Opinion
DOCKET NO. A-1990-14T2
11-23-2016
MICHAEL GOLOWSKI, Plaintiff-Respondent/Cross-Appellant, v. CITY OF TRENTON, Defendant-Appellant/Cross-Respondent, and CITY OF TRENTON ZONING BOARD OF ADJUSTMENT, Defendant.
Taylor & Jay, LLC, attorneys for appellant/cross-respondent (Lisa Roberts Taylor, of counsel and on the briefs). Lum, Drasco & Positan, LLC, attorneys for respondent/cross-appellant (Kevin J. O'Connor, of counsel and on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Lihotz, Nugent and Higbee. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3045-10. Taylor & Jay, LLC, attorneys for appellant/cross-respondent (Lisa Roberts Taylor, of counsel and on the briefs). Lum, Drasco & Positan, LLC, attorneys for respondent/cross-appellant (Kevin J. O'Connor, of counsel and on the briefs). PER CURIAM
Defendant City of Trenton (City) appeals from an August 21, 2014 Law Division grant of summary judgment, awarding plaintiff Michael Golowski delay damages for a temporary taking of his property and the November 18, 2014 final judgment, awarding attorney's fees and costs. Plaintiff filed the underlying action in lieu of prerogative writs challenging defendant the City of Trenton Zoning Board of Adjustment's (the Board) rejection of plaintiff's application for hardship bulk variances to construct a single family home on an isolated lot, which did not meet the area or dimensional requirements of the zoning ordinance. The trial judge remanded the case once to the Board, instructing the Board to address the confiscatory impact of the denial of plaintiff's request for variances.
The Board ignored those instructions, and the second decision was the same as its earlier pro forma denial. Reviewing the Board's decision on remand, the trial judge concluded the action was arbitrary, capricious and unreasonable, ordered the Board to grant plaintiff bulk variances, and awarded plaintiff delay damages. Further, she found the City repeatedly informed the Board it objected to development on plaintiff's property and did not retract that objection, despite her ordered remand, highlighting the requirement that the Board assess the confiscatory nature of rejection of plaintiff's bulk variance application. On appeal, the City argues it is not responsible to pay damages for the Board's denial of the bulk variances.
Plaintiff cross-appeals from the amount of attorney's fees awarded. He suggests the judge abused her discretion in reducing counsel's charged hourly rate.
Following our review, we determine the record shows the extensive delay in plaintiff's securing bulk variances was attributed not only to the Board's conduct, but also to acts by the City telegraphing to the Board its position to deny development. The limited residential use and the undersized nature of the lot for its zone were known by the City when it sold the tax sale certificates associated with the lot. Also, the certificates contained the correct lot and block, but incorrect street address. The City does not dispute the Board's denial of variances was arbitrary and capricious. Consequently, during this period plaintiff was deprived of the use of his property.
Under the unique facts and circumstances presented, we conclude the award of delay damages was factually supported and legally appropriate. Accordingly, we affirm.
The facts are not disputed and taken from proceedings leading to summary judgment. In 2007, plaintiff acquired title to the 2000-square-foot vacant parcel, located on Lyndale Avenue in Trenton (the property), when he completed a tax sale foreclosure. The non-conformity of the lot's dimensions, making it undersized for the current zone, is pre-existing. The lot appears on an 1899 subdivision map and is now located in the "Residential B" zoning district, which permits only residential buildings.
When plaintiff purchased the property the tax bill listed the address as the adjacent property, which contained a house. The two lots were commonly owned and the tax bill was sent to the owner's home. In 2005, the mortgagee's foreclosure of the lot containing the home left taxes on the property unpaid. The tax sale certificates were sold by the City and purchased by plaintiff; however, these erroneously contained the address of the developed lot next door. Plaintiff's later secured title search discovered the property he owned in fact was and has been for some time a separate undeveloped lot.
Plaintiff applied for approval to construct a single-family residence and was informed the undersized nature of the lot required bulk variances to permit development. He submitted an application for bulk variances to the minimum lot size and side yard setbacks. The Board denied the application, finding the proposed structure was a potential detriment to the air, light, and open space of an adjacent landowner. Without more specific explanation, the February 20, 2008 resolution concluded its review of the plaintiff's application "adequately demonstrate[d] that the negative criteria under N.J.S.A. 40:55D-70 [wa]s met in reference to the detriment of the public good . . . ."
After plaintiff unsuccessfully attempted to buy adjacent properties or sell his property to adjacent landowners, he submitted a second bulk variance application to the Board in 2010. In an effort to cure concerns expressed in the Board's initial denial, the 2010 proposal included a smaller structure than the first. Also, front and back setbacks met zoning requirements, limiting variances to lot size and side yard setbacks.
During the hearing, plaintiff, who is an engineer by occupation, recounted his efforts to sell the lot and noted the proposed construction conformed to other structures in the neighborhood. Further, he expressed other single family homes in the area were constructed on undersized lots. There was no disagreement that the proposed residence conformed to the character of the neighborhood. Finally, plaintiff identified the practical problems were the proposed structure to conform to the required side yard setbacks, characterizing the resulting structure as "a doll house."
A neighbor, whose home is adjacent to the proposed structure, expressed opposition to developing the lot and voiced concerns regarding her perceived impact were construction permitted. On October 20, 2010, the Board acknowledged plaintiff made modifications reducing the proposed structure, but again noted the lot's small size resulted in the inability to meet all zoning requirements. Specifically cited as nonconforming were the plan's proposed side yard setbacks of three feet on the left and one foot on the right when six were required, as well as the width and front yard setback as proposed of eleven feet when twenty-five were required. These issues resulting in the Board's finding "the positioning of the house on the property as proposed and in the form [as] proposed will unduly encroach upon adjoining properties and interfere with the reasonable expectations of the adjoining landowners." The Board denied plaintiff's application again finding he failed to prove the statutory negative criteria. The Board concluded "the structure as proposed on this property constitutes a substantial detriment to the surrounding properties and therefore represents a substantial detriment to the public good."
Plaintiff filed this action in lieu of prerogative writs, against the City and the Board. He challenged the Board's denial of the second application for bulk variances as a violation of his civil rights, which was arbitrary, capricious and unreasonable given the dimensions of the lot such that "it is not mathematically possible to build a residential structure that conforms with" the requirements of the Residential B zone, necessitating bulk variances. He also claimed the denial equated to a confiscation such that the City was responsible to pay just compensation as an inverse condemnation.
Following review, the trial court found the Board's decision arbitrary and capricious and concluded the adopted resolution legally insufficient. She vacated the Board's denial of the variance application, finding it did not "view the application with the utmost fairness" and the record lacked support for the findings, which themselves were insufficient. The judge also found the Board failed to allow plaintiff the opportunity to supplement his presentation or issue reasonable conditions necessary to satisfy its concerns and allow construction. The judge remanded the matter to the Board allowing plaintiff to supplement his proofs and requiring environmental findings in accordance with criteria set forth in Dallmeyer v. Lacey Twp. Bd. of Adjustment, 289 N.J. Super. 134 (Law Div. 1987). The court retained jurisdiction.
The Board reviewed the application on February 20, 2013. Plaintiff reiterated his efforts to sell the lot or buy adjacent properties; noted several meetings with municipal officials who stated "the [C]ity didn't want anything built on that lot" and identified modifications to his initial application to comply with most zoning requirements. Plaintiff explained the side yard separation to the adjacent structure was appropriate because that building's sidewall had no windows and remained amenable to modify his proposed residence to accommodate air circulation concerns. He discussed the residence he proposed would not be affected because it would have central air conditioning. Plaintiff did not present additional evidence or witnesses.
The same neighbor appeared and voiced the same complaint as she expressed in the prior hearing. Stating the lot was vacant when she moved into the neighborhood, she asserted a structure on the lot would impede her light, air and open space, although she offered no reasons supporting that belief.
Representatives from the City were in attendance. They did not speak in favor of the variance request or withdraw the prior letter opposing development.
In its April 17, 2013 resolution, the Board denied plaintiff's variance application, reiterating the same conclusory findings by stating "the structure proposed will cause a detriment to the air, light and open space of the neighbor . . . ." The Board neither addressed the confiscatory nature of its decision nor provided conditions for approval, as was ordered by the Law Division remand.
When the matter returned to the trial court, for the first time the City was at odds with the Board. Despite memoranda opposing plaintiff's applications for a variance in 2008 and 2010, which were not withdrawn prior to or during the 2013 Board hearing, the City urged reversal of the Board's latest denial, arguing the decision was arbitrary and capricious. Plaintiff had abandoned his attack on the unreasonable Board determination to pursue damages based on the effect of denial, which he argued equated to an inverse condemnation.
On July 23, 2013, the trial judge agreed the Board's denial was arbitrary and capricious, noting it "failed to give any weight . . . to the confiscatory nature of the denial" or balance plaintiff's interest in developing his property. Further, its rationale was unchanged from the prior denial, which also lacked factual support. The judge reversed the Board's decision and directed it to issue bulk variances to allow construction of a single family home as proposed in plaintiff's application.
The judge noted the condemnation claim was now moot. Plaintiff requested to recast the issue as a demand for damages for a temporary taking during the pendency of the Board's arbitrary and capricious denial of bulk variances. The judge agreed and rescheduled the matter for case management regarding that issue. Plaintiff moved for summary judgment. Defendants filed cross-motions for summary judgment.
Considering the motions, the judge granted the City's request to dismiss plaintiff civil rights claim. Otherwise she denied its motion for summary judgment and granted plaintiff's motion for summary judgment, awarding delay damages. The judge found plaintiff "had no economically beneficial use of the property . . . because of the Board's decisions" during a period beginning with the October 20, 2010 denial of plaintiff's second variance application until the issuance of the July 23, 2013 order reversing the Board and requiring it grant bulk variances. After crediting plaintiff's expert report, she awarded $26,004.51. Further, the judge permitted plaintiff to submit a certification by counsel to award attorney's fees and costs. Stating the Board had no authority to disburse funds, the judge ordered the City to pay damages and any counsel fee award. Subsequently, attorney's fees of $32,194 were ordered to be paid on behalf of plaintiff.
The City appeals from the November 14, 2014 final judgment. Plaintiff cross-appeals from the amount of the counsel fee award.
"In reviewing a grant of summary judgment, 'we apply the same standard governing the trial court -- we view the evidence in the light most favorable to the non-moving party.'" Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 349 (2016) (quoting Qian v. Toll Bros. Inc., 223 N.J. 124, 134-35 (2015)). We "must review the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). See also R. 4:46-2(c). "The practical effect of this rule is that neither the motion court nor an appellate court can ignore the elements of the cause of action or the evidential standard governing the cause of action." Bhagat, supra, 217 N.J. at 38.
Since the grant of summary judgment calls for a review of the trial court's interpretation of the law and the legal consequences that flow from established facts, "[w]hen no issue of fact exists, and only a question of law remains, this Court affords no special deference to the legal determinations of the trial court." Cypress Point Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403, 415 (2016).
At issue before the Board was whether bulk variances should be granted to allow construction of a single family home; a use conforming with the zone. Undeniably, the lot as created made it nonconforming because its total was only 2000 square feet in a zone where 4000 square feet is required for development. Thus, the property's configuration created a hardship for its development. The record contains no discussion of a grandfather clause allowing development on an undersized lot, which existed prior to the adoption of the zoning ordinance. In the absence of such a provision, bulk variances are mandated. N.J.S.A. 40:55D-70(c). Indeed, if variances are denied, plaintiff cannot build the proposed home, rendering the property useless.
"An applicant who pursues a variance under N.J.S.A. 40:55D-70(c)(1) must establish that the particular conditions of the property present a hardship." Ten Stary Dom Ptp. v. Mauro, 216 N.J. 16, 29 (2013). See also N.J.S.A. 40:55D-70(c)(1). "'Undue hardship' involves the underlying notion that no effective use can be made of the property in the event the variance is denied." Commons v. Westwood Zoning Bd. of Adjustment, 81 N.J. 597, 605 (1980).
"Thus, [(c)(1)] variance approval require[s] the party requesting the variance to prove both positive and negative criteria: there must be a benefit to the community from granting the variance that outweighs the detriment to the zoning plan, and the purposes of the [Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -92], must be advanced." Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 125 n.4 (2013).
In this matter, the Board rested its initial denial upon plaintiff's inability to properly address the negative criteria, addressed in the statute as follows:
No variance or other relief may be granted under the terms of this section . . . without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.See also Price v. Himeji, LLC, 214 N.J. 263, 285 (2013).
[N. J.S.A. 40:55D-70.].
This provision requires an applicant to offer evidence of the effect of granting the variance on surrounding properties. Ibid. In all three rejections of plaintiff's application, the Board isolated plaintiff's failure to show that the size of the home proposed to be built on the undersized lot would not detrimentally impair "adequate light, air and open space." See N.J.S.A. 40:55D-2(c) (stating a purpose of the MLUL, is to promote development meeting desirable visual environment criteria including adequate light, air and open space). However, this finding was never explained, even when required by the Court on remand.
In is well-settled that the inability of an owner to develop the property for any permitted use absent a variance "often informs the decision to grant a variance from bulk requirements . . . ." Mauro, supra, 216 N.J. at 29. See also Chirichello v. Zoning Bd. of Adjustment of Monmouth Beach, 78 N.J. 544, 557-58 (1979). When strict application of a bulk or dimensional provision would present peculiar and exceptional practical difficulties or exceptional hardship because of the exceptional conditions of the property, a Board evaluating a variance request must consider whether the benefits from development based on requested deviations from the zoning ordinance requirements outweigh any detriment to the public good. Mauro, supra, 216 N.J. at 29-30.
The Court has instructed:
[A] municipality cannot constitutionally restrict the use of an owner's land in such manner as to deprive him of all practical use of it. [Cases] hold that deprivation of that nature is confiscation, and if the governing body deems such restriction necessary to serve the public interest or the general welfare an obligation to compensate the owner for the loss suffered must be accepted. It would be unjust, they say, to compel the owner to assume the cost of such a benefit conferred by the governing body on all the members of the community. See Dunham, Legal and Economic Basis for City Planning, 58 Colum. L. Rev. 650, 655 (1958). As the Supreme Court of Illinois said in Tews v. Woolhiser, 352 Ill. 212, 185 N.E. 827, 831 (1933): "If it be of public benefit that property remain open and unused, then certainly the public, and not private individuals, should bear the cost of reasonable compensation for such property under the rules of law governing the condemnation of private property for public use."
[Harrington Glen, Inc. v. Bd. of Adjustment of Leonia, 52 N.J. 22, 32-33 (1968).]
The original remand defined very specific issues for the Board to consider when reviewing plaintiff's application, which included the confiscatory nature of a denial of bulk variances and an imperative to identify the facts supporting any finding the negative criteria were not shown. The Board ignored these unequivocal instructions and simply rejected plaintiff's application in a resolution suffering the same factual deficits and legal insufficiencies as its earlier action. See Harrington Glen, supra, 52 N.J. at 28. ("Denial of a variance on a summary finding couched in the conclusionary language of the statute is not adequate. There must be a statement of the specific findings of fact on which the Board reached its conclusion that the statutory criteria for a variance were not satisfied.").
In her review, the trial judge was well aware of the deference accorded Board decisions, noting it is well recognized that zoning boards, "because of their peculiar knowledge of local conditions[,] must be allowed wide latitude in the exercise of delegated discretion." Price v. Himeji, LLC, 214 N.J. 263, 285 (2013) (quoting Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965)). Generally, decisions enjoy a presumption of validity, and a court may not substitute its judgment for that of the board unless there has been a clear abuse of discretion. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002).
However, plaintiff did not create the undersized lot, therefore "there is no legitimate reason not to follow existing zoning law respecting hardship variance applications," which was ordered on remand. Moroney v. Mayor & Council of Borough of Old Tappan, 268 N.J. Super. 458, 464 (App. Div. 1993), certif. denied, 136 N.J. 295 (1994). The Board demonstrated it would not abide the remand order, despite very clear legal authority that a municipality may not destroy the economic value of an isolated lot by retroactively prohibiting the erection of a single-family dwelling through adoption of a zoning ordinance prescribing minimum lot size requirements and no available relief from the zoning requirements. At that point, it was clear to the trial judge the variances were appropriate, but it made no sense to again remand the matter, as any further Board review would be hindered by arbitrariness and clouded by caprice.
Against this backdrop, we turn to the City's arguments obviating its liability for the award of delay damages and counsel fees. On appeal, the City maintains no further relief was warranted because the ordered reversal of the Board's decision concluded plaintiff's action accordingly. Defendant offers no authority to support this argument. Further, the City advances additional arguments stating a taking was not shown, delay damages were not warranted against it, the delay was occasioned by the normal course of litigation, and the amount of damages was inappropriate as was the award of attorney's fees. Following our review, we are not persuaded.
Plaintiff recognized the effect of the Board's decision when he filed his action that alternatively requested compensation for an inverse condemnation. The City was on notice of this claim from the commencement of the case. In her post-remand review, the trial judge weighed plaintiff's claim for condemnation, but also recognized the Board's capricious casting aside of her order in favor of the arbitrary rejection of the variance application. As noted, even the City urged reversal of the Board's post-remand denial of plaintiff's bulk variance application because the resolution was arbitrary, capricious and unfounded.
"Generally speaking, condemnation should be ordered only where eventual acquisition appears inevitable . . . or where equitable considerations mandate that remedy." Washington Market Enters. v. Trenton, 68 N.J. 107, 123 (1975). In this case, the order requiring the Board to grant the variances obviated a claim for condemnation and is not challenged on appeal. However, plaintiff had "successfully challenged the municipal zoning ordinance as applied to [his] property." Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 295 (2001).
Here, the judge found plaintiff was required to apply for a variance to develop the property because of the pre-existing dimensional deficits. She also found plaintiff's application was repeatedly opposed by the City, and the Board's unreasonable denial of a warranted hardship variance amounted to a temporary confiscation. Harrington Glen, supra, 52 N.J. at 29 ("The only distinction between such zoning restriction and an actual taking by the municipality is that the restriction leaves the owner with the burden of paying taxes on the property, while the outright taking relieves him of that burden."). The City's argument to the contrary is rejected as lacking merit. R. 2:11-3(e)(1)(E).
This matter does not depict an ordinary delay in the land use regulatory process. Nor does it exemplify a mistaken decision by the Board, challenged in a prerogative writs action. Rather, the facts and circumstances show the judge identified the error in the Board's 2010 resolution and provided instructions to correct the problems. However, the Board disregarded the specific instructions in the remand order and consciously repeated the same erroneous result. Notably, the City took no steps to change its position to deny development.
The judge found, in effect, plaintiff challenged the validity of the zoning ordinance as applied to his property, because it resulted in a temporary confiscation. Moroney, supra, 268 N.J. Super. at 463 (App. Div. 1993) ("[Z]oning scheme . . . cannot deny an owner all economically viable use of the land." (quoting Gardner v. N.J. Pinelands Comm'n, 125 N.J. 193, 205 (1991))).
Our Supreme Court has held "that a compensable taking can occur when governmental action substantially destroys the beneficial use of private property." Littman v. Gimello, 115 N.J. 154, 164 (1989) (quoting Schiavone Constr. Co. v. Hackensack, 98 N.J. 258 (1985), cert. denied, 493 U.S. 934, 110 S. Ct. 324, 107 L. Ed. 2d 314 (1989). In reviewing a claim made by an owner, whose property was possibly subject to condemnation, the Court identified "[s]everal factors" to "be considered and balanced in deciding whether a compensable-taking claim" results from the governmental conduct, stating: "[f]irst and foremost, extraordinary delay or other unreasonable conduct on the part of the condemning authority may give rise to a taking claim." Id. at 167.
In addition, the imminence of condemnation may also help to establish a taking claim. A property owner is more inclined to take or refrain from taking action in such circumstances. As discussed, the severity of the injury and hardship to the property owner is yet another factor to be considered.
All of the above factors are to be explored and weighed in conjunction with the public interest.
[Id. at 167-68 (citations omitted).]
As applied to these facts, extraordinary delay occurred primarily by the Board's refusal to comply with its legal obligations to act with the utmost fairness when reviewing the variance request related to this pre-existing undersized lot. The City had sold the tax sale certificate related to the lot and annually collected the applicable real estate taxes. At the same time, the City made known its opposition to development because the lot, which it actually approved in 1899, was undersized based on the City's subsequently adopted zoning ordinance. Plaintiff properly filed an action in lieu of prerogative writs resulting in remand, but that order had no effect on the Board or in motivating the City to repudiate its expressed opposition to the property's development.
Admittedly, the City does not grant or deny the variance and it took no formal condemnation action. However, if a resolution formalizing a Board's proper denial of a hardship application impairs "to an impermissible degree the bundle of property rights held by the owners" and deprives him or her of all productive or beneficial use, equating to a taking, Moroney, supra, 268 N.J. Super. at 466, then the repeated arbitrary and capricious denial of a hardship variance results in a compensatory temporary taking. We conclude the judge's concomitant decisions denying inverse condemnation, but allowing consideration of the remedy of delay damages for a temporary taking was not an abuse of discretion.
The City also argues the trial judge erred in putting it "into the same legal position" as the Board, and ultimately the City should not be held liable for the Board's actions. The City cites no case law in support of this argument, and we find it is without merit. R. 2:11-3(e)(1)(E). --------
We reject the City's suggestion its role was essentially passive. The City affirmatively took the position it did not want the proposed dwelling built on the property, relying on the requirements of the zoning ordinance. It reaffirmed this position and so informed the Board in 2008 and 2010. Further, its continued silence in 2013, by not retracting its prior opposition despite clear legal authority requiring regulatory relief from the zoning ordinance, deprived plaintiff of use of his property during this period. Even the City's subsequent legal position, asserting the Board's decision must be reversed, demonstrates its knowledge of the effective confiscation, which should have evoked the withdrawal of its opposition. Instead it chose not to act, signaling no change of position prolonging the limbo plaintiff faced.
"The only distinction between such zoning restriction and an actual taking by the municipality is that the restriction leaves the owner with the burden of paying the taxes on the property, while the outright taking relieves him of that burden." Harrington Glen, . . . [supra], 52 N.J. at 29. When the property is deprived of all beneficial use to the owner, the property has been confiscated, and "an exercise of eminent domain is called for and compensation must be paid." Id. at 33. See Lucas v. South Carolina Coastal Council, 505 U.S. [1003], 112 S. Ct. 2886, 120 L. Ed. 2d 798, 813 (1992); Pennsylvania Coal Co. v. Mahon, . . . 260 U.S. [393], 413, 43 S. Ct. [158], 159, 67 L. Ed. [322,] 325 [(1922)]. In that way, "all the taxpayers in the municipality share the economic burden of achieving the intent and purpose of the zoning scheme." Commons, [supra,] 81 N.J. [at] 607 . . . .
[Moroney, supra, 268 N.J. Super. at 468.]
Under these specific facts, ordering compensation for the period in which plaintiff's property was rendered useless by the resolution was appropriate. Id. at 466-67.
"Delay damages are generally awarded where there is evidence of an unreasonable delay fairly attributable to the governmental authority responsible for the granting of the permission requested." Desai v. Bd. of Adjustment of Town of Phillipsburg, 360 N.J. Super. 586, 593 (App. Div.), certif. denied, 177 N.J. 492 (2003). The delay must be something other than the "normal or at least not unreasonable delays in the land-use permit and approval process as well as extraordinary delays not attributable to government." Griffith v. State of N.J. Dep't. of Envtl. Prot., 340 N.J. Super. 596 (App. Div.), certif. denied, 170 N.J. 85 (2001), cert. denied, 534 U.S. 1161, 122 S. Ct. 1171, 152 L. Ed. 2d 115 (2002). As our opinion discussed these requirements have been met.
Lastly, the City objects to the awarded counsel fees, imposed pursuant to N.J.S.A. 20:3-26(c), which states:
When a plaintiff shall have brought an action to compel condemnation against a defendant having the power to condemn, the court . . . shall, in its discretion, award such plaintiff his reasonable costs . . . including . . . attorney . . . fees actually incurred regardless of whether the action is terminated by judgment . . . .
Here, plaintiff prevailed in his temporary taking claim, which of course required the finding he was deprived of all economically beneficial use of property. "[T]he legislative intent must have been . . . to permit an award of costs and expenses . . . to those plaintiffs who prevail, at least in part." Griffith, supra, 340 N.J. Super. at 612.
Regarding the amount awarded, a challenge advanced by the City on appeal and plaintiff on cross-appeal, "fee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion." Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). We determine the trial court judge carefully applied the guidelines set forth in Packard-Bamberger in making the calculation. We discern no abuse of discretion.
The trial judge analyzed plaintiff's submitted lodestar fee, "defined as the number of hours reasonably expended by the attorney, multiplied by a reasonable hourly rate." Id. at 445 (citing Rendine, 141 N.J. at 316.). Appropriate adjustments based on the judge's consideration of other factors was made in evaluating a fee application. Id. at 446. The judge adjusted plaintiff's counsels' hourly rate, to reflect the reasonable local rates in Mercer County, while also considering plaintiff was an individual owner of one undersized lot, not an entity proposing a multi-unit development. She eliminated time charged that was related to plaintiff's decision to change attorneys during the litigation, finding "a significant number of hours where the new attorney has to catch up with what the old attorney already knew" and should not be compensable. See id. at 446 (quoting Rendine, 141 N.J. at 336) ("[A] trial court may exercise its discretion to exclude excessive hours from the lodestar calculation."). Finally, the trial judge found plaintiff was a "partially prevailing party," because at the July 23, 2013 hearing he asserted a total inverse condemnation occurred, and instead she found only a temporary taking. The Court has "instructed trial courts to 'reduce the lodestar fee if the level of success achieved in the litigation is limited as compared to the relief sought.'" Packard-Bamberger, supra, 167 N.J. at 427 (quoting Rendine, supra, 141 N.J. at 336.).
We conclude the fee award was fully supported and did not exceed the bounds of the judge's reasoned discretion. It will not be disturbed.
The appeal and cross-appeal are affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION