Stoney v. Maple Shade Township, A-1777-10T3; Appellate Division; opinion by Parrillo, P.J.A.D.; decided and approved for publication May 11, 2012. Before Judges Parrillo, Skillman and Hoffman. On appeal from the Law Division, Burlington County, L-2884-07. DDS No. 46-2-6255 [31 pp.]

The issue in this case is whether a trial court may deny injunctive relief on a jury finding of access discrimination under Title II of the Americans with Disabilities Act (ADA), and the New Jersey Law Against Discrimination (LAD).

Plaintiff, a South Carolina resident, has dystonia, is wheelchair-dependent, and is aided by a dog. She travels to New Jersey approximately twice a year and is a self-acknowledged “tester,” that is, “a person who goes places just to see if it is accessible for people with disabilities….”

After visiting defendant Maple Shade Township, plaintiff filed a complaint alleging that as a disabled person, she was not afforded proper access to defendant’s municipal building, police station, downtown sidewalks and curb cuts, and Steinhauser Park, in violation of Title II of the ADA and the LAD. She sought compensatory damages and equitable relief.

The court denied plaintiff’s motion for a directed verdict, rejecting her argument that a court has no discretion to deny relief when a violation of the Americans with Disabilities Act Accessibility Guidelines (ADAAG) is proved. The jury found defendant discriminated against plaintiff because of her disability by wrongfully excluding her from or denying her access to the park and a bathroom in the municipal building, but rejected her other claims as to the municipal building, sidewalks and the police station. The jury awarded no compensatory damages.

Plaintiff moved for counsel fees, injunctive relief and nominal damages. She was denied nominal damages but succeeded on her equitable claim regarding access to the municipal building’s bathrooms and to the park’s picnic tables. The court, however, rejected her claim for injunctive relief as to access to the park. The court awarded plaintiff $47,000 in counsel fees and costs.

Defendant appeals from the counsel fee award. Plaintiff cross-appeals, contending the court erred by denying her injunctive relief in the form of a handicapped-accessible route in and around the park and by giving defendant the option of adding one handicapped-accessible picnic table or removing all picnic tables. Plaintiff challenges the denial of her motion for a directed verdict; the court’s instructions to the jury; and its failure to award her nominal damages.

Held: Although injunctive relief is authorized by both the ADA and LAD, it does not automatically follow from a breach of either statute. Instead, where a party has demonstrated actual success on the merits, a court must apply a balancing test of the competing claims of injury and the effect on each party of granting or withholding the equitable remedy, along with the public interest strongly favoring accessibility.

Under federal law generally, once a party has demonstrated success on the merits, the court must balance three factors to determine whether injunctive relief is appropriate: (1) the threat of irreparable harm to the movant; (2) the harm to be suffered by the nonmoving party if the injunction is granted; and (3) the public interest at stake. Because Title II of the ADA and the LAD authorize injunctive relief, the question is whether the three-prong balancing test applies when there has been a finding of a violation, or is a court without discretion to deny the equitable remedy.

Under the ADA, a deviation from the applicable guidelines (ADAAG or Uniform Federal Accessibility Standards (UFAS)) does not automatically establish public access disability discrimination for pre-existing facilities. On the other hand, for facilities built or altered after 1992, Title II’s implementing regulations expressly require compliance with specific architectural accessibility standards.

The appellate panel concludes that the analysis for adjudicating claims for injunctive relief under Title II of the ADA and the LAD requires a balancing of the competing claims of injury and the effect on each party of the granting or withholding of the requested equitable remedy, along with, most significantly, the compelling public interest strongly favoring accessibility. The panel rejects the view that strict liability and mandatory injunctive relief automatically flow from a showing of a breach of access guidelines or regulations. Instead, in assessing the critical factor of the likelihood of suffering continuing irreparable harm as a result of the denial of access, courts take into account the public entity’s progress in remedying the asserted violations as well as the cognizable danger of recurrent violations. Irreparable harm to the disabled individual from a denial of access should be presumed in cases involving facilities built or “altered” after the effective date of Title II’s implementing regulations.

Here, because the requisite balancing of competing interests, impacts and harm did not occur, the court abused its discretion in denying plaintiff injunctive relief as to the park. Accordingly, the appellate panel remands for the proper application of the test for the grant or denial of an injunction in the context of the strong public policies enunciated in the ADA and the LAD, preceded by a determination whether, as a matter of law, the pathway’s recent repavement constituted an “alteration.”

Where both of the state and federal fee-shifting statutes provide for counsel fees to the prevailing party, the panel also vacates the attorney fee award challenged on defendant’s appeal and remands to consider the degree of plaintiff’s ultimate success on her claim for injunctive relief.

For appellant/cross-respondent — Eric L. Harrison (Methfessel & Werbel). For respondent/cross-appellant — Anthony J. Brady Jr.