GED, LLC v. TOWNSHIP OF EAST HANOVER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

GED, LLC,

Plaintiff-Appellant/

Cross-Respondent,

v.

TOWNSHIP OF EAST HANOVER

and ZONING OFFICER, JOHN ORLICH,

in his official capacity,

Defendants-Respondents/

Cross-Appellants.

_________________________________________

November 24, 2015

Argued November 4, 2015 Decided

Before Judges Yannotti, St. John and Vernoia.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1136-10.

Dennis Francis Gleason argued the cause for appellant/cross-respondent (Jadim Meisner & Susser, P.C., attorneys; Nylema Nabbie and Brian M. Chewcaskie, on the brief).

Richard P. Cushing argued the cause for respondents (Gebhardt & Kiefer, P.C., attorneys; Tara Ann St. Angelo, on the brief).

PER CURIAM

Plaintiff GED, LLC (GED) appeals and defendants Township of East Hanover (the Township) and Zoning Officer John Orlich (Orlich) cross-appeal from various orders entered by the Law Division in this action, in which GED challenged the Township's denial of its application for a zoning permit to operate a sexually oriented business within the Township. We affirm on the appeal and the cross-appeal.

I.

In December 2009, GED entered into a fifteen-year lease for certain premises on State Highway No. 10 (Route 10) in the Township, with the intention of opening and operating a sexually oriented business at that location. Orlich denied the application, because the proposed use of the premises would violate section 95-63(c)(1) of the Township's zoning ordinance. Section 95-63(c)(1) prohibits the location of a sexually oriented business within 1,000 feet of certain uses, including places of worship, schools, any mental or physical health care provider or facility, and any existing residence.

In April 2010, GED filed a complaint in the Law Division, challenging the denial of the zoning permit. GED alleged that, as applied to it, section 95-63(c)(1) of the Township's zoning ordinance violated its rights under the First Amendment to the United States Constitution, and Article 1, paragraph 6 of the New Jersey Constitution. GED further alleged N.J.S.A. 2C:34-7, a statute that also regulates sexually oriented businesses, was unconstitutional as applied to its business.

GED asserted a claim under 42 U.S.C.A. 1983 for the alleged violation of its rights under the Constitution of the United States. It sought declaratory and injunctive relief, compensatory and punitive damages, as well as attorney's fees and costs. Thereafter, the parties submitted expert reports to the court.

On April 20, 2011, after conducting a trial in the matter, Judge B. Theodore Bozonelis entered an order finding section 95-63(c)(1) unconstitutional as applied to GED. The order enjoined defendants from enforcing section 95-63(c)(1) of the zoning ordinance. The order also required the parties to submit briefs on whether the court should address the constitutionality of N.J.S.A. 2C:34-7.

On June 20, 2011, after reviewing the parties' submissions and considering the arguments of counsel, Judge Bozonelis determined that N.J.S.A. 2C:34-7(a), which also provides that a sexually oriented business may not operate within 1,000 feet of certain uses, was unconstitutional as applied to GED. The parties agreed that the court need not address the constitutionality of N.J.S.A. 2C:34-7(c), which regulates the signage for sexually oriented businesses, because that subsection had been upheld as constitutional. See Hamilton Amusement Center v. Verniero, 156 N.J. 254, 262 (1998).

The judge determined that the Township had not waived its right to enforce N.J.S.A. 2C:34-7(b). That subsection of the statute provides in pertinent part that "[e]very sexually oriented business shall be surrounded by a perimeter buffer of at least [fifty] feet in width." The judge reserved judgment on whether N.J.S.A. 2C:34-7(b) could be constitutionally applied to GED's proposed operation of a sexually oriented business in the Township, and directed the parties to file expert reports addressing that issue.

The parties later filed cross-motions for summary judgment on the issue of the constitutionality of N.J.S.A. 2C:34-7(b), as applied to GED. Judge Thomas L. Weisenbeck found that, for purposes of determining whether N.J.S.A. 2C:34-7(b) could be constitutionally applied to GED, the relevant market area was the Township's boundaries. The judge found that the Township had presented sufficient evidence to raise a genuine issue of material fact as to whether there were sufficient available sites in the Township which met the fifty-foot perimeter buffer requirement. Judge Weisenbeck stated that it was of no consequence that the sites were not currently on the market or that those who wanted to operate a sexually oriented business would have to incur expenses to comply with that requirement.

The judge also stated that in determining whether N.J.S.A. 2C:34-7(b) could be constitutionally applied to GED, parking and access driveways for the business could be located in the fifty-foot perimeter buffer. In addition, multi-tenant sites could be considered, and a site could be deemed available even if currently occupied.

Judge Weisenbeck entered an order dated April 3, 2012, denying GED's motion, and granting in part the Township's motion. Thereafter, the judge conducted a trial to determine what sites, if any, within the Township met the fifty-foot perimeter buffer requirement in N.J.S.A. 2C:34-7(b), and whether the Township had carried its burden of showing that there were sufficient alternative opportunities for the location of a sexually oriented business in the Township.

On January 9, 2013, Judge Weisenback entered an order denying GED's application for a judgment declaring that N.J.S.A. 2C:34-7(b) is unconstitutional as applied to GED. In a statement of reasons appended to the order, the judge reviewed the trial evidence and found there were fourteen sites in the Township that could meet the fifty-foot perimeter buffer requirement. The judge determined that the Township had established by the greater weight of the evidence that there are an adequate number of reasonable or feasible sites in the Township for GED's sexually oriented business.

The judge later considered GED's motion for an award of damages pursuant to 42 U.S.C.A. 1983, and for attorney's fees and costs pursuant to 42 U.S.C.A. 1988. On June 18, 2013, the judge entered an order granting the application in part. The judge awarded GED nominal damages of $1 for prevailing on its challenge to the constitutionality of section 95-63(c)(1) of the zoning ordinance.

The judge also determined that GED would be awarded attorney's fees and costs only with regard to its successful challenge to the constitutionality of the ordinance, and denied the remainder of GED's application. The judge ordered GED to submit a certification of services for its attorney's fees and costs.

GED submitted a certification seeking $77,995 in attorney's fees and costs, and $14,375 in expert fees. The Township objected to most of counsel's billing entries. The judge excluded all entries that were not related to the litigation, as well as any entries that were not germane to GED's successful challenge to the zoning ordinance.

The judge awarded GED $59,744.34 in attorney's fees and $577.94 in costs. The judge also awarded GED expert fees of $3,325, finding that the balance of the expert's fees were unrelated to GED's success in the litigation. The judge memorialized his decisions in an order dated August 29, 2013.

GED appeals from various provisions of the court's orders of April 20, 2011, January 9, 2013, June 18, 2013 and August 29, 2013. GED raises the following arguments

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PERMITTING THE DEFENDANTS-RESPONDENTS TO LITIGATE THE CONSTITUTIONALITY OF N.J.S.A. 2C:34-7(b).

POINT II

THE TRIAL COURT AND BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EAST HANOVER LACK JURISDICTION TO RULE ON A CRIMINAL STATUTE.

POINT III

THE TRIAL COURT'S JUDGMENT ORDER ENTERED JANUARY 9, 2013 DETERMINING N.J.S.A. 2C:34-7(B) WAS NOT UNCONSTITUTIONAL AS APPLIED TO GED CONSTITUTES REVERSIBLE ERROR AS DEFENDANTS, INTER-ALIA, VIOLATED THE 1,000 FOOT BUFFER REQUIRED BY N.J.S.A. 2C:34-7(a), AS WELL AS THE 50 FOOT BUFFER REQUIRED BY N.J.S.A. 2C:34-7(b) AND AS DEFENDANTS-RESPONDENTS WAIVED THEIR RIGHTS TO DEFEND SAME POST-JUDGMENT IN FAVOR OF PLAINTIFF-APPELLANT.

POINT IV

THE TRIAL COURT COMMITTED REVERSIBLE ERROR AS DEFENDANTS-RESPONDENTS WHOLLY FAILED TO MEET THEIR BURDEN OF PROOF AS MANDATED BY APPLICABLE STATE AND FEDERAL LAW, THAT ADEQUATE ALTERNATIVE AVENUES OF COMMUNICATION EXIST[] WITHIN THE RELEVANT MARKET AREA.

POINT V

THE DENIAL OF DAMAGES TO GED AS A PREVAILAING PARTY PURSUANT TO 42 U.S.C.A. 1983 CONSTITUTES REVERSIBLE ERROR.

POINT VI

THE LIMITATION ON PLAINTIFF-APPELLANT'S ATTORNEYS FEES AND COSTS PURSUANT TO 42 U.S.C.A. 1988 CONSTITUTES REVERSIBLE ERROR.

The Township cross-appeals from certain provisions of the June 18, 2013 and August 29, 2013 orders. The Township argues

THE COURT COMMITTED REVERSIBLE ERROR IN AWARDING PLAINTIFF ATTORNEY'S FEES AND COSTS IN CONNECTION WITH ITS CLAIMS REGARGDING N.J.S.A. 2C:34-7(a) AND TOWNSHIP ORDINANCE 95-63(c).

II.

We turn first to GED's contention that the trial court erred by permitting the Township to litigate the constitutionality of N.J.S.A. 2C:34-7(b). GED contends that from the outset of the litigation, the Township elected only to defend the constitutionality of its zoning ordinance. GED argues that the Township waived its right to enforce the fifty-foot perimeter buffer requirement in N.J.S.A. 2C:34-7(b), and also should be judicially estopped from litigating the constitutionality of this subsection of the statute.

We note initially that in its complaint, GED challenged Orlich's denial of a permit to operate a sexually oriented business at the premises on Route 10. GED alleged that section 95-63(a)(1) of the Township's zoning ordinance was unconstitutional as applied. GED further alleged that N.J.S.A. 2C:34-7 was unconstitutional as applied to GED's business.

As noted previously, after conducting a trial in the matter, Judge Bozonelis entered an order finding that section 95-63(c)(1) was unconstitutional as applied to GED. That section of the ordinance precludes a sexually oriented business from operation within 1,000 feet of certain specified uses. The judge made no findings regarding GED's challenge to the application of N.J.S.A. 2C:34-7 to its business.

The judge thereafter determined that N.J.S.A. 2C:34-7, which also bars the operation of a sexually-oriented business within 1,000 feet of certain uses, could not be constitutionally applied to GED's business. The judge found, however, that the Township had not waived its right to enforce the fifty-foot perimeter buffer requirement in N.J.S.A. 2C:34-7(b), and it was not judicially estopped from doing so.

The judge noted that GED did not specifically address the application of the buffer requirement in any of its certifications or in its expert reports. The judge pointed out that the only issue addressed at trial was the application of the 1,000 feet distance requirement in the ordinance.

We are convinced that the judge's decision was not a mistaken exercise of its discretion. The Township never explicitly waived its right to enforce N.J.S.A. 2C:34-7(b). Furthermore, the judge correctly found that the Township should not be estopped from defending the application of the statue to GED. "The doctrine of judicial estoppel operates to bar a party to a legal proceeding from arguing a position inconsistent with one previously asserted." Cummings v. Bahr, 295 N.J. Super. 374, 385 (App. Div. 1996) (internal quotation marks and citation omitted).

A party must successfully assert a position in order to be estopped from asserting a contrary position. Id. at 386. Judicial estoppel does not bar "every conceivable inconsistency" and only operates to prevent litigants from "playing fast and loose with the courts." Id. at 387 (internal quotation marks and citation omitted).

In this case, the Township did not take an inconsistent position regarding the court's consideration of N.J.S.A. 2C:34-7(b). Here, GED challenged the denial of its permit by the Township's zoning officer, based on section 95-63(c)(1) of the ordinance, although it cited N.J.S.A. 2C:34-7 in its complaint. The Township took the position that N.J.S.A. 2C:34-7(b) was not germane to the litigation at that time, since GED's permit application had not been denied on that basis.

We are therefore convinced that the trial court properly determined that the application of N.J.S.A. 2C:34-7(b) remained an issue in the case, and that the Township could defend the constitutionality of the application of that subsection to GED.

III.

GED contends that the distance and perimeter buffer requirements in N.J.S.A. 2C:34-7 must be read together. According to GED, this means that if a proposed site meets the 1,000 feet distance restriction in N.J.S.A. 2C:34-7(a), the analysis then proceeds to the buffer requirement in N.J.S.A. 2C:34-7(b). GED asserts that if a site does not meet the 1,000 feet distance requirement, then no consideration should be given to the 50-foot buffer requirement. We are not persuaded by this argument.

Here, the trial court held that the Township could not enforce the 1,000 feet distance requirement in the Township's ordinance and N.J.S.A. 2C:34-7(a). In the decision placed on the record on April 7, 2011, the judge found that there were no sites in the relevant market area which met the distance requirement. Thus, the court's decision allowed GED to establish a sexually oriented business in the Township without regard to whether the business was located within 1,000 feet of any house of worship, elementary or secondary school, school bus stop, hospital, child care center and other specified uses.

However, a municipality's inability to enforce the distance requirement in N.J.S.A. 2C:34-7(a) does not preclude it from enforcing the other restrictions in the statute, specifically the fifty-foot perimeter buffer requirement in N.J.S.A. 2C:34-7(b) and the signage restrictions in N.J.S.A. 2C:34-7(c). As the Township argues, the perimeter buffer requirement in N.J.S.A. 2C:34-7(b) is separate and distinct from the distance requirement, and can be independently applied to sites where the distance requirement cannot constitutionally be enforced.

The Township's position is entirely consistent with the general rule of statutory interpretation in N.J.S.A. 1:1-10, which states as follows

If any title, subtitle, chapter, article or section of the Revised Statutes, or of statute or any provision thereof, shall be declared to be unconstitutional . . . , in whole or in part, by a court of competent jurisdiction, such title, subtitle, chapter, article, section or provision shall, to the extent that it is not unconstitutional . . . be enforced and effectuated, and no such determination shall be deemed to invalidate or make ineffectual the remaining titles, subtitles, chapters, articles, sections or provisions.

We therefore conclude that the relevant subsections of the statute are severable, and N.J.S.A. 2C:34-7(b) of the statute can be applied even though N.J.S.A. 2C:34-7(a) cannot be constitutionally enforced in a particular municipality.

IV.

GED further argues that the evidence presented at trial does not support the judge's determination that N.J.S.A. 2C:34-7(b) can be constitutionally applied to it. GED contends that the judge erred by finding that there are sufficient alternative, feasible sites in the Township that comply with the fifty-foot buffer requirement. Again, we disagree.

We note initially that the trial court's findings of fact are binding on appeal if supported by adequate, substantial and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Furthermore, deference to a trial court's fact-finding is warranted "when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Where, as in this case, a municipality seeks to enforce a restriction on the operation of a sexually oriented business, the court must determine whether application of the restriction "allows adequate alternative channels of communication within the relevant market area." Twp. of Saddle Brook v. A.B. Family Center, Inc., 156 N.J. 587, 596-97 (1999). The municipality has the burden of proving that the alternative available means of communication in the relevant market area are adequate. Id. at 597.

GED argues that the trial court erred by finding that the Township itself represents the relevant market area. According to GED, the court was required to consider the surrounding municipalities in its analysis. However, in Saddle Brook, the Court stated that "the constitutionality of a state statute restricting available locations of sexually oriented businesses need not be determined solely by reference to the boundaries of the municipality in which the business challenging the restriction seeks to locate." Id. at 591.

Thus, depending upon the circumstances, the relevant market area may be confined to the borders of a municipality and the determination of whether there are alternative available means of communication decided on that basis. We are convinced that the trial court correctly found that there is no need to consider available locations outside the boundaries of a municipality if there are sufficient available means of communication within the municipality.

GED further argues that the court erred by finding that there were, in fact, sufficient alternative available locations in the Township where the fifty-foot buffer requirement could be met. In the statement of reasons accompanying his order of January 9, 2013, Judge Weisenbeck noted that the Township's expert, Patricia Dannhardt (Dannhardt) had testified at trial. Dannhardt is a licensed professional engineer and landscape architect. She determined the building and lot setbacks using the Morris County Public Resource Interactive Mapping Application (MCPRIMA), which is accessible through the County's Tax Board website.

Dannhardt identified various sites that would meet the fifty-foot buffer requirement. On the other hand, GED's expert, Jason L. Kasler (Kasler), a professional planner, disputed Dannhardt's conclusions. Kasler asserted that none of the proffered sites would meet the buffer requirement because the sites are: (1) in a strip mall; (2) require demolition of all or part of a building; (3) require changes to the transportation network or parking area; or (4) did not have a fifty-foot distance between the building and the lot line.

Judge Weisenbeck found Dannhardt's testimony to be credible and her methodology well-reasoned. The judge determined that the MCPRIMA was an appropriate resource to determine the suitability of the sites. Based on Dannhardt's testimony, the judge found that five sites met the fifty-foot perimeter buffer requirement, and were reasonably available. The judge excluded four of the sites that Dannhardt had identified because they exceeded GED's dimensional needs, and had very large dedicated uses. One of these four sites also was eliminated because it would require reconfiguration of an access lane.

In addition, Judge Weisenbeck found that an additional nine sites would satisfy the perimeter buffer requirement even though they would require some modification or demolition. Other sites were eliminated because they contained excessive acreage for the intended use, required extensive demolition or building improvements, were adjacent to residences, or would require substantial environmental remediation.

The judge determined that these fourteen sites within the Township's 8.2 square miles provided constitutionally adequate alternative locations for a sexually oriented business. The judge noted that there was one alternative site for every .58 square mile and 796 residents within the Township. The judge found that this would "more than protect" GED's "constitutional right to free expression."

We are convinced that the judge's factual findings are supported by sufficient credible evidence in the record, and the judge's legal conclusion that the fourteen sites provided GED with a constitutionally adequate alternative means of communication is sound.

GED argues, however, that the judge erred by accepting Dannhardt's testimony. GED maintains the MCPRIMA is not an appropriate basis upon which to determine whether a site met the fifty-foot perimeter buffer requirement. For various reasons, GED contends that none of the sites identified by Dannhardt are reasonable alternatives. We are convinced that these arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

We affirm the court's determination that N.J.S.A. 2C:34-7(b) is constitutional as applied to GED's business in the Township.

V.

GED argues that the trial court erred by awarding it nominal damages of $1.

Section 1983 was created to afford a form of tort liability "in favor of persons who are deprived of rights, privileges, or immunities secured to them by the Constitution." Carey v. Piphus, 435 U.S. 247, 253, 98 S. Ct. 1042, 1047, 55 L. Ed 2d 252, 258 (1978) (internal quotation marks and citations omitted). The purpose of an award of damages pursuant to section 1983 is to compensate an individual for injuries caused by the deprivation of a constitutional right. Id. at 254, 98 S. Ct. at 1047, 55 L. Ed. 2d at 259.

However, to be entitled to damages under 1983, a plaintiff must show compensable injury. Id. at 255, 98 S. Ct. at 1048, 55 L. Ed. 2d at 259. Where a litigant proves the deprivation of a constitutional right but the deprivation has not caused actual injury, nominal damages are appropriate. Id. at 266, 98 S. Ct. at 1053-54, 55 L. Ed. 2d at 266.

Here, GED failed to present sufficient evidence to show that it sustained any compensable injury as a result of the Township's enforcement of section 95-63(c)(1) of the zoning ordinance. In his decision on damages, the judge noted that while GED was successful in challenging the 1,000 feet distance requirement in the ordinance, it failed to prove that N.J.S.A. 2C:34-7(b) was unconstitutional as applied to its business.

The judge correctly found that GED's alleged damages did not flow from the Township's unconstitutional enforcement of the 1,000 feet distance requirement, but rather from the application of the 50-foot perimeter buffer requirement in N.J.S.A. 2C:34-7(b), which was constitutional. The judge properly found that GED could not show that the unconstitutional enforcement of the zoning ordinance was a proximate cause of its alleged harm. The court correctly determined that GED was not entitled to any compensatory damages. We affirm the award of $1 in nominal damages only.

VI.

In its appeal, GED argues that the judge erred by limiting its award of attorney's fees and costs to the successful challenge to the Township's zoning ordinance. GED contends it should have been awarded counsel fees and costs for the entire litigation, even though its challenge to the constitutionality of N.J.S.A. 2C:34-7(b) failed. In its cross-appeal, the Township argues that attorney's fees and costs should not have been awarded where, as in this case, GED was only awarded nominal damages.

We reject the Township's contention that fees and costs could not be awarded in this case because GED did not secure an award of more than nominal compensatory damages. In support of its argument, the Township relies upon Farrar v. Hobby, 506 U.S. 103, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992). In that case, the Court stated that to be considered a prevailing party for purposes of awarding fees under 42 U.S.C.A. 1988,

[t]he plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement. Whatever relief the plaintiff secures must directly benefit [the plaintiff] at the time of the judgment or settlement. Otherwise the judgment or settlement cannot be said to "affect the behavior of the defendant toward the plaintiff." Only under these circumstances can civil rights litigation effect "the material alteration of the legal relationships of the parties" and thereby transform the plaintiff into a prevailing party. In short, a plaintiff "prevails" when actual relief on the merits of [the plaintiff's] claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.

[Id. at 111-12, 113 S. Ct. at 573, 121 L. Ed. 2d at 503 (internal citations omitted).]

In Tarr v. Ciasulli, 181 N.J. 70 (2004), our Supreme Court noted that in Farrar, the Court had held that the party who only receives nominal damages may, under certain circumstances, be deemed a prevailing party for purposes of an award of counsel fees. Id. at 87 (citing Farrar, supra, 506 U.S. at 113, 113 S. Ct. at 574, 121 L. Ed. 2d at 504). However, the award of nominal damages has a bearing on the propriety of awarding counsel fees. Id. at 86 (citing Farrar, supra, 506 U.S. at 114, 113 S. Ct. at 574, 121 L. Ed. 2d at 505).

The Court in Tarr concluded that a plaintiff who is awarded some affirmative relief by way of an enforceable judgment or settlement is a prevailing party and can be awarded attorney's fees under 42 U.S.C.A. 1988. Id. at 86-87. Here, Judge Weisenbeck noted that GED had obtained injunctive relief, in addition to the nominal damages awarded. The judge pointed out that the injunction, which barred the Township from enforcing the 1,000 feet distance requirement in the zoning ordinance, "materially affected [the Township's] behavior towards GED and other similarly situated parties." The judge determined that this was not a de minimus victory but rather one that fundamentally altered the relationship between the parties, in a manner that directly benefited GED. The record supports that determination.

Furthermore, as the judge noted, the federal courts have awarded attorney's fees and costs when the plaintiff obtains nominal damages along with injunctive relief. See Volk v. Gonzalez, 262 F.3d 528, 535 (5th Cir. 2001) (affirming award of counsel fees to civil rights plaintiff who recovered $2 in nominal damages, but also obtained declaratory and injunctive relief); Robinson v. City of Edmond, 160 F.3d 1275, 1282-83 (10th Cir. 1998) (holding that attorney's fees were properly awarded to plaintiff who recovered nominal damages and also obtained a permanent injunction); and Riley v. City of Jackson, 99 F.3d 757, 760 (5th Cir. 1996) (upholding award of fees where the plaintiff achieved nominal damages and most of injunctive relief sought).

We also reject GED's contention that the judge erred by limiting the award to the fees and costs related to the successful challenge to the zoning ordinance. In Hensley v. Eckerhard, 461 U.S. 424, 440, 103 S. Ct. 1933, 1943, 76 L. Ed. 2d 40, 54-55 (1983), the Court stated that "[w]here the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee." See also Singer v. State, 95 N.J. 487, 500 (1984) (holding that time devoted to claims that are distinct from the successful claims should be excluded in determining the amount of fees to be awarded pursuant to 42 U.S.C.A. 1988).

In this case, Judge Weisenbeck found that there were two distinct phases of this litigation. The judge noted that GED obtained significant injunctive relief in the first trial, but failed to achieve any success in the second trial. The judge aptly remarked that it would be inequitable to require the Township's taxpayers to pay attorney's fees for GED's unsuccessful challenge to N.J.S.A. 2C:34-7(b). We are convinced that the judge's decision was not a mistaken exercise of discretion.

Affirmed on the appeal and cross-appeal.