Acme Markets, Inc. v. Bayshore Mall 1a, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1717-24

ACME MARKETS, INC.,

Plaintiff-Respondent,

v.

BAYSHORE MALL 1A, LLC,

BAYSHORE MALL 1B, LLC,

and BAYSHORE MALL 2, LLC,

Defendants-Appellants.

____________________________

Submitted March 4, 2026 – Decided April 1, 2026

Before Judges Mayer and Jacobs.

On appeal from the Superior Court of New Jersey, Law

Division, Cape May County, Docket No. L-0028-24.

David Larry Braverman (Braverman Kaskey PC) and

Kevin W. Burdett (Braverman Kaskey PC), attorneys

for appellants.

Cooper Levenson and Buchanan Ingersoll & Rooney

PC, attorneys for respondent (Mark A. Kasten, Gerald

E. Burns (Buchanan Ingersoll & Rooney PC) of the

Pennsylvania bar, admitted pro hac vice, and Nicholas

F. Talvacchia, on the brief).

PER CURIAM

Defendants Bayshore Mall 1A, LLC, Bayshore Mall 1B, LLC, and

Bayshore Mall 2, LLC (collectively, Bayshore) appeal from an April 5, 2017

order granting partial summary judgment to plaintiff Acme Markets, Inc.

(Acme), an August 28, 2017 order partially granting Bayshore's motion for

injunctive relief and reconsideration of certain provisions in the April 2017

order, and a November 22, 2024 order granting summary judgment in favor of

Acme and partial summary judgment in favor of Bayshore. We affirm all orders

on appeal.

For ten years, Bayshore and Acme have litigated provisions in a 1988

written lease executed by their respective predecessors-in-interest (Lease).1

Under the Lease, Acme's predecessor paid over one million dollars for a ninety-

nine-year lease for a total of sixty-three acres of land owned by Bayshore's

predecessor. The lease also gave Acme the option to purchase the leased

property after obtaining subdivision approval from the municipality.

The main issue is Acme's right to subdivide its leased property from the

larger shopping center property owned by Bayshore. There are subsidiary issues

1

Because the municipality's subdivision ordinances at the time of the lease

prevented the outright conveyance of property owned by Bayshore's

predecessor, the parties could not enter into a sale agreement.

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between the parties, including Acme's purported breach of the Lease and other

Lease related documents.

The Lease refers to a written declaration of restrictions and grants of

easements (Declaration) to which Acme and Bayshore are bound. Exhibit A

purportedly attached to the Lease was a site plan 2 and Exhibit B attached to the

Lease was a metes and bounds description. 3 Both exhibits were prepared by an

engineering firm prior to any construction. These documents purportedly

indicated the exhibits could contain discrepancies upon completion of

construction.

The Declaration governed the location for the sale of merchandise within

the shopping center. Bayshore claimed Acme violated the Declaration by selling

merchandise within designated common areas and sidewalks without Bayshore's

written consent. The Declaration also included an easement allowing a two-foot

encroachment on space between the property leased to Acme and the remaining

property owned by Bayshore. However, the Declaration states the easement

does "not extend to encroachments which are intentional or which materially

2

Bayshore contends Exhibit A was never attached to the Lease.

3

Bayshore argued the metes and bounds description did "not form a

mathematically closed figure," rendering Exhibit B ineffective.

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3

and adversely affect the location, orientation, design or construction of buildings

to be constructed . . . unless first approved in writing by the [o]wner of the

adversely affected [p]arcel."

The Lease provides Bayshore is required to cooperate with and assist

Acme in obtaining subdivision approval, including the execution of documents

necessary to obtain that approval. Further, the Lease requires Acme to obtain

an as-built survey before exercising its right to subdivide and to comply with all

applicable laws and regulations governing the subdivision of its leased property.

Despite the cooperation clause in the Lease, Bayshore opposed Acme's

efforts to subdivide on several grounds. Among those grounds, Bayshore cited

Acme's alleged breaches of the Lease, Acme's failure to provide an accurate as -

built survey, and Acme's need to acquire variances as part of its subdivision

application.

Acme attempted to work with Bayshore on the subdivision application and

forwarded a consent form to be signed by Bayshore as the owner of the larger

shopping center property. However, Bayshore declined to sign the owner's

consent form as written. Bayshore claimed the owner's consent form was

"overbroad." Bayshore further contended its professionals had to review Acme's

plans before it would execute the owner's consent form. Additionally, Bayshore

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argued Acme failed to provide a survey depicting the subdivision boundaries.

In declining to sign the owner's consent form, Bayshore highlighted Acme's

alleged noncompliance with various provisions in the Lease and Declaration.

In 2016, as a result of Bayshore's conduct, Acme filed an action in the

Superior Court of New Jersey, Chancery Division, to compel Bayshore's

compliance with the Lease (first action). Bayshore filed an answer and

counterclaim. In its counterclaim, Bayshore sought to invalidate Acme's

subdivision plan.

Acme moved for summary judgment in the first action. Judge Julio

Mendez partially granted Acme's motion in an April 5, 2017 order and written

statement of reasons. The judge upheld Acme's purchase option and right to

obtain a subdivision. He also found Bayshore had a "duty to cooperate [with]

and assist Acme in subdividing the premises."

Judge Mendez found "the [g]overning [d]ocuments [we]re crystal clear

and provide[d] Acme with the right to exercise the purchase option" and "Acme's

purchase option [was] valid and enforceable." Further, the judge stated that

"[w]hile the parcel Acme s[ought] to subdivide [wa]s inconsistently identified

in the [g]overning [d]ocuments," he was "satisfied that[,] without a doubt[,] the

parcel c[ould] be identified[,] . . . find[ing] adequate proof that Exhibi t A [wa]s

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recorded, enforceable, and identifie[d] Acme's parcel with reasonable certainty."

While noting inconsistencies between Exhibit B and Acme's original

subdivision plan, the judge accepted Acme's amended subdivision plan as

revised per the land description in Exhibit B. The judge found "the metes and

bounds of the [p]roperty, per Acme's recent modification, [wa]s consistent with

the [g]overning [d]ocuments."

While the judge affirmed "Bayshore's obligation to cooperate [with] and

assist Acme in furtherance of its subdivision," he held "Bayshore [wa]s not

required to sign Acme's [s]ubdivision [p]lan and [o]wner's [c]onsent [f]orm."

However, the judge rejected Bayshore's argument that it had "no duty to revise

Acme's incorrect or overly broad documents," explaining "Bayshore must work

diligently with Acme, which may include helping to correct inadvertent mistakes

in its documents." The judge also rejected Bayshore's argument "that Acme

require[d] government approval prior to obtaining Bayshore's cooperation and

assistance" and "ha[d] no duty to cooperate and assist with any entity other than

the Township and the County." To the contrary, the judge found Bayshore had

a duty to cooperate and assist as needed "in furtherance of [Acme] obtaining

approval of relevant government authorities."

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Regarding the owner's consent form, the judge concluded the form was

"inaccurate and overbroad" because "[i]t sought the signature of only defendant

Bayshore Mall 1A" while "Bayshore consists of three limited liability

companies and the signature of Bayshore Mall 1A does not represent remaining

owners." Additionally, the judge found the owner's consent form, requiring

"Bayshore Mall 1A to authorize Acme to execute all documents and perform all

acts related to Acme's application as though applied for by Bayshore,"

essentially "serve[d] as a kind of power of attorney, wholly unanticipated by the

[g]overning [d]ocuments."

Judge Mendez also was "unconvinced with Bayshore's attempt to muddy

the waters [by] noting Acme's improper and unauthorized work in common

areas,[4] past due . . . payments, and violations of the Americans with Disability

Act." The judge held "Bayshore may file separate actions seeking compliance

with the law or money damages for these claims." However, the judge expressly

stated "such claims d[id] not prevent Acme from exercising its purchase option

4

Acme repaved a portion of the parking lot and modified the drainage system.

Bayshore claimed that Acme performed this work incorrectly and Bayshore had

to remediate the issues at its own expense.

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rights under the [g]overning [d]ocuments or excuse Bayshore's duty to cooperate

and assist."

Bayshore then moved for injunctive relief in the first action and for

reconsideration of the April 7 order. Bayshore sought an injunction prohibiting:

"(1) Acme's use of its sidewalk for storage and sales; (2) nonconforming signs

on the outside of Acme's property; (3) Acme's request[s] for variance relief; (4)

Lower Township's ability to consider Acme's variance request[s]; (5) Acme's

ability to sell alcoholic beverages;[5] and (6) Acme's ability to pursue its

subdivision application."

Bayshore sought injunctive relief, claiming Acme failed to adequately

define the nature of its planned encroachments and that there were questions

regarding the scope of permissible encroachments under the Declaration.

Bayshore also argued the variances required by Acme for subdivision approval

would "negatively impact the remainder of the shopping center" and therefore

would "not [be in] full compliance with the terms of the [governing]

documents."

5

Pending discussions between Acme and the New Jersey Division of Alcoholic

Beverage Control, Bayshore elected "not to proceed" on the liquor license issue.

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In its motion for reconsideration, Bayshore claimed Judge Mendez should

have permitted discovery before determining Bayshore's obligation to cooperate

with Acme's subdivision application. It also argued discovery would have

supported a finding that Acme breached the Lease and Declaration, rendering

its obligation to cooperate null and void.

While the parties continued to litigate, Acme filed an application with the

municipal planning board, requesting a variance to allow outdoor sales and

signage. Bayshore opposed the application. The planning board denied Acme's

variance application.

In an August 28, 2017 order and written decision, Judge Mendez partially

granted Bayshore's motions for injunctive relief and reconsideration. The judge

enjoined "Acme's use of its sidewalk for storage and sales" based on the planning

board's denial of Acme's variance.

The judge also granted Bayshore's request to enjoin the "nonconforming

signs on the outside of Acme's property" based on the planning board's denial

of the variance application for outdoor signage. The judge enjoined "use of

unauthorized signage until Acme obtain[ed] the proper municipal approvals."

However, Judge Mendez denied Bayshore's request to enjoin Acme's

future application for variances. The judge concluded "Bayshore overreache[d]

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in its attempt to usurp [the planning board's] authority and Acme's statutory

rights pursuant to the Municipal Land Use Law."

The judge also denied Bayshore's request to enjoin Acme's pursuit of its

subdivision application. The judge found no reason "to prevent Acme from

filing a subdivision application" and stated "[t]he rights of Bayshore w[ould] be

fully protected in the context of this litigation under the [g]overning

[d]ocuments, as well as the hearings that will take place before the planning

board."

The judge partially granted Bayshore's motion for reconsideration. While

reaffirming Acme's right to purchase and subdivide its parcel from Bayshore's

larger property, the judge allowed discovery related to the legal descriptions of

Bayshore's property and Acme's proposed subdivision. Because Acme

submitted a modified plan only a few days before the summary judgment

hearing, Judge Mendez agreed Bayshore "had no opportunity to review the plan,

challenge its details, or take discovery" on the modified plan. The judge limited

discovery to "the proper description and property lines of the property to be

subdivided" and detailed the specific discovery permitted as part of his order.

The judge also allowed discovery as to whether Acme's encroachments exceeded

the encroachment provision in the Declaration. Bayshore's other discovery

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requests were denied by Judge Mendez for the detailed reasons explained in his

written decision. 6

Not long after Judge Mendez entered his August 28, 2027 order, Acme

filed a revised application for variance relief with the planning board. Bayshore

opposed the revised application. On December 14, 2017, the planning board

approved Acme's variance application.

In January 2023, a newly assigned judge directed Acme to file its

subdivision application with the planning board. The new judge closed the

matter subject to the planning board's decision on Acme's application. After the

planning board rendered a decision on Acme's application, the judge stated any

remaining claims could be filed in a new action under a different docket number.

Bayshore's remaining counterclaims in the first action were transferred to the

Law Division.

Acme filed its subdivision application with the planning board. Bayshore

signed the owner's consent form for Acme's subdivision plan but added the

following language:

[Bayshore] own[s] the lot as shown hereon. This

application is being signed on behalf of [Bayshore]

6

Discovery disputes ensued notwithstanding Judge Mendez's detailed discovery

order. The disputes led to the appointment of a special discovery adjudicator .

The parties' discovery disputes are not the subject of this appeal.

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consenting only to Acme's right to file a subdivision

application with the [p]lanning [b]oard. [Bayshore]

does not consent to a subdivision pursuant to the

subdivision plan dated September 18, 2019. . . . The

September 18, 2019 plan attached is inaccurate and

does not conform with the requirements of the possible

subdivision contemplated or intended by the parties as

set forth in Acme's 1988 Lease agreement.

The municipal engineer reviewed Acme's subdivision application. He

"found deficiencies in the application and plan which would need to be corrected

before the plan could be considered." The planning board advised it could not

"hear the subdivision application as [Bayshore] ha[d] not consented to the

subdivision based upon the submitted plan." Therefore, the planning board

explained it could not consider Acme's application without full consent from

Bayshore.

Upon transfer of Bayshore's remaining counterclaims to the Law Division

under a new docket number, Acme obtained an order allowing it to file an

amended complaint in that action. In its May 2023 amended complaint, Acme

alleged Bayshore violated its obligations under the Lease by refusing to

cooperate and assist with Acme's subdivision plan. It further alleged Bayshore

breached the Lease by "overcharging Acme for Acme's share of real estate taxes

payable under the Lease."

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On September 19, 2023, Acme filed another complaint against Bayshore

in the Superior Court of New Jersey, Chancery Division. Acme renewed its

breach of contract and declaratory judgment claims raised in its May 2023

amended complaint in the Law Division matter. Acme specifically requested

Bayshore be compelled to cooperate and assist Acme in securing all

governmental approvals for its subdivision. Acme also requested compensatory

damages and attorney's fees.

Bayshore moved to dismiss the new complaint, which the judge denied.

Bayshore then filed its answer and counterclaim. Bayshore asked the court to

declare it be allowed to "conduct reasonable due diligence on all future

subdivision plans and withhold its consent when those plans do not comply with

the law or the terms of the [g]overning [d]ocuments."

In February 2024, Judge Michael J. Blee consolidated the Chancery

Division and Law Division cases under a single docket (second action). Acme

then filed an answer to Bayshore's counterclaim in the second action.

Bayshore moved for partial summary judgment in the second action. The

same day, Acme also moved for summary judgment in the second action. Judge

Blee heard counsels' arguments in September 2024 and reserved decision. He

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also suggested the parties attempt to resolve the issues "before [he] render[ed]

[his] [o]pinion in thirty days."

Because the parties were unable to resolve their disputes, Judge Blee

entered a November 22, 2024 order and issued a written decision. The judge

granted Acme's motion for summary judgment and denied Bayshore's motion

for partial summary judgment, except to rule in Bayshore's favor regarding

Acme's real estate tax claim.

The judge granted summary judgment to Acme on its claim "that Bayshore

breached the Lease by failing to cooperate with and assist Acme in obtaining

subdivision approval." Judge Blee held Bayshore's argument that Acme's

subdivision discrepancies prevented Bayshore from cooperating and assisting

was "baseless." The judge cited Judge Mendez's April 2017 order requiring

Bayshore "to correct inadvertent mistakes in [Acme's] documents" as part of

Bayshore's duty to cooperate with and assist Acme in obtaining subdivision

approval. Further, the judge determined Acme's requested variances associated

with subdivision were "a way for an applicant to conform with the law" rather

than, as Bayshore argued, an acknowledgement that Acme's plan did not

conform with the law. The judge noted Bayshore's encroachment claims in its

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ongoing dispute with Acme demonstrated "Bayshore ha[d] not attempted to

cooperate with and assist Acme on what the proper line should be."

Judge Blee also found Acme was entitled to specific performance based

on Bayshore's breaches under the Lease. The judge rejected Bayshore's

argument that the discrepancies between Acme's subdivision plan and the land

description barred Acme's claim for specific performance. The judge explained

neither Acme's need for variances to effectuate its subdivision plan nor Acme's

alleged encroachments on adjoining property owned by Bayshore impacted

Bayshore's duty to cooperate with and assist Acme under the Lease.

In denying most of Bayshore's motion for partial summary judgment,

Judge Blee held collateral estoppel did not bar Acme's claim that Bayshore failed

to cooperate and assist Acme in its pursuit of subdivision because there was no

final decision on the merits in the first action. Based on Judge Mendez's orders

in the first action, Judge Blee found Bayshore's duty to cooperate and assist was

not superseded by Bayshore's desire to conduct due diligence regarding Acme's

subdivision plan. Additionally, the judge found there were genuine disputes of

material fact as to Acme's breaches of the governing documents concerning

outdoor sales and parking lot repairs.

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However, regarding Acme's claim concerning the allocation of real estate

taxes, the judge granted partial summary judgment to Bayshore, finding the

Lease provision addressing payment of real estate taxes was ambiguous.

Therefore, the judge concluded Bayshore did not breach the agreement by

charging Acme fifty percent of the real estate taxes for the property leased by

Acme.

Bayshore moved for reconsideration of Judge Blee's November 2024

order. Bayshore argued Acme's alleged breaches of the Lease should not have

been resolved on summary judgment due to the existence of genuine issues of

material fact regarding the scope and effect of Acme's breaches under the Lease.

Regarding the order requiring it to cooperate with and assist Acme, Bayshore

argued the judge unjustly expanded Bayshore's duty under the Lease. Bayshore

further argued the order constituted an "advisory opinion" "contemplating a

hypothetical future . . . plan that Acme [wa]s going to put together" and required

Bayshore to sign the plan without allowing any due diligence into the viability

of the plan. Additionally, Bayshore claimed the judge erred in requiring it to

exhaust administrative remedies regarding certain of Acme's alleged breaches

under the Lease.

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Judge Blee denied reconsideration, rejecting Bayshore's arguments

predominately for the same reasons explained in his November 2024 written

decision. As to Bayshore's claim that the order constituted an advisory opinion,

Judge Blee explained "[t]he court [wa]s merely enforcing the plain language of

the [L]ease and [was] not issuing an [a]dvisory [o]pinion."

On appeal, Bayshore argues the orders entered in favor of Acme should

be vacated and it is entitled to summary judgment as a matter of law. Bayshore

contends Acme's alleged breaches of the Lease were sufficiently material to

preclude Acme's subdivision application. Bayshore further argues the orders

entered in favor of Acme improperly expanded the cooperation clause under the

Lease and imposed additional obligations on it that were not contemplated under

the Lease. Additionally, Bayshore contends the November 2024 order

constituted an improper advisory opinion because it contemplated hypothetical

future interactions between Acme and Bayshore as part of the subdivision

process. Bayshore also argues the November 2024 order improperly required

Bayshore to exhaust its administrative remedies regarding Acme's alleged land

use violations before pursuing its breach of contract claims. We reject

Bayshore's arguments.

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Under Rule 4:46-2(c), a motion for summary judgment should be granted

"if the pleadings, depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact challenged and that the moving party is entitled to a judgment o r

order as a matter of law." In reviewing a motion for summary judgment, the

judge must "consider whether the competent evidential materials presented,

when viewed in the light most favorable to the non-moving party, are sufficient

to permit a rational factfinder to resolve the alleged disputed issue in favor of

the non-moving party." Brill v. Guardian Life Insurance Co. of America, 142

N.J. 520, 540 (1995). We review a trial judge's grant of a motion for summary

judgment de novo, applying the same standard used by the trial court. Stewart

v. N.J. Tpk. Auth./Garden State Parkway, 249 N.J. 642, 655 (2022).

"The interpretation and construction of a contract is a matter of law for

the trial court, subject to de novo review on appeal." Cumberland Farms, Inc.

v. N.J. Dep't of Env't Prot., 447 N.J. Super. 423, 438 (App. Div. 2016) (citing

Fastenberg v. Prudential Insurance Co. of America, 309 N.J. Super. 415, 420

(App. Div. 1998)). A lease is a contract setting forth the parties' rights and

obligations. See Town of Kearny v. Discount City of Old Bridge, Inc., 205 N.J.

386, 411 (2011).

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We first consider whether the judge erred in granting summary judgment

in favor of Acme by requiring Bayshore to perform its cooperation and

assistance obligations under the Lease.

To establish a right to specific performance of the terms of a contract, the

party seeking such performance must demonstrate (1) the contract is valid and

enforceable, (2) the terms of the contract are clearly express the duties and

obligations of each party, and (3) an order compelling performance of the

contract would be just. Marioni v. 94 Broadway, Inc., 374 N.J. Super. 588, 598-

99 (App. Div. 2005) (citations omitted). However, "one who has either broken

a promise in some material respect or is unable substantially to perform his own

obligations under an agreement cannot get a decree for specific perfor mance."

In re Hoffman, 63 N.J. 69, 81 (1973). "[A] breach is material if it 'goes to the

essence of the contract.'" Roach v. BM Motoring, LLC, 228 N.J. 163, 174

(2017) (quoting Ross Systems v. Linden Dari–Delite, Inc., 35 N.J. 329, 341

(1961)).

To determine whether a breach is material, the court must consider:

(a) the extent to which the injured party will be

deprived of the benefit which he reasonably expected;

(b) the extent to which the injured party can be

adequately compensated for the part of that benefit of

which he will be deprived;

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(c) the extent to which the party failing to perform or to

offer to perform will suffer forfeiture;

(d) the likelihood that the party failing to perform or to

offer to perform will cure his failure, taking account of

all the circumstances including any reasonable

assurances; [and]

(e) the extent to which the behavior of the party failing

to perform or to offer to perform comports with

standards of good faith and fair dealing.

[Id. at 175 (alteration in original) (quoting Restatement

(Second) of Contracts § 241 (Am. L. Inst. 1981)).]

Bayshore argues both judges disregarded Acme's breaches of the Lease in

ordering Bayshore's specific performance. Bayshore contends Acme committed

the following acts constituting breaches under the Lease, thereby precluding

specific performance: Acme's failure to provide an as-built survey; Acme's

encroachments onto Bayshore's property; Acme's need to obtain variances for

its subdivision; and Acme's 2010 damage to the parking lot.

Regarding Acme's alleged breach of the Lease by failing to provide an as-

built survey, we agree with Judge Blee that "the issue with obtaining a survey

or whether there [wa]s a flawed description . . . turn[ed] on Bayshore's

affirmative duty to cooperate and assist Acme with the [s]ubdivision." Because

Bayshore obstructed Acme's pursuit of subdivision, Acme has been unable to

exercise its purchase option under the Lease for which Acme paid significant

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monetary consideration. Under the Lease, Bayshore must cooperate with and

assist Acme in obtaining the survey so Acme can subdivide and exercise its

purchase option. Due to Bayshore's failing to cooperate and work with Acme to

obtain all necessary approvals, Acme has not yet breached the Lease by failing

to meet the as-built survey condition precedent.

Regarding Acme's alleged encroachments on Bayshore's adjoining

property, we agree that the purported encroachments do not constitute a material

breach of the Declaration. Bayshore argues "[t]he Declaration prevented any

encroachment unless that encroachment was unintentional and less than two

feet." Bayshore asserts Acme's encroachments were intentional and therefore

constituted a breach under the Declaration. Bayshore further contends the

encroachment is material because it prevents Bayshore from expanding its store.

However, as Judge Mendez found, "Acme offered to subdivide either

along the metes and bounds description in the Lease or along the as-built party

wall line" which would resolve the encroachment issue. However, Bayshore

rejected that proposal. Judges Mendez and Blee concluded Acme's subdivision

would not negatively affect Bayshore's property because the Declaration grants

each party "an easement for any portion of any building or structure on any

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[p]arcel . . . provided that any such encroachment provided herein shall not

exceed two . . . feet."

Even if Acme's purported encroachment constituted a breach of the

Declaration, any encroachment did not constitute a material breach precluding

Acme's right to seek subdivision. Judge Blee specifically found "that even if

minor encroachments exist[ed], there [we]re other ways to deal with the issue

than denying Acme its rights under the Lease." For example, Bayshore could

file a separate action seeking compensation for any encroachment limiting

Bayshore's right to expand its building. Or, alternatively, Bayshore could work

with Acme to create plans meeting Bayshore's specifications to allow an

expansion of Bayshore's existing structure. Thus, we are satisfied the judges did

not err in finding Acme's alleged encroachment was not a material breach of the

Declaration to justify Bayshore's refusal to cooperate and assist Acme with its

application for subdivision approval.

Nor does Acme's need for variances as part of its subdivision application

obviate Bayshore's compliance with the Lease. Bayshore argues Acme's need

to obtain variances for its subdivision plan violates the Lease. According to

Bayshore, "[a] use variance, as the term implies, permits a use of land that is

otherwise prohibited by the zoning ordinance." Nuckel v. Borough of Little

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Ferry Planning Board, 208 N.J. 95, 101 (2011) (citing Coventry Square, Inc. v.

Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 287 (1994)). Because

Acme requires variances, Bayshore claims Acme's subdivision application does

not fully comply with the law and, therefore, constitutes a breach of the Lease.

In rejecting Bayshore's argument, Judge Blee found Acme's required

variances were "a way for [Acme] to conform with the law" rather than an

acknowledgement that Acme's plan did not conform with the law. See Stop &

Shop Supermarket Co. v. Bd. of Adjustment of Twp. of Springfield , 162 N.J.

418, 432 (2000) ("A variance . . . is an official quasi-legislative, quasi-judicial

determination that the use or structure allowed is not offensive to the ordinance

in the broad context of the particular circumstances which . . . have authorize d

the grant. In essence, the use or structure allowed becomes a conforming use.")

(emphasis removed) (citing 2 Rathkopf, The Law of Planning and Zoning § 46:1

(3d ed. 1972)). Therefore, Bayshore's argument that variances imply violations

of the law is misplaced.

Even adopting Bayshore's narrow interpretation of the term "variance,"

Judge Mendez found none of Bayshore's land-use arguments "invalidate[d]

Acme's purchase option" because "[q]uestions of land use [we]re best left to the

local board." Nothing about Acme's variance requests deprived Bayshore of any

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reasonably expected material benefits. Nor would Bayshore be precluded from

bringing an action for compensatory damages against Acme if any of the granted

variances resulted in harm to Bayshore. Therefore, despite the need for variance

relief, Acme's subdivision plan did not constitute a material breach of the Lease.

We also reject Bayshore's argument that Acme's alleged damage to the

parking lot constituted a breach of the Lease thereby voiding Bayshore's

obligations under the governing documents. Bayshore argues the judge erred in

finding its allegation that Acme caused damage to the parking lot unsupported

by the record.

Judge Blee found "Bayshore ha[d] not provided any supporting evidence

that Acme performed such work." The judge explained "Bayshore merely

support[ed] [its] contention with testimony from its principal." On appeal,

Bayshore now claims Judge Blee "overlook[ed] the undisputed deposition

testimony of Acme's representative who admit[ted] to performing repair work

on the parking lot and resolving the issue in Acme's favor."

Bayshore failed to cite where in the record Acme made such statements

about the parking lot. Moreover, in resolving this issue, Judge Blee

acknowledged his obligation to consider Bayshore's arguments "in the light most

favorable to the non-moving party," citing Brill, 142 N.J. at 540, and Acme was

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the non-moving party. Thus, Judge Blee did not err in concluding Bayshore's

parking lot claim was not supported by the record and properly denied

Bayshore's motion for summary judgment on this issue.

We next consider Bayshore's argument the judges erred by expanding its

duty to cooperate and assist under the Lease. Bayshore challenges the judges'

interpretation of the Lease, imposing "affirmative obligations" upon Bayshore

under the Lease. Bayshore argues its obligations under the cooperate and assist

provision of the Lease are limited to "only cooperat[ing] [with] and assist[ing]

[Acme] with the subdivision application process" and specifically limits

Bayshore's obligation to helping Acme "in seeking the issuance of approvals ."

Bayshore asserts the judges "effectively g[ave] Acme a blank check to take from

Bayshore whatever it claims it need[ed] in the name of subdivision." We

disagree.

The relevant portion of the Lease obligates Bayshore to "cooperate with

and assist [Acme] in securing the said approval of all governmental authorities"

such as "timely execut[ing] any applications and other necessary documents that

[Acme] certifies to [Bayshore] are necessary to effect the [s]ubdivision of the

[p]remises and to attend[,] upon reasonable notice[,] any necessary public or

private hearings in seeking [s]ubdivision approval." Judge Mendez concluded

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Bayshore had an obligation based on this language "to support Acme's endeavor

to exercise its valid and enforceable purchase option" by "work[ing] diligently

with Acme, which may include helping to correct inadvertent mistakes in its

documents." Additionally, Judge Mendez determined Acme's requests directed

to Bayshore and related to the subdivision plan were "reasonable and [Acme]

welcomed Bayshore's comments on the matter." Judge Blee adopted Judge

Mendez's findings related to the cooperation and assist provision in the Lease.

We discern no error in Judge Mendez's conclusion regarding Bayshore's

duty to cooperate and assist under the Lease. The Lease unequivocally required

Bayshore to cooperate with and assist Acme in that endeavor.

The Lease states Bayshore is required to "execute any applications and

other necessary documents" related to Acme's subdivision plan. We agree

Bayshore may not refuse to sign Acme's documents based on a purported

inaccuracy. In the event Bayshore declines to execute documents submitted by

Acme, the Lease provides Bayshore must work with Acme to conform the

documents and render them acceptable for execution by Bayshore. On this

record, we are satisfied Judge Mendez did not err in concluding Bayshore may

be required to assist Acme in "correct[ing] inadvertent mistakes in its

documents" because Bayshore must execute the documents in connection with

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Acme's subdivision and, presumably, Bayshore would want to sign legally

correct documents. The plain language of the Lease obligates Bayshore to work

with Acme to cure any subdivision plan deficiencies, which may include some

"affirmative" activity on Bayshore's part.

Bayshore mistakenly relies on cases discussing cooperation clauses in

insurance policies as evidence that such provisions should be construed

narrowly. See Selective Insurance Co. of America v. Hudson East Pain

Management Osteopathic Medicine, 210 N.J. 597, 607 (2012) (finding that,

according to the insurance policy at issue, "an insured's duty to cooperate with

[their carrier] referred to the duty to cooperate with the 'investigation, settlement

or defenses' of the insured's underlying claim" and therefore "[a]n insured had

no duty to provide information to [the carrier] with respect to the ownership

structure, billing practices, or referral methods of the medical providers from

whom he or she sought treatment for his or her injuries.").

We conclude cooperation clauses in the context of insurance policies are

inapplicable to the cooperation clause in the Lease because Bayshore and Acme

are not insurance carriers or insureds. See Pearl Assurance Co. v. Watts, 58 N.J.

Super. 483, 490 (App. Div. 1959) (explaining that cooperation clauses "are

designed to protect the interests of the insurer and prevent collusion between the

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insured and the injured person") (citing Kindervater v. Motorists Casualty

Insurance Co., 120 N.J.L. 373, 376 (E. & A. 1938)). Therefore, Bayshore's

reliance on Hudson East Pain Management is misplaced.

Bayshore also asserts it "has cooperated with Acme to achieve a

subdivision that is in accordance with the [g]overning [d]ocuments and

applicable law." Alternatively, Bayshore claims "Acme seemingly does not

want Bayshore to work with it as a partner," instead "demand[ing] that Bayshore

work for it as a blind and mute subordinate." Bayshore further contends that

"obligations under a cooperation clause are reciprocal" and therefore Bayshore

cannot be in violation of the Lease's cooperation provision due to Acme's failure

to abide by such provision. Bayshore cites Acme's purported breaches of the

Lease, such as Acme's failure to provide an as-built survey, need for variances

to effectuate its subdivision plan, land description issues, and encroachments

onto Bayshore's property, as evidence Acme failed to cooperate with Bayshore .

Thus, Bayshore argues "Acme is not entitled to equitable relief as the balances

do not weigh in its favor" due to Acme's "unreasonable conduct."

As we previously explained, none of Acme's alleged breaches are material

and thus do not warrant Bayshore's refusal to cooperate and assist with Acme's

subdivision application. Additionally, while obligations under the Lease's

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cooperation clause may be reciprocal, none of Acme's conduct could be deemed

"unreasonable" regarding its relationship with Bayshore. Acme sought

Bayshore's assistance and feedback at every stage of the subdivision process and

expressed its willingness to cure issues Bayshore may have had with its

subdivision plan. Further, Acme's purported breaches of the Lease do not

constitute violations of the cooperation provisions. On this record, Acme has

done nothing but attempt to cooperate with and solicit assistance from Bayshore

to obtain subdivision.

We also reject Bayshore's argument that Judge Blee's November 2024

order constituted an advisory opinion. "An advisory opinion is a nonbinding

statement by a court . . . interpreting the law on a matter submitted for that

purpose." In re Determination by Dir. of Div. of Alcoholic Beverage Control

that Xanadu Redevelopment Project Meets All Jurisdictional Requirements, 392

N.J. Super. 577, 580 (App. Div. 2007). "[C]ourts in New Jersey do 'not render

advisory opinions or function in the abstract.'" Id. at 581 (citing Crescent Park

Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98, 107 (1971)).

Bayshore argues Judge Blee's November 2024 order is an advisory

opinion because the order addresses "a hypothetical plan that Acme might put

together in the future." Bayshore argues it "must be allowed to ensure that any

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plan or document submitted by Acme complies with the [g]overning

[d]ocuments so that both parties get the exact deal that was negotiated."

Nothing in Judge Blee's November 2024 order constituted an advisory

opinion. Judge Blee quoted the language in the Lease. The quoted language is

not a "nonbinding statement" because Acme and Bayshore are already mutually

bound by the terms of the Lease. Judge Blee's order enforces the plain language

of the Lease and does not address hypothetical future interactions between Acme

and Bayshore. Acme and Bayshore agreed their future conduct is governed by

the terms of the Lease. Judge Blee's November 2024 merely enforced the Lease

obligations and did not constitute an advisory opinion.

Bayshore also argues Judge Blee erred by requiring Bayshore to exhaust

its administrative remedies before asserting claims for breach of contract against

Acme. We reject this argument.

"Rule 4:69-5 imposes a duty to exhaust administrative remedies before

initiating actions at law '[e]xcept where it is manifest that the interest of justice

requires otherwise.'" Griepenburg v. Twp. of Ocean, 220 N.J. 239, 261 (2015)

(alteration in original). "[T]he exhaustion of remedies requirement is a rule of

practice designed to allow administrative bodies to perform their statutory

functions in an orderly manner without preliminary interference from th e

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courts." Ibid. (quoting Brunetti v. Borough of New Milford, 68 N.J. 576, 588

(1975)). "[T]here is 'a strong presumption favoring the requirement of

exhaustion of remedies.'" Ibid. (quoting Brunetti, 68 N.J. at 588). The need for

an exhaustion of administrative remedies may be superseded "when the

administrative remedies would be futile, when irreparable harm would result,

when jurisdiction of the agency is doubtful, or when an overriding public interest

calls for a prompt judicial decision." Ibid. (quoting New Jersey Civil Service

Ass'n v. State, 88 N.J. 605, 613 (1982)).

Here, Judge Blee ordered Bayshore to "exhaust all administrative

remedies, including seeking code enforcement, for the outdoor sales and parking

lot ponding issues" rather than address those issues in the second action. Judge

Blee relied on the earlier decision by Judge Mendez that "[q]uestions of land use

[we]re best left to the local board of adjustment."

Contrary to Bayshore's argument on this point, the issues regarding

outdoor sales and damage to the parking lot would fall under the Lease if Acme

failed to "comply promptly and fully with all laws, ordinances, notices, orders,

regulations[,] and requirements of all federal, state[,] and municipal

governments and all departments, commissions, boards[,] and offices thereof."

Thus, Bayshore must establish Acme's outdoor sales practices and parking lot

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ponding repair violated the law. And, to prove Acme violated the law, Bayshore

must exhaust its administrative remedies, such as pursuing an action before the

local code enforcement board or local planning board.

There is no evidence on this record that such actions by Bayshore would

be futile or would result in irreparable harm. Nor does the public interest call

for a judicial decision on these issues. Because establishing Acme conducted

illegal land-use activity is a condition precedent to establishing Acme breached

the Lease, Judge Blee did not err by requiring Bayshore to pursue administrative

remedies before asserting a breach of contract claim on such grounds.

Affirmed.

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