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

• Court: New Jersey Superior Court Appellate Division
• Decided: September 9, 2022
• Docket: A-3447-19
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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,

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

A-3447-19 2 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

A-3447-19 3 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

A-3447-19 4 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

A-3447-19 5 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,

A-3447-19 6 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

A-3447-19 7 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."

A-3447-19 8 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

A-3447-19 9 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

A-3447-19 10 "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).

A-3447-19 11 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

A-3447-19 12 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).

A-3447-19 13 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.

A-3447-19 14 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.

A-3447-19 15 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.

A-3447-19 16