On appeal from the Superior Court of New Jersey, Law Division, Sussex County, L-327-01.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 2, 2005
Before Judge Wefing, Wecker and Fuentes.
This appeal presents an issue of first impression concerning the extent of the counsel fee award available to a prevailing party in an action brought under the Environmental Rights Act, N.J.S.A. 2A:35A-1 to -14 (the ERA). Specifically, the question before us is whether a counsel fee award is available for representation in listing the site in question in the New Jersey Register of Historic Places, pursuant to N.J.S.A. 13:1B-15.128 to -15.132 ("the Historic Places Act"). See also N.J.A.C. 7:4-1.1 to -8.3.
The ERA creates a private cause of action for declaratory and injunctive relief to protect the environment against "pollution, impairment and destruction." N.J.S.A. 2A:35A-2, -4. The ERA also allows the award of a counsel fee to a prevailing party in such an action. N.J.S.A. 2A:35A-10a. The statute provides, in pertinent part:
In any action under this act the court may in appropriate cases award to the prevailing party reasonable counsel and expert witness fees . . . . The fees shall be based on the number of hours reasonably spent and a reasonable hourly rate for the counsel or expert in the action taking into account the prevailing rate in the venue of the action and the skill and experience of the counsel or expert. [N.J.S.A. 2A:35A-10a (Emphasis added.)]
There is little in the way of New Jersey case law that directly addresses the fee-shifting provision of the ERA. In Girandola v. Borough of Allentown, 208 N.J. Super. 437 (App. Div. 1986),*fn1 where the plaintiff's suit for injunctive relief under the ERA was resolved by settlement, and an order denying plaintiff's motion for counsel fees was "unaccompanied by any reasons, findings or conclusions," id. at 440, we vacated the order and remanded the fee application for reconsideration and explanation.
Unfortunately, the motion judge has given us no hint whatsoever why he denied plaintiffs' application. We do not know whether he regarded the action as not brought "under" the Act, whether he found plaintiffs not to be "the prevailing party" under the settlement agreement, whether he considered the counsel fees to be unreasonable or whether he otherwise found the case not "appropriate" for a fee award. [Id. at 440.]
We concluded that the "[p]laintiffs certainly can be regarded as 'prevailing' even though the case was disposed of by settlement rather than judgment." Id. at 441-42. By providing that "the court may in appropriate cases" award counsel fees, the statute implies some discretion. Nonetheless, in Girandola we expressed these "general principles" applicable to a fee application under the ERA:
An award of counsel fees under N.J.S.A. 2A:35A-10 also requires a finding that the case is "appropriate" for such an award. A litigant who establishes that he has met the standards we have described to qualify as a "prevailing party" in an action brought "under" the Act has made a prima facie showing that the case is "appropriate" for a fee award; once such a showing is made, the litigant should ordinarily recover an attorney's fee as allowed by statute unless special circumstances would render such an award unjust. [Id. at 442-43.]
Those principles, however, do not directly address the question before us.*fn2 Section 4 of the ERA creates a private cause of action under two significantly different circumstances. Section 4a allows an action alleging a violation of an existing "statute, regulation or ordinance," and permits imposition of civil penalties as well as equitable relief.*fn3 We are not addressing a section 4a suit in this appeal. Section 4b allows an action for equitable relief in those circumstances where no specific violation of a statutory or regulatory standard ...