Vacation Village, Inc. v. Clark County, Nev

• Decision Date: 23 July 2007
• Docket Number: No. 05-16406.,Adv. No. 98-2313-RCJ.,No. 05-16389.,No. 05-16173.,No. 05-16554.,05-16173.,05-16389.,05-16406.,05-16554.
• Parties: VACATION VILLAGE, INC., Plaintiff-Appellee, v. CLARK COUNTY, NEVADA, Defendant-Appellant. VACATION VILLAGE, INC., Plaintiff-Appellant, v. CLARK COUNTY, NEVADA, Defendant-Appellee. In re CEH Properties, Ltd., Debtor, Vacation Village, Inc., Plaintiff-Appellee, v. Clark County, Nevada, Defendant-Appellant. In re CEH Properties, Ltd., Debtor, Vacation Village, Inc., Plaintiff-Appellant, v. Clark County, Nevada, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

497 F.3d 902

VACATION VILLAGE, INC., Plaintiff-Appellee, v. CLARK COUNTY, NEVADA, Defendant-Appellant.

VACATION VILLAGE, INC., Plaintiff-Appellant, v. CLARK COUNTY, NEVADA, Defendant-Appellee.

In re CEH Properties, Ltd., Debtor,

Vacation Village, Inc., Plaintiff-Appellee, v. Clark County, Nevada, Defendant-Appellant.

In re CEH Properties, Ltd., Debtor,

Vacation Village, Inc., Plaintiff-Appellant, v. Clark County, Nevada, Defendant-Appellee.

No. 05-16173.

No. 05-16389.

No. 05-16406.

No. 05-16554.

Adv. No. 98-2313-RCJ.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 16, 2007.

Filed July 23, 2007.

Amended August 10, 2007.

Kirk Lenhard, Las Vegas, NV, for the appellant/cross-appellee.

Paul Ray, Las Vegas, NV, for the appellee/cross-appellant.

Appeal from the United States District Court for the District of Nevada; Robert C. Jones, District Judge, Presiding. D.C. No. CV-05-00010-RCJ.

Before: WARREN J. FERGUSON, STEPHEN REINHARDT, and MILAN D. SMITH, JR., Circuit Judges.

ORDER

The opinion filed on July 23, 2007 at slip op. 8849 is hereby AMENDED as follows:

Delete the paragraph at slip op. 8861 beginning "The Rooker-Feldman doctrine holds that" and the paragraph at slip op. 8861-62 beginning "Here, the state court stated" and replace with:

"The Rooker-Feldman doctrine ... is confined to ... cases brought by state court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Thus, Rooker-Feldman "applies only when the federal plaintiff both asserts as her injury legal error or errors by the state court and seeks as her remedy relief from the state court judgment." Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir.2004) (emphasis in original). See also Noel v. Hall, 341 F.3d 1148, 1154-65 (9th Cir.2003).

Here, the state court stated only that it would dismiss the case if and when the statute of limitations in Nevada Rule of Civil Procedure 41(e) expired. Neither the state court's observation that Rule 41(e) would require it to dismiss the case in a matter of days when the mandatory five-year deadline passed, nor the minute order reflecting the state court's unavailability for trial, is the equivalent of an actual order dismissing Landowners' action. Because there was no state court judgment from which the Landowners sought relief, Rooker-Feldman does not apply to bar federal jurisdiction over Landowners' claims.

Pursuant to General Order 5.3, this amendment does not affect current deadlines for filing a petition for rehearing or petition for rehearing en banc.

IT IS SO ORDERED.

OPINION

MILAN D. SMITH, JR., Circuit Judge:

Appellees, the owners of real property near McCarran International Airport in Las Vegas, Nevada, brought an inverse condemnation action against Clark County (County) alleging that the County's Ordinances 1221 and 1198, which impose, respectively, height and use restrictions, constitute takings under the Nevada Constitution. We hold that our review of Ordinance 1221 is limited by the Nevada Supreme Court's decision in McCarran Int'l Airport v. Sisolak, 137 P.3d 1110 (Nev. 2006) construing Nevada state law, and, accordingly, find that Ordinance 1221, as applied to Appellee's property, amounts to a taking. We remand for a calculation of just compensation in light of Sisolak. We affirm the district court's decision that Ordinance 1198 did not effect a taking of Appellee's property.¹

I. BACKGROUND

For more than 50 years, the County has regulated land near McCarran Airport through the adoption of zoning ordinances. As a result of its proximity to the airport, the real property owned by Appellees (collectively, the Landowners)² has been encumbered by a number of these ordinances.

The Landowners acquired the subject property in 1964, intending to construct a hotel resort and casino. A portion of the property was zoned as Rural Estates Residential (R-E), and in 1971 the Landowners sought to rezone this portion as Limited Resort and Apartment (H-1). The County partially conditioned approval of the Landowners' rezoning request on the Landowners' granting of the following avigation easement:

[The County] is to have a perpetual right of flight, ingress to and egress from the airspace over the lands herein above described, in conformity with the air traffic rules governing the flight of aircraft to and from the Clark County Airport.... It is further understood and agreed that the grantor himself, his heirs, successors or assignees ... shall and do hereby release, and agree to save harmless and indemnify, the County of Clark from any claims whatsoever for losses caused by noise or the psychological effects of aircraft.

(First Easement). By 1974, the Landowners had completed a number of rooms, but not the entire building. The parties did not complete the rezoning and the First Easement was not recorded.

In February 1981, the County enacted Ordinance 728 at Chapter 29.50 of the Clark County Code in order to limit the height of structures adjacent to public use airports. Ordinance 728 set a height limitation demarcated by a plane sloping "twenty (20) feet outward for each foot upward beginning at the end of and at the same elevation as the primary surface" for areas designated as a "Utility Runway Visual Approach Zone." The parties refer to this height limitation as a "20:1" slope surface. Ordinance 728 set a height limitation of one hundred fifty feet above the airport elevation for areas within a "Horizontal Zone."

In June 1988, the Landowners filed another rezoning request with the County to have the R-E property reclassified as H-1. The County conditioned its approval of the Landowners' rezoning request on the Landowners' granting the following avigation easement:

It is understood and agreed that [the County is] to have 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....

It is further understood the GRANTOR does hereby agree for himself to release Clark County, Nevada, and operators and users of the above described airfields from any claims whatsoever for losses hereafter caused by noise or the psychological effects of aircraft noise resulting from the overflight of aircraft.

(Second Easement). The Landowners granted the Second Easement to the County on June 21, 1988. The County reclassified the property from R-E to H-1 and granted a use permit to the Landowners to construct and maintain a 501-room, two-story hotel, and an 85,000-square-foot casino. According to the Landowners, construction under the proposed design plans began in 1989.

On January 16, 1990, the Federal Aviation Administration (FAA) issued a "Determination of Hazard to Air Navigation" to the Landowners. The FAA determined that the Landowners' previously proposed 80-foot sign, 47-foot casino and three 76-foot hotel buildings would penetrate the approach slope for proposed Runway 1R and thus "would have a substantial adverse impact to the safe and efficient use of navigable airspace and would be a hazard to air navigation."

The Landowners redesigned the proposed construction limiting the height of the structures on the property to 38 feet above ground level 2,850 feet southwest of the approach end of Runway 1R. On June 27, 1990, the FAA issued a "Determination of No Hazard to Air Navigation" finding that "[a]lthough the structure has been identified as an obstruction, ... the proposal would not adversely affect the safe and efficient use of navigable airspace and would not be a hazard to air navigation."

On July 18, 1990, the County passed Ordinance 1221 which amended Chapter 29.50 of the Clark County Code. For property in a "Precision Instrument Runway Approach Zone" the applicable height limitation "[s]lopes fifty feet outward for each foot upward beginning at the end of and at the same elevation as the primary surface and extending to a horizontal distance of ten thousand feet along the extended runway centerline." The parties refer to this height limitation as a "50:1" slope surface. Despite this height limitation, Ordinance 1221 provides that it should not 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." Ordinance 1221 also requires that before the construction of new buildings and structures in these zones, the FAA and the Clark County Department of Aviation must first determine that "it does not constitute a hazard."

The County also adopted Ordinance 1198 at Chapter 29.51 of the Clark County Code. Ordinance 1198 establishes an "airport environs overlay district." The stated purpose of the ordinance is "to provide for a range of uses compatible with airport accident hazard and noise exposure areas and to prohibit the development of incompatible uses that are detrimental to the public health, safety and welfare in these airport environs." As applied, Ordinance 1198 designates 1.25 acres of the Landowners' property as a runway protection zone (RPZ). Such designation limits the development of the 1.25-acre parcel to uses such as a parking lot, a water area, or landscaping.

On December 17, 1993, the Landowners filed a complaint in Nevada state court alleging, among other things, inverse condemnation of airspace and inverse condemnation of 1.25 acres in the RPZ. A jury trial was originally scheduled for March 11, 1996 but was continued to March 24, 1997 due to the Landowners' illness. At...