RENAISSANCE BEVERAGES III LLC VS. TOWNSHIP OF LOWER PLANNING BOARD (L-0030-18 AND L-0038-18, CAPE MAY COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-3562-18T3

A-3611-18T3

RENAISSANCE BEVERAGES

III LLC, d/b/a GORMAN'S WINES

& SPIRITS, AWAZ INC, d/b/a

SEARS, FGM FITNESS, LLC, d/b/a

NORTH BEACH HEALTH CLUB,

RA WIRELESS OF NJ LLC, CA

COOPER LLC, d/b/a H & R BLOCK,

ITALIAN AFFAIR OF NORTH

CAPE MAY INC., d/b/a ITALIAN

AFFAIR PIZZA & PASTA,

LEE HING ENTERPRISES INC.,

d/b/a ASIAN PALACE, and

YOZU INC.,

Plaintiffs-Appellants,

v.

TOWNSHIP OF LOWER

PLANNING BOARD

and ACME MARKETS, INC.,

Defendants-Respondents.

BAYSHORE MALL 1A, LLC,

BAYSHORE MALL 1B, LLC, and

BAYSHORE MALL 2, LLC,

Plaintiffs-Appellants,

v.

TOWNSHIP OF LOWER

PLANNING BOARD and ACME

MARKETS, INC.,

Defendants-Respondents.

Argued telephonically May 27, 2020 –

Decided July 9, 2020

Before Judges Yannotti and Currier.

On appeal from the Superior Court of New Jersey, Law

Division, Cape May County, Docket Nos. L-0030-18

and L-0038-18.

Elias T. Manos argued the cause for appellants

Renaissance Beverages III LLC, FGM Fitness, LLC,

RA Wireless of NJ LLC, CA Cooper LLC, Italian

Affair of North Cape May Inc., Lee Hing Enterprises

Inc., and Yozu Inc. (Manos Law Firm, LLC, attorneys;

Elias T. Manos, on the joint briefs).

Christopher M. Baylinson argued the cause for

appellants Bayshore Mall 1A, LLC, Bayshore Mall 1B,

LLC, and Bayshore Mall 2, LLC (Perskie Mairone Brog

Barrera & Baylinson, attorneys; Christopher M.

Baylinson, on the joint briefs).

Gerald E. Burns (Buchanan Ingersoll & Rooney, PC) of

the Pennsylvania bar, admitted pro hac vice, argued the

cause for respondent Acme Markets, Inc. (Buchanan

Ingersoll & Rooney, PC, attorneys; Christopher James

Dalton, on the brief).

A-3562-18T3

2

Avery S. Teitler argued the cause for respondent

Township of Lower Planning Board (Teitler & Teitler,

attorneys; Avery S. Teitler, on the brief).

PER CURIAM

The controversy in these consolidated cases arises out of the Lower

Township Planning Board's (Board) approval of Acme Market Inc.'s application

to create an outdoor display area and construct additional signage. Acme leases

its premises located within the Bayshore Mall shopping center. The Bayshore

Mall entities,1 and eight of its tenants2 that lease commercial properties in the

shopping center, appealed the Board's decision.3 The trial court affirmed the

Board's decision in a March 11, 2019 order and decision. After a review of the

arguments advanced on appeal in light of the record and applicable principles of

law, we affirm.

1

Bayshore Mall is owned by three tenants in common: plaintiffs Bayshore Mall

1A, LLC, Bayshore Mall 1B, LLC, and Bayshore Mall 2, LLC (Bayshore).

2

We refer to plaintiffs Renaissance Beverages III, LLC d/b/a Gorman's Wines

& Spirits, FGM Fitness, LLC d/b/a North Beach Health Club, RA Wireless of

NJ, LLC, CA Cooper, LLC d/b/a H & R Block, Italian Affair of North Cape

May, Inc. d/b/a Italian Affair Pizza & Pasta, Lee Hing Enterprises, Inc. d/b/a

Asian Palace, and Yozu, Inc. collectively as "Tenants."

3

We refer to Bayshore and the Tenants collectively as "plaintiffs."

A-3562-18T3

3

Acme has been a tenant in the shopping center since 1988. For several

years prior to these events, Acme operated an outdoor display area in front of

its store. However, in February 2017, Lower Township issued a citation to

Acme as the outdoor displays violated a municipal ordinance, Section 400-

17(E)(3) of the Lower Township Land Development Code (Code). The

ordinance only permitted garden centers and stores that sold vehicles and boats

to have an outside display.

Thereafter, in April 2017, Acme filed an application with the Board

seeking minor site plan approval and variance relief, under Section 400-

17(E)(3), to create two outdoor display areas outside each of the store's entrance

and exit doors. Acme also sought variance relief for additional signage.

During a hearing in July 2017, the Board heard testimony from

representatives of Acme, Bayshore, and one of the Tenants; Bayshore and the

tenant objected to the application. In a three to three split vote on the variance

requests, the Board denied Acme's application.

A week later, Acme filed a second application seeking similar relief and

addressing the concerns expressed by the Board during the first hearing. Acme

reduced the proposed area and height for the outdoor displays and established

A-3562-18T3

4

an ADA-compliant4 pedestrian sidewalk in front of them. It also revised the

proposed sign package, seeking a variance for three additional LED channel

letter signs for the westward facing wall of the building: (1) a 58.5 square foot

"Acme" sign; (2) a 6.8 square foot "Liquor" sign; and (3) a 9.7 square foot

"Pharmacy" sign. In addition, Acme proposed a 126 square foot glass-applied

graphic sign depicting produce.

The Board considered Acme's second application at a hearing on October

19, 2017. Prior to the hearing, the Board's engineer, Shawn A. Carr, P.E.

(professional engineer), reviewed the application and prepared a report to the

Board noting the differences between the two applications. Lower Township's

Bureau of Fire Safety also reviewed Acme's second application and issued a

letter of approval.

During the hearing, Acme presented testimony from the following

witnesses: Lewis Conley, P.L.S. (professional land surveyor), P.P. (professional

planner); William Crosby, Acme's Vice President of Operations; and Patrick

Malia, a licensed code official and expert on code compliance. In opposing the

application, Bayshore produced: Bryan Proska, P.E.; Edward Eimer, R.A.

(licensed architect); Richard Carter, P.E., P.P; Scott Homel, Bayshore's

4

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 to 12213.

A-3562-18T3

5

principal; and Victor Fabietti, the owner of Renaissance Beverages III, LLC

d/b/a Gorman's Wines & Spirits.

The Board also heard testimony from Carr and Lower Township's

planning director, William J. Galestok, A.I.C.P. (certified planner), P.P.

Numerous exhibits were entered into evidence, including a packet of fifty-four

photographs of other outdoor display areas in Lower Township.

Conley told the Board that Acme intended the outdoor display areas to

include various seasonal items such as flowers, plants, mulch, patio and beach

gear, coolers, charcoal, pumpkins, lawn decorations, firewood, and snow

shovels. Conley testified the displays would provide an "aesthetic

enhancement" to the shopping center and would not be visible to the public from

the road. He conceded a six-foot-high display under the eight-foot overhang

could result in "some reduced lighting."

Eimer, in turn, contended the proposed displays could present a safety

issue by blocking the pathway in front of the store, and it would be difficult to

maintain the ADA-compliant walkway. He also noted some of the merchandise

items were combustible. Homel and Fabietti shared Eimer's safety concerns.

Carter testified that the shopping center's planning should be uniform and if

A-3562-18T3

6

Acme could have outdoor displays, every tenant might seek a variance for

outdoor merchandise contrary to the zoning plan.

In addressing Acme's signage variance request, Conley testified that the

three signs proposed for the western side of the building would promote the free

flow of traffic and help direct motorists towards additional parking. Conley also

noted the glass-applied graphic sign promoted safety because it would hide a

money handling area within the store and block "an unsightly partition."

In contrast, Proska stated the signs were not visible to motorists until after

they passed the entrance to the shopping center. He also testified the signs could

confuse motorists into believing there was parking and an entrance at the rear of

Acme.

At the conclusion of the hearing, the Board voted separately on the sign

variance, the outdoor display variance, and the minor site plan approval. The

Board approved all three measures in votes of: (1) six to one for the sign

variance; (2) four to three for the outdoor display variance; and (3) four to three

for the minor site plan approval. The Board's decision was adopted in a

Resolution on December 14, 2017.

In voting on the signage variance, a Board member who voted "yes" stated

the signs would "improve the overall look of the store," stating channel signs

A-3562-18T3

7

were "neat" and "clean." Another voted "yes" because the signs would help

summertime tourists unfamiliar with the area.

The members in favor of granting the variance thought the graphic sign in

the front of the building would make the store more aesthetically appealing in

contrast to the current blank wall. They commended the channel signs as

informational, advising consumers there was a pharmacy and liquor store inside

the Acme. The sole Board member who voted "no" stated he did not believe

adding the sign to the side of the building would help Acme "grow" and

suggested landscaping as a way to "beautify the side of the building."

During the vote on the outdoor display area, one of the Board members

who voted "yes" recognized that although other tenants might request similar

variances, granting the variance here was "good for the community." He

contrasted it to the "dead" strip mall across the street. Another Board member

voted "yes" because he felt adding delineated lanes for customers exiting the

store and marking the placement of pallets offered a "workable solution."

Among the Board members who voted "no," one stated he did not think the pros

outweighed the cons regarding the ADA issue. Another Board member voted

"no" because he felt the proposed display area was more of a detriment to the

community because it posed a safety issue.

A-3562-18T3

8

In the adopting Resolution, the Board made the following findings in

granting the variances, including:

Display Areas Variance under [Section] 400-17(E)(3)

....

[T]his type of outside display area is prevalent

throughout Lower Township and a common trend with

supermarkets such as Acme.

The . . . outside display areas will provide an

aesthetically pleasing area in front of the Acme store.

The . . . outside display areas will "liven up" the

shopping center and eliminate the dead area in front of

the Acme store which will advance the purposes of

zoning including promoting the general welfare

including providing for good civic design and a

desirable visual environment.

[A]cme has been displaying items for sale in this area

previously.

Because of heavy landscaping around the shopping

center in which the Acme is located, the outside display

area will not be generally visible including to those

driving along the adjacent roads. As such, the outside

display area will not cause a substantial detriment to the

zone plan or public good. Moreover, the display areas

will be located under the building overhangs and

between building columns and in defined areas with a

maximum height of [six] feet (excluding hanging

flowers and the like), reducing any potential for a

negative impact.

A-3562-18T3

9

As a result, the Board finds that the Application has

satisfied the positive and negative criteria for the

granting of the requested variance relief under . . . the

Ordinance.

Specifically, the Applicant has indicated enough detail

with regard to the layout of the outside display areas

and agreed to delineate areas where the merchandise

would be sold which will reduce or eliminate any

detriment to the granting of the requested relief.

Additionally, the Applicant has agreed to maintain two

(2) ADA compliant walkways as a condition of

approval.

The revised Application provided enough specificity

and information to allow for the granting of the

requested variance relief to allow for the outdoor

display area.

As a result of the above, the Board finds that the

Applicant has satisfied the positive and negative

criteria necessary for granting the requested variance

under . . . the Ordinance.

Sign Variances

....

The Board finds that the proposed signs on the [side]

wall . . . of the Acme, which is currently without any

signage, will permit better identification of the store for

customers that enter the shopping center from the

[w]est.

The Board further finds that the proposed signs will

enhance traffic safety and circulation, especially for

summertime visitors who are not familiar with the area.

A-3562-18T3

10

The Board further finds that the channel letter signs are

clean and will improve the overall look of the building.

The Board further finds that the channel letter signs will

provide a more desirable visual environment by

breaking up a blank wall and making the building look

more appealing and that this aesthetic enhancement

alone supports the grant of relief. The proposed signs

on the side wall constitutes a very small percentage of

the overall area of the side wall.

The Board further finds that the glass[-]applied graphic

sign on the front of the store window will provide a

safety feature by hiding an area of the building where

money is being counted and stored. Moreover, the sign

does not include any words or direct business

identification but rather will be a graphic of fruit or

similar items. While technically meeting the definition

of a sign, the proposed graphic is more decorative in

nature.

As a result, the Board finds that several purposes of

zoning will be advanced by the granting of the sign

variances.

The Board further finds that the granting of requested

relief will not be a substantial detriment to the zone plan

or zoning ordinance because the side wall signs are

attractive, small in area (less than [seventy-five] square

feet) and provide architectural relief to an otherwise

blank wall while also providing information on the

available products in the shopping center and the

location of such uses for visitors new to the area that

enter from the side entrance to the shopping center.

Therefore, the Applicant has satisfied the [(c)(2)]

standard necessary to grant [the] requested variance

relief . . . .

A-3562-18T3

11

The Tenants and Bayshore filed complaints in lieu of prerogative writs

against the Board and Acme seeking to overturn the Board's decision. Plaintiffs

asserted the Board did not adequately address the positive and negative criteria

in granting the variances, erred in voting on an issue of res judicata and failed

to consider the "flexible sign criteria."

On March 11, 2019, the trial court issued a comprehensive written opinion

affirming the Board's decision and dismissing the complaints. The court stated:

[E]ach element of the statutory criteria is specifically

addressed in Resolution 17-33 and supported by

testimony and evidence presented at the October . . .

hearing. The Board's separate comments show careful

and deliberate consideration of the application. The

testimony and comments of Board members, taken

together with Resolution 17-33, demonstrates that there

is more than enough support to conclude that the Board

acted in line with the statutory criteria. The [c]ourt is

particularly impressed with the detailed findings

included in the Resolution outlining the basis for the

granting of relief. The Resolution carefully outlines the

special reason[s] or positive criteria for the granting of

the relief and the Resolution also carefully addresses

the negative criteria. The Board properly concluded

that granting the variance would not be a substantial

detriment to the public good and that it will not

substantially impair the intent and the purpose of the

zone plan and zoning ordinance.

At the July hearing, the Board voiced concerns

regarding various aspects of the plan. These concerns

led Acme to file the [second] application addressing the

concerns raised by the Board. Acme's [second]

A-3562-18T3

12

application increased safety measures, the creation of

two ADA walkways and conditions imposed on the

outdoor display areas. Acme also significantly reduced

the total square footage of the proposed signage. At the

October hearing, the Board heard Acme's full

presentation and Bayshore's full opposition. They

asked pertinent questions throughout the hearing.

Board members articulately provided reasons for their

vote[s]. The Resolution later issued by the Board

mirrored the reasoning provided at the hearing. For all

these reasons outlined in this opinion, the [c]ourt is

satisfied that the decision of the Board was not

arbitrary, capricious, or unreasonable.

The court then turned to a specific analysis of the requested variances,

addressing the outdoor display first:

The [Board] relied on the expert testimony of Mr.

Conley in finding that the outdoor display areas would

provide aesthetic enhancement to Acme . . . and the

Shopping Mall. The Board also relied on the [fifty-

four] photographs that Acme submitted into evidence

of other outdoor displays in Lower Township,

indicating a pattern of outdoor display in the

community. The Board found the testimony of Mr.

Conley credible and made findings consistent with his

testimony. The Board also considered all of the

evidence presented and properly adopted a resolution

granting the variance for the outdoor displays. Another

significant factor that the Board found important was

that Acme filed a second application addressing the

concerns raised by the Board members at the hearing

for their initial application. The Board found that said

amendments and changes reduced the impairment to the

zone plan and zoning ordinance; supporting a finding

of the Board that the new application posed little to no

impairment to the zone plan or zoning ordinance. The

A-3562-18T3

13

Board found that the negative, as well as the positive

criteria, were satisfied. The resolution outlines

multiple findings supporting the granting of the

variance for the outdoor displays. For all the reasons

outlined in this opinion, the [c]ourt affirms the

[Board's] granting of a (c)(2) variance for outdoor

displays.

In considering plaintiffs' arguments regarding the signage, the court

stated:

In Resolution 17-33 [the] Board cites several purposes

of zoning that were met when they granted Acme

signage variance relief. [The] Board found that "the

proposed signage would promote the general welfare,

provide for efficient and free flow of traffic and create

a more aesthetically pleasing environment."

The . . . Board found Acme's requested variance relief

to install three additional signs adding to a total of 201

square feet of additional signage on the store building

that occupies approximately 5.8 acres of the Shopping

Mall to be de minimis based on the size of the proposed

signs compared to the size of the wall and the building.

[T]he proposed signage would only cover 1.7% of the

area of the wall for a store in a 41.96-acre shopping

center. The Board found three separate purposes of

zoning that were met by the final plan and application.

The Board also concluded that the signs would enhance

[traffic] safety and circulation and provide a more

desirable visual environment. The Board also found

significant that Acme substantially reduced the size of

the proposed signs. This [c]ourt holds that the Board's

decision was sufficiently based on the evidence

presented at the hearing. This [c]ourt affirms the

decision of the Board in granting Acme's application

for variance relief for additional signage.

A-3562-18T3

14

In considering and rejecting plaintiff's assertion that the Board should

have considered the "flexible sign criteria," the court noted the Board's engineer

had not raised this issue during his review of the variances. The court found the

Board's decision to base its decision on the applicable municipal ordinances was

not arbitrary, capricious or unreasonable. The court denied the complaint in lieu

of prerogative writs.

On appeal, plaintiffs contend the trial court erred in affirming the Board's

decision to grant Acme variance relief because it was arbitrary, capricious and

unreasonable. In addition, plaintiffs assert the Board improperly considered

evidence outside of the record in granting variance relief for the outdoor display

area.

In reviewing a zoning board's decision, we are governed by the same

standard used by the trial court. Bd. of Educ. of Clifton v. Zoning Bd. of

Adjustment of Clifton, 409 N.J. Super. 389, 433-34 (App. Div. 2009) (citing

Cohen v. Bd. of Adjustment of Borough of Rumson, 396 N.J. Super. 608, 614-

15 (App. Div. 2007)). "Ordinarily, when a party challenges a zoning board 's

decision through an action in lieu of prerogative writs, the zoning board 's

decision is entitled to deference." Kane Props., LLC v. City of Hoboken, 214

N.J. 199, 229 (2013). Therefore, a court "should not disturb the discretionary

A-3562-18T3

15

decisions of local boards that are supported by substantial evidence in the record

and reflect a correct application of the relevant principles of land use law." Lang

v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58-59 (1999).

"[T]he action of a board will not be overturned unless it is found to be

arbitrary and capricious or unreasonable . . . ." Dunbar Homes, Inc. v. Zoning

Bd. of Adjustment of Twp. of Franklin, 233 N.J. 546, 558 (2018) (alteration in

original) (quoting Grabowsky v. Twp. of Montclair, 221 N.J. 536, 551 (2015)).

"A board acts arbitrarily, capriciously, or unreasonably if its findings of fact in

support of [its decision] are not supported by the record, . . . or if it usurps power

reserved to the municipal governing body or another duly authorized municipal

official . . . ." Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 33 (2013) (citations

omitted) (first citing Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adjustment,

152 N.J. 309, 327 (1998); and then citing Leimann v. Bd. of Adjustment of

Cranford, 9 N.J. 336, 340 (1952)).

Here, Acme sought a variance for an outdoor display area and additional

signage under N.J.S.A. 40:55D-70(c)(2). Our Supreme Court has stated that:

[N]o [(c)(2)] variance should be granted when merely

the purposes of the owner will be advanced. The grant

of approval must actually benefit the community in that

it represents a better zoning alternative for the property.

The focus of a [(c)(2)] case, then, will be not on the

characteristics of the land that, in light of current

A-3562-18T3

16

zoning requirements, create a "hardship" on the owner

warranting a relaxation of standards, but on the

characteristics of the land that present an opportunity

for improved zoning and planning that will benefit the

community.

[Kaufmann v. Planning Bd. for Warren, 110 N.J. 551,

563 (1988) (emphasis in original).]

In addition, "[n]o variance . . . may be granted under [N.J.S.A. 40:55D-70(c)(2)]

. . . without a showing that such variance . . . can be granted without substantial

detriment to the public good and will not substantially impair the intent and the

purpose of the zone plan and zoning ordinance." Lang, 160 N.J. at 57 (citing

N.J.S.A. 40:55D-70(d)).

Acme failed to present sufficient evidence to support its application. In

discussing the outdoor display, Conley testified the application met the positive

criteria of N.J.S.A. 40:55D-70(c)(2) because the "outside display areas will

'liven up' the shopping center and eliminate the dead area in front of the . . . store

which will advance the purposes of zoning . . . ."

In the Resolution, the Board found the outdoor display areas would

provide an aesthetic enhancement to Acme and the shopping center. The

enhancement of the aesthetics of a property is a valid purpose of zoning under

the Municipal Land Use Law. See N.J.S.A. 40:55D-2(i). In addition, several of

A-3562-18T3

17

the Board members favorably commented on their personal observations of the

outdoor displays.

The Board also found the outdoor display areas met the negative criteria

of N.J.S.A. 40:55D-70(c)(2) because Acme displayed items in the area in the

past and the landscaping around the shopping center would help shield the

display areas from being visible to the traveling public. These findings were

supported by the evidence. Moreover, the evidence revealed numerous other

outdoor displays in place in the municipality. Therefore, there is sufficient

credible evidence in the record to support the Board's finding that the outdoor

displays proposed by Acme would not substantially impair the intent of the

municipality's zoning plan.

In granting Acme the variance for its proposed additional signage, the

Board found the signs met the positive and negative criteria for variance relief

because "the proposed signs will enhance traffic safety and circulation,

especially for summertime visitors who are not familiar with the area." The

Board also found the signs would enhance the aesthetics of the shopping center

by covering blank spaces on walls and windows. In addition, the graphic sign

was more decorative in nature than the typical signage.

A-3562-18T3

18

In the Resolution, the Board concluded that granting the requested relief

would not be a substantial detriment to the zoning plan or ordinance

because the side walls are attractive, small in area . . .

and provide architectural relief to an otherwise blank

wall while also providing information on the available

products in the shopping center and the location of such

uses for visitors new to the area that enter from the side

entrance to the shopping center.

As the trial court noted, Acme presented numerous expert witnesses who

presented testimony on the issues before the Board and included fifty-four

photographs of other outdoor display areas in the municipality. The Board also

issued a detailed Resolution supporting its grant of Acme's application. In

considering the "wide latitude" we afford to the Board's findings, we are

satisfied plaintiffs have not met their "heavy burden of proving that the evidence

presented to the [B]oard was so overwhelmingly in [their] favor . . . that the

[B]oard's action can be said to be arbitrary, capricious or unreasonable."

Advance at Branchburg II, LLC v. Branchburg Twp. Bd. of Adjustment, 433

N.J. Super. 247, 253, 255 (App. Div. 2013) (first quoting Medici v. BPR Co.,

107 N.J. 1, 23 (1987); and then quoting Med. Realty Assocs. v. Bd. of

Adjustment, 228 N.J. Super. 226, 233 (App. Div. 1988)).

Plaintiffs argue, for the first time on appeal, that the Board improperly

relied on evidence outside the record in reaching its decision, referring to the

A-3562-18T3

19

fleeting reference made by two Board members to a certain Acme employee.

This issue was not raised before the trial court, and therefore is not properly

before this court. See State v. Galicia, 210 N.J. 364, 383 (2012). Moreover, it

is clear from a review of the transcripts that the Board members reached their

individual decisions based on the evidence and testimony in the record. The

offhand reference to the employee was not a basis for the grant of Acme's

application. See Kramer v. Bd. of Adjustment, 45 N.J. 268, 284 (1965).

Affirmed.

A-3562-18T3

20