Before Judges Petrella, Skillman *fn1 and Lesemann.
The opinion of the court was delivered by: Lesemann, J.s.c. (temporarily assigned).
 Argued January 5, 1998
On appeal from Superior Court of New Jersey, Law Division, Morris County.
Plaintiff appeals from a summary judgment dismissing its three count complaint against the Board of Education of the Township of Parsippany-Troy Hills (School Board or Board) and the nine individually named members of that Board, and a subsequent order finding plaintiff liable to defendants for counsel fees and costs pursuant to the Frivolous Claims Statute, N.J.S.A. 2A:15-59.1 et seq. The case arises from a proposed housing development presented by plaintiff Lake Lenore Estates Associates (Lake Lenore) which met strenuous opposition within the Township of Parsippany-Troy Hills (Township). David Shaffer (Shaffer), one of the individually named defendants, lived near the project site and took a leading role in opposing the development. Shaffer was a member of the School Board and plaintiff claims he used his School Board position to impede the project before the Township Planning Board and thus attempted to further his private interest by improper use of his official position. The first two counts of the complaint sought disclosure of two writings Shaffer had sent to other School Board personnel and the third count sought compensatory and punitive damages against Shaffer, the eight other members of the School Board and the Board itself.
The trial court concluded that the suit involved "an absolutely incredible complaint"; that it dealt with "the most ephemeral of claims imaginable"; that when Shaffer argued his position before the Planning Board, he had done nothing more than exercise rights available to any citizen; and that there was no basis to believe that anything Shaffer or the School Board did had any adverse effect on plaintiff's development. The court thus dismissed the complaint notwithstanding plaintiff's objections that it had not yet conducted discovery. Thereafter, when defendants sought counsel fees under the Frivolous Claims Statute, the court determined that there was nothing "frivolous" about the first two counts of the complaint, but that the third count was frivolous and infected the first two counts as well. It thus determined that the statute was applicable and awarded counsel fees and costs to defendants.
We conclude that the court was correct in dismissing the complaint in its entirety as against Shaffer and the other individual board members and it was also correct in dismissing the third count of the complaint as against the Board. However, as the trial court acknowledged, the first two counts should not have been dismissed as against the Board. For reasons discussed below, we conclude that the issue of fees under the Frivolous Claims Statute must be remanded for further proceedings.
Plaintiff first submitted its development proposal known as the Glenmont Project (Glenmont) to the Township in 1991. It involved a one hundred-six acre tract with proposed construction of 781 housing units, 100 of which (together with an additional seventy senior units) would count toward meeting the Township's state-mandated affordable housing quota. The proposal met considerable opposition. Shaffer and his wife, Terry, who lived adjacent to the proposed site of the project, were leaders in that opposition and they were officers in a group formed to oppose the project, the Powder Mill Homeowners Association. They frequently spoke at planning board meetings and their names and telephone numbers appeared in advertisements and circulars that opposed the project. The rhetoric at planning board meetings was heated and the discussions, charges, and countercharges continued during the early 1990's, through 1994 and into 1995. While Shaffer did not overtly claim that his status as a School Board member gave him particular expertise, at least some of his presentations at Planning Board meetings revolved around the Township's school system. At one meeting, for example, he questioned presentations and projections of school capacity submitted by the developer and urged the Planning Board to ask the School Board directly for such information. He also urged those present to read a publication prepared by the School Board concerning school capacity entitled "The Shareholder's Report for 1994." In October 1994, whether or not because of Shaffer's requests, the Planning Board did write to the Superintendent of Schools asking for any comments that he or the School Board might have concerning the project.
Early 1995 brought a continuation of the dispute. On March 20, 1995, the Planning Board approved a modified plan for the project, which included 610 units. In December, however, the Law Division set aside that approval and in that same month the Planning Board also approved a revised proposal containing 691 units. In February 1996 the Township's governing body introduced a new zoning ordinance which would have barred virtually any development on plaintiff's site. That amendment was not adopted.
In early 1996 the developer and the municipal officials participated in mediation designed to resolve their differences. The mediation culminated in an agreement on June 28, 1996, providing for a scaled-down version of the project with a total of 356 units, including no rental units and no affordable housing units. In September 1996, the Township adopted an ordinance having the effect of approving that agreement, and the revised project then continued its way through the remaining necessary municipal approvals.
Plaintiff's representatives claim that during early 1996 they became suspicious that Shaffer was conducting "behind the scenes" machinations in opposition to its project. In an effort to investigate those suspicions plaintiff tried to see two letters or memoranda which it understood Shaffer had written to other School Board personnel concerning the project. On March 20, 1996, plaintiff's attorney wrote the School Board president, formally requesting examination of the writings. The matter was referred to the Board's attorney. Then, for the remainder of March 1996 and through most of April 1996 there ensued an exchange of letters and a series of conversations in which plaintiff's attorney attempted to obtain the writings, and the Board's attorney indicated that he was looking into and trying to resolve the matter. All of that ended in late April 1996 when the Board's attorney advised that the Board would not release the writings. On May 29, 1996, plaintiff filed its complaint.
The complaint refers to the Glenmont project and in paragraphs five and six of its introductory position reads as follows:
5. The Board and Board Members have conducted certain reviews and made certain recommendations with respect to Glenmont insofar as the project will impact school operations in the community.
6. Upon information and belief, at least one Board Member, acting purportedly in his/her capacity as a member of the Board of Education, or invoking the authority of the Board, has made written and other communications with other officials and citizens of the community, which communications are injurious to the interests of Glenmont and may well be actionable under the law.
It continues by noting plaintiff's requests to examine and copy "all records and writings" of the Board and all "communications by and to the members of the Board" which relate to plaintiff or its project. It says the Board has "responded with a limited production, but has failed and refused either to identify or produce records or writings of Board Members."
The complaint then sets out three counts, each of which incorporates by reference the introductory provisions. The first count asserts that the Board's refusal to produce the requested records violates the Right to Know Law, N.J.S.A. 47:1A-2. The second asserts that the plaintiff has a common law right to examine the writings. The third count contains the controversial provisions, set out in four short paragraphs:
19. Injurious and malicious actions by any Board Member acting or purporting to act under the aegis of the Board of Education, by its authority or under its capacity, constitute a tortious interference with plaintiff's rights at law and with its prospective economic advantage.
20. Concealment of such actions of any Board Member or by the Board of Education constitutes complicity herein and renders the Board of Education and its members responsible and liable therefor.
21. Upon information and belief, such actions have been taken against the interests of Lake Lenore by at least one Board Member.
22. The refusal of the Board to produce the records requested by Lake Lenore constitutes complicity with and tacit approval of the actions of its Member or Members.
After defendants answered the complaint, plaintiff served a broadly worded Demand for Documents which sought virtually all writings in the Board's possession dealing with the Glenmont project. Shortly thereafter, defendants filed a motion for summary judgment which was heard on January 10, 1996. Following argument, the court concluded that the complaint failed to set out any improper action on the part of any of the defendants - including David Shaffer, on whom much of the argument focused - and determined that the complaint should be dismissed in its entirety. An order to that effect was entered on February 2, 1997.
Shortly thereafter the defendants filed requests for counsel fee awards under the Frivolous Claims Statute, N.J.S.A. 2A:15-59.1. Argument on that motion was held on February 28, 1997. On March 20, 1997, the court issued a letter opinion in which it noted it had now concluded that plaintiff was "probably" entitled to the relief requested in the first two counts of its complaint (production of the writings) and it therefore annexed copies of those documents to its opinion. It went on, however, to conclude that while the first two paragraphs of the complaint were not "frivolous" within the meaning of the Frivolous Claims Statute, the third count was, and it had "infected" the entire ...