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Legal Q & A

 

OPRA Court Fees,
Environmental Disclosure
and Smoke-Free Zones

Deborah M. Kole
League Staff Attorney


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Deborah M. Kole, League Staff Attorney

Q Our municipality recently settled a court case concerning an OPRA request by a resident. Much to our surprise, the court awarded substantial attorneys fees to the plaintiff. I thought only a party who won a case could get such an award. Can such fees be ordered in the context of a settlement?

A Recent case law indicates that they can be awarded in such a situation. On August 15, 2006, the New Jersey Appellate Division ruled that a plaintiff who filed suit under the Open Public Records Act could qualify as a “prevailing party” for award of counsel fees under the Act even though the case had been settled. In Cynthia Teeters v. the Division of Youth and Family Services, Docket No. A5494-04, decided on August 15, 2006, the Court supported its findings with case law demonstrating the state’s history of liberal construction of fee shifting provisions as well as its encouragement of the settlement process.

The Court emphasized that in this case a satisfactory settlement was reached only because of the plaintiff’s efforts in filing suit, and the plaintiff’s actions were thus the “catalyst” that allowed her to prevail in obtaining the records she sought. The Court said: “Petitioner engaged in reasonable efforts to pursue her access rights to the records in question. She sought attorney assistance only after her self-filed complaints and personal efforts were unavailing. With that assistance, she achieved a favorable result that reflected an alteration of position and behavior on the Division’s part.”

The Court went on to point out that not awarding counsel fees in a settlement situation would put the plaintiff in a worse economic position than if she continued to litigate, and this result would not serve the state policy encouraging settlement of litigation. Furthermore, the history of OPRA indicated that a liberal application of its attorney fee provisions is appropriate. “It is also clear that the repeal of N.J.S.A. 47:1A-4, shortly after N.J.S.A. 47:1A-6 and -7 were adopted, was a renunciation of a narrower attorney’s fees rule (i.e., embodying a prerequisite for a court order requiring disclosure, a limitation to $500, and a discretionary authority in the trial court) in favor of the broader, mandatory standard of entitlement based on the sole test of ‘prevail[ing] in any proceeding,’ and subject to a rule of reasonableness with no expressed monetary limitation.

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Q I am considering buying a newly-constructed home in New Jersey, and I am wondering if there is any way I can check for any environmental concerns in the surrounding area that might affect the value of the property. I know someone who bought property in another state and found out about such a problem too late, but I have been told that there is some protection from such problems for home buyers in this state.

A Yes, the “New Residential Construction Off-Site Conditions Disclosure Act,” at N.J.S.A. 46:3C-1 et seq., requires that off-site conditions within the municipality that may affect property value must be filed with the municipal clerk. The responsibility under this law is put upon anyone who “owns, leases or maintains” any off-site condition as defined in the Act to file information about its location with the clerk.

The off-site conditions that must be reported are: 1) sites on the Department of Environmental Protection (DEP) National Priorities List pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 2) properties on the DEP known hazardous discharge sites list, 3) overhead electric utility transmission lines, 4) electrical transformer substations, 5) underground gas transmission lines, 6) sewer pump stations and sewer trunk lines, 7) sanitary landfill facilities, 8) public wastewater treatment facilities and 9) airport safety zones. The DEP is required to submit and update lists of the off-site conditions described in 1), 2), and 7) above.

You can obtain this list of off-site conditions from the municipal clerk in the municipality in which the property is located.

Q I thought that the “Smoke Free Air Act” required a 25 foot smoke-free zone outside of restaurants and other public buildings. However, I see people smoking right outside restaurants all the time. Are they violating the law?

A They are not violating the law unless an ordinance has been passed by the municipality establishing a “smoke-free” zone outside of public buildings. The minimum smoke-free setback of 25 feet from openings to an indoor public place or workplace was deleted from the regulations before they were proposed. However, municipalities retain the right to enact minimum distance setbacks or “buffer zones” of their own concerning such exterior areas if they choose to do so.

This column is for informational purposes only, and is not intended as legal advice.

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