SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO S . A - 4636
- 15T4

A - 4637
- 15T4

MAZEL, LLC and DORCA, INC. t/a RAM A DA INN OF TOMS RIVER, Plaintiff s - Appellant s ,

v. TOWNSHIP OF TOMS RIVER, DOVER WOODS HEALTHCARE CENTER and EREZ HEALTHCARE REALTY COMPANY, LLC,
Defendant s - Respondent s .

______________________________ __ DOVER PARKADE, LLC, Plaintiff

- Appellant,

v.
DOVER WOODS HEALTHC ARE CENTER and EREZ HEALTHCARE REALTY COMPANY, LLC,
Defendants
- Respondents.

________________________________ NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court .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
- 3.2 A - 4636
- 15T4

MAZEL, LLC and DORCA, INC. t/a RAM A DA INN OF TO MS RIVER, Plaintiff s - Appellant s ,

v.
DOVER WOODS HEALTHCARE CENTER and EREZ HEALTHCARE REALTY COMPANY, LLC,
Defendants
- Respondents.

______________________________ ____ Argued M ay 9, 2018

– Decided July 10, 2018 Before Judges Nugent, Currier, and Geiger. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket Nos. L - 2619
- 11 , L - 3477
- 09 , and L - 3505
- 12 . Alexis L. Gasiorowski argued the cause for appellant s (Gasiorowski and Holobinko, attorneys; Alexis L. Gasi orowski, on the briefs). Edward F. Liston, Jr., argued the cause for respondents Dover Woods Health Care Center and Erez Health Care Realty Company, LLC. R. Garry Mundy, attorney for respondent Township of Toms River, joins in the brief of Dover Woods Health Care Center and Erez Health Care Realty Company, LLC.
PER CURIAM In these related actions, plaintiffs, Mazel, LLC and Dorca, Inc. t/a Ramada Inn of Toms River , appeal from the December 23,
2013 and March 19, 2014 orders granting summary judgment in favor3 A - 4636
- 15T4

of defendants Dover Woods Healthcare Center and Erez Healthcare Realty Company, Inc. We affirm.

I. The Zoning Action In 1983, an applicant unrelated to these parties filed a

z oning p ermit a pplication seeking to build a "retirement hotel" for senior citizens . The application sought a conditional use of
the specific parcel of land located in a Rural Highway Business (RHB) zone to operate as a hotel known as the Dover Retirement
Hotel (the facility) . The applicant inten ded to seek a residential health care license for the facility and comply with all S tate Department of Health standards. Later that year, the Dover Township 1 Planning Board ( the Board) passed a resolution granting the request for a conditional use permit. In accordance with the resolution, the applicant construct ed
a 136
- unit hotel containing 2 40 beds . Although the r esolution

s pecified the facility would be built to hotel specifications, it
also required the facility to be licensed by the State and comply

1 Dover Township is now known as the Township of Toms River (the Township) .4 A - 4636
- 15T4

with N.J.A.C. 8:43

- 1.1 to
- 15.8. 2 Upon completion, t he facility was licensed as a residential health care facility by the State and remains today a licensed residential health care facility. 3 In 1991, the Township amended its zoning ordinances and the RHB zone's permitted uses were expanded to include both "medical service facilities" and "hotels." Toms River , N.J., Code § § 348
- 10.27(A)(15) and 348
- 10.27(A)(17). Prior to this amendment, hotels were permitted in th e RHB zone as conditional uses only and medical service facilities were neither permitted uses nor conditional uses. In 1999, Erez Healthcare Realty Company, LLC, purchased the Dover Retirement Hotel and renamed the facility Dover Woods
Healthcare Center. In the ensuing years, numerous complaints were made to the Township regarding the conduct of the facility's residents. In 2009, the Township filed a complaint against

2 This chapter of the C ode sets forth the r egulations for the licensure of residential health care facilities by the State Department of Health and Senior Services. N.J.A.C. 8:43

- 1.1.

3 The facility was formerly licensed and regulated by the New Jersey Department of Health and Senior Services. I n 2005, t he Department of Community Affairs (the DCA) took over licensure and oversight of some residential health care facilities , including Dover Woods .5 A - 4636
- 15T4

defendants alleging a public nuisance and seeking injunctive relief. The litigation w as later settled. 4
Plaintiffs are the owners of a Ramada Inn that is located
next to Dover Woods. I n 2012, plaintiffs sent a letter to the DCA requesting an investigation of the facility. The DCA responded , f inding that the information provided "did not evidence any violations of the licensure code standards that govern Dover
Woods." In its letter, the DCA described Dover Woods as

one of the largest facilities of its kind in the State of New Jersey that provides permanent residence for up to (240) physically and mentally disabled tenants appropriately discharged from area hospitals and the State's mental health sy stem t h at are in need of afforda b le housin g to prevent homelessness and RHCF code
- authorized health maintenance and monitoring services to facilitate independent living in the community. The agency advised the facility had recently undergo ne a licensing evaluation and remain e d compliant with regulations. The
letter further n oted: "The D over Woods licensee is required under law to operate an ' open ' facility. This licensee is not legally authori z ed t o confine residents i n the facility or restrict their movements in the community. "

4 In the settlement agreement, d efendants agreed to install lighting, surveillance cameras monitoring the facility's entrance, and a new chain link fence between the facility and Ramada hotel properties.6 A - 4636
- 15T4

P laintiffs filed a complaint in lieu of prerogative writ s against the Township and defendants, alleging the fa cility was in violation of the Township's zoning ordinances and operating as a

non - permitted use , a s the original zoning approval in 1983 as a conditional use no longer existed. Defendants answered the complaint and Erez Healthcare filed a c ounterclaim for malicious prosecution. After the completion of discovery, d efendants 5 filed a motion for summary judgment , which the trial court granted as

to counts one through seven of the complaint. 6 In a comprehensive twenty - seven page written decision, the moti on judge noted:

both "medical services facilities" and "hotels" now constitute permitted uses within the RHB Zone in Toms River. For this reason, the court [f inds ] that even if Dover Woods does not meet the definition of a "medical services facility," it may still constitute a permitted use within the RHB Zone if it meets the definition for a hotel. The judge found "[t]he undisputed record evidence establishes that Dover Woods meets the zoning ordinance definition of a hotel . . . [and] that Dover Woods ' status as a residential health care facility does not affect its status as a hotel." He noted the

B oard understood in 1983 that the retirement hotel " would not

5 The Township did not join in the motion for summary judgment.

6 Count eight alleged a breach of the settlement agreement resolving the prior litigation a nd requested the court enforce that agreement.7 A - 4636
- 15T4

operate in the tradition al noti o n of a hotel." The proposal before
the Board indicated the facilit y would operate as a "residential health care facility , " and the resolution specifically stated the facility would be licensed by the Sta t e o f N ew Jersey unde r the provisions governing residential health care facilities. The j udge further found Dov er Woods was operating as a medical service facility as defined under the 1991 amendments to the Township zoning ordinances. He stated there was "no meaningful difference between a 'residential health care facility' such as Dover Woods and a 'long
- term re sidential health care facility'" and found Dover Woods "substantially conforms to the ordinance definition of long

- term residential health care facilities."

A December 23, 2013 order dismiss ed counts one through seven of plaintiffs' complaint as to all de fendants . The judge found
Dover Woods was a permitted use and not in violation of any of the conditions imposed by the B oard in its 1983 resolution granting approval of the facility as a conditional use . A subsequent motion for reconsideration was denied on February 25, 2014. 7

7 Plaintiffs ' appeal of this order was di smissed as interlocutory in Mazel, LLC v. Twp. of Toms River , No. A - 3344
- 13 (App. Div. Mar. 31, 2016). The parties subsequently executed a stipulation of dismissal wi th prejudice as to the counterclaim . The judge reserved decision on count eight in the December 23, 2013 order. The record does not reflect the ultimate disposition of that count of the complaint.8 A - 4636
- 15T4 II. The Nuisance Action

I n September 2009, plaintiffs filed a complaint 8 against defendants alleging the facility wa s a danger to its residents and
ha d become a public and private nuisance because of poor supervision, a lack of security measures , and a disregard fo r state health and safety regula t i o ns , which continuously interfere d

w ith the operation of the Ramada Inn . Specifically, plaintiffs alleged frequent occurrences of residents loit er ing on and defil ing Ramada property, accost ing its guests, and trespass ing inside the hotel . After discovery, defendants filed a motion for summary judgment. We discern the facts from that record. Numerous

c omplaints were recorded of facility residents actively hallucinating, throwing furniture, and screaming at all hours of the night without any intervention from facility staff. Local police officers testified in depositions to responding to hundreds of phone calls from facility staff request ing assistance for violent residents or residents having psychotic episodes, f requent
9
- 1
- 1 phone calls made by residents call ing and hang ing up, and

8 In August 2011, plaintiff Dover Parkade, LLC, filed a complaint against defendants with similar allegations. The trial court consolidated the complaints in January 2013.9 A - 4636
- 15T4

countless calls from local businesses and citizens complaining of residents having psychotic episodes outs ide of the facility and screaming and yelling inside and outside of their businesses. Robert N. Davison, a licensed counselor and former Chairman of Governor Codey's task force on mental health, spent fifty

- one hours at the facility, posing as a homeless person and documenting his experience. He testified residents wer e permitted to roam freely within and outside of the facility. Davison described the building being in gross disrepair inside and out, garbage and beer cans littered the front lawn, residen ts experienced loud psychotic episodes without any staff assistance, smok ed cigarettes inside the facility, and, on a number of occasions, walked through the Ramada parking lot on the way to other locations . Joanne Kotler, the facility's administrator, te stified at her deposition that regulations prevent ed the facility from immediately evict ing or control ling residents' actions. T he facility also c ould not force residents to take their prescribed medication s . After hearing oral argument, a second trial judge granted summary judgment in favor of defendants. In a March 19, 201410 A - 4636
- 15T4

written decision, 9 the judge concluded that plaintiffs could not sustain an action for nuisance. The court noted the alleged harm
from the facility was not caused by the specific use of defendant's property but rather by independent third parties over whom
defendants had no control. The judge re fe rred to N.J.A.C . 5:27A
14.2 and its specific provisions preventing Dover Woods from confin ing its residents in the facility o r restricti ng their

movement s in the community. Because there was no special relationship demonstrated between the parties, defendant had no duty to control the conduct of their residents and , therefore , could not be held vicariously liable for the residents' actions . I II. We conduct a de novo review of both the zoning and nuisance actions, and review the grant of summary judgment under the same standard as the trial court. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh , 224 N.J. 189, 199 (2016). We must determine whether there are any genuine issues of material fact when the evidence is viewed in the light most favorable to
the non
- moving party. Rowe v. Mazel Thirty, LLC , 209 N.J. 35, 41 (2012). Summary judgment must be granted "if the pleadings,

9 After plaintiffs appealed this decision, we dismissed it as interlocutory in Mazel, L.L.C. v. Dover Woods Healthcare Ctr. , No. A - 3798
- 13 (App. Div. Mar. 31, 2016). Defendants subsequently dismissed their counterclaim.11 A - 4636
- 15T4

depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a ma tter of law." R. 4:46
- 2(c); see also Brill v. Guardian Life Ins. Co. of Am. , 142 N.J. 520, 528
- 29 (1995). To defeat summary judgment, the non

- moving party must bring forth "evidence that creates a 'genuine issue as to any material fact challenged.'" Bri ll , 142 N.J. at 529 (quoting

R. 4:46
- 2).

A. The Zoning Action Plaintiffs argue on appeal the court erred in finding Dover
Woods was a medical service facility and , therefore , a permitted use in the RHB zone. Notably, plaintiffs do not address the court's concurrent ruling that Dover Woods met the definition of a hotel, also a permitted use in the zone. A hotel has been a permitted use in the RHB zone since 1991. Toms River , N.J., Code § 348
- 10.27(A)(17). A hotel 10 is defined as a "building which contains 10 or more units of dwelling space and which is kept, used, maintained, advertised as, or held out
to be a place where sleeping or dwelling accommodations are

10 This definition was most recently amended on October 28, 2008.12 A - 4636
- 15T4

available to transient guests ." Toms River , N.J ., Code § 348
- 2.3 (emphasis added). In passing the 1983 resolution, the Board specifically found the applicant intended to constru c t a 136
- unit hotel , and the facility was built to hotel specifications. Dover Woods currently has the same number of rooms and beds as when built, far surpassing the required number of rooms to constitute a hotel under the Township ordinance. As a hotel is a permitted use within the pertinent zone, summary judgment was prope rly granted to defendants on that ground alone. The Township ordinances also support the conclusion that Dover Woods is a permissible use in the RHB zone as "[m]edical service facilities, including but not limited to health care facilities, continuing

- care retirement communities and developments[,] and long
- term residential health care facilities" are permitted uses in the that zone. Toms River , N.J., Code §
348
- 10.27( A)(15). Under the applicable definitions, Dover Woods qualifies as both a health care facility and a long

- term residential health care facility. See Toms River , N.J., Code §
348
- 2.3. We are satisfied there was sufficient credible evidence in
the recor d to support the trial judge's findings that Dover Woods
i s a permitted use , thus requiring the grant of summary judgment13 A - 4636
- 15T4

to defendants. We , therefore , can discern no error in the denial of the moti o n for reconsideration. "[A] trial court's reconsideration decision will be left undisturbed unless it represents a clear abuse of discretion." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment , 440 N.J. Super. 378, 382 (App. Div. 2015) (citing Hous. Auth. of Morristown v. Little , 135 N.J. 274,
28 3 (1994)).

B. The Nuisance Action Plaintiffs argue on appeal the trial judge erred in finding there was no special relationship between defendants and their residents to impose vicarious liability. They contend the governing regulations grant complete c ontrol to Dover Woods over its residents who can be d ischarge d from its facility at any time. We disagree. "A cause of action for private nuisance derives from the defendant's 'unreasonable interference with the use and enjoyment' of the plaintiff's prope rty." Ross v. Lowitz , 222 N.J. 494, 505 (2015) (quoting Sans v. Ramsey Golf & Country Club , Inc. , 29 N.J. 438, 448 (1959) ) . I n order to establish a claim for nuisance, "it
must be shown that ' there has been an unreasonable, unwarranted or unlawful use by a person of [another's] real property which is resulting in a material annoyance, inconvenience or hurt. ' " State,14 A - 4636
- 15T4

Dep't of En vtl. Prot. v. Exxon Corp. , 151 N.J. Super. 464, 48 2 ( Ch. Div. 1977) ( quoting Cherry Hill Twp. v. N.J. Racing Comm'n , 131 N.J. Super. 125 (Law Div.), aff'd , 131 N.J. Super. 482 , 483 (App. Div. 1974)).

T wo types of conduct can give rise to nuisance claims: affirmative acts and failures to act while under a duty to do so.
See Ross , 222 N.J. at 507
- 08 (citing Birchwood Lakes Colony C lub , Inc. v. Borough of Medford Lakes , 90 N.J. 582 , 591
- 92 (1982) ) . However, "absent a special relationship, there is no duty to control a third person's conduct." Champion ex rel. Ezzo v.
Dunfee , 398 N.J. Super. 112, 122 (App. Div. 2008) ; see also
Resta tement (Second) of Torts § 315 (Am. Law Inst. 1965) (the Restatement) . When analyzing nuisance claims we turn to the principles articulated in the Restatement. Pursuant to § 315 ,

[t]here is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.15 A - 4636
- 15T4

"The existence of a legal duty is a question of law to be decided by the court, rather than the jury." Champion , 398 N.J. Super.
at 11 7 (citing Wang v. Allstate Ins. , 125 N.J. 2, 15 (1991)) . If
a spe cial relationship does not exist between the parties, plaintiffs' claims must fail as all of the alleged interference with the use and enjoyment of its land w a s attributed to independent third parti e s. In assessing whether defendants had a duty to control their residents, therefore creating a special relationship and vicarious liability, we turn to the regulatory framework governing Dover
Woods. As established above, Dover Woods is a residential health care facility licensed and regulated by the DCA. The standards for licensure of such facilities are set forth in N.J.A.C. 5:27A

1.1 to
- 19.1.1.
N.J.A.C. 5:27A
- 14.2 delineates the rights of each resident admitted to these facilities. These rights include assistance in obtaining medical care and the refusal o f medication and treatment after being informed of the effects of such actio ns. Ibid. Residents are allowed to be outside the facility, are not required to go to bed and have the right to be outside their bedrooms. Ibid. Other than in the case of an em ergency, a resident may be

transferred or discharged only for medical reasons or for his or her welfare or that of other residents upon the written order of the16 A - 4636
- 15T4 resident's physician, advanced practice nurse, or physician assistant, who shall document the r eason for the transfer or discharge in the resident's record, or for nonpayment for the resident's stay, or for repeated violations of the facility's written rules and regulations after being advised of them in writing. . . . i. If a transfer or discharge on a non - emergency basis is requested by the facility, the resident or, in the case of an adjudicated mentally incompetent resident, the next of kin and/or sponsor and/or guardian, shall be given at least 30 days advance notice in writing of such transfer or discharg e. [ N.J.A.C. 5:27A
- 14.2 (4) and (4)(i). ] It is evident Dover Woods is statutorily prohibited from exercising the degree of control typically necessary to establish a special relationship. Residents must be given notice of thirty days and afforded a hearing prior to any discharge. And Dover Woods has no control over its residents outside of the facility.
The governing regulations prevent the facility from taking the affirmative steps urged by plaintiffs to con t rol their residents. Without such control, p lai nt iffs have not demonstrated a special

re lationship exists between defenda n ts and their resident s . As a
result , defendants cannot be held vicariously liable for the actio n s of their residents and p laintiffs canno t support their17 A - 4636
- 15T4

cause of action. 11 Therefore, t he trial judge properly grant ed summary judgment . Affirmed.

11 In light of our decision, we need not address plaintiffs' remaining arguments.