason to believe Moats was also involved in and/or had knowledge of other crimes. As we noted above, electronic data from cellular phones is not infrequently recovered and admitted into evidence to prove guilt in criminal proceedings in Maryland Courts, including proceedings for drug distribution and sexual offenses.

By searching the cellular phone, Sergeant Zimmerman was seeking to recover, among other things, electronic data including phone call records, text messages, stored phone numbers, photographs, email, and financial records, exactly the kind of things that individuals routinely maintain in their cellular phones. Thus, the crimes Moats stood accused of committing are of the type that could be proved by the admission of electronic evidence of the type that often is stored in an individual’s personal cellular phone.

And finally, Sergeant Zimmerman attested in the affidavit that he knew “through his training and experience” that “individuals who participate in such crimes communicate via cellular telephones.” Again we note that warrant-issuing judges “are entitled to give credence to the expertise and experience of police officers in developing knowledge about the practices and proclivities of drug dealers” and other criminals. Agurs, 415 Md. at 109, 998 A.2d 868 (Barbera, J., dissenting) (citing United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (stating that the totality of the circumstances approach “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person”)). Sergeant Zimmerman’s averment, in conjunction with the other evidence presented in the affidavit in support of the warrant, was sufficient to provide a common-sense nexus between the offenses Moats was accused of committing and the phone to be searched.

Under all the circumstances, we are persuaded that the affidavit that accompanied the search warrant provided a substantial basis for the warrant-issuing judge to reasonably infer that evidence of Moats’s involvement in drug dealing or sexual offenses was likely to be found in a search of Moats’s cellular phone. We conclude, therefore, that the circuit court did not err by denying Moats’s pre-trial motion to suppress the photographs and video that were recovered from his cellular phone.

Assuming arguendo that we determined that the warrant judge did not have a substantial basis to issue the search warrant in this case, we would still uphold Moats’s conviction. The record demonstrates that Sergeant Zimmerman acted in good faith in preparing the affidavit and obtaining a warrant before searching the electronic contents of Moats’s cellular phone. Sergeant Zimmerman testified at the suppression hearing to his objective belief that the search warrant was supported by probable cause. He further attested that he relied on the warrant-issuing judge’s determination that the warrant application was sufficient. We conclude, therefore, that the good faith exception to the warrant requirement would allow admission of the photographs and videos that were recovered from Moats’s cell phone even had the warrant been defective. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

JUDGMENT OF THE CIRCUIT COURT FOR GARRETT COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      . The questions as presented by Moats's are:
      I. Does an affiant's assertion that "individuals who participate in [sex or drug] crimes communicate via cellular telephones, via text messages, calls, e-mails etc.,” without more, provide a substantial basis to issue a search warrant for a cell phone?
      II, When a trial court applies an incorrect legal standard to a motion to suppress evidence in a criminal case, is a limited remand warranted so that the correct standard can be applied?

      . Article 26 of the Maryland Declaration of Rights provides:
      That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.

      . Notable exceptions to the warrant requirement include: search incident to an arrest (Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009)); hot pursuit (Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)); the plain view doctrine (Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)); the
        Carroll doctrine (Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)); stop and frisk (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); consent (Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)); community caretaking doctrine (Wilson v. State, 409 Md. 415, 975 A.2d 877 (2009)); and exigent circumstances (Kentucky v. King, 563 U.S. 452, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011)).

      . Courts in other jurisdictions that have considered similar questions have reached similar conclusions. See e.g. United States v. Burgard, 675 F.3d 1029, 1033-35 (7th Cir. 2012) (finding that a six-day delay between the seizure of a cell phone and the search of the device pursuant to a warrant was not unreasonable); United States v. Gholston, 993 F.Supp.2d 704, 713 (E.D. Mich 2014) (finding no constitutional impediment to law enforcement's "authority to take [a suspect’s] cell phone from him at the scene of his arrest and hold it for several days before seeking a search warrant”); United States v. Arellano, 410 Fed.Appx. 603, 606-07 (4th Cir. 2011) (affirming the denial of the defendant’s motion to suppress evidence obtained from his cell phone, where the phone was legally seized incident to his arrest and then searched more extensively two months later pursuant to a warrant).

      . In his brief, Moats relies heavily on the Court of Appeals opinion in Agurs v. State, 415 Md. 62, 998 A.2d 868 (2010). In part of the Agurs opinion (that was adopted by only three members of the Court), the authoring judge opined that the search warrant affidavit "provided limited facts suggesting that Agurs was involved with drug distribution.” Id. at 88, 998 A.2d 868. In this case, Moats admitted that he had engaged in criminal activity, providing much stronger evidence of his criminal wrongdoing. The instant case, therefore, is distinguishable on its facts from Agurs. See Johnson, 208 Md.App. at 601, 56 A.3d 830 (distinguishing Agurs based on the relative strength of the evidence of criminal wrongdoing). In any event, the plurality holding in Agurs has little precedential value in this case. The only question before the Court of Appeals in Agurs was whether the law enforcement officers who executed the search warrant of a home did so in good faith. Agurs, 415 Md. at 75, 998 A.2d 868. The Court did not grant certiorari concerning the adequacy of a nexus between the defendant’s criminal acts and his home. Id. at 68 n. 3, 998 A.2d 868.