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William G. Dressel Jr, Executive Director - Michael J. Darcey, CAE, Asst Executive Director

Legal Q & A


Fees for Public Advocate
Representation and the
Law Against Discrimination

Deborah M. Kole
League Staff Attorney

Q Our municipality is interested in establishing the position of public advocate to represent the public interest at planning and zoning board hearings.  I am a member of the governing body, and we had assumed that the fees paid to such an advocate and any expert witnesses he or she might need could be charged to the applicant through a professional escrow fund like other professional fees in land use applications.  However, I was recently told that such costs related to a public advocate cannot be charged to applicants in this way. Is this true?

A Yes, it is. In a recent decision, the New Jersey Appellate Division declared the fee-shifting provisions of Fair Lawn’s Public Advocate ordinance to be invalid, in the case of The Cerebral Palsy Center v. Borough of Fair Lawn, 374 NJ Super 437 (App. Div.2005).Under the ordinance, which established separate positions of Public Advocate for the Planning Board and Zoning Board of Adjustment, the fees for the services of such advocates were charged to the applicant as part of the general applicant escrow for professional services. The fees to be paid by the applicant included the costs of expert witnesses testifying for the Public Advocate. The amount charged to the nonprofit plaintiff for these services in its variance application before the Board of Adjustment totaled approximately $20,000.

In declaring this fee structure in the ordinance invalid, the Court stated that it ran counter to the express and implied powers given to charge such fees under the statute concerning the subject in the Municipal Land Use Law, N.J.S.A. 40:55D-53.2(a).  The Court pointed out that the statute was adopted almost 20 years after judicial approval of the idea of a municipal public advocate, and yet “Nothing within the statute’s explicit language can be read to contain an express power to require an applicant to pay for the services of a public advocate to review and comment upon an application.”  The Court went on to cite the legislative history of the statute, which states that the law is meant not only to provide for payment of professional fees by applicants but also to limit the amount of costs that can be charged under such provisions. The Court said, “The fee-shifting techniques adopted by Fair Lawn in this ordinance can only increase the cost of applying for land-use approvals…The ordinance is thus fundamentally at odds with the statute.”

Therefore, while the establishment of the public advocate position by municipalities to represent the public interest in zoning applications has been judicially “blessed”, shifting fees for the advocate and his or her experts to the applicant is not allowed.

Q I understand that claims have been filed against our local police department and some of its officers alleging mistreatment after the plaintiffs were arrested and brought down to the police station. The officers are accused of verbal and physical abuse. What puzzles me is that one of the claims was apparently filed under the Law Against Discrimination, because the mistreatment was alleged to be because of the plaintiffs’ race.  I thought that the LAD only applied to actions taking place in “places of public accommodation,” or places used voluntarily by the public.  Individuals arrested and brought involuntarily to a police station do not seem to me to fall within the scope of the LAD.

A The New Jersey Appellate Division held in the case of Ptaszynski v. Uwaneme, 371 NJ Super 333 (App. Div.2004), that a police department, including the building and the officers themselves, is a “place of public accommodation” for purposes of the LAD.  The Court said, “As a public entity, by its very nature a police force is a place of public accommodation...(Otherwise) the officers may be free to discriminate.”  The opinion further extended the definition under the LAD to include any state governmental entities.

In adopting this broad interpretation of entities governed by the LAD, the Court said, “The LAD should be construed liberally.  Franek v. Tomahawk Lake Resort, 333 NJ Super 206, (App. Div. 2000)…Because the more broadly this statute is applied the greater its anti-discriminatory impact, places of public accommodation are not limited to those listed in the statute.”   Therefore, while acknowledging that not all New Jersey Courts have agreed on the meaning of “place of public accommodation” under this law, the Court held that a police department and its members could be sued under the New Jersey Law Against Discrimination.

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


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