SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO S . A

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A

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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 W IRELESS 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BAYSHORE MALL 1A, LLC , BAYSHORE MALL 1B, LLC , and BAYSHORE MALL 2 , LLC, NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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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. Man o s 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 j oint brief s ). Christopher M. Baylinson argue d 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 brief s ).
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 J ames Dalton, on the brief).3 A

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- 18T3 Avery S. Teitler argued the ca use for respondent Township of Lower Planning Board (Teitler & Teitler, attorneys ; Avery S. Teitler, on the brief).
PER CURIAM
Th e 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 t enants 2 that lease commercial prope rties in the shopping center , appealed the Board ' s dec i sion

. 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 i n light of the rec o rd an d a pplicable principles o f law, w e 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 p laintiffs Re naissance 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 W e refer to Bayshore and the Tenants collectively as " plaintiffs. "4 A

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Acme has been a tenant in the shoppi ng center since 1988. For several years pri o r to these events, Acme operated an outdo o r display area in front of
its store

. However, in Febr u ary 2017, Lo w er T ownship issued a citation to
Ac m e as the outdoor displays violated a municipal ordinance , Section 400

- 17 ( E ) (3) of the Lower Township Land D evelopment C ode (Co d e)

. The ordinance only permitted garden centers and stores that sold vehicles an d 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 e n tranc e 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

t enant objected to the application. In a three to three split vote on the variance requests , the Board denied Acm e ' 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 display s and established5 A

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an ADA

- compliant 4 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 depicti ng 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

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principal; and Victor Fabietti, the owner of Renaissance Beverages III, LLC
d/b/a Gorman ' s Wines & Spirits. The Board also heard testimony fr om Carr and Lower Township ' s
p lanning d irector, 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, plan ts, 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 s hopping c enter 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 diffi cult 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 s hopping c enter ' s planning should be uniform and if7 A

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Acme could have outdoor displays , every tenant might seek a variance for outdoor merchandise contrary to the zoning plan.
I n addressing Acme ' s signage variance request, Conley testified that the three signs proposed fo r the western side of the building would promote the free flow of traffic and help di rect 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 a nd block " a n unsightly partition. " In contrast, Proska stated the signs w ere not visible to motorists until after they passed the entrance to the s hopping c enter. He also testified the signs could confuse motorists into believing there was parking and a n 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 signs8 A

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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 b lank 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 B oard members
who voted " yes " recognized that although other tenants m ight request similar
variances , granting the variance here was " good for the community. " He contrasted it to the "dead" strip mall across the street. Another B oard member
voted " yes " because he felt adding delineated lanes for customers exit ing the store and marking the placement of pallets off ered a " workable solution. " Among the B oard members who voted " no, " one stated he did not think the pros outweighed the cons regarding the ADA issue . Another B oard member voted

" no " because he felt the proposed display area was more of a detriment to the community because it posed a safety issue.9 A

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In the adopting Resolution, the Board made the following findings in granting the variances, including:

Display Areas Variance under [Sec tion] 400

- 17(E)(3)

. . . . [ T ] h is 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 st ore. The . . . outside display areas will " liven up " the s hopping c enter 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 s hopping c enter 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

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- 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 comp liant 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 tha t 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 curr ently 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

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- 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 envi ronment 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 o r 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 w ill 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 architectura l relief to an otherwise blank wall while also providing information on the available products in the s hopping c enter and the location of such uses for visitors new to the area that enter from the side entrance to the s hopping c enter. Therefore, the Appli cant has satisfied the [(c) (2) ] standard necessary to grant [the] requested variance relief . . . .12 A

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T he Tenants and Bayshore filed complaints in lieu of prerogative writs against the Board and Acme seeking to overturn the Board ' s decision. Plaintiffs

asse rted 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 "fle x ibl e sign criteri a ." On March 11, 2019, the trial court issued a comprehensi ve 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 c onclude 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 re ason [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 conc erns raised by the Board. Acme ' s [ second ]13 A

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- 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 t he October hearing, the Board heard Acme ' s full presentation and Bayshore ' s full opposition. They asked pertinent ques tions throughout the hearing. Board members articulately provided reasons for their vote [s] . The Resolution later issued by the Board m irrored the reasoning provided at the hearing. For all these reasons outlined in this opinion, the [c]ourt is satisfied that the decision of the B oard was not arbitrary, capricious, or unreasonable. The court then turned to a spe cific analysis of the re quested 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 t he [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 addre ssing 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 appl ication posed little to no impairment to the zone plan or zoning ordinance. The14 A

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- 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 out door 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] Boa rd 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 Sho pping 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 s eparate 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 Boar d in granting Acme ' s application for varianc e relief for additional signage.15 A

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In considering and rejecting pla i ntiff ' s assert ion that the Board should
have considered the "flexible sign c riteria ," t he court noted the Board ' s engin e er 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 munic i pal ordina n ces w a s not arbitrary , capr ici ou s o r unreasonable. T he 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 w a s 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 discretionary16 A

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decisions of local boards that are supported by substantial evidence in the record and reflect a correct application of the relevant princip les 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) (firs t 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 un der 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, t hen, will be not on the characteristics of the land that, in light of current17 A

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- 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 var iance . . . 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 su fficient evidence to support its application. In discussing the outdoor display, Conley testified the applicati o n 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 th e dead area in front of the . . . store which will advance the purposes of zoning . . .

. "
I n the Resolution, the Board found the outdoor display areas would provide an aesthetic enhancement to Acme and the sh opping c enter. The
enhanc ement of the aesthetics of a property is a valid purpose of zoning under
the M unicipal L and U se L aw
. See N.J.S.A. 40:55D

- 2 ( i )

. In addition, several of18 A

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the Board members favorably commented on their personal observations of the outdoor displays.
The Board also fo und 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 e vidence 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 o utdoor display s proposed by Acme would not substantially impair the int e nt of the

mun i cipality ' s zoning p l an. 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 visit ors who are not familiar with the area. " T he
Board also found the signs would enhance the aesthetics of the s hopping c enter by covering blank spaces on walls and windows. In addition, the graphic sign
was more decorative in nature than the typical signag e
.19 A

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In the Resolution, t he Board concluded that granting the requested relief
would not be a substantial det r im e nt to the zo ni ng plan or or dinance

because the side walls are attractive, small in area

. . . and p rovide architectural relief to an otherwise blank wall while also providing information on the available products in the shopping center and the location of s u ch uses for visitors new to the area that enter from the side entrance to the shopping cent er. As the trial court noted, Acme pre s ented numerous expert witnesses who presented t e sti m ony on the issues before the Board and included fifty

- four photogr a phs of other outdoor display areas in the municipality. The Board also issued a detailed Resolution supporting its grant of Acme ' s appl ication. In considering the "wide latitude" we afford to the Bo a rd ' s fin d ings , we are

sa t i s fied 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 T w p. 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 Asso cs. v. B d. of Adjustment , 228 N.J. Super. 226, 233 (App. Div. 1988) ).
Plain t iffs argue , for the first time on appeal , that the Board improperly
relied on evidence outside the record in reaching its decision , referring to the20 A

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fleeting reference made by two Board members to a certain Acme employee.
This issue w a s not raised before the trial cou r t , and therefore is not prop erly
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 refer ence 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.