JAMES O. WELCH v. CHAI CENTER FOR LIVING JUDAISM, INC. (C-000153-12, ESSEX COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3447-19
JAMES O. WELCH, THE
ROBERT J. DWYER TRUST
and S. ALEXANDER and
JESSICA HAVERSTICK,
Plaintiffs,
and
VIRGINIA WELCH,
Plaintiff-Respondent,
v.
CHAI CENTER FOR LIVING
JUDAISM, INC.,
Defendant-Appellant,
and
HARRY GROSS,
Defendant.
Submitted December 7, 2021 – Decided September 9, 2022
Before Judges Messano and Accurso.
On appeal from the Superior Court of New Jersey,
Chancery Division, Essex County, Docket No.
C-000153-12.
Epstein Ostrove, LLC and Philip Pfeffer (Herbert
Smith Freehills New York, LLP), attorneys for
appellant (Elliot D. Ostrove and Philip Pfeffer, on the
briefs).
Connell Foley LLP, attorneys for respondent (Kevin J.
Coakley and Nicole B. Dory, of counsel and on the
brief; Mary Hurley Kellett, on the brief).
PER CURIAM
In 2014, the Chancery Division entered judgment for plaintiff Virginia
Welch and others, on count II of her 2012 complaint in which she sought, inter
alia, to declare defendant Chai Center for Living Judaism, Inc.'s "current uses
of Lot 10 [1 Jefferson Avenue, Short Hills] as violative of the restrictions in
the 1949 deed" and "[e]njoining the current uses of Lot 10 and restricting the
uses of Lot 10 to residential use in conformance with the restrictions in the
1949 deed." Acknowledging, however, that Chai Center had "been functioning
as an Orthodox Jewish synagogue serving as a place of worship" for many
people for almost ten years, the judge sua sponte stayed the judgment pending
appeal. We affirmed that judgment in its entirety, Welch v. Chai Ctr. for
Living Judaism, Inc., A-4088-13, A-4163-13 (App. Div. Aug. 15, 2016), and
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the Supreme Court denied Chai Center's petition for certification, Welch v.
Chai Ctr. for Living Judaism, Inc., 230 N.J. 402 (2017).
When Chai Center continued its operations with little change after it had
exhausted its appeal, counsel for Welch sent cease and desist letters in 2018
and 2019. When those letters did not induce compliance with the judgment,
Welch filed a motion in aid of litigant's rights under Rule 1:10-3. Relying
largely on Chai Center's own website and Facebook pages, Welch included in
her motion papers hundreds of pages of advertisements, posts and photos
documenting the non-residential activities on the property, including weekly
religious services, celebrations and services for religious holidays, an adult
religious education program, and a Hebrew school. By including documents
from both before and after the first appeal, Welch documented the activities
that continued on the property after the Supreme Court denied certification in
2017.
Among those documents was a July 3, 2019 printout from Chai Center's
website advertising events held at 1 Jefferson Avenue between March and June
2019, including weekly prayer services on Sunday, Monday, Thursday, Friday
and Saturday "open to all," and offering kiddush luncheon sponsorships for
$375; a matzah baking class for children for $10; community seders at $54 per
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adult and $25 per child; an annual Shavuot Torah reading and buffet luncheon;
an evening lecture for $12; and a concert for $20. Welch included another
printout from the website advertising twice-weekly Torah and Talmud study
classes "open to all regardless of background or affiliation," and a Hebrew
school calendar from September 2018 through May 2019. Welch also attached
printouts from Chai Center's Facebook page advertising a speaking event and
book-signing at 1 Jefferson Avenue in December 2018, a Shabbat dinner in
January 2019 for $18 per adult, $10 per child and $54 per family and a
Hamantash baking event in March 2019 for $10 per baker.
Welch also submitted certifications and a report from a research analyst
who conducted an internet "sweep" of publicly available information
pertaining to Chai Center, which included photographs and descriptions from
Facebook and Instagram of holiday celebrations and Hebrew school events
held at 1 Jefferson Avenue, social media advertisements of events scheduled
there and newspaper articles describing those events.
Finally, Welch included in her motion papers certifications and a report
from a private investigator whose team conducted in-person observations of 1
Jefferson Avenue for eight days in March and April 2019. The investigator
certified on the first day of the investigation, Thursday, March 21, 2019, the
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team observed between thirty-five and forty cars on the property in the
evening, which matched an advertisement for a lecture on Chai Center's
website. The investigator estimated approximately 100 people attended the
event based in part on the number of people they observed in the cars. On
another night coinciding with an advertised lecture, investigators observed
several cars arrive and later depart in the evening. The investigator noted as
many as three cars in the driveway that evening and another fifteen parked at
the rear of the property. On the last day, a Saturday, the investigator reported
as many as eighteen cars parked at 1 Jefferson and two cars parked on a nearby
side street whose occupants walked over to the property.
Chai Center opposed the motion, producing an unsigned settlement
agreement between Chai Center, Rabbi Mendel Bogomilsky, the spiritual
leader of Chai Center and his wife, and Millburn Township, its zoning board
and several elected or appointed officials and employees resolving four zoning
cases. In exchange for $750,000 from Millburn's insurers to Chai Center, the
Center and the Bogomilskys agreed not to file any application for a variance to
use 1 Jefferson as a "House of Worship" or to challenge in court, or otherwise,
the constitutionality or validity of the "House of Worship" prohibition in the
Township's zoning ordinance as it pertained to the property. Chai Center and
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the Bogomilskys also agreed not to use 1 Jefferson as a "House of Worship"
and to other limitations, including that they would not conduct any child care
at the property except as permitted in the zoning ordinance; would not conduct
Rosh Hashanah or Yom Kippur services at the property, nor bat or bar mitvah
parties, weddings, graduations, banquets or similar events for anyone other
than their family, and would not advertise to the general public in any media
any events at 1 Jefferson, including family member events. They also agreed
to limit large gatherings to five per year, limit the number and size of non-
family vehicles on the property and require them to be parked in the driveway
and not on the lawn. The agreement also included a liquidated damages
schedule, permitting the Township to recover up to $5,000 per violation of the
agreement.
Chai Center also presented the certification of Bogomilsky describing
three "dramatic changes" in the use of 1 Jefferson following entry of the 2014
Chancery Division judgment, to wit, he and his family moved "full time" to the
property in August 2015 (they had previously lived there only on weekends
and religious holidays), the Center moved its "High Holiday services to
Millburn Middle School" and "larger events (such as the annual Menorah
Lighting and the Lag b'Omer celebration) are no longer held at the property,
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and instead are held at municipal parks." But beyond noting that Welch's
investigator's report did not account for how many cars belonged to the
Bogomilsky family, including their "three married children, who spend most
weekends with [them]," and that the media "evidence" in the report of Welch's
research analyst supported his averments and not Welch's "false narrative,"
Bogomilsky did not deny the very specific allegations made in the
certifications Welch presented in support of her motion, a fact admitted by
Chai Center's counsel at oral argument in the Chancery Division.
In response to a specific question from the court as to whether the
Bogomilskys denied that other activities "not associated with their residential
lives" take place at 1 Jefferson, their counsel said, "No. They are not denying
that any other activities take place there." Counsel made clear the
Bogomilskys "welcome people into their home to gather, to study and to learn,
and to enjoy the holidays." Counsel argued, however, that it was "the
Township, through its police power, that gets to decide what is appropriate use
of a residential home," and not the Welches. Counsel further argued the stay
the Chancery judge entered sua sponte in 2014 had never been lifted; that the
1949 deed restriction only limited the type of building on the property and not
the use of the property; that the 2014 "decision was specifically addressing the
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proposed use of the lot, the proposed building at the lot, which was to build
something other than a single family home, notwithstanding . . . that the
proposal was to build a synagogue that looked like a single family home so as
to not interrupt the neighborhood"; and that at the time of the judgment, "1
Jefferson wasn't [the Bogomilskys'] full-time residence."
When the judge followed up by asking whether it was Chai Center's
position that so long as the property only contained one house and a garage for
one family, "anything else [the Bogomilskys] do there is not in violation" of
the 2014 judgment, counsel replied "so long as it is consistent with the use of a
private residence." And when the judge asked whether it was "their contention
that everything that they have been doing is consistent with the use of a private
residential house," counsel responded, "correct." The court then reviewed with
counsel the advertisements referenced above on Chai Center's own website,
asking if the "events that are described here, the invitations, the charges for
them, the regularity of them and the types of events, that that is just typical of
what would take place in anybody's residence," counsel responded "there is
nothing inconsistent with those events with the use of a single family home,"
and that there was "nothing in any court order . . . that has been presented
otherwise."
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After hearing argument, the court granted Welch's motion to enforce the
2014 judgment. After summarizing the history of this long-running neighbor
dispute over Chai Center's use of a home burdened by a deed restriction in a
residential neighborhood as a shul, the court again ordered Chai Center to
cease any non-residential activities on the property, "including but not limited
to operating a synagogue or shul," and to stop advertising activities the court
has precluded.
The court rejected Chai Center's argument that the 2014 judgment was
limited to the synagogue the Center proposed to build on the property and not
its ongoing use as a synagogue or shul, reasoning that if that were true, there
would have been no reason for the judge hearing the case in 2014 to have
stayed his judgment. The court also rejected the argument that the stay
somehow had never been lifted following the Court's denial of Chai Center's
petition for certification, noting the judge made "it clear that the sole purpose
of that stay was pending the appeal."
The court rejected Chai Center's argument that it lacked "guidance" as to
what would be permitted at the property and was "not clear what restrictions
there are" as "disingenuous." The court pronounced itself "particularly
persuaded" by the documents Welch submitted on the motion from Chai
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Center's own website, advertising "a litany of activities . . . to the public and
inviting everybody to this residential location, 1 Jefferson Avenue, Short Hills
for open times, for various different holidays, various different activities,
charging entry fees every month, more than once a month with these
invitations going out," and noted the surveillance reports linking forty cars on
the property to an advertised event "apparently taking place." Although
acknowledging the three changes Bogomilsky claimed the Center had made
since entry of the 2014 judgment, based on Welch's submission of the
documents from Chai Center's website and Facebook page, the court found it
"just does not accept" that 1 Jefferson "is being used as nothing more than a
single family residence for the rabbi and his family."
Finding a clear violation of the 2014 judgment, the judge entered an
order enforcing it and directed Welch to submit a certification for the counsel
fees she had incurred on the motion. The judge also noted she would
"consider sanctions next time" in the event of further violations. Welch
thereafter submitted an application for fees and costs of $81,461.67, which
Chai Center opposed.
In a comprehensive written statement of reasons for awarding Welch
fees, the judge found Welch was entitled to counsel fees for the Center's
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"willful failure to comply with the court's prior Order." The judge wrote,
"[c]learly, defendants knew or should have known that their activities at the
property," including their "many advertisements online to the general public
for a range of activities," many for which they charged "entry fees," were
"non-residential" uses that violated the April 2, 2014 Order. The judge noted,
however, that three experienced partners billed time on the enforcement
motion, two of whom had worked on the case since its inception, where one
would have sufficed. Applying one of the partner's $410 hourly rate, which
the judge deemed reasonable based on the lawyer's experience and fees in the
area, and reducing the hours to what she deemed was a reasonable expenditure
of time for the tasks noted, the court awarded Welch $25,994 in fees and
$5,915.57 in costs for a total of $31,909.57.
Chai Center appeals, arguing the 2014 judgment was insufficiently
specific to support Rule 1:10-3 relief, and that the court erred by finding it
willfully violated the 2014 judgment based on incompetent evidence,
improperly infringed on its religious rights, and imposed counsel fees as a
sanction. Our review of the record convinces us that none of these arguments
is of sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
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As the Chancery judge noted, Chai Center and the Bogomilskys'
continued operation of a shul at 1 Jefferson, evidenced by documents and
photos from the Center's website and Facebook page, did not constitute trivial
or isolated violations of the 2014 judgment but a wholesale flouting of its
terms. The property is burdened by a deed restriction, which the Bogomilskys
knew when they purchased it. Welch and other neighbors litigated the
continued vitality of that restriction in protracted proceedings at great expense
to themselves. Although awarding judgment to Welch and her fellow plaintiffs
upholding the restriction and declaring Chai Center and the Bogomilskys' then
"current uses of Lot 10 as violative of the restrictions in the 1949 deed ,"
"[e]njoining the current uses of Lot 10" and restricting its future use "to
residential use in conformance with the restrictions in the 1949 deed," the
judge, sua sponte, stayed his judgment in light of the proofs that the synagogue
had served approximately 100 families for many years — over the objections
of its residential neighbors.
In light of the extensive, competent, evidence Welch put before the court
on her enforcement motion, the judge rejected as "disingenuous" the Center
and the Bogomilskys' arguments that the stay of the 2014 judgment had never
been lifted, the Bogomilskys' full-time move to the property following entry of
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the judgment constituted changed circumstances, the judgment enjoined only
the new structure Chai Center proposed to build on the lot and not its many
years' use as a shul operating out of the single family home on the property, no
court had ever adjudicated the uses to which the property could be put
consistent with the deed restriction and the 2014 judgment was too vague to
enforce — as do we.1 In addition, we've already ruled the deed restriction and
1
The court addressed the competency of the evidence on the motion, which
Chai Center raised in its brief opposing the motion, but did not continue to
press at oral argument, likely for good reason. As our Supreme Court has
explained, "[e]videntiary decisions are reviewed under the abuse of discretion
standard because, from its genesis, the decision to admit or exclude evidence is
one firmly entrusted to the trial court's discretion." Est. of Hanges v. Metro.
Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). We will only disturb such
determinations when we find "a clear error of judgment," State v. Koedatich,
112 N.J. 225, 313 (1988), which we do not find here. It is hornbook law that
"[p]roof of authentication may proceed with relatively little attention to detail
and technicality." Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, cmt. 1 on N.J.R.E. 901 (2022-23). All that is required of the
proponent is "evidence sufficient to support a finding that the item is what its
proponent claims." N.J.R.E. 901. Social media posts require no special
authentication in our State, and are readily admitted, especially in a bench
trial, as here, where the judge is the fact-finder. State v. Hannah, 448 N.J.
Super. 78, 89 (App. Div. 2016). We are satisfied Welch produced prima facie
proof linking the posts with Chai Center, which did not deny they came from
its own website and Facebook pages. The Center's argument that Welch was
precluded from arguing on appeal that the documents were also properly
admissible under N.J.R.E. 803 and supported the Chancery Division's Rule
1:10-3 order is simply incorrect. See Tymczyszyn v. Columbus Gardens, 422
N.J. Super. 253, 256 n.1 (App. Div. 2011) (noting a respondent is free to raise
alternative arguments in support of the trial court judgment).
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2014 judgment did not infringe defendants' religious liberty, distinguishing the
case from State v. Cameron, 100 N.J. 586, 604 (1985), and they've offered
nothing to persuade us to revisit our analysis. Welch, slip op. at 18.
This matter does not involve a government restriction on religious
activity. The Chancery Division has simply upheld — and now enforced — a
contractual covenant between private parties. Thus, Kali Bari Temple v.
Board of Adjustment of Township of Readington, 271 N.J. Super. 241 (App.
Div. 1994), on which the Center relies in support of its argument, is inapposite.
Chai Center's argument that the settlement of the zoning cases, purportedly
defining the "ancillary permissible use" of 1 Jefferson, controls here is
similarly unavailing. Welch was not a party to those proceedings, and
settlement of the municipal zoning litigation has no bearing on the 2014
judgment or its enforcement.
Finally, we reject Chai Center's argument that the court abused its
discretion with its award of fees and costs because it imposed punitive relief
for the Center's noncompliance with a vague order, failed to consider that the
settlement agreement obviated the need for the motion, and entered an
unreasonable fee award.
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As an initial matter, the Center misapprehends the fee order it appeals.
The Chancery court did not impose "punitive" or coercive relief on the Center;
it merely awarded Welch her reasonable costs for her motion to enforce the
2014 judgment. See R. 1:10-3 (permitting "an allowance for counsel fees to be
paid by any party to the action to a party accorded relief under this rule" in the
court's discretion). Thus, its argument that the award must be reversed
because the Chancery judge did not find it in willful noncompliance of the
2014 judgment (although she plainly did) is misplaced. See In re N.J.A.C.
5:96 & 5:97, 221 N.J. 1, 17 (2015) (noting "[t]he focus being on the
vindication of litigants' rights, relief sought pursuant to Rule 1:10-3 does not
necessarily require establishing that the violator of an order acted with
intention to disobey"); Lusardi v. Curtis Point Prop. Owners Ass'n, 138 N.J.
Super. 44, 49 (App. Div. 1975) (explaining "wilful disobedience" of the order
sought to be enforced is "irrelevant in a proceeding designed simply to enforce
a judgment on a litigant's behalf"). Although the judge certainly could have
imposed a coercive sanction to compel Chai Center's compliance with the
judgment, see Milne v. Goldenberg, 428 N.J. Super. 184, 198 (App. Div.
2012), she did not do so, although warning she would "consider sanctions next
time" in the event of further violations.
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A trial court's decision to impose fees and the amount awarded are
matters committed to its considerable discretion, Grow Co. v. Chokshi, 424
N.J. Super. 357, 367 (App. Div. 2012), which we will disturb "only on the
rarest occasions, and then only because of a clear abuse of discretion,"
Rendine v. Pantzer, 141 N.J. 292, 317 (1995). This is not one of those rare
occasions. To the contrary, we are satisfied the judge carefully considered
Welch's application in light of the long history of this case and the time
required to bring and argue the enforcement motion and entered a fair award.
In sum, because the record supports the Chancery judge's finding that
Chai Center and the Bogomilskys have simply ignored the judgment Welch
and her neighbors obtained in 2014, and we cannot find any abuse of
discretion in the award of fees on the motion, we affirm the Chancery court's
orders of October 4, 2019, and February 27, 2020.
Affirmed.
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