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Dunn v. State

June 15, 1998

THOMAS G. DUNN, MAYOR OF THE CITY OF ELIZABETH, PLAINTIFF, AND THE CITY OF ELIZABETH, PLAINTIFF-RESPONDENT, AND JEWISH EDUCATIONAL CENTER, A NON-PROFIT CORPORATION OF THE STATE OF NEW JERSEY, ROBERT AND REBECCA HEIZLER, GINO AND BIAGIA TERRANA, STEVEN AND AVIVA SINGFER, EDWARD AND CHAVVAH SCHWARTZ, JOSEPH AND SANDRA WALDMAN, FRANK AND GLADYS AGUIRRE, EMIL AND SHIRLEY HYMAN, JOSEPH AND DEBORAH ORATZ, WILLIAM AND IDA HASHKOWITZ, IRWIN AND EDITH BRUCK, ARTHUR AND HELENE SCHEUER, STANLEY GUTOWSKI, JOSEPH AND BELLE LAVA, JULES AND ANN BROTSKY, PETER AND JOYCE PUGLESE, BEN AND MYRA GREENBLATT, VICTOR AND MIMI COHEN, ARTHUR AND REDA RIFKIN, LEONARD AND SARAH SAUSEN, MARTIN AND SHEILA NASHOFER, SHIRLEY SAUSEN, SHALOM AND CHARLOTTE RAKOVSKY, DAVID AND MARILY CHESLOW, JOSEPH AND HELENE WENGER, JOSEPH AND MOLLY ROTHSTEIN, LOENARD AND ANNETTE LAUER, MICHAEL AND GERALDINE BERGMAN, CYRIL IAN AND EDNA ALEXANDER, MOSHE AND CHERYL ABRAMOWITZ, AVRAHAM AND RIVKA PINSKER, GORDON AND YANINA HAAS, HOWARD AND HADASSA GOLDSMITH, SHELDON AND JANICE WEINREB, LOUIS AND SYLVIA SCHNEIDER, RONALD AND RIVKA GROSS, MATTHEW AND AMY TROOP, NEIL AND MAVIS ROSENSTEIN, HOBART AND AHUVA SPITZ, JOSEPH AND HANNA GOLDBERG, MARK AND ZILPAH NULMAN, DANIEL AND DEBORAH SHEINBEIN, NICHOLAS AND GLADYS RIVERO, GETTY AND RENEE KRUL, HERBERT AND BETH RUSS, AND MARY KENNEDY, GLEN AND LISA BOND; LEONARD AND LAUREN ALBUQUERQUE; THOMAS AND MARY NOONAN; SOLOMON GALIMIDI; JAMES AND ROSE KEENAN; NELSON AND MONICA CEDENO; IRVING AND EVA GOLDSTONE; STEVEN AND KAREN OSTROVE; SEYMOUR AND PHYLLIS BRUCK; MOHAMMAD AND BIBI HANIFF; DAVID AND FAIGE HORNING; AL AND MIRIAM REISMAN; KENNETH AND SUSAN MANDEL; JOHN AND CAROL CASCIO; PETER AND JOYCE PUGLESE; JACQUELINE KOPLOWITZ; LOUIS AND LAURA FLEISCHMAN; JONATHAN AND BELA WAYNE; AND VINCENT SCULT, ET UX, PLAINTIFFS/INTERVENORS,
v.
STATE OF NEW JERSEY, DEPARTMENT OF HUMAN SERVICES; ALAN J. GIBBS, COMMISSIONER OF THE DEPARTMENT OF HUMAN SERVICES; AND SOCIAL, EDUCATIONAL, RESIDENTIAL AND VOCATIONAL PROGRAMS OF NEW JERSEY, INC., A NON-PROFIT CORPORATION, DEFENDANTS, AND PETER MORIELLO AND SAMUEL LACHS, DEFENDANTS-APPELLANTS.



Before Judges Pressler, Wallace and Carchman.

The opinion of the court was delivered by: Carchman, J.s.c., temporarily assigned

[9]    Argued February 10, 1998

On appeal from Superior Court of New Jersey, Law Division, Union County.

Defendants Peter Moriello and Samuel Lachs owned real estate located at 637 Livingston Road, in City of Elizabeth (plaintiff or City). Defendant Social, Educational, Residential and Vocational Programs of New Jersey, Inc. (SERV), contracted to purchase this property for the purpose of converting it to use as a group home for eight emotionally disturbed teenagers. Funding was to be provided by defendant State of New Jersey, Department of Human Services.

After initially approving the plan and issuing a building permit and after the necessary renovations were nearly completed, the City issued a stop work order. The City, together with the intervenors, who are neighbors or parents of students enrolled in a school near the site, sought to terminate the project. SERV and Moriello countered by alleging violations of the Fair Housing Amendments Act (FHAA), 42 U.S.C.A. §§ 3601 to -3619, and the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42.

After a trial, the trial Judge found FHAA and LAD violations and awarded declaratory and injunctive relief, as well as damages to Moriello; no damages or other relief were awarded to Lachs. *fn1 On appeal, Moriello challenges the trial court's refusal to consider the damages he incurred during the twenty-one month period between conclusion of the trial and the court's rendering of the decision. Moriello and Lachs also challenge the denial of their request for counsel fees. *fn2

We conclude that Moriello is entitled to the damages he sustained not only to the time of trial but also to the time of the court's decision. We reject the view that the trial Judge's delay in rendering a decision tolled Moriello's damage claim. We further conclude that as a "prevailing party," Moriello was entitled to an award of counsel fees. As to Lachs, while he, too, was a "prevailing party," because he appeared pro se, he is not eligible for an award of counsel fees.

Because some understanding of the underlying facts is relevant to Moriello's damage claim, we briefly summarize the facts developed at trial. This dispute arose as a result of a proposal by the New Jersey Department of Human Services to fund the purchase of a property to be used as a group home to house emotionally disturbed adolescents. Moriello served as a general contractor for construction of a single-family dwelling on the property and obtained a building permit from plaintiff at the commencement of the project. After entering into a contract with SERV for his sale to it of the premises, he secured a remodeling permit. Moriello proceeded with the modifications in reliance on the permit and had completed approximately ninety-eight percent of the work when plaintiff issued the stop work order and, thereafter, refused to issue a certificate of occupancy. Because he was not permitted to complete the work, he suffered substantial financial damages.

The City brought an action to enjoin Moriello from completing the project. In challenging the purchase, plaintiffs and intervenors raised a number of issues including a violation of various provisions of the Municipal Land Use Law, N.J.S.A. 40:55D-66.1 and -66.2. SERV, and later Moriello, filed a counterclaim challenging, among other things, the validity of the stop work order and alleging violations of the FHAA and LAD. The issues having been joined, the matter was tried from December 5, 1994 to February 16, 1995 and consumed twenty trial days.

On November 12, 1996, the trial Judge rendered his decision. In his eighty-two page comprehensive opinion, the trial Judge found in favor of Moriello, Lachs and SERV. He invalidated certain zoning ordinance amendments designed to retaliate against the project, found certain provisions of the zoning ordinance unconstitutional and found that plaintiffs had violated both Moriello's and SERV's rights under the FHAA and LAD. He concluded that Moriello was an "aggrieved person" under both statutes and awarded Moriello *fn3 damages of $84,788.86, representing taxes, insurance, loan interest and utilities on the property from September 16, 1991 (the date of issuance of the stop work order) through November 30, 1994 (the eve of trial). In addition to the group home, SERV had contracted with Moriello to purchase condominium units on Newark Avenue. Damages of $19,200 for the loss of the fair rental income were awarded to Moriello. The Judge commented:

In setting damages, I cannot go beyond the trial date, because it would neither be fair to [Moriello] or to the City for anyone to benefit or suffer the consequences of the time it took for the court to decide the matter.

Finally, SERV was awarded counsel fees of $35,000, while Moriello and Lachs were denied fees because "that falls within the court's discretion."

Moriello moved for reconsideration as to damages and both Moriello and Lachs moved for reconsideration of attorneys' fees. Moriello alleged that his damages on the Livingston Road house continued to accrue from December 1994 through November 12, 1996, when the court rendered its decision. He asserted that he paid property taxes in the amount of $8,862 during this time. He explained that in his experience as a builder for over twenty-five years in the City, the City did not make partial assessments on construction until the certificate of occupancy was issued, and he confirmed this practice with the City's tax assessor. Nevertheless, at the Conclusion of the trial, the City "imposed a partial added assessment on this property based upon the building being substantially complete." Moriello believed that this constituted "further retaliation" against him. Moriello also claimed interest expenses in the amount of $51,486.75 from January 1, 1995, through November 12, 1996.

The Judge denied the motion for continuing damages, stating that an award for damages accrued after the trial "would have imposed upon the city a liability occasioned solely by this court's delay in rendering its ...


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