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,

NOT FOR PUBLICATION WITHOUT THE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

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).
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A-3562-18T3

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 tenants2that 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."
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A-3562-18T3

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 
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A-3562-18T3

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.
6

A-3562-18T3

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
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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 
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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. 
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A-3562-18T3

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.
10 A-3562-18T3

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.
11 A-3562-18T3

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 . . . .
12 A-3562-18T3

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] 
13 A-3562-18T3

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 [fiftyfour] 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 
14 A-3562-18T3

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.
15 A-3562-18T3

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 
16 A-3562-18T3

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 
17 A-3562-18T3

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 
18 A-3562-18T3

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.
19 A-3562-18T3

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 
20 A-3562-18T3

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.