Gambling Addiction Center Changes Inn's Use, Judge Rules

Several rulings on pretrial motions in lawsuit against Chatham Borough came down Tuesday, mostly in favor of the borough.

The most significant ruling by Judge David B. Rand, sitting in Morristown, was that the borough's Zoning Board of Adjustment made an "appropriate" decision in March 2010 when it ruled that Tricare wanted to extend, not continue, a preexisting nonconforming use at the .

As an inn, Rand said, "the facility was open to the general public where rooms were made available and breakfast was served."

Tricare's application to the Chatham Borough Planning Board to use the building as a treatment facility for compulsive gamblers "fundamentally changed the nonconforming use," Rand said.

"Tricare does not extend its services to the general public," whereas the inn did, Rand said.

The inn had common rooms on the first floor where breakfast was served to guests, and guests would then spend their days visiting the area. Tricare intended "an integrated use of the entire facility for therapeutic purposes," Rand said. "Treatment would be 24/7 with facilities for staff" included in the building, and three meals served daily.

Inn guests stayed for a few days at a time, typically. Tricare's services cost between $20,000 and $25,000 for a stay of four to five weeks, with between five and seven people receiving treatment at a time, Rand said.

He cited a case from Belleville where a restaurant owner in a residentially-zoned neighborhood wanted to convert the eatery to a nightclub, and the courts ruled it was an extension, not a continuation, of the preexisting nonconforming use.

The idea behind uniform zoning laws, Rand said, was so municipalities can prevent an increase or change in nonconformity.

"I find that the use of the Parrot Mill Inn for a treatment facility is fundamentally different from the use as a bed and breakfast," Rand said. "Tricare's intended use does not constitute a proper extension of the existing nonconforming use."

Rand went further and said the Chatham Borough Planning Board, which unanimously approved a site plan waiver in February 2010 for Tricare owner to move into the inn, never should have heard the application in the first place.

"The Planning Board should have never decided on this," Rand said. "It shouldn't have gone before the Planning Board to begin with."

Background

Rand went through a detailed history of what he repeatedly called a "problematic" case, beginning with Osborne's application to the Planning Board for a site plan waiver in 2010.

Osborne said the treatment facility would continue the preexisting nonconforming use of the inn, since it would rent upstairs bedrooms and use downstairs common areas for meetings and treatment.

A previous owner of the building, Chubb Insurance, used the building for company trainings.

The borough's Zoning Officer, Vincent J. DeNave, said of the preexisting nonconforming Parrot Mill Inn since it would be used for lodging.

The Planning Board agreed and . However, Rand noted, "the Planning Board never memorialized the oral vote, [which by law] must happen within 45 days."

Following the vote, to determine if the treatment facility would truly be a continuation of the preexisting use, a move Rand said "hardly is surprising."

The Zoning Board of Adjustment met to hear the matter in March 2010. Rand said Osborne claimed he did not receive legal notice but learned of it inadvertently.

When the Zoning Board ruled Tricare's intended use was , Rand said, "the plaintiff had no opportunity" to testify or present evidence.

Osborne's attorney was not present at the meeting. At the time, and had assumed he would be there.

After the Planning Board learned of the Board of Adjustment's vote, "they rescinded their approval [and] washed their hands of the whole thing," Rand said.

Tricare filed a lawsuit in state Superior Court in Morristown May 13, 2010 against the borough's Zoning Board of Adjustment, Planning Board, the Chatham Borough Council and then-Mayor Nelson Vaughan. Vaughan and the council were

Other Rulings

Rand also denied an application to amend the lawsuit for the sixth time since it was filed. He said there were "no grounds to allow a further amendment of this complaint."

He also denied a motion for a protective order by Tricare, which would have denied the defense counsel the chance to look through Tricare's records because it would reveal information about people who saught treatment.

"The plaintiff is not a physician, he is not a psychologist, yet he seeks a protective order to prevent discovery," Rand said. "That is weighed against the defendant's right to know and to have a reasonable opportunity to assess damages."

Patient privacy could be protected by using initials rather than names and by redacting personal information such as Social Security numbers. Other than that, Rand said, "No privilege exists for Tricare regarding its feelings, financial or otherwise, except for personal information. ... As long as Tricare has a motion in this court, it must reveal the information."

Rand limited the use of the information exclusively to the lawsuit. He warned defense counsel, "If that is violated, defendants do so at their own risk."

Tricare also filed a motion opposing the defendant's hiring of a private investigator, Jeffrey Oster, to look into Tricare's background.

"There is nothing wrong with Mr. Oster's services during a lawsuit," Rand told plaintiff's counsel, Laurence Litwin. "You must expect that the defendants will engage in an investigation, and there is no protection."

The use of a private investigator, Rand said, was nothing "but an appropriate and necessary decision by the lawyers who are aggressively representing their clients."

When Litwin asked to be heard by the court, Rand refused and adjourned the case to trial, currently set for Oct. 15.

Litwin declined to comment following the hearing. Denis Driscoll, the borough's attorney in this matter, said he "always thought these claims were without merit."