McCarran International Airport v. Sisolak
| Decision Date | 13 July 2006 |
| Docket Number | No. 41646.,41646. |
| Citation | 137 P.3d 1110 |
| Parties | MCCARRAN INTERNATIONAL AIRPORT and Clark County, a Political Subdivision of the State of Nevada, Appellants, v. Steve SISOLAK, Respondent. |
| Court | Nevada Supreme Court |
David J. Roger, District Attorney, and E. Lee Thomson, Deputy District Attorney, Clark County; Jones Vargas and R. Douglas Kurdziel, Kirk B. Lenhard, and Scott M. Schoenwald, Las Vegas, for Appellants.
Law Offices of Laura Wightman-FitzSimmons and Laura Wightman-FitzSimmons, Las Vegas, for Respondent.
Law Offices of Thomas D. Beatty and Thomas D. Beatty, Las Vegas; Foley & Lardner and Christi R. Adams and John R. Hamilton, Orlando, Florida, for Amicus Curiae Airports Council International.
Lewis & Roca and Martha J. Ashcraft, Las Vegas; Community Rights Counsel and Timothy J. Dowling and Douglas T. Kendall, Washington, D.C., for Amicus Curiae American Planning Association.
Lionel Sawyer & Collins and E. Leif Reid, Reno; David A. Berg, Washington, D.C.; Beveridge & Diamond, P.C., and Gus Bauman, Thomas Richihi, and Justin A. Savage, Washington, D.C., for Amicus Curiae Air Transport Association of America, Inc.
Woodburn & Wedge and John F. Murtha, Reno, for Amicus Curiae Airport Authority of Washoe County.
Before the Court En Banc.1
In this appeal, we determine whether the district court properly concluded that a county height restriction ordinance effected a "per se" taking of the airspace above private land that is located within the departure critical area of an airport approach zone. Appellant Clark County operates McCarran International Airport, the primary commercial airport serving southern Nevada. The County adopted height restriction ordinances limiting the development of respondent Steve Sisolak's airspace. The district court concluded that the height restriction ordinances effectuated a per se taking, and a jury awarded Sisolak compensatory damages of $6.5 million. Thereafter, the district court awarded Sisolak attorney fees, costs and prejudgment interest. Because the height restriction ordinances authorize airplanes to make a permanent, physical invasion of the landowner's airspace, we conclude that a Loretto-type2 regulatory per se taking occurred, requiring an award of just compensation. Accordingly, we affirm the district court's judgment.
The property
Since 1955, the County has restricted the height of buildings on property in the vicinity of its public use airports. The County's height restriction ordinances are designed to avoid air navigation hazards that could endanger the lives and property of airport users and nearby property occupants.
During the 1980s, Sisolak bought three adjacent parcels of land for investment purposes, which were each zoned for the development of a hotel, a casino, or apartments.3 Located on the southwest corner of South Las Vegas Boulevard and Arby Avenue in Las Vegas, the parcels lie 5,191 feet from the west end of a McCarran International Airport runway.
When Sisolak purchased the property, Clark County Ordinance 728 was in effect. Passed in order to regulate the height of structures and the use of property in the vicinity of all public use airports, the Ordinance aimed to prevent the establishment of obstructions that would pose air navigation hazards. According to Clark County's legislative findings, such obstructions could "reduce the size of the areas available for the landing, takeoff, and maneuvering of aircraft, thus tending to destroy or impair the utility and capacity of [public use airports] and the public investment therein."4
Under Ordinance 728, Sisolak's property was in a generalized area known as the "horizontal zone." The Ordinance restricted the height for development of property located in the horizontal zone to 150 feet above the established airport elevation. Because Sisolak's property was at a higher elevation than the established airport elevation, and due to the varying elevations on the property itself, Ordinance 728 actually imposed restrictions limiting the height of structures on his property to between 80 and 90 feet above ground level (AGL).
If a property owner desired to exceed the height restriction, Ordinance 728 required the owner to provide notice to the Federal Aviation Administration (FAA) and the Clark County Director of Aviation for a determination that the proposed building was situated or marked so as not to constitute an aircraft navigation hazard. Further, the ordinance required the property owner to apply for a variance with the Clark County Planning Commission. The Planning Commission could grant a variance when
a literal application or enforcement of these regulations would result in practical difficulty or unnecessary hardship, and the relief granted would not be contrary to the public interest, but would do substantial justice and be in accordance with the spirit of these regulations and of Chapter 29.66 of the Clark County Code.
In 1990, McCarran Airport began expanding and upgrading the runway at issue for use by commercial jet aircraft, in conformity with the 1979 Clark County master plan. As a result, the county enacted two ordinances that further affected Sisolak's property.
First, the County adopted Ordinance 1221, amending Ordinance 728, in response to the changes in the runway's use. Ordinance 1221 placed Sisolak's property in the precision instrument runway approach zone, which subjected the property to a 50:1 slope restriction.5 On Sisolak's property, this resulted in an actual height restriction between 41 and 51 feet. However, regardless of the height restrictions for a particular zone, nothing in the Ordinance could be construed as prohibiting the construction or maintenance of any structure to a height up to thirty-five feet above the surface of the land in any zone.
In order to proceed with a project, Ordinance 1221 required that a property owner notify the FAA of any proposed construction that would (1) exceed a height of 200 feet, (2) exceed "[t]he plane of an imaginary surface extending outward and upward at a slope of 100 to 1 for a horizontal distance of 20,000 feet from the nearest point of the nearest runway," or (3) be in an instrument approach area when available information would indicate that the height might exceed any FAA obstruction standard. Ordinance 1221 also provided that the Clark County Planning Commissioners held final authority to grant variances from the height restrictions.
Second, the County enacted Ordinance 1599, which adopted "Airspace Zoning Maps," including an Aircraft Departure Critical Area Map for McCarran Airport. According to the map, Sisolak's property was located in the departure critical area and was therefore placed under an 80:1 slope restriction (limiting an owner's use of airspace one foot above ground level for every 80 feet from the runway), resulting in height restrictions of 3 to 10 feet above ground level. Ordinance 1599 provided for a variance procedure similar to that in Ordinance 1221.
In addition to the height restrictions created by the Ordinances, Sisolak's property was burdened by a perpetual avigation easement granted by Sisolak's predecessor in interest in response to a demand by the County in approving a development application.6 The easement authorized aircraft flights over one half of the property7 and provided that the County would have a perpetual right of flight, for the passage of aircraft in the air space above the surface of said premises, together with the right to cause in said air space such noise as may be inherent in the operation of aircraft, now known or hereafter used for navigation of or flight in the air, using said air space or landing at, or taking-off from or operating at, or on the premises known as McCarran International Airport.
The County has required these types of avigation easements since at least 1973 as a standard precondition for development approvals for property anywhere within the County.
Development history
Sisolak's property had always been vacant land. In 1991, Sisolak listed the property for sale. In the following years, he received multiple offers, ranging from $4,752,000 to $7,000,000. However, no sales were completed.
In 2000, one of the potential developers submitted proposed building plans to the FAA and the County for approval. The developer wanted to build "Forbidden City," a four-story, 600-room resort hotel and casino. The developer requested a variance from the height restrictions to build up to 70 feet.
During the negotiations, a realtor informed Sisolak of the height restrictions on his property. Following up on this information, Sisolak spoke with Bill Keller, a principal planner with the Clark County Department of Aviation. Sisolak testified that Keller explained the height restrictions on the property and told Sisolak about the variance process. Sisolak claimed that Keller told him not to bother asking for a variance to build to more than 75 feet because the County would not approve it. Keller testified that, while he did not have an independent recollection of a conversation with Sisolak, he normally informs a potential developer of the variance procedure. Keller stated that any height estimates he would have given Sisolak would have been in response to hypothetical situations, not specific to Sisolak's property. The FAA granted the variance, in part, and approved building Forbidden City up to a height of 66 feet, concluding that such a building would not constitute an airport obstruction. The Planning Commission also approved the proposal. However, the approval lapsed because the developer failed to commence construction within the required one-year period. Sisolak did not complete the sale, and no other variance applications were submitted.
Pretrial litigation
Shortly after the attempted sale, Sisolak filed a complaint against the County for inverse condemnation. Sisolak...
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