June 2007

The US Supreme Court has issued a unanimous opinion in Sole v. Wyner (No. 06-531) (docket listing here), a case involving whether a party who obtains a preliminary injunction — but ultimately loses the case on the merits — can be a “prevailing party” entitled to civil rights attorneys fees.  The Court, in an opinion by Justice Ginsburg, answered no.  I’ve previously posted about the case background here, and the oral arguments here.  SCOTUSblog summarizes the opinion here, and National Public Radio reports on the case here (with audio).

This case has impact on land use litigation.  A key federal civil rights law, 42 USC  § 1988, allows the prevailing party to recover attorneys fees from the other side.  The right to own and make economically beneficial use of property isone of those federal civil rights, and land use and property issues areoften litigated under…

Continue Reading ▪ SCOTUS: “Prevailing Party,” Attorney’s Fees, and Land Use Litigation

In Citizens Against Reckless Development v. Zoning Bd. of Appeals of the City and County of Honolulu (No. 27264, May 31, 2007), the Hawaii Supreme Court clarified the administrative procedures to be used in third-party challenges to the issuance of a Conditional Use Permit (CUP).  I haven’t had a chance to digest the opinion in full, but it appears the most interesting issue in the case is whether a request for an agency to issue a declaratory ruling pursuant to Haw. Rev. Stat. § 91-8 can substitute for an appeal of an agency decision after contested case pursuant to Haw. Rev. Stat. § 91-14.  The Court answered no:

[The Appellant], having failed to bring an appeal of the CUP issuance within the required thirty-day time-limit, sought review of the CUP issuance via the declaratory ruling petition procedure provided by HRS § 91-8 and accompanying DPP Rule § 3-1. Although…

Continue Reading ▪ HAWSCT: New Case on Administrative Procedures in Conditional Use Permit Challenges