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Patterson v. Vernon Township Council

386 N.J. Super. 329, 901 A.2d 411 (App. Div. 2006)

ENVIRONMENTAL RIGHTS ACT; ATTORNEYS FEES—Attorneys fees are awardable under the Environmental Rights Act for actions concerning possible destruction of the environment as well as for destruction of historic areas, but since there is no definition of an historic area in an applicable Act, fees can not be allocated to that part of a party’s cause of action.

An archaeologist and Indian tribe moved for attorney fees under the Environmental Rights Act (ERA) as prevailing parties in an action to enjoin a municipality from developing a particular historic site. The Law Division concluded that plaintiffs were prevailing parties, but only awarded attorney fees for work related to the action for injunctive relief and not for the work associated with the administrative proceedings to list the site in historic places register. The archaeologist and tribe appealed.

The question before the Court was whether the ERA permits the award of counsel fees for services rendered in the process of obtaining inclusion on the Register of Historic Places, or only for services rendered in a court to protect the site by enjoining development.

At the outset of its discussion, the Court explained that the ERA creates a private cause of action for declaratory and injunctive relief to protect the environment against “pollution, impairment and destruction” and also allows the award of a counsel fee to a prevailing party in such an action.
The pertinent provision under the ERA allows an action for equitable relief in those circumstances where no specific violation of a statutory or regulatory standard can be alleged, but environmental harm, including the destruction of property of historic value, is allegedly threatened. Under the ERA, “destruction of the environment” includes the “destruction of ... historic areas,” however there isn’t a specific definition of an “historic area” set forth in the Historic Sites Act. Accordingly, the Court held that plaintiffs were entitled to counsel fees only for the ERA action.

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