In 1964, the owner bought land near the airport, intending to build a resort and casino. By 1974, the owner had completed some rooms, but not the entire building. In 1981, the county enacted an ordinance limiting the height of structures adjacent to airports. In 1988, the county rezoned the residentially-zoned part of the property and the owner granted an easement for a “perpetual right of flight” above the surface. In 1989, the Federal Aviation Administration (FAA) determined that the proposed 80-foot sign, 47-foot casino, and 76-foot hotel buildings would penetrate an approach zone and constitute a hazard. The owner redesigned the project, limiting the height to 38 feet, and the FAA issued a determination that the proposal would not constitute a hazard. In 1990, the county enacted ordinance 1221, limiting the height of structures in the instrument runway approach zone and requiring an FAA determination of no hazard prior to construction, and ordinance 1198, establishing an airport overlay zone. Ordinance 1198 classified 1.25 acres of the property (about five percent of the land) as a “runway protection zone,” with uses limited to parking lots, water areas, and landscaping. In 1993, the owner filed suit, alleging inverse condemnation.
After a complicated procedural history involving the owner’s bankruptcy, the matter was decided by a federal judge who awarded more than $10 million in damages. The appeals court affirmed in part, first holding that the trial court had jurisdiction and that the claim was ripe. Because the claim alleged a taking under state law, the court was bound by the Nevada Supreme Court’s decision in 2006, McCarran Int’l Airport v. Sisolak, 137 P.3d 1110, where that court declared ordinance 1221 effected a per se taking. The Ninth Circuit noted, “We respectfully disagree with our colleagues on the Nevada Supreme Court concerning their interpretation of federal takings jurisprudence. No Fifth Amendment taking of the Landowner’s property occurred under the standards set forth in Penn Central Transportation Co. v. New York City. The Nevada Constitution defines the concept of taking more broadly than federal law and federal airport regulations do not preempt that broad application. The avigation easement did not waive claims of inverse condemnation. The court remanded for determination of compensation, noting that the Sisolak decision indicated that Nevada owners have a property interest in the use of their property up to 500 feet. The court concluded that ordinance 1198, which was not addressed in the state case, does not constitute a taking. Applying the Penn Central factors, the court noted that the economic impact was minimal; interference with reasonable investment-backed expectations was minimal, given the important public interest in airport safety; and the character of the governmental action favors the county. Vacation Village, Inc. v. Clark County, United States Court of Appeals, Ninth Circuit [intermediate court], Decided July 23, 2007, 2007 WL 2080288.
Special thanks to Lora Lucero, Esq., AICP and editor of Planning and Environmental Law for sharing this abstract.
Look for a commentary on the Sisolak case forthcoming in the September issue of Planning and Environmental Law. The authors are Prof. Jan G. Laitos of the University of Denver Sturm College of Law who was a consultant to Clark County for the Sisolak case, and Scott M. Schoenwald, Esq. of Jones Vargas in Las Vegas, Nevada, who represented McCarran International Airport and Clark County, Nevada in the Sisolak and Hsu cases. For information on how to subscribe to Planning and Environmental Law see, http://www.planning.org/PEL/index.htm .
