                        NOT FOR PUBLICATION WITHOUT THE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 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).



                                 3                          A-4636-15T4
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.

                                      6                         A-4636-15T4
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,

                                        13                               A-4636-15T4
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.


                                14                         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 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
