The opinion of the court was delivered by: BROTMAN
The genesis of this dispute occurred when OARC, a subsidiary of the Camden County Unit for the ARC of New Jersey, Inc., a plaintiff herein, obtained a residential property at 6 Chandler Lane in the Township of Voorhees and intended to use that property as a community residence for eight developmentally disabled men. On December 13, 1990 OARC applied for and received a zoning permit from Voorhees which allowed OARC to use the property as a community home. Upon learning of this intended use, various local residents decided that they opposed a group home in their backyard and filed an appeal with the Voorhees Township Zoning Board in an attempt to convince Voorhees to revoke the zoning permit. These residents were initially successful. On April 4, 1991, OARC's permit was revoked. OARC challenged the revocation of their permit by filing an action in lieu of prerogative writ with the Superior Court of New Jersey, Law Division, Camden County. That court ruled in OARC's favor, restoring OARC's zoning permit.
Local residents persisted, however, and urged the Township Committee of the Township of Voorhees ("Committee") to adopt a conditional use ordinance restricting community homes from locating in Voorhees. Again, residents enjoyed initial success. On April 22, 1991, the Committee enacted Article XXX of the Voorhees Code § 131-134, et seq. The ordinance required organizations seeking to locate a community residence for the disabled to obtain a conditional use permit from the Committee. The ordinance was adopted pursuant to N.J.S.A. 40:55D-66.1, the New Jersey enabling statute.
The first phase of the present litigation commenced with the filing of a Complaint in March of 1993, in which plaintiffs challenged the Voorhees ordinance, naming as defendants the Township of Voorhees and the Township Committee (collectively referred to hereinafter as "the Voorhees defendants") as violative, inter alia, of the federal Fair Housing Act (hereinafter "FHA") (Compl., Count. I, at PP 50-56), the Americans with Disabilities Act ("ADA") (Id., Count. II, at PP 57-62), § 504 of the Rehabilitation Act of 1973 (Id., Count. III, at PP 63-69), federal and state equal protection (Id., Count. IV, at 70-73), federal and state due process (Id., Count. V, at 74-79), and the New Jersey Law Against Discrimination (Id., Count. VIII, at 96-103). The initial Complaint, at Counts X, XI, XII, XIII, and XIV, also challenged the validity of N.J.S.A. 40:55D-66.1, the enabling statute pursuant to which the Township enacted its conditional use ordinance.
At the first pretrial conference in this matter on June 24, 1993, the Magistrate Judge reviewed the Voorhees ordinance with counsel and indicated that certain sections would not pass constitutional muster. The Voorhees defendants volunteered that certain sections of the ordinance could be repealed. At this conference, plaintiffs also agreed to amend their Complaint to include the State of New Jersey in defense of its zoning enabling statute, N.J.S.A. 40:55D-66.1.
On February 13, 1995, Voorhees repealed the challenged ordinance in its entirety. After a May 3, 1995 status conference, all defendants submitted motions to dismiss based on plaintiffs' lack of standing and mootness. The Court denied these motions in ARC of New Jersey, Inc. v. Township of Voorhees, No. 93-1399 (D.N.J. filed Mar. 29, 1996) (Brotman, J.).
The third and final phase of this case began with a following pretrial conference, at which the parties determined that the Voorhees defendants would be dismissed from the litigation subject to the plaintiffs' right to seek attorneys fees. At this point, only the State of New Jersey remained as a defendant in order to defend its conditional use enabling statute dealing with group homes. Following a full briefing schedule, the Court granted plaintiffs' motion for summary judgment. Arc of New Jersey, Inc. v. State of New Jersey, 950 F. Supp. 637 (D.N.J. 1996). In so doing, the Court invalidated a portion of N.J.S.A. 40:55D-66.1 under the FHA. Id. at 20-21. The Court stated that it would entertain an application for reasonable attorneys fees and costs to be assessed against the State of New Jersey pursuant to the FHA fee-shifting provision, 42 U.S.C. § 3613(c)(2) (1994 & Supp. 1997) and against the Voorhees defendants pursuant to the Court's November 25, 1996 order dismissing them from the case. Id. at 23.
Plaintiffs' brief in support of its fee application, the separate reply briefs of defense counsels Botcheos and Bonfiglio, and plaintiffs' subsequent reply brief are now before the Court. By way of a letter dated March 7, 1997, Deputy Attorney General Judith A. Nason informed this Court that the State of New Jersey had reached an agreement with plaintiffs' counsel, the Community Health Law Project, regarding payment of attorneys fees incurred in litigating their case against the State. Accordingly, all that remains to be decided by the Court is whether plaintiffs' counsel are entitled to reasonable attorneys' fees for litigation costs incurred against the Voorhees defendants and if so, the amount of such fee.
I. Prevailing Party Status
A prevailing litigant is ordinarily not entitled to collect fees from the losing party. Alyeska Pipeline Serv. v. Wilderness Soc'y, 421 U.S. 240, 247, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975). However, Congress and the New Jersey Legislature have carved out exceptions to the so-called "American Rule" by allowing for fee shifting under certain civil rights statutes. Both the federal Fair Housing Act (hereinafter "FHA"), 42 U.S.C. § 2613(c)(2) (1994 & Supp. 1997), and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-27, provide that the court may allow the prevailing party "a reasonable attorneys fee and costs."
While the awarding of counsel fees under these statutory provisions is discretionary, defendants do not seriously contest the notion that some reasonable attorneys' fees will be awarded. Defendants' main objections concern the number of hours expended against the Voorhees defendants, the hourly rate to be applied, and whether these hours are subject to a multiplier under the NJLAD.
As previously noted, defendants have filed two briefs by two separate attorneys, one by George J. Botcheos, Esquire (hereinafter the "Botcheos Brief"), and the other by Peter J. Bonfiglio, III, Esquire (the "Bonfiglio Brief"). These briefs do not seriously contest the fact that plaintiffs are "prevailing parties" for purposes of the applicable fee-shifting statutes. Indeed, the Botcheos Brief concedes that "as far as Voorhees Township is concerned, plaintiffs succeeded in the elimination of the objectionable ordinance and from September 28 forward its [sic] sole objective was to have the [state enabling] statute ruled unconstitutional." Botcheos Br. at 3. Nowhere in the Bonfiglio Brief is there a compelling reason for the Court, in its discretion, to decline to award a fee to plaintiffs' counsel. Id. at 10.
To be deemed a "prevailing party," a plaintiff need only have achieved modest success in litigation. Success on "any significant issue ... which achieves some of the benefit ... sought in bringing suit" suffices. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1986); Ashley v. Atlantic Richfield Co., 794 F.2d 128, 131 (3d Cir. 1986). A suit which forces a defendant to do more than it was already committed to do confers prevailing status. Id. at 136. Even a nominal damages award is sufficient. Farrar v. Hobby, 506 U.S. 103, 112-14, 121 L. Ed. 2d 494, 113 S. Ct. 566 (1992) (citing Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 790, 103 L. Ed. 2d 866, 109 S. Ct. 1486 (1989) (degree of plaintiff's success does not affect eligibility for fee award)). That an action ultimately ends in settlement - as in the case at bar - rather than being fully litigated is irrelevant to the prevailing party inquiry. Ashley, 794 F.2d at 131-32.
A further requirement is that the obtained relief be "causally connected to the prosecution of the complaint." Id. at 131. A causal connection is established so long as the litigation was "a material contributing factor" in bringing about the benefit obtained. Wheeler by Wheeler v. Towanda Area Sch. Dist., 950 F.2d 128, 132 (3d Cir. 1991) (citations omitted). In the settlement context, only a totally frivolous lawsuit which results in the defendant doing no more than it was already committed to do "fails to satisfy the causal connection" requirement. Disabled in Action of Pennsylvania v. Pierce, 789 F.2d 1016, 1019-20 (3d Cir. 1986). Setting aside the later litigation against the State of New Jersey, and focusing only on plaintiffs' action against the Voorhees defendants, the Court finds that but for plaintiffs' lawsuit, the Voorhees conditional use ordinance would not have been repealed.
The Bonfiglio Brief for defendants suggests that "the entire litigation was unnecessary" in light of Judge Harold Ackerman's decision in AAMH v. City of Elizabeth, 876 F. Supp. 614 (D.N.J. 1994) (invalidating the State's conditional use enabling statute, N.J.S.A. 40:55D-66.1, under the FHA). Bonfiglio Br. at 9. Defendants seem to suggest that it was the decision in that case, rather than plaintiffs' action, that brought about the change sought by plaintiffs. This argument lacks merit. Plaintiffs filed the instant lawsuit on April 7, 1993, Id. at 1. Defendants concede that they offered to repeal the Township's ordinance at a September 28, 1993 scheduling conference before the Magistrate Judge. Id. And they even concede that Judge Ackerman issued his AAMH decision on October 25, 1994. Id. at 2. The AAMH decision could not have precipitated the Township's offer of repeal on September 28, 1993 when the decision was still thirteen months in the offing. Unless the Voorhees defendants had a crystal ball in use on September 28, 1993, this is simply not possible.
The comments of a Township Committee member reveal that defendants were not inclined to repeal the objectionable provision on their own and that someone had to force them to do so. In response to a then-Township attorney's concerns about the ordinance, this particular Committee member stated:
If this was in there, they'd have to test it. Maybe it wouldn't stand up, but [the objectors] understand that .... If we put it in there and its gets blown out, it gets blown out.
Tr. of Voorhees Township Committee Meeting, March 25, 1991 at 13:19-25. Given this attitude, it does not strain credulity to conclude that defendants were more than willing to dispense with their municipal ordinance - but only when it became clear that plaintiffs' suit had merit. It took a lawsuit to move defendants to do more than they were already committed to doing, which is to say, nothing. Plaintiffs' action, which brought about settlement, was anything but "frivolous." Plaintiffs ultimately obtained everything they wanted: the invalidation of the municipal conditional use ordinance and of the state enabling statute. Plaintiffs' lawsuit was clearly the cause of the successful resolution of this case in plaintiffs' favor.
Once the Court determines that a plaintiff has prevailed, plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Hensley, 461 U.S. at 429. "A plaintiff who prevails under a civil rights statute that contains a fee-shifting provision 'ordinarily is to be awarded attorneys fees in all but special circumstances ...'." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 417, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978) (citation omitted) (construing Title VII of the Civil Rights Act of 1964); Bryant Woods Inn, Inc. v. Howard Cty, Maryland., 124 F.3d 597, 1997 WL 499940 at 10 (4th Cir. 1997) (concluding that FHA draws on same fee-shifting policies as Title VII of Civil Rights Act and that district court was correct in applying Christianburg standard to attorneys fee application under 42 U.S.C. § 3613(c)(2)); Oxford House-A v. City of Univ. City, 87 F.3d 1022, 1024 (8th Cir. 1996) ("prevailing party" also has same meaning as under the more general civil rights fee-shifting statute, 42 U.S.C. § 1988(b)). The "special circumstances" exception is an extremely narrow one applied only in unusual circumstances and then only upon a strong showing by the party asserting it. Ashley, 794 F.2d at 134 n.9 (quotation marks omitted). Defendants' briefs do not offer any evidence that special circumstances exist, and defendants do not make strenuous arguments against the award of a fee. Indeed, through settlement the plaintiffs received everything they wanted from the Voorhees defendants: the Township's discriminatory and unconstitutional ordinance was repealed. The Court concludes that plaintiffs are entitled, as prevailing parties, to reasonable attorneys' fees. What remains for the Court to decide is the amount of those fees.
II. Amount of Attorneys' Fees
To determine what is a reasonable fee for fee-shifting purposes, the Court must look to what is called the "lodestar" figure. City of Burlington v. Dague, 505 U.S. 557, 559-60, 120 L. Ed. 2d 449, 112 S. Ct. 2638 (1992), citing Pennsylvania v. Delaware Valley Citizens' Council For Clean Air, 478 U.S. 546, 565, 92 L. Ed. 2d 439, 106 S. Ct. 3088 (1986) (Delaware Valley I). The Court arrives at the lodestar figure by multiplying a reasonable number of hours by a reasonable hourly rate. Id. This figure may not be "enhanced" under federal fee-shifting statutes by applying a multiplier to account for the contingent nature of the success of the litigation or other considerations. City of Burlington, 505 U.S. at 566. There is a "strong presumption" that the lodestar represents the reasonable fee. Id. at 562.
Based on the parties' submissions, the Court must determine how many hours plaintiffs reasonably expended on this case, whether the hourly rates claimed by the two plaintiffs' attorneys are reasonable, and finally whether the lodestar figure accumulated against the Voorhees defendants is subject to a multiplier under the NJLAD. The Court will address these issues in turn.
(a) The Number of Hours
Two attorneys from the Community Health Law Project (hereinafter "the Project") represented the plaintiffs at various points in this litigation, David J. Popiel, Esquire ("Popiel"), and Susan E. DiMaria, Esquire ("DiMaria"). Plaintiffs' brief in support of their fee application sets forth the attorneys' hours spent working on this case (including travel time) and the billing rates of both attorneys. The figures claimed by plaintiffs' counsel are reproduced below
vs. Voorhees vs. State vs. Voorhees Travel Total Total Fees
Time 147.9 38.8 37.9 224.60 $ 56,150
Travel 26 $ 2,600