MAZEL, LLC VS. TOWNSHIP OF TOMS RIVER DOVER PARKADE, LLC VS. DOVER WOODS HEALTHCARE CENTER MAZEL, LLC VS. DOVER WOODS HEALTHCARE CENTER (L-2619-11, L-3477-09 AND L-3505-12, OCEAN COUNTY AND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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 NOS. A-4636-15T4
A-4637-15T4
MAZEL, LLC and DORCA, INC.
t/a RAMADA INN OF TOMS RIVER,
Plaintiffs-Appellants,
v.
TOWNSHIP OF TOMS RIVER,
DOVER WOODS HEALTHCARE CENTER
and EREZ HEALTHCARE REALTY
COMPANY, LLC,
Defendants-Respondents.
________________________________
DOVER PARKADE, LLC,
Plaintiff-Appellant,
v.
DOVER WOODS HEALTHCARE CENTER and
EREZ HEALTHCARE REALTY COMPANY,
LLC,
Defendants-Respondents.
________________________________
MAZEL, LLC and DORCA, INC.
t/a RAMADA INN OF TOMS RIVER,
Plaintiffs-Appellants,
v.
DOVER WOODS HEALTHCARE CENTER
and EREZ HEALTHCARE REALTY
COMPANY, LLC,
Defendants-Respondents.
__________________________________
Argued May 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
appellants (Gasiorowski and Holobinko,
attorneys; Alexis L. Gasiorowski, 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 favor
2 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
zoning permit application 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 intended to seek a residential
health care license for the facility and comply with all State
Department of Health standards. Later that year, the Dover
Township1 Planning Board (the Board) passed a resolution granting
the request for a conditional use permit.
In accordance with the resolution, the applicant constructed
a 136-unit hotel containing 240 beds. Although the resolution
specified 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).
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with N.J.A.C. 8:43-1.1 to -15.8.2 Upon completion, the 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 the 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 Code sets forth the regulations 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. In 2005, the
Department of Community Affairs (the DCA) took over licensure and
oversight of some residential health care facilities, including
Dover Woods.
4 A-4636-15T4
defendants alleging a public nuisance and seeking injunctive
relief. The litigation was later settled.4
Plaintiffs are the owners of a Ramada Inn that is located
next to Dover Woods. In 2012, plaintiffs sent a letter to the DCA
requesting an investigation of the facility. The DCA responded,
finding 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 system that are in need of
affordable housing 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 undergone a
licensing evaluation and remained compliant with regulations. The
letter further noted: "The Dover Woods licensee is required under
law to operate an 'open' facility. This licensee is not legally
authorized to confine residents in the facility or restrict their
movements in the community."
4
In the settlement agreement, defendants agreed to install
lighting, surveillance cameras monitoring the facility's entrance,
and a new chain link fence between the facility and Ramada hotel
properties.
5 A-4636-15T4
Plaintiffs filed a complaint in lieu of prerogative writs
against the Township and defendants, alleging the facility was in
violation of the Township's zoning ordinances and operating as a
non-permitted use, as the original zoning approval in 1983 as a
conditional use no longer existed. Defendants answered the
complaint and Erez Healthcare filed a counterclaim for malicious
prosecution. After the completion of discovery, defendants5 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 motion judge noted:
both "medical services facilities" and
"hotels" now constitute permitted uses within
the RHB Zone in Toms River. For this reason,
the court [finds] 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
Board 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 and requested the court enforce
that agreement.
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operate in the traditional notion of a hotel." The proposal before
the Board indicated the facility would operate as a "residential
health care facility," and the resolution specifically stated the
facility would be licensed by the State of New Jersey under the
provisions governing residential health care facilities.
The judge further found Dover 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 residential 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 dismissed counts one through seven
of plaintiffs' complaint as to all defendants. The judge found
Dover Woods was a permitted use and not in violation of any of the
conditions imposed by the Board 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 dismissed 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 with 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.
7 A-4636-15T4
II.
The Nuisance Action
In September 2009, plaintiffs filed a complaint8 against
defendants alleging the facility was a danger to its residents and
had become a public and private nuisance because of poor
supervision, a lack of security measures, and a disregard for
state health and safety regulations, which continuously interfered
with the operation of the Ramada Inn. Specifically, plaintiffs
alleged frequent occurrences of residents loitering on and
defiling Ramada property, accosting its guests, and trespassing
inside the hotel.
After discovery, defendants filed a motion for summary
judgment. We discern the facts from that record. Numerous
complaints 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 requesting assistance for
violent residents or residents having psychotic episodes, frequent
9-1-1 phone calls made by residents calling and hanging 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.
8 A-4636-15T4
countless calls from local businesses and citizens complaining of
residents having psychotic episodes outside 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 were 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, residents experienced loud psychotic
episodes without any staff assistance, smoked 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, testified at her
deposition that regulations prevented the facility from
immediately evicting or controlling residents' actions. The
facility also could not force residents to take their prescribed
medications.
After hearing oral argument, a second trial judge granted
summary judgment in favor of defendants. In a March 19, 2014
9 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 referred to N.J.A.C. 5:27A-
14.2 and its specific provisions preventing Dover Woods from
confining its residents in the facility or restricting their
movements 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.
III.
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.
10 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 matter 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.'" Brill, 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 hotel10 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.
11 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 construct 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 properly 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 record to support the trial judge's findings that Dover Woods
is a permitted use, thus requiring the grant of summary judgment
12 A-4636-15T4
to defendants. We, therefore, can discern no error in the denial
of the motion 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,
283 (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 control to Dover Woods over
its residents who can be discharged 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 property." Ross v. Lowitz, 222 N.J. 494, 505
(2015) (quoting Sans v. Ramsey Golf & Country Club, Inc., 29 N.J.
438, 448 (1959)). In 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,
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Dep't of Envtl. Prot. v. Exxon Corp., 151 N.J. Super. 464, 482
(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)).
Two 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 Club,
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
Restatement (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.
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"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 117 (citing Wang v. Allstate Ins., 125 N.J. 2, 15 (1991)). If
a special 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 was attributed to
independent third parties.
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 of medication and treatment
after being informed of the effects of such actions. 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 emergency, 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 the
15 A-4636-15T4
resident's physician, advanced practice
nurse, or physician assistant, who shall
document the reason 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 discharge.
[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 control their residents.
Without such control, plaintiffs have not demonstrated a special
relationship exists between defendants and their residents. As a
result, defendants cannot be held vicariously liable for the
actions of their residents and plaintiffs cannot support their
16 A-4636-15T4
cause of action.11 Therefore, the trial judge properly granted
summary judgment.
Affirmed.
11
In light of our decision, we need not address plaintiffs'
remaining arguments.
17 A-4636-15T4