RENAISSANCE BEVERAGES III LLC VS. TOWNSHIP OF LOWER PLANNING BOARD (L-0030-18 AND L-0038-18, CAPE MAY COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2020 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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
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    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