Bung's Bar & Grille, Inc. v. Township Council of Florence Tp.

• Decision Date: 20 March 1985
• Citation: 206 N.J.Super. 432,502 A.2d 1198
• Parties: BUNG'S BAR & GRILLE, INC., a New Jersey corporation, Maganlalk and Vilma Sutaria, his wife, Katherine Dempsky, Anthony Drangula and Margaret Drangula, his wife, R. Louis Gallagher, Inc., a New Jersey corporation, T & T Maderich, John Kish and Grace Kish, his wife, John Pinto, Jr., Robert Mangus and Phyllis Mangus, his wife, and Richard Horner and Constance Horner, his wife, Plaintiffs v. The TOWNSHIP COUNCIL OF the TOWNSHIP OF FLORENCE and the Township of Florence, Defendants.
• Court: New Jersey Superior Court

Page 432

206 N.J.Super. 432

502 A.2d 1198

BUNG'S BAR & GRILLE, INC., a New Jersey corporation,

Maganlalk and Vilma Sutaria, his wife, Katherine Dempsky,

Anthony Drangula and Margaret Drangula, his wife, R. Louis

Gallagher, Inc., a New Jersey corporation, T & T Maderich,

John Kish and Grace Kish, his wife, John Pinto, Jr., Robert

Mangus and Phyllis Mangus, his wife, and Richard Horner and Constance Horner, his wife, Plaintiffs v. The TOWNSHIP COUNCIL OF the TOWNSHIP OF FLORENCE and the

Township of Florence, Defendants.

Superior Court of New Jersey, Law Division,

Burlington County.

Decided March 20, 1985.

Frederick W. Hardt, Burlington, for plaintiffs (Sever & Hardt, Burlington, attorneys)

Adele C. Baker, Marlton, for defendants (Parker, McCay & Criscuolo, Marlton, attorneys).

HAINES, A.J.S.C.

This opinion addresses the plaintiffs' request for an allowance of counsel fees and costs incurred in the course of a successful challenge to local improvement assessments. The right to recover turns upon the applicability of 42 U.S.C.A. § 1983, the federal Civil Rights Act ("Act"), when that Act, though pleaded, was not the basis of plaintiffs' success and therefore was not addressed by this court when it decided that the plaintiffs should be granted injunctive and declaratory relief.

Florence Township adopted a local improvement ordinance appropriating $263,000 for the construction of water and sewer improvements and providing for the assessment of the improvement cost against the lands owned by the plaintiffs and others. The project was completed on October 31, 1977, when the Township Clerk, at the direction of the Township Council, certified its costs to the Assessment Commission created for the purpose of making the required assessments. The Commission, relying upon the opinion of its appraisal expert, allocated the cost of the project among the improved properties and reported its conclusion to the Council for certification. The Council, after reviewing the report at the public hearing, remanded the matter to the Commission for reconsideration because the total assessment exceeded the amount appropriated by the improvement ordinance. The Commission conducted six hearings, at which it received testimony from its own expert and from numerous experts employed by plaintiffs. Its final report, dated July 14, 1980, reflected the figures advanced in the opinion of its witness. On November 5, 1980, the Township Council, after a public hearing, confirmed the Commission's assessments.

This suit challenging the assessments on statutory and constitutional grounds was commenced on November 21, 1980. Tax bills covering the assessments were mailed to property owners on December 15, 1980. On December 22, 1980 this This court, for various reasons, set aside all of the Township's assessments and reassessed the properties, primarily on the basis of the testimony presented by the plaintiffs' experts. In doing so, the court relied upon N.J.S.A. 40:56-54, et seq., providing for appeals from assessments for local improvements, and upon McNally v. Teaneck, 132 N.J. Super 442, 334 A.2d 67 (Law Div.1975), mod. 75 N.J. 33, 379 A.2d 446 (1977). The court's opinion did not address specifically the claims made by plaintiffs under the Civil Rights Act. Its decision was affirmed on appeal by the Appellate Division; certification was denied by the Supreme Court. Plaintiffs now move for summary judgment allowing counsel fees and costs. They agree to waive their damage claims if reasonable allowances are made for these items. Requested cost allowances include fees paid by plaintiffs to their expert witnesses and the expense of transcribing the municipal hearings. Disposition of the motion is not impeded by formal disputes. This opinion decides all remaining issues.

court stayed the imposition of tax liens on plaintiffs' properties and, on January 22, 1981, restrained all actions to enforce the assessments. The controversy, except for issues concerning damages, costs and attorneys fees, was submitted for decision on the record of the Township proceedings, briefs and oral argument.

A. 42 U.S.C.A. §§ 1983 & 1988

New Jersey Court Rule 4:42-9(a)(8) permits the allowance of fees for legal services "in all cases where counsel fees are permitted by statute." The statute upon which plaintiffs rely in their request for fees is 42 U.S.C.A. § 1988, which provides:

In any action ... to enforce ... section[s] 1983 ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney fee as part of the costs.

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State ... subjects or causes to be subjected, any citizen of the It is this section of the Civil Rights Act upon which plaintiffs relied in part in the underlying litigation. Together with Section 1988, it plays a central role in the present application. Section 1983 is enforceable in the state courts. Endress v. Brookdale, 144 N.J.Super 109, 364 A.2d 1080 (App.Div.1976). So is § 1988, which, "like all federal law, is fully applicable to state court proceedings by virtue of the Supremacy Clause, U.S.Const., Art. VI cl. 2." Ramirez v. Hudson Cty., 169 N.J.Super 455, 457, 404 A.2d 1271 (Ch.Div.1979).

United States ... to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

B. The Constitutional Issue

Plaintiffs can recover attorneys' fees only by showing that a federal constitutional violation occurred. That is the basis of their civil rights claims. It is necessary, therefore, to identify the constitutional provision that supports those claims.

All Federal courts apparently determine the validity of local assessments through application of the due process clause of the Fourteenth Amendment. State courts do the same or apply like provisions of state constitutions. The decisions, however, speak in terms of "police powers" and "taxation" when dealing with the question of power to assess and in terms of "due process," "taking without just compensation" and "equal protection" when dealing with restrictions on that power, making their interpretation of the Fourteenth Amendment unclear. New Jersey's leading case, McNally v. Teaneck, 75 N.J. 33, 379 A.2d 446 (1977), rejects both taxation as a basis for assessment and equal protection as a concern. Most United States Supreme Court decisions may be so read; a number, however, find equal protection violations and there are frequent references to the power of taxation. Seemingly, those references are no more than alternative descriptions of the power to assess for local improvements. Many cases, state and federal, refer to takings without just compensation, the language of eminent domain.

Some correctly recognize police power as providing assessment authority limited by the Fourteenth Amendment.

The power of eminent domain is the power to take private property for public use. In the case of the Federal Government it has been described as an "inherent 'attribute of sovereignty' " and the "offspring of political necessity." Tribe, American Constitutional Law 254 (1978). New Jersey relies upon a like philosophy. Valentine v. Lamont, 13 N.J. 569, 100 A.2d 668 (1953). The Federal Government is restricted in its exercise of this power by the Fifth Amendment, which provides:

No person shall be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Thus, there can be no Federal taking without "just compensation." The New Jersey Constitution (1947), Art. I par. 20, is to the same effect.

The Fifth Amendment "just compensation" clause has not been applied to the states by the Fourteenth Amendment. J. Nowak, R. Rotunda & J.N. Young, Constitutional Law, 377 (1978) [hereinafter cited as Nowak]. However, the due process clause of the Fourteenth Amendment, first thought to require only procedural due process, Davidson v. New Orleans, 96 U.S. (6 Otto) 97, 24 L.Ed. 616 (1877), was soon interpreted to regulate substance as well as requiring a taking of private property only for a public use and only when just compensation is paid. Chicago, B. & Q.R. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897). In effect, therefore, state and Federal governments are subject to the same rule in eminent domain cases though by reason of different federal amendments. Nowak, supra, comments on Chicago:

Although some cases and commentators have viewed [this decision] as incorporating the compensation clause into the Fourteenth Amendment, this view does not appear strictly correct. Rather the Court appears to have found independent public use and just compensation requirements in the definition of due process. [at 440.]

These "taking" and "just compensation" concepts are reflected in the local assessment decisions although such assessments, as Police power, the true basis of local assessments, is an inherent power of state, but not Federal, government. The Federal Government is one of enumerated powers. Nowak, supra, 112. The police power authorizes the adoption and enforcement of laws promoting the public health, safety, welfare and morals. Two Guys from Harrison v. Furman, 58 N.J.Super. 313, 156 A.2d 57 (1959), rev'd. on other grds., 32 N.J. 199, 160 A.2d 265 (1960). It is not restricted in the manner our Constitutions restrict the power of eminent domain. On some occasions, e.g., to protect the public safety, property may be taken without compensation. Rothman v. Rothman, 65 N.J. 219, 320 A.2d 496 (1974); Spagnuola v. Bonnet, 16 N.J. 546, 109 A.2d 623 (1954). Nevertheless, the police power is limited by the due process clause of the Fourteenth Amendment, which is violated when its exercise is arbitrary. Roselle v. Wright, 21 N.J....