On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Approved for Publication August 13, 1997.
Before Judges Stern, Humphreys and Wecker The opinion of the court was delivered by Wecker, J.s.c. (temporarily assigned).
The opinion of the court was delivered by: Wecker
The opinion of the court was delivered by
WECKER, J.S.C. (temporarily assigned).
Plaintiff James E. Hunter is the prevailing party in a civil rights action against the Trenton Housing Authority under federal and state law. Hunter appeals an order denying his application for attorney's fees.
The issue before us is narrow: whether the Authority's "good faith" or any "special circumstances" warrant the denial of attorney's fees. Because we conclude that Hunter is entitled to an attorney's fee under the federal and state statutes sued upon, we reverse and remand for determination of an appropriate attorney's fee consistent with R. 4:42-9.
Hunter was a 64-year-old disabled resident of a public housing unit operated by the Authority. He had lived in his apartment for twenty years. Hunter suffered from a chronic bone (Paget's) disease, underwent more than 70 operations since 1971, and used a motorized wheelchair most of the time. He could ambulate short distances with a walker or cane. In 1990, his two-floor unit was modified by installation of a stairglide. Beginning in June 1995, Hunter attempted to obtain permission from the Authority to build a wheelchair ramp at the entrance to his front door, where two steps presented a barrier. Funding was available from another agency, *fn1 and Hunter needed only the Authority's written consent. His written requests were either ignored or delayed and were ultimately denied by the Authority, with no reasons given. Project Freedom, the funding agency, wrote to the Authority seven times between June 30 and October 6, 1995 *fn2 explaining Hunter's need and the present availability of construction funds. The letters also explained that the time to make use of available funds would run out. The Authority responded to the June 30 letter by requesting plans for the ramp, which were provided. No further responses appear, and the Authority gave no reasons for its refusal until after litigation was initiated by Hunter. Instead of consenting to the ramp, the Authority proposed that Hunter move to a unit in another senior citizens' building where wheelchair access was already in place.
In March 1996 Hunter filed a verified complaint seeking relief under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (LAD) and the Fair Housing Amendments Act, 42 U.S.C.A. 3601 et seq. (FHAA). The trial Judge concluded that the Authority's offer to make a different, accessible apartment available was not a reasonable accommodation to Hunter's handicap and that Hunter was entitled to permission for the ramp as a reasonable accommodation to his handicap. The Judge did not explicitly refer either to LAD or the FHAA in making that determination. We therefore conclude that his finding arose under both.
With respect to Hunter's application for fees, the trial Judge concluded that fees were discretionary, that both sides had acted in good faith, and that fees therefore should be denied. The trial Judge gave this explanation:
While very consistently taken the position after reviewing the documents in this case that effort would be made to resolve the issues satisfactorily to all concerned, substantial issues were raised which makes the application warranted and makes the various issues raised on defense warranted, on the defense here warranted. While the issue of counsel fees is discretionary on the Court, I'm satisfied that both sides here have acted in good faith and while attorneys' fees are not punitive per se, to assess attorney fees against a public agency requires that this Court makes a finding other than the fact that an action was brought and matter is resolved. The application for fees is denied.
Rule 4:42-9(a)(8) provides for counsel fees "in all cases where counsel fees are permitted by statute." Both the FHAA and LAD authorize fees to a prevailing party. *fn3 The Authority admits that Hunter is a prevailing party under governing law, but contends that "special circumstances" warrant the denial of fees. Northcross v. Board of Educ., 412 U.S. 427, 428, 93 S. Ct. 2201, 2202, 37 L. Ed. 2d 48, 50 (1973) (quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S. Ct. 964, 966, 19 L. Ed. 2d 1263, 1266 (1968)). A prevailing party *fn4 in federal civil rights litigation "'should ordinarily recover an attorney's fee [under 42 U.S.C.A. § 1988] unless special circumstances would render such an award unjust.'" Northcross, (supra) ; Newman, (supra) ; Singer v. State, 95 N.J. 487, 497-98, 472 A.2d 138 (1984). See also H.I.P. v. Hovnanian at Mahwah, VI, Inc., 291 N.J. Super. 144, 156, 676 A.2d 1166 (Law Div. 1996) (attorney's fee awarded under Fair Housing Amendments Act and LAD after court rejected defendant's argument that special circumstances exception applied). Under another state fee-shifting statute, we have held that a prevailing plaintiff "should ordinarily recover an attorney's fee as allowed by statute unless special circumstances would render such an award unjust." Girandola v. Allentown, 208 N.J. Super. 437, 442-43, 506 A.2d 64 (App. Div. 1986) (Environmental Rights Act, N.J.S.A. 2A:35A-1 et seq.).
The Authority claims as "special circumstances" that it objected to the proposed ramp because the ramp would have encroached on the property of others; would not have complied with the building code; and required removal of a tree. The Authority did not provide Hunter with any such objections in response to his seven letter requests. Furthermore, when the ramp was finally approved as ordered, the plans did not require removal of a tree; the encroachment was only one foot; and the record does not reveal a building code violation.
We accept the trial Judge's finding that the Authority acted in good faith. While N.J.S.A. 10:5-27.1 expressly bars a fee award to a prevailing defendant unless "the charge was brought in bad faith," no similar provision applies to a prevailing plaintiff. Our research reveals no case denying counsel fees to a prevailing plaintiff in a LAD action based upon the defendant's good faith, and we conclude that good faith is not a defense to ...