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Humphries v. Powder Mill Shopping Plaza

A-6038-08T1 (N.J. Super. App. Div. 2010) (Unpublished)

AMERICANS WITH DISABILITY ACT — A court has the equitable power to require a property owner to include more handicapped parking spaces on its grounds than might otherwise be legally required pursuant to codes and ordinances.

A shopping center customer sued the owner alleging that several aspects of the parking facilities were not in compliance with the Americans with Disabilities Act Accessibility Guidelines (ADAAG) and applicable state laws governing accessible parking requirements. The parties disposed of part of their dispute in a settlement that required the owner to pay the customer $2,500 in damages and to modify the parking area to become compliant with the ADAAG. The partial settlement left the lower court with the need to determine whether four or six handicap parking spaces were required at the shopping center and to decide as to counsel fees. The lower court found that five handicap spaces were needed for the 94 space lot because it was the only lot that could provide disabled individuals access to the shopping center. The lower court also awarded counsel fees to the customer, including a 20% enhancement, after granting the customer’s counsel a 120 day extension to file his application for counsel fees. The lower court had determined that most of the improvements made by the shopping center resulted from the lawsuit, as opposed to pre-suit discussions.

The Appellate Division concluded that the customer was a prevailing party entitled to counsel fees under both applicable state and federal fee-shifting statutes. Specifically, the Court said that a party who is awarded some affirmative relief by way of an enforceable judgment or comparable relief through a settlement or consent decree is a prevailing party. The lower court had found that the customer was a prevailing party because of the various reconstructions performed to the parking lot to bring it into compliance, and that most of the relief was acquired after the filing of suit. The Court agreed the post-suit reconstruction (the addition of a parking space, changes in signage, and changes in curb cuts) were sufficient for the customer to be a prevailing party under the Law Against Discrimination or the Americans with Disabilities Act. It also found the lower court properly used its discretion to award an additional fifth parking space in a lot with under 101 spaces (even though the law said four were sufficient) on equitable grounds, in that the other lots of the shopping plaza were not conducive to handicap access because of their lower placement to the shops themselves.

The Court further held that the application for counsel fees was timely, as it was made within a 120 day extension granted by the lower court. It noted that even without an extension, the court has allowed counsel fees based upon a delayed request, including for such good cause as the implementation of significant governmental policy. The Court, however, said the lower court did not explain, nor did the customer prove, the required rare and exceptional circumstances that justified a 20% enhancement to counsel fees. It reversed the enhancement and remanded to the lower court to adjust the counsel fees accordingly.

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