Petition for Writ of Certiorari — McCarran International Airport v. Sisolak, 127 S. Ct. 1260 (2007) (No. 06-658)

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,. OFFICE OF THE CLERK

No.

IN THE

Supreme Court of the United States

McCARRAN INTERNATIONAL AIRPORT

AND CLARK COUNTY. A POLITICAL SUBDIVISION

OF THE STATE OF NEVADA,

Petitioners,

STEVE SISOLAK.

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Nevada

PETITION FOR A WRIT OF CERTIORARI

DAVID J. J. ROGER CARTER G. PHILLIPS*

DISTRICT ATTORNEY JOSEPH R. GUERRA

E. LEE THOMSON PETER R. STEENLAND

DEPUTY DISTRICT ATTORNEY PETER C. PFAFFENROTH

500 South Grand Central Parkway = SIDLEY AUSTIN LLP

hifth Floor 1501 K Street. N.W.

Las Vegas. Nevada 89109 Washington. D.C. 20005

(702) 455-4761 (202) 736-8000

“ounsel for Petitioners

Counsel for Petitioner

November 8. 2006 * Counsel of Record

| Additional Counsel on Inside Cover]

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QUESTIONS PRESENTED

In light of federal law, which confers on the federal

government “exclusive sovereignty” in the airspace of the

United States, grants all citizens a public right of transit

through “the navigable airspace,” and defines the “navigable

airspace” to include any airspace less than 500 feet above

ground level that is needed to ensure safe takeoffs and

landings of aircraft, the questions presented are:

1. Whether federal law precludes recognition under state

law of private ownership of federally defined “navigable

airspace” that is less than 500 feet above a landowner’s

property and that the landowner never used before it became

part of the navigable airspace.

2. Whether zoning ordinances that merely restrict the use

of property near a major airport, by limiting the height of

structures in the navigable airspace, effect a per se regulatory

taking under Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419 (1982), particularly where (a) the

ordinances authorize variances for structures that the FAA

concludes do not pose hazards to aviation, and (b) half of

respondent’s property was subject to a pre-existing perpetual

avigation easement for the passage of aircraft that has never

been found to violate the nexus and _ proportionality

requirements of Nollan v. California Coastal Commission,

483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 US.

374 (1994).

PARTIES TO THE PROCEEDING

All parties to the proceeding are identified in the caption.

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDING

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED

STATEMENT OF THE CASE

A. Federal Regulation Of Navigable Airspace

B. Role Of State And Local Authorities In Protec-

ting Navigable Airspace. ................ceccsseeeeeeeeeees

C. McCarran Airport And Respondent’s Property. .

D. Proceedings And Rulings Below

REASONS FOR GRANTING THE PETITION

I. RECOGNITION UNDER STATE LAW OF

PRIVATE OWNERSHIP OF THE NAVI-

GABLE AIRSPACE NEEDED FOR SAFE

TAKEOFFS AND LANDINGS RAISES A

VITALLY IMPORTANT QUESTION OF

FEDERAL LAW

A. Federal Law Precludes Recognition Under

State Law Of Private Ownership Of Federally

Defined Navigable Airspace

(ii1)

TABLE OF CONTENTS—continued

Page

B Recognition Under State Law Of Private

Ownership Of Navigable Airspace Has

Profound And Detrimental Implications For

The National Air Transportation System............ 14

C. Recognition Under State Law Of Private

Ownership Of The Navigable Airspace

Conflicts With The Decisions Of This And

CE LG cdc ae as Ea 18

Hl. THE NEVADA SUPREME COURT’S FIND-

ING OF A PER SE REGULATORY TAKING IS

ERRON-EOUS AND CONFLICTS WITH THE

DECISIONS OF THIS AND OTHER COURTS... 22

A. The Nevada Court’s Conclusion That Use

Restrictions Constitute A Per Se Taking Con-

flicts With The Decisions Of This Court............ 22

B. The Nevada Supreme Court’s Refusal To Give

Effect To A Valid Avigation Easement

Conflicts With This Court’s Precedents And

With A Decision Of The Ninth Circuit. ............. 26

Ill. THE DECISION IN THIS CASE DOES NOT

REST ON AN ADEQUATE AND INDEPEN-

DENT STATE LAW GROUND ................:.--ccseeeees 29

SP ANE Reiichdstvisnsciniantdicenicnonaniensinasecemcnbietintdainctiias 30

TABLE OF AUTHORITIES

Page

CASES

Air Line Pilots Ass’n Int’l v. Department of

Transp., FAA, 446 F.2d 236 (Sth Cir. 1971) 26

Air Pegasus of D.C., Inc. v. United States, 424

F.3d 1206 (Fed. Cir. 2005)

Aircraft Owners & Pilots Ass’n v. FAA, 600 F.2d

965 (D.C. Cir. 1979)

American Airlines, Inc. v. Town of Hempstead,

272 F. Supp. 226 (E.D.N.Y. 1967), aff'd, 398

F.2d 369 (2d Cir. 1968)

Bouie v. City of Columbia, 378 U.S. 347 (1964) ....

Bush v. Gore, 531 U.S. 98 (2000)

Cheyenne Airport Bd. v. Rogers, 707 P.2d 717

(Wyo. 1985)

City of Austin v. Travis County Landfill Co., 73

S.W.3d 234 (Tex. 2002)

Coleman v. Thompson, 501 U.S. 722 (1991)

County of Clark v. Hsu, No. 38853 (Nev. Sept.

30, 2004)

Daniel v. County of Santa Barbara, 288 F.3d 375

(9th Cir. 2002)

Dolan v. City of Tigard, 512 U.S. 374 (1994)

Griggs v. Allegheny County, 369 U.S. 84 (1962).. 10, 20

Harrell’s Candy Kitchen, Inc. v. Sarasota-

Manatee Airport Auth., 111 So. 2d 439 (Fla.

La Salle Nat’l Bank v. Cook County, 340 N.E.2d

79 (ill. App. Ct. 1975)

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528

(2005)

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) 2, 22, 23, 24

NAACP v. Alabama ex rel. Patterson, 357 U.S.

449 (1958)

TABLE OF AUTHORITIES—continued

Page

Nollan v. California Coastal Comm’n, 483 U.S.

DAE PN csiicksecshethcinka tonscasensteltipn lbeeikipbsnsbciasbabaelicied 9, 27

Palm Beach Isles Assocs. v. United States, 208

F.3d 1374 (Fed. Cir.), aff'd on reh’g, 231 F.3d

1345 (Fed. Cir. 2000), overruled on other

grounds, Bass Enters. Prod. Co. v. United

States, 381 F.3d 1360 (Fed. Cir. 2004)........... hare 21

Penn Cent. Transp. Co. v. City of New York, 438

Cae EG hike diktcostssdvnenisscitasentivabacbolasien 2, 11, 25

Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.)

WO STE Pic pict Soihictidocicateinartoievaiicsivascbaaeeniouanabiige 23

United States v. Causby, 328 U.S. 256 (1946)...... 10, 19,

Village of Willoughby Hills v. Corrigan, 278

PE te CAPE CITED sosncesnneccndeeccntsnossenievertens 21

Ward v. board of County Comm'rs, 253 U.S. 17

SOE cicdiicsinsacicconds cone ses sbnicpainslesecciacimekiasimesenanioldin 29

West Va. Dep’t of Transp. v. Dodson Mobile

Homes Sales & Servs., Inc., 624 S.E.2d 468

Re Ee I Is sniascenibintacsuinnsetiteceatontabocsapnonteasenes 30

Wolfson v. City of St. Paul, 558 N.W.2d 781

CRN: She FUN. SED scence vcevevancevciencievctesersesvantess 30

CONSTITUTION, STATUTES AND REGULATIONS

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Vil

TABLE OF AUTHORITIES—continued

Page

5, 15,23

OTHER AUTHORITIES

Ivanpah Airport Plans Need To Get Off The

Runway, In Business Las Vegas, Oct. 20-Oct.

26, 2006

Airports Council Int’l, Traffic Statistics, at http:

//www.aci-na.org/asp/traffic.asp?art=215

(last visited Nov. 8, 2006)

Clark County Dep’t of Aviation, Comprehensive

Annual Financial Report for the Year Ended

June 30, 2005 (2005)

Tony Cook, High price for low buildings, Las

Vegas Sun, July 25, 2006

FAA, Advisory Circular 150/5190-4A, A Model

Zoning Ordinance to Limit Height of Objects

Around Airports (Dec. 14, 1987)

FAA, Grant Histories (June 12, 2006), at http:

//www.faa.gov/airports_airtraffic/airports/aip/

grant_histories/

Vill

TABLE OF AUTHORITIES—continued

FAA, Land Use Compatibility and Airports: A

Guide for Ef ‘ve Land Use Planning (2005),

available at .° w.faa.gov/about/office_org/

headquarters_offices/aep/planning_toolkit/

McCarran Int’! Airport, Current Projects, at http:

//www.mcecarran.com/04 05 CurProjects.asp

(last visited Nov. 8, 2006)

Richard N. Velotta, Lawsuits could prompt cuts at

airport, Las Vegas Sun, May 28, 2003................

2 Kenneth H. Young, Anderson’s American Law

of Zoning (4th ed. 1996)

Page

PETITION FOR WRIT OF CERTIORARI

Petitioners McCarran International Airport and Clark

County respectfully seek a writ of certiorari to the Supreme

Court of Nevada.

OPINIONS BELOW

The opinion of the Nevada Supreme Court is reported at

137 P.3d 1110 (Nev. 2006) (Pet. App. la-52a). The judgment

of the Eighth Judicial District Court of the State of Nevada is

unreported. (Pet. App. 53a-56a).

JURISDICTION

The judgment of the Nevada Supreme Court was entered on

July 13, 2006. On October 4, 2006, Justice Kennedy granted

petitioners’ timely application and extended the time for filing

the petition to November 9, 2006. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment provides in part: “[{NJor shall

private property be taken for public use, without just

compensation.” The Fourteenth Amendment provides in part:

“tNjor shall any State deprive any person of life, liberty, or

property, without due process of law.” Section 40103(a)(2)

of Title 49 of the United States Code provides in part: “{a]

citizen of the United States has a public right of transit

through the navigable airspace” of the United States, and

section 40102(a)(32) provides that “navigable airspace”

“includefes] airspace needed to ensure safety in takeoff and

landing of aircraft.” These and other relevant laws are

reproduced in full in Pet. App. 57a-107a.

STATEMENT OF THE CASE

The extraordinary decision of the Nevada Supreme Court in

this case imperils the scheme of cooperative federalism that

serves as the central cornerstone of the national aviation

system. Decades ago, Congress placed all of the navigable

airspace of the United States within the public domain,

granted all citizens a right of transit through that airspace, and

authorized the Federal Aviation Administration (FAA) to

issue regulations that include airspace less than 500 feet

above ground level within the navigable airspace when

necessary to ensure safe takeoffs and landings. The FAA has,

in turn, relied on local governments and local zoning laws to

prevent hazards in this navigable airspace.

In this case, the Nevada Supreme Court held that, under

state law, the owner of land near the nation’s fifth busiest

airport owns all of the airspace up to 500 feet above his

undeveloped lots of desert scrub, even though much of this

airspace is indisputably needed for safe takeoffs and landings

and is thus part of the “navigable airspace” through which the

public has a right of transit. This holding incorrectly resolved

a critically important question that this Court has never

addressed—i.e., whether federal law bars recognition of state

law-based ownership of navigable airspace that the owner of

the underlying land has never previously used.

The Nevada court then continued its assault on the

federal/state regulatory scheme by ruling that ordinances

designed to prevent aviation hazards effect a “permanent

physical occupation” of respondent’s “privately-owned”

portion of the navigable airspace. The court concluded that

the ordinances were not subject to a regulatory takings

analysis under Penn Central Transportation Co. v. City of

New York, 438 U.S. 104 (1978), but instead gave rise to a per

se taking under Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419 (1982). The Nevada court reached this

conclusion despite the facts that (1) the ordinances simply

regulate the use of land by setting height restrictions that, if

exceeded, trigger an analysis by the FAA to determine

whether a proposed structure would pose a hazard, (2) the

ordinances permit variances when the FAA finds that a

proposed structure poses no hazard to aviation, and (3) the

County had previously approved two development proposals

for the lots respondent owned. In a final coup de grace, the

court held that the County’s avigation easements over

portions of respondent’s property provided no defense to this

per se taking claim because it viewed easements granted in

exchange for development permits as uncompensated takings,

without regard to whether they satisfy the nexus and

proportionality tests this Court has established for assessing

such exactions.

The Nevada court’s erroneous decision conflicts with

federal law governing the navigable airspace as well as the

takings decisions of this and numerous other courts. If left

undisturbed, moreover, this mistaken decision’ will

significantly harm the national aviation system. A half dozen

similar lawsuits are already pending, and _ petitioners

conservatively estimate that, under the Nevada court’s

reasoning, they face potential per se takings liabilities in the

billions of dollars. Any response they adopt to avoid or

minimize this massive liability will have untoward ripple

effects throughout the complex and interdependent air traffic

system, increasing air travel costs to and from Las Vegas and

adversely affecting air traffic not only at McCarran, but at

other airports around the country. Moreover, the Nevada

ruling could nullify benefits to air transportation that the

federal government has funded at McCarran through

improvement projects worth hundreds of millions of dollars.

These grants were made in reliance upon Clark County’s

assurance that it would enact reasonable zoning laws to

protect the nation’s interest in safe air travel. Not only may

the FAA be reluctant to continue its important airport

improvement program where its investment is undercut by the

imposition of massive, liability for compliance with the grant

assurance, but such massive and unfair liabilities will chill

cooperation by other local governments that cannot afford the

costs of litigation or the risk that other courts will adopt

Nevada’s approach. Without such cooperation among FAA,

airport operators, and local zoning authorities, the future of

safe, efficient and unobstructed approach routes to the

nation’s airports is endangered. The petition should be

granted, and the decision below reversed.

A. Federal Regulation Of Navigable Airspace.

Federal law has long established that “{t]he United States

Government has exclusive sovereignty of airspace of the

United States.” 49 U.S.C. § 40103(a)(1) and historical notes.

Further, Americans have a “public right of transit through the

navigable airspace.” Jd. § 40103(a)(2). Navigable airspace is

defined as “airspace above the minimum altitudes of flight

prescribed by regulations . . . , including airspace needed to

ensure safety in the taking off and landing of aircraft.” Jd.

§ 40102(a)(32) (previously codified as § 40102(a)(30)).

Congress has authorized the FAA to regulate the use and

scope of navigable airspace. 49 U.S.C. § 40103(b). Pursuant

to that delegation, the FAA has established that navi ‘le

airspace in uncongested areas begins at an altitude of 500 feet

above ground level. 14 C.F.R. § 91.119. However, as

mandated by federal statute, navigable airspace begins at

lower levels “when necessary for takeoff or landing.” /d.

Before starting any construction near an airport, a project

sponsor must give the FAA notice, whereupon the agency

determines whether the construction will pose a hazard to

navigable airspace. 49 U.S.C. § 44718; 14 C.F.R. §§ 77.1,

77.11. An object is deemed an obstruction if it exceeds

certain absolute height thresholds, or if it would encroach on

a defined set of imaginary surfaces that emanate from an

airport and its runways. 14 C.F.R. §§ 77.23, 77.25. The FAA

may conduct an aeronautical study, including nonadversarial

factfinding hearings, to determine if the penetrating structure

is a hazard to aviation. /d. §§ 77.35, 77.43. The FAA can

and often does find that proposed structures are not hazards.

Furthermore, recipients of federal aviation-related grants

are required by statute to enter into binding grant assurances

in which they commit to ensure that airspace is cleared of

present and future hazards. 49 U.S.C. § 47107(a)(9); 14

C.F.R. § 77.3(a). Airport grant recipients must also commit

to adopt “zoning laws . . . to the extent reasonable to restrict

the use of land next to or near the airport to uses that are

compatible with normal airport operations.” 49 U.S.C.

§ 47107(a)(10). They must also certify that they will comply

with the Uniform Relocation Assistance and Real Property

Acquisition Policies Act (“Uniform Act”), which provides for

attorney’s fees in successful takings claims under the Tucker

Act, 28 U.S.C. § 1491, or the Little Tucker Act, 28 U.S.C.

§ 1346(a)(2). See 42 U.S.C. §§ 4654(c), 4655(a)(2).

In the past 10 years, the FAA issued over $155 million in

grants for new’ runways and related improvements at

McCarran in reliance upon such assurances. Virtually every

public commercial airport in the country receives such grants

and is bound by such assurances.' Thus, although the federal

government has sovereignty over all navigable airspace,

including space below 500 feet where necessary for takeoffs

and landings, federal regulation of such airspace relies in

substantial part on the efforts of state and local authorities to

protect aircraft and persons and property on the ground.

B. Role Of State And Local Authorities In Protec-

ting Navigable Airspace.

Since 1928, local jurisdictions have enacted ordinances and

zoning regulations to restrict the height of structures in order

to promote air safety. 2 Kenneth H. Young, Anderson’s

' See FAA, Grant Histories (June 12, 2006), available at http://www.

faa.gov/airports_airtraffic/airports/aip/grant_histories/.

American Law of Zoning § 12.38 (4th ed. 1996). More than

half of the States, including Nevada, have authorized their

political subdivisions to issue regulations in order to protect

airspace near airports. /d.; see Nev. Rev. Stat. § 497.040.

To facilitate enactment of suitable local zoning laws and

compliance with the grant assurance that reasonable steps be

taken to obviate obstacles to navigable airspace, FAA issued

A Model Zoning Ordinance to Limit Height of Objects

Around Airports. FAA, Advisory Circular 150/5190-4A

(Dec. 14, 1987). In establishing height restrictions near an

airport, the model ordinance employs imaginary surfaces akin

to those set forth in the FAA regulation defining navigable

airspace hazards, 14 C.F.R. § 77.25, prohibits construction of

structures that would constitute a hazard, and provides that

variances should only be granted when accompanied by an

FAA determination that the construction would not impede or

imperil “the operation of air navigation facilities and the safe,

efficient use of navigable airspace.” FAA Advisory Circular

150/5190-4A, app. 1, §§IV, VII.4. Numerous local

governments, including Clark County, have adopted zoning

ordinances that substantially mirror the FAA Model

Ordinance. See, e.g., Clark County Ordinance 1221 (Pet.

App. 78a-94a).

C. McCarran Airport And Respondent’s Property.

When it was first built, the airport was far from substantial

development. It remained relatively isolated for most of the

next six decades, and was able to add additional runways as

recently as 1997. Over the past decade, however, new

development has encroached upon McCarran. The airport

occupies nearly 2800 acres, and today borders the Las Vegas

“Strip.” Clark County Dep’t of Aviation, Comprehensive

Annual Financial Report for the Year Ended June 30, 2005, at

3 (2005). McCarran is the nation’s fifth largest in terms of

total passengers, handling 44 million travelers in 2005.

Airports Council Int’l, Traffic Statistics, at http://www.

aci-na.org/asp/traffic.asp?art=2 15 (last visited Nov. 8, 2006).

Respondent owns three parcels of land comprising ten

vacant acres. The property lies about one mile directly south

of the end of one of McCarran’s two north-south runways,

and thus has been in the path of arriving and departing aircraft

since that runway was built in 1947. Pet. App. 2a & n.3; AA

vol. 15, at 3261-62, 3306, 3317 (“AA” refers to the

appellants’ appendix filed below with the Nevada Supreme

Court). Respondent purchased the first parcel in 1983 and the

other two in 1986. Pet. App. 2a n.3. The year before he

bought the latter parcels, his predecessor-in-interest, R&D

Odyssey Racetrack, conveyed to Clark County a perpetual

avigation easement over these parcels, which comprise half

the total property. AA vol. 1, at 117-18. The easement

expressly authorizes aircraft overflights. Pet. App. Sa.

Several zoning ordinances govern the height of structures

on the property. When respondent purchased the lots,

Ordinance 728 permitted development up to 150 feet above

the airport elevation, or 80 to 90 feet above the lots, which are

at a higher elevation than McCarran. Pet. App. 3a. This

ordinance permitted (and the County routinely granted)

variances for taller structures if the FAA issued a “no hazard”

determination. /d. In 1990, the County adopted Ordinance

1221 to protect the approach zone for the anticipated

expansion of McCarran’s north-south runways. /d. at 78a-

94a. This ordinance permitted structures on the property up

to 41 to 51 feet high; if developers wanted to build higher,

they could seek a “no hazard” determination from FAA and a

variance from the County. Jd. at 4a. In 1994, the County

enacted Ordinance 1599, which limited structures in the

Aircraft Departure Critical Area. Jd. at 95a-107a. Respon-

dent’s property was thereby presumptively limited to

structures with a maximum height of three to ten feet above

ground level. /d. at 4a-5a. Ordinance 1599 also provides for

higher structures through a variance procedure if the FAA

makes a “no hazard” finding. /d.

Although the property remains undeveloped, the County

has previously authorized two projects for the site. In 1985, it

approved a go cart facility which was to include 15-foot light

poles and a 2800 square foot building. AA vol. 2, at 422-25;

id., vol. 3, at 607. In 2001, the County approved a four-story,

600-room hotel/casino resort. Pet. App. Sa-6a. The plan,

submitted by a potential purchaser of the land, included a

33,050 square foot casino, retail areas, restaurants, bars,

lounges, an indoor pool, parking structures, and maintenance

areas. AA vol. 2, at 427. The developer requested approval

of a 70-foot structure, “but not less than 66 feet on the ground

of hardship and detrimental to the highest and best use of

subject property.” /d., vol. 2, at 431. The FAA determined

that a 66-foot structure would pose no hazard to air

navigation, Pet. App. 5a-6a, but expressed no opinion about

whether a faller building would pose a hazard. See AA vol. 2,

at 433-34. The County granted a variance with its final

approval up to 66 feet, but the variance and the approval

automatically lapsed when construction did not begin within a

year. Pet. App. 5a-6a. Respondent has never been denied a

zoning variance for any of the parcels at issue.

D. Proceedings And Rulings Below.

Shortly after the approval of the hotel/casino resort for the

property, respondent sued McCarran and the County in state

court, advancing two types of claims. First, he argued that,

under the United States and Nevada constitutions, the County

had inversely condemned his property by virtue of the zoning

laws and the passage of aircraft in the airspace above his

property. Second, he argued that the noise, dust, fumes, fuel,

and vibrations from overflights also devalued his property.

Pet. App. 6a. These latter claims were dismissed with

prejudice by stipulation. Jd. at 9a.

On summary judgment, the district court concluded that the

zoning laws effected a per se taking of respondent’s property.

Pet. App. 8a. The court rejected McCarran’s arguments that

respondent did not own all airspace up to 500 feet above his

land, that the flights were not so frequent or so low as to

deprive him of an existing use of his land, that the zoning did

not require acquiescence in a physical invasion of his

property, and that respondent’s claims were unripe because he

had never been denied a variance. Jd. at 8a-9a.

At the trial held to determine the compensation due, the

court instructed the jury to base its loss calculation on the area

above 66 feet, the height of the development that had recently

been granted a variance. Pet. App. Ila. The jury returned a

verdict in respondent’s favor for $6,500,000. Jd. The district

court entered judgment in that amount, and awarded

$107,730.68 in costs, $1,950,000 in attorney’s fees under the

federal Uniform Act, and $8,000,000 in interest, for a total

award of $16,617,730.68. /d..

A divided Nevada Supreme Court affirmed. Less than two

years earlier, the court had reversed a similar district court

ruling in favor of numerous landowners near McCarran,

County of Clark v. Hsu, No. 38853 (Nev. Sept. 30, 2004), but

the majority in the present case held that respondent had

suffered a per se taking. The majority here concluded that,

under state law, respondent owned the first 500 feet of

airspace above his land. It based this 500-foot boundary on

FAA regulations, which define the minimum safe altitude for

flight and place all airspace above that threshold “in the

public domain.” Pet. App. 13a & n.20. Although it

recognized that the regulations define the minimum safe

altitude for flight to extend below 500 feet when “necessary

for takeoff or landing,” id. at 13a, the majority did not explain

why this part of the regulation did not limit respondent’s

ownership of unused airspace over his land, which lies in the

path of arriving and departing aircraft. The majority also held .

that petitioner’s avigation easement provided no defense to

respondent’s suit. It deemed an easement obtained as a

condition of approval of the go-cart facility to be an

uncompensated taking under Nollan v. California Coastal

Commission, 483 U.S. 825, 832 (1987), without considering

whether the easement satisfied Nollan’s nexus test. Pet. Ap.

161-17a.

The majority held that Ordinances 1221 and 1599 effect a

“Loretto-type” per se regulatory taking under the federal

constitution. Pet. App. 17a-2la. The majority deemed the

suit ripe on the theory that overflights below 500 feet

constitute a permanent physical occupation of respondent’s

“privately-owned” airspace, and thus give rise to a categorical

right to compensation. /d. at 21a. According to the majority,

respondent could establish such a per se taking even though

he had disavowed any claim that overflights interfered with

the existing use of his property under United States v.

Causby, 328 U.S. 256 (1946), and Griggs v. Allegheny

County, 369 U.S. 84 (1962). Pet. App. 22a-23a. Although

these cases establish when overflights effect a physical

invasion of underlying land, the majority deemed them

irrelevant to any claim of a permanent physical occupation

under Loretto, because neither Causby nor Griggs involved

ordinances regulating the use of land. /d. at 23a.

The. majority also purported to rest its ruling on the Nevada

Constitution. Other than noting that the state constitution

expressly recognizes the right to acquire, possess and protect

property and typically requires compensation be paid before a

taking, the majority identified no difference in the protection

afforded property under the state and federal constitutions.

Instead, it held that a per se taking occurs under Nevada’s

constitution when an agency appropriates or permanently

invades private property for public use without first paying

just compensation. Pet. App. 28a-29a.. It then reiterated its

conclusion that the ordinances effected a permanent physical

occupation of respondent’s airspace — a conclusion it derived

exclusively from this Court’s cases and from interpretations

of the federal constitution by other state courts. J/d. at 23a-

27a. It also affirmed the award of attorney’s fees under the

federal Uniform Act. /d. at 33a-36a.

Justice Becker dissented. She noted that the court’s holding

that the state constitution provides greater protections against

takings than the federal constitution “contradicts over a

century of precedent.” Pet. App. 39a. She observed that,

“other than general statements that the County Ordinances

violated the Federal and State Constitutions, Sisolak never

provided any analysis to support an argument that the Nevada

Constitution provides more expansive rights under eminent

domain.” Jd. She maintained that the case should havé been

decided under Penn Central Transportation Co. v. City of

New York, 438 U.S. 104 (1978). Pet App. 40a. Justice

Maupin likewise dissented. In his view, it was not “necessary

to deviate from federal takings jurisprudence,” and the Penn

Central analysis should have been applied. Jd. at 52a.

REASONS FOR GRANTING THE PETITION

The decision below conflicts with federal law and the

decisions of this and other courts, and has grave implications

for the efficiency and safety of the nation’s air transport

system. In ruling that an owner of a vacant lot owns

navigable airspace less than 500 feet above his land, the

Nevada court ignored Congress’s decision to grant the public

a right of transit through navigable airspace needed to take off

and land safely at airports. Federal law forecloses recognition

of the state law ownership right for which respondent was

compensated in this case. Moreover, the court below

misapplied this Court’s airport takings decisions, which

recognize compensable takings only where overflights

fundamentally interfere with a preexisting use of the land—a

claim respondent expressly waived.

In addition, the finding of a permanent physical invasion of

respondent’s property badly misconstrues this Court’s takings

jurisprudence in a manner that will undermine the ability of

local governments to use zoning laws to prevent hazards to

aviation. This Court’s cases make clear that ordinances that

merely restrict the use of property are subject to an ad hoc

analysis that takes into account whether respondent had any

reasonable, investment-backed expectation that he could

commercially exploit navigable airspace next to a major

airport. Further, in disregarding a valid avigation easement

that should have precluded any claimed taking as to one-half

of respondent’s property, the decision below conflicts with

decisions of this Court and the applicable federal circuit.

By exposing petitioners to massive takings liabilities, the

decision below will have significant and deleterious ripple

effects that threaten the safety and efficiency of the national

air transportation system. The Nevada court’s transparent

attempt to evade certiorari review by purporting to invent, for

the first time, an independent state takings jurisprudence

poses no obstacle to review of its erroneous and harmful

decision. The Nevada court’s decision rests on a fundamental

mistake concerning the scope of the /federally-defined

navigable airspace. Moreover, the state law takings theory

the Nevada court announced does not justify recovery of

-attorneys’ fees under the federal Uniform Act, and thus

cannot provide an independent basis for the judgment in this

case. Accordingly, the Court should grant the petition and

reverse the decision below in order to protect federal law and

the vital national interests implicated by the ruling below.

I. RECOGNITION UNDER STATE LAW OF

PRIVATE OWNERSHIP OF THE NAVIGABLE

AIRSPACE NEEDED FOR SAFE TAKEOFFS AND

LANDINGS RAISES A VITALLY IMPORTANT

QUESTION OF FEDERAL LAW.

A. Federal Law Precludes Recognition Under State

Law Of Private Ownership Of Federally Defined

Navigable Airspace.

The decision below rests on the untenable premise that

private citizens can own navigable airspace needed to ensure

safe takeoffs and landings even when they made no use of

that airspace before it became part of the navigable airspace.

Sixty years ago, this Court recognized Congress’s authority to

place airspace needed for safe navigation in the public

domain. Causby, 328 U.S. at 261. Building on the common

right of passage on navigable waters, Congress gave the

United States “exclusive sovereignty” over the nation’s

airspace, and granted all citizens a “public right of transit”

through the “navigable airspace.” 49 U.S.C. § 40103(a). The

Federal Aviation Act (the Act) authorizes the FAA to define

the “navigable airspace,” including any “airspace needed to

ensure safety in the takeoff and landing of aircraft.” /d.

§ 40102(a)(32). The FAA must exercise this and its other

authorities in light of the Act’s “highest priority,” which is

“maintaining safety.” Jd. § 40101(a)({1).

This safety rationale forms the basis for the regulations

establishing the minimum safe altitudes for flight, which in

turn demarcate the “navigable airspace” through which the

public has a right of transit. To effectuate the statutory

mandate that the safety of takeoffs or landings be ensured, the

FAA created exceptions to the 500-foot threshold when lower

altitudes are “necessary for takeoff and landing.” 14 C.F.R.

§ 91.119. Thus, while “navigable airspace” typically begins

at 500 feet above the ground, that is explicitly not the case in

airport approach zones.

Federal law defines navigable airspace below 500 feet in a

flexible and context-specific fashion. The FAA requires

notice of proposed construction that could affect “safety in air

commerce” or “the efficient use and preservation of the

navigable airspace and of airport traffic capacity at public-use

airports.” 49 U.S.C. § 44718(a). Upon receipt of such notice,

the FAA evaluates a proposal and decides whether it will

create a hazard to air traffic. See generally 14 C.F.R. pt. 77.

Although these determinations do not compel any particular

action by local zoning boards, see, e.g., Aircraft Owners &

Pilots Ass'n v. FAA, 600 F.2d 965, 966-67 (D.C. Cir. 1979),

they determine whether a structure will invade the “navigable

airspace.” See 14 C.F.R. § 91.119 and Part 77, Subpart C.

The decision below cannot be reconciled with this federal

law. Although the Nevada Supreme Court mentions that,

under FAA regulations, the 500-foot threshold does not apply

in takeoff and landing zones, Pet. App. 13a & n.20, it ignores

the implications of that rule. Instead, the court used the 500-

foot threshold to mark the boundary of a state law-based

ownership right in all superadjacent airspace, without

explaining how such ownership can be reconciled with.

federal regulations that define the navigable airspace to

include airspace below 500 feet when necessary to ensure

safe takeoff and landing. The imposition of a 500-foot wall

around airports, justified not by any diminution in property

value or by any preexisting use of the airspace, but instead

justified purely by purported private ownership of airspace, is

flatly inconsistent with federal regulations that, pursuant to an

express delegation from Congress, define the navigable

airspace that is needed to ensure safé air travel and through

which the public has a right of transit. Federal law thus

precludes recognition under state law of private ownership of

airspace the FAA deems necessary for takeoff and landing,

even if that airspace falls below 500 feet, where, as here, the

landowner made no prior use of the airspace before it became

part of the navigable airspace.

B. Recognition Under State Law Of Private

Ownership Of Navigable Airspace Has Profound

And Detrimental Implications For The National

Air Transportation System.

Contrary to the Nevada court’s assertion, Pet. App. 30a

n.88, recognition of private ownership of the navigable

airspace surrounding McCarran has major ramifications. The

Las Vegas region has experienced explosive growth—all of it

long after the airport was built (and much of it, ironically,

fueled by the tourism the airport facilitates). Petitioners

conservatively estimate that the cost of purchasing the

navigable airspace around McCarran could exceed $10

billion. Any response to this staggering potential liability

would have untoward effects on a host of users and

beneficiaries of the national air transportation system.

Even assuming that repeal of the ordinances would enable

petitioners to avoid future takings liabilities,” such a response

would allow landowners to build structures approaching the

height of the Washington Monument immediately next to the

airport. The construction of just one such building in the

glide path of either set of McCarran’s runways would

effectively close the airport to commercial aircraft.’ Repeal

of the ordinances would thus leave McCarran’s continued

operation at the mercy of private developers. A major airport

requiring significant investments for improvements and

maintenance simply cannot operate under such uncertainty.

On the other hand, it is not at all clear that petitioners could

raise the enormous amount of money necessary to purchase

all of the “privately-owned” navigable airspace required for

McCarran’s current operations. And, even if petitioners could

pay for all such airspace, doing so would entail equally

unacceptable consequences. In order to cover the estimated

$10 billion cost of such airspace, petitioners would have to

raise McCarran’s landing fees by the equivalent of $43 per

passenger.’ Such a huge increase would make McCarran’s

landings fees 70% higher than the most expensive landing

* Because it affirmed a judgment measuring damages from the effective

date of the Ordinances, it is not clear whether thé Nevada court would

permit post-repeal suits based on claims that landowners suffered per se

takings from the Ordinances’ effective date until their date of repeal.

If planes cannot descend below 500 fect until they are over airport

grounds, the FAA-prescribed glide angle would force them to land so far

down McCarran’s runways that commercial aircraft could not stop safely.

Due to cross-winds, morcover, McCarran must have both sets of runways

available in order to support regularly scheduled commercial service.

* Federal grant assurances require airports to be as “self-sustaining as

possible,” which compels airports to look to airport resources to make up

budget shortfalls. 49 U.S.C. § 47107(a)(13)(A). As a result, virtually all

airport costs are borne by airport users in one form or another.

fees in the nation. This, in turn, would have a devastating

impact on the airport and the region it serves.

McCarran is the nation’s largest origination and destination

airport — i.e., an airport that serves not as a hub, but as the

ultimate destination for travelers. Because most travelers to

McCarran are vacationers, service to the airport is very price-

sensitive. Thus, carriers, particularly those that specialize in

low-fare travel, cannot readily pass increased costs on to their

customers. In fact, Southwest Airlines has already threatened

to curtail service if McCarran increases fees as a result of any

judgments it incurs in takings lawsuits. Richard N. Velotta,

Lawsuits could prompt cuts at airport, Las Vegas Sun, May

28, 2003, at Cl. Because “‘two customers on each flight

represent our entire profit,” Southwest expects its McCarran

flights would operate at a loss if landing fees merely doubled,

and that it would have to curtail service. Jd. Southwest is a

leading “low-cost” carrier at McCarran, and a reduction in its

substantial service to Las Vegas would reduce price

competition, lead to increased fares, and ultimately reduce the

number of travelers to a city where nearly half of all visitors

arrive by plane. McCarran Int’! Airport, Current Projects, af

http://www.mcecarran.com/04 05 CurProjects.asp (last visit-

ed Nov. 8, 2006); see Tony Cook, High price for low

buildings, Las Vegas Sun, July 25, 2006, at Al. A decrease

in the number of passenger flights would force petitioners to

raise landing fees even higher, which would lead to a vicious

cost-spiral as fewer flights are forced to pay for the navigable

airspace around the airport.

Even if increased fees did not cause a decline in passengers,

the huge expense of purchasing that airspace would prevent

petitioners from building Ivanpah, a new supplemental airport

45 miles from Las Vegas that is projected to open in 2017.

McCarran itself is expected to reach full capacity as early as

2012. Without Ivanpah, petitioners cannot meet future

passenger demand, to the detriment of the Las Vegas region.

See /vanpah Airport Plans Need To Get Off The Runway, In

Business Las Vegas, Oct. 20 - Oct. 26, 2006 (delays in the

construction of the new airport “could prove disastrous with a

new boom happening”). And, because airports operating at

peak capacity inevitably spawn delays, petitioners’ inability

to build Ivanpah will inconvenience travelers to and from Las

Vegas in future years, and add strains on the highly complex

and interdependent air traffic system. See FAA, Land Use

Compatibility and Airports: A Guide for Effective Land Use

Planning, V-1 (2005), available at www.faa.gov/about/

office _org/headquarters offices/aep/planning toolkit/media/

III.B.pdf. (“what happens at an individual airport may affect

other airports within the system’’); American Airlines, Inc. v.

Town of Hempstead, 272 F. Supp. 226, 233 (E.D.N.Y. 1967)

(“Every .. . take-off and landing is a moving part in a vast

complex of regional aircraft traffic control”), aff'd, 398 F.2d

369 (2d Cir. 1968).

To mitigate these problems, petitioners may be forced to

purchase less than all of the navigable airspace needed to

maintain current operations. For example, petitioners might

choose not to purchase certain navigable airspace necessary to

ensure the safe departure of aircraft capable of flying to

international destinations, or even the east coast. This could

allow petitioners to avoid a meaningful portion of the overall

takings liability that the decision in this case will otherwise

impose. But the takings “savings” would come at significant

operational costs, both at McCarran and elsewhere.

Without this navigable airspace, many planes currently

used to provide service to Las Vegas would be unable to take

off fully loaded with all of the fuel necessary to make certain

long-distance flights, especially in the hotter summer months.

If airlines cannot operate such long-distance flights safely or

economically out of McCarran, more long-distance travelers

would have to switch planes elsewhere in order to reach the

city. This would have ripple effects in hubs where Las

Vegas-bound or -returning passengers would have to change

planes, and where more flights would be necessary to meet

passenger demand to and from Las Vegas. It would also

exacerbate congestion at McCarran, as more flights would be

needed to carry the number of passengers that currently arrive

and depart via fully-loaded aircraft. This, in turn, has

implications for the federal government’s management and

operation of the complex Air Traffic Control system and for

airlines and customers at affected hubs. Finally, it would

undermine the significant federal investment ($155 million

over the past 10 years) made to expand McCarran’s capacity

in terms of numbers and size of aircraft.

In short, the massive takings liability the Nevada courts

have imposed on a major national airport will inescapably and

severely undermine the fundamental goals of the Federal

Aviation Act, which seeks to maintain the highest degree of

safety in air travel, and to promote “the availability of a

variety of adequate, economic, efficient, and low-priced

services.” 49 U.S.C. § 40101(a)(4). To paraphrase John

Donne, no airport is an island unto itself. The reality is that

“{ljocal planning for airport growth cannot be accomplished

without consideration of national, state and regional needs.”

FAA, Land Use Compatibility and Airports: A Guide for

Effective Land Use Planning, V-1. Recognition of private

ownership of the navigable airspace outside McCarran will

place an enormous strain on one of the largest cogs in this

highly complex and interdependent system, and that strain

will inescapably burden this vital network as a whole —

through sharply increased costs, severely reduced capacity,

increased congestion, or (most likely) some combination of

these untoward problems. This Court should therefore grant

the petition to forestall these deleterious impacts.

C. Recognition Under State Law Of Private

Ownership Of The Navigable Airspace Conflicts

With The Decisions Of This And Other Courts.

The decision below conflicts with the decisions of this

Court and those of other state courts, which have recognized

that navigable airspace, including that necessary for takeoff

and landing, is in the public domain, and have found takings

only in extreme circumstances wholly missing here.

The Nevada Supreme Court believed that, in Causby, 328

U.S. at 263-64, this Court recognized that landowners own all

of the useable space above their property. It likewise read

Griggs, 369 U.S. at 89-90, as establishing that, “although

airplanes may fly below 500 feet when necessary for takeoff

and landing, this right does not divest the property owner of

his protected property right to his usable airspace.” Pet. App.

13a-14a. These readings of Caushy and Griggs are

fundamentally mistaken. In fact, respondent stipulated to the

dismissal of any Causby/Griggs-type takings claim, and for

good reason: these cases recognize takings only where low

and frequent overflights egregiously interfere with pre-

existing uses of the land itself.

Causby made clear that takings claims based on overflights

should not normally prevail “in the modem world... .

Common sense revolts at the idea.” 328 U.S. at 261. The

Court adopted Congress’ view that “[t]he air is a public

highway,” id., and specifically distinguished the case before it

from claims, like this one, involving mere overflights. “To

recognize such private claims to the airspace would clog these

highways, seriously interfere with their control and

development in the public interest, and transfer into private

ownership that to which only the public has a just claim.” Jd.

The Court found a taking on the facts before it, however,

because the low and frequent overflights destroyed Causby’s

chicken farm. “The superadjacent airspace at this low altitude

is so close to the land that continuous invasions of it affect the

use of the surface of the land itself”’ Id. at 265 (emphasis

added). Thus, the Court did not recognize a taking based on

an invasion of any airspace below 500 feet, or even the

invasion of airspace that a landowner might someday seek to

develop. Rather, it held that “[f]lights over private land are

not a taking, unless they are so low and so frequent as to be a

direct and immediate interference with the enjoyment and use

of the land.” Id. at 266 (emphasis added).

Griggs reaffirmed this holding. It found a taking where an

airport constructed a new runway so close to petitioner’s

preexisting home that aircraft taking off routinely passed

within 30 fect of the home, rendering it essentially

uninhabitable. 369 U.S. at 87-89. Thus, like Causby, Griggs

did not recognize an ownership right in all superadjacent

airspace below 500 feet, or in all potentially usable

superadjacent airspace. Instead, Griggs, like Causby, found a

taking only where overflights destroyed the preexisting use of

the land.

Here, by contrast, overflights do not destroy any preexisting

use of respondent’s property. Indeed, that property was

vacant when respondent acquired it 40 years after the airport

was built. Moreover, the fact that the County approved two

commercial uses of the property demonstrates that overflights

do not prevent “enjoyment and use of the land” itself.

Causby, 328 U.S. at 266. The decision of the Nevada court

thus conflicts with Causby and Griggs. It ignores this Court’s

recognition that navigable airspace is in the public domain,

and this Court’s requirement that, in overflight cases, a taking

is established only if flights are so low and frequent that they

significantly impair the use of the subjacent land itself.

The ruling below also conflicts with the decisions of

numerous State courts. In Cheyenne Airport Board v. Rogers,

the Wyoming Supreme Court held that zoning restrictions on

the height of objects near an airport were not a taking, even

where they compelled the destruction of a tree that had grown

beyond approved limits. 707 P.2d 717, 732 (Wyo. 1985). On

the contrary, it was the object on the ground that was

responsible for the encroachment on the sovereign airspace,

and the zoning ordinance did not take plaintiff's property by

protecting the airspace against incursions by “activities on the

surface.” /d. at 725. Florida and Illinois courts have reached

the same conclusion. See Harrell’s Candy Kitchen, Inc. v.

Sarasota-Manatee Airport Auth., 111 So. 2d 439, 444 (Fla.

1959) (no taking where building height limited to 27.64 feet);

La Salle Nat’l Bank vy. Cook County, 340 N.E.2d 79, 89 (Ill.

App. Ct. 1975) (rejecting takings challenge to height

restrictions near airport). Similarly, the Ohio Supreme Court

held that a takings claim does not lie simply because it would

be “physically possible” to build into navigable airspace;

where owners did not previously make use of airspace above

their land and it was not reasonably foreseeable that they

would do so, they had no compensable property interest in

such airspace. Village of Willoughby Hills v. Corrigan, 278

N.E.2d 658, 664-65 (Ohio 1972). And the Texas Supreme

Court rejected a takings claim brought by an owner of a

vacant lot, holding that the mere invasion of airspace above

property does not constitute a per se taking. City of Austin v.

Travis County Landfill Co., 73 S.W.3d 234, 242 (Tex. 2002).

The Texas Supreme Court explained that a landowner “has no

right to exclude overflights above its property, because

airspace is part of the public domain.” Jd.

The decision of the Nevada Supreme Court also conflicts

with decisions of the Federal Circuit, which has likewise

recognized that “[p]rivate property interests simply do not, as

a general matter, exist in the navigable airspace of the United

Siates,” Air Pegasus of D.C., Inc. v. United States, 424 F.3d

1206, 1219 (Fed. Cir. 2005), and that navigable servitudes

666

constitute a “‘pre-existing limitation upon the landowner’s

title.’”” Palm Beach Isles Assocs. v. United States, 208 F.3d

1374, 1384 (Fed. Cir.), (quoting Lucas v. South Carolina

Coastal Comm’n, 505 U.S. 1003, 1028-29 (1992)), aff'd on

reh'g, 231 F.3d 1345 (Fed. Cir. 2000), overruled on other

grounds, Bass Enters. Prod. Co. v. United States, 381 F.3d

1360 (Fed. Cir. 2004).

x * * *

The Nevada Supreme Court’s conclusion that respondent

owns navigable airspace above his land is plainly erroneous,

conflicts with the decisions of this Court and the decisions of

other state and federal courts, and will have significant and

deleterious effects on the national air transportation system.

This Court should grant the petition and reverse that decision.

If. THE NEVADA SUPREME COURT’S FINDING OF

A PER SE REGULATORY TAKING IS ERRON-

EOUS AND CONFLICTS WITH THE DECISIONS

OF THIS AND OTHER COURTS.

Having improperly recognized private ownership of the

navigable airspace, the Nevada Supreme Court compounded

its error by ruling that local ordinances that merely restrict the

use of property in order to protect such airspace from

potential hazards effect a per se taking. That ruling plainly

conflicts with the decisions of this Court and raises important

questions of federal law. Similarly, the Nevada court’s

conclusion that petitioners’ avigation easement provided no

defense to such a takings claim is flatly inconsistent with this

Court’s decisions, and conflicts with a Ninth Circuit decision.

A. The Nevada Court’s Conclusion That Use

Restrictions Constitute A Per Se Taking Conflicts

With The Decisions Of This Court.

The conclusion of the Nevada Supreme Court that the

ordinances at issue in this case constituted per se takings is

directly at odds with this Court’s precedents, particularly

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.

419 (1982) and Penn Central itself. This Court has explained

that there are only “two categories of regulatory action that

generally will be deemed per se takings.” Lingle v. Chevron

U.S.A. Inc., 544 U.S. 528, 538 (2005). The first is where

“government requires an owner to suffer a permanent

physical invasion of her property.” /d. (citing Loretto). The

second is where regulations “completely deprive an owner of

‘all economically beneficial us[e]’ of her property.” /d.

(alteration in original) (quoting Lucas v. South Carolina

Coastal Council, 505 U.S. 1003, 1019 (1992)). “Outside of

these two relatively narrow categories (and the special context

of land-use exactions ...) regulatory takings challenges are

governed by the standards set forth in Penn Central.” Id.

The ordinances at issue here are plainly restrictions on the

use of property subject to Penn Central’s ad hoc takings

analysis. They limit the height of structures, and thus govern

the manner in which property may be used. This is confirmed

by the variance procedures, which respondent’s predecessor-

in-interest and a would-be purchaser used to gain approval for

proposed structures on the property above the specified height

limits following FAA determinations that these structures

would not pose hazards to air safety. Indeed, the Nevada

Supreme Court itself recognized that “this case does involve

ordinances affecting use of property. Pet. App. 23a.

The court nevertheless concluded that the ordinances

effected a per se taking within the meaning of Loretto. A

Loretto-type taking, however, requires a permanent physical

occupation of land compelled by a regulation, not restrictions

on land use. Absent such a compelled invasion (or its

functional equivalent), ordinances that simply restrict use of

property cannot effect a per se Loretto-type regulatory taking.

Loretto makes clear that a per se regulatory taking based on

a physical invasion requires a permanent physical invasion of

land or real estate. It traced the origins of this category of per

se takings to Pumpelly v. Green Bay Co., 80 U.S. (13 Wall)

166 (1872), and the Court’s conclusion that, “‘where real

estate is actually invaded by superinduced water,’” a taking

occurs. Loretto, 458 U.S. at 427 (emphasis added) (quoting

Pumpelly, 80 U.S. at 181). Loretto explained that later cases

characterized Pumpelly “as involving ‘a physical invasion of

the real estate of the private owner,’” id. at 428 (emphasis

added) (quoting Northern Transp. Co. v. Chicago, 99 U.S.

635, 642 (1879)), and “clearly establish that permanent

occupations of /and... are takings.” Jd. at 430 (emphasis

added).

Loretto cited Causby and Griggs as cases that “confirm the

distinction between a permanent physical occupation, a

physical invasion short of an occupation, and a regulation that

merely restricts the use of property.” Jd. It noted that, in

Causby, the Court found a taking because low and frequent

overflights imposed a loss on the landowner “‘as complete as

if the United States had entered upon the surface of the land

and taken exclusive possession of it.”” Jd. (emphasis added)

(quoting Causby, 328 U.S. at 261). Such overflights caused

an “intrusion so immediate and direct as to subtract from the

owner’s full enjoyment of the property and... limit[ed] his

exploitation of it.”” Jd. at 431 (emphasis added) (quoting

Causby, 328 U.S. at 265, 265-66). Thus, a central element of

a Loretto-type per se taking is a permanent physical invasion

of land or an invasion of superadiacent airspace so severe that

it is effectively an invasion of the land itself.

The decision below squarely conflicts with Loretto. The

fact that respondent waived any Causby/Griggs claim

prevented him from establishing a central element of a per se

taking under Loretto: a physical invasion of land (or its

functional equivalent). Thus, even if zoning laws that merely

prevent air traffic hazards could be viewed as compelling

(within the meaning of Loretto) a Causby/Griggs-type

physical invasion of land, there was no such invasion here.

Loretto also confirms that local regulations that permit

third-parties temporarily to invade or occupy property do not

constitute per se takings. Loretto explained that the Court

had not found per se takings where the federal government

claimed a navigable servitude that permitted members of the

public to enter a privately-owned marina, or where California

compelled a shopping center to permit advocacy speech on its

premises. /d. at 433-34 (discussing Kaiser Aetna v. United

States, 444 U.S. 164 (1979) and PruneYard Shopping Ctr. v.

Robins, 447 U.S. 74 (1980)). Loretto stressed that while a

physical invasion “is a government intrusion of an usually

serious character,” it is not a per se taking if the invasion is

temporary, rather than permanent.

The invasions of the airspace above respondent’s property

are temporary under Loretto and its reading of Kaiser and

PruneYard. The fact that the ordinances grant “permanent

permission” for such temporary invasions, Pet. App. 26a, is

irrelevant. It is the physical occupation itself, not the laws

permitting or compelling that occupation, that must be

permanent. Indeed, the ordinances are no more permanent

than the servitude imposed in Kaiser, or the constitutional

mandates that compelled access in Prune Yard.

Finally, in Penn Central, this Court flatly rejected the very

type of per se taking claim that the Nevada court recognized.

Under the Landmarks Law at issue in Penn Central, the

property owner was denied the ability to use “air rights” to

construct a building above Grand Central Terminal. In

language directly applicable here, the Court explained that a

claim that property owners “may establish a ‘taking’ simply

by showing that they have been denied the ability to exploit a

property interest [“air rights”] that they heretofore had

believed was available for development [wa]s quite simply

untenable.” Penn Cent., 438 U.S. at 130.

The conflict with this Court’s decisions is extremely

important. As noted above, the FAA relies on local land use

restrictions to prevent air traffic hazards and thereby promote

air safety. Indeed, recipients of federal aviation-related grants

are obligated to ensure that airspace is clear of all present and

future hazards, 49 U.S.C. § 47107(a)(9); 14 C.F.R. § 77.3(a),

and the ordinances at issue here closely mirror the FAA

Model Ordinance. The Nevada Supreme Court’s conclusion

that these ordinances effect per se takings scriously under-

mines this pillar of the air safety system.

First, the many untoward consequences of recognizing

private ownership of the navigable airspace around McCarran

are compounded by the Nevada court’s per se takings

analysis. Under a Penn Central analysis, many of the

“owners” of this navigable airspace would have great

difficulty establishing that the ordinances caused any taking at

all. For example, absent an FAA “no hazard” determination,

structures in takeoff and landing zones cannot readily obtain

insurance, see Air Line Pilots Ass’n Int’l v. Department of

Transp., FAA, 446 F.2d 236, 241 (Sth Cir. 1971)—a fact that

would seriously impede any showing of a_ reasonable

investment-backed expectation by “owners” that they could

commercially exploit this “property.” Moreover, under a

Penn Central analysis, petitioners could, consistent with FAA

rulings, use the variance procedure to avoid or mitigate

takings liability. By precluding such inquiries, the per se

takings ruling greatly increases petitioners’ financial

exposure, which in turn forces petitioners to respond with

measures that will inescapably affect and impair the

nationwide air traffic system.

Second, a decision to allow the Nevada Supreme Court’s

decision to stand could lead other state courts to employ the

same mistaken per se analysis to identical or comparable

ordinances around the nation. Given the fundamentally

important role local zoning restrictions play in ensuring air

safety, the issue of whether such ordinances cause per se

takings should not be allowed to “percolate” in the state court

systems. The decision in this case is clearly erroneous,

conflicts with Loretto, and (if left undisturbed) will impair

and disrupt the national air safety system. The Court should

grant review now, to prevent impairments or disruptions from

similarly misguided state court decisions.

B. The Nevada Supreme Court’s Refusal To Give

Effect To A Valid Avigation Easement Conflicts

With This Court’s Precedents And With A

Decision Of The Ninth Circuit.

The Nevada Supreme Court also erred by refusing to give

effect to petitioners’ perpetual avigation easement, reasoning

that “an uncompensated easement as a condition to

development is improper and cannot be used by the County as

a defense to the taking of a landowner’s airspace without

compensation.” Pet. App. 16a. Quoting selectively from

Nollan v. California Coastal Commission, 483 U.S. 825

(1987), the Nevada court stated that “‘to obtain easements of

access across private property the State must proceed through

its eminent domain power,’ because ‘requiring uncompen-

sated conveyance of [an] easement outright would violate the

Fourteenth Amendment.’”” Pet. App. 16a-17a (alteration in

original) (quoting Nollan, 483 U.S. at 832, 834). In fact, the

Nevada court’s disposition of petitioners’ easement defense is

flatly inconsistent with Nollan.

In Nollan, this Court did not hold that States must acquire

easements through eminent domain. Although it observed

that the agency in that case might not be able, as a matter of

California law, to acquire easements except through eminent

domain, Nollan, 483 U.S. at 841-42, this Court held that, as a

matter of federal constitutional law, States can require that

easements “be conveyed as a condition for issuing a land-use

permit.” Jd. at 834. Such an easement must “serve[] the

same governmental purpose as the development ban,” id. at

837, and must be roughly proportional to the impact of the

development permitted. See Dolan v. City of Tigard, 512

U.S. 374 (1994). If these conditions are met, the easement is

not an “uncompensated” taking at all. The Nevada Supreme

Court’s conclusion that No/lan flatly barred petitioners from

obtaining an easement from respondent’s predecessor-in-

interest, without regard to the nexus and proportionality

standards, is a complete perversion of No/lan’s rationale.

This erroneous refusal to give effect to petitioners’

avigation easement compounds the many untoward effects of

its mistaken recognition of private ownership rights in the

navigable airspace around McCarran. As the court noted,

“similar avigation easements are recorded against property

throughout Clark County as a condition of building permits.”

Pet. App. 16a. By eliminating these easements as defenses to

takings claims by other landowners, the Nevada court

significantly increased petitioners’ potential liability, which,

as noted above, will force petitioners to respond with

measures that will affect the nationwide system.

Finally, the Nevada court’s disposition of the avigation

easement conflicts with the Ninth Circuit’s ruling that a

landowner cannot bring a takings claim based on a physical

occupation where his predecessor-in-interest had granted an

easement in order to obtain a development permit. In Daniel ©

v. County of Santa Barbara, 288 F.3d 375, 383 (9th Cir.

2002), the Ninth Circuit concluded that, in such

circumstances, the successor-in-interest has not been deprived

of any property for which compensation is due. If the

easement fails the Nollan/Dolan nexus and proportionality

standards, the resulting taking occurred when the easement

was granted. “‘A landowner who purchased land after an

alleged taking cannot avail himself of the Just Compensation

Clause because he has suffered no injury.’”” /d. (quoting

Carson Harbor Village Ltd. v. City of Carson, 37 F.3d 468,

476 (9th Cir. 1994)). In such a situation, the property for

which the successor seeks compensation was not part of the

property he purchased, because it was appropriated from the

prior owner.

Under the Ninth Circuit’s reasoning, the avigation easement

was a valid defense to respondent’s taking claim. Half of his

land was subject to the easement when he bought it. Thus,

even assuming that his predecessor owned all airspace up to

500 feet above the land, the right to the airspace encompassed

by the easement was taken from the predecessor as a

condition of the development permit, and was not conveyed

to respondent when he purchased the land.

The Nevada court’s reasoning in this case cannot be

reconciled with the reasoning in Daniel. This split of

decisional authority between a state supreme court and a

federal circuit encompassing that state provides yet another

reason to grant the petition.

II. THE DECISION IN THIS CASE DOES NOT REST

ON AN ADEQUATE AND INDEPENDENT STATE

LAW GROUND.

Tacitly recognizing the impropriety of its analysis, the

majority purported to ground its per se taking conclusion in

the state constitution. /d. This aspect of the court’s decision,

however, does not shield its analytical errors from review.

This part of the decision is not “adequate to support the

judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991).

To begin with, the Nevada court’s conclusion that

respondent owned the navigable airspace above his land does

not rest on an independent and adequate state law ground.

The court relied on FAA regulations to determine the scope of

this ownership right. The court’s clear misunderstanding

concerning the scope of the “navigable airspace” rests entirely

on an error of federal, not state, law, and that error was

indispensable to the judgment in this case.

Moreover, even if the court had based ownership of the

navigable airspace entirely on state law, this would still raise

a federal question. Federal law expressly grants a public right

of transit through all navigable airspace. Recognition under

state law of private ownership of this airspace, therefore,

raises a question of federal supremacy. Thus, even assuming

there is any fair or substantial support for the conclusion that

a per se taking can be found under Nevada’s constitution

where none can be found under the federal constitution,’ the

* In the rare situations where state courts have purported to rely on state

law to evade review, this Court has properly looked behind the ruling to

determine whether the purported non-federal grounds for decision are

“without any fair or substantial support.” Ward v. Board of County

Comm'rs, 253 U.S. 17, 22-23 (1920); see also NAACP v. Alabama ex rel.

Patterson, 357 U.S. 449, 456-57 (1958); Bouie v. City of Columbia, 378

U.S. 347, 361-62 (1964); Bush v. Gore, 531 U.S. 98, 115 (2000)

(Rehnquist, C.J., concurring).

Nevada court’s invocation of the state constitution poses no

obstacle to review of the first question presented.

Nor does the majority’s ipse dixit concerning the state

constitution pose a barrier to review of the second question

presented. The judgment entered in this case inescapably

rests on the court’s finding of a per se taking under the federal

constitution. That judgment includes over $2 million in fees

and costs awarded under the federal Uniform Act. That act

permits awards of attorneys fees to successful plaintiffs in

takings actions brought under two federal statutes, see 42

U.S.C. § 4654(¢), both of which permit claims “founded

either upon the Constitution, or any Act of Congress or any

regulation of an executive department.” 28 U.S.C.

§§ 1346(a)(2), 1491. Whatever the propriety of applying the

Uniform Act to state agencies that effectuate takings,” the Act

authorizes fee awards only for a takings claim founded upon

federal law. Thus, the judgment awarding over $2 million in

attorneys fees in this case must rest on the Nevada court’s

erroneous finding of a per se taking under the federal

constitution. Accordingly, this aspect of the decision is

plainly subject to review by this Court. For the reasons

already stated, the decision warrants review and reversal.

CONCLUSION

For the foregoing reasons, the petition for a wnt of

certiorari should be granted.

° See, e.g., West Va. Dep't of Transp. v. Dodson Mobile Homes Sales &

Servs., Inc., 624 $.E.2d 468, 472-73 (W. Va. 2005); Wolfson v. City of St.

Paul, 558 N.W.2d 781, 783 (Minn. Ct. App. 1997).

DAVID J. J. ROGER

DISTRICT ATTORNEY

E. LEE THOMSON

DEPUTY DISTRICT ATTORNEY

500 South Grand Central Parkway

Fifth Floor

Las Vegas, Nevada 89109

(702) 455-4761

KIRK B. LENHARD

R. DOUGLAS KURDZIEL

SCOTT M. SCHOENWALD

JONES VARGAS

3773 Howard Hughes Parkway

Third Floor South

Las Vegas, Nevada 89109

(702) 862-3300

Respectfully submitted,

CARTER G, PHILLIPS*

JOSEPH R. GUERRA

PETER C, PFAFFENROTH

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

LORI POTTER

DANIEL S. REIMER

THOMAS R. DEVINE

ARTHUR P. BERG

KAPLAN KIRSCH &

ROCKWELL LLP

1675 Broadway,

Suite 2300

Denver, Colorado 80202

(303) 825-7000

Counsel for Petitioners

November 8, 2006

* Counsel of Record

APPENDIX

APPENDIX A

SUPREME COURT OF NEVADA

No. 41646

McCCARRAN INTERNATIONAL AIRPORT and CLARK COUNTY,

a Political Subdivision of the State of Nevada,

Appellants,

STEVE SISOLAK,

Respondent.

July 13, 2006

Before the Court En Banc.’

OPINION

HARDESTY, J.

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.

' The Honorable Deborah A. Agosti, Senior Justice, was appointed by

the court to sit in place of the Honorable Robert E. Rose, Chief Justice,

who voluntarily recused himself from participation in the decision of this

matter. Nev. Const. art. 6, § 19: SCR 10.

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-type’ regulatory per se taking occurred, requiring an

award of just compensation. Accordingly, we affirm the

district court’s judgment.

FACTS

The property

Since 1955, the County has restricted the height of build-

ings 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.” 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

° See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419,

102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).

* Sisolak purchased the first five-acre parcel in 1983. In 1986, he

purchased an additional five acres, consisting of two smaller parcels

tending to destroy or impair the utility and capacity of [public

use airports] and the public investment therein.”

Under Ordinance 728, Sisolak’s property was in a gener-

alized 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

clevation than the established airport clevation, and due to the

varying clevations on the property itself, Ordinance 728

actually imposed restrictions limiting the height of struc-

tures on his property to between 80 and 90 fect 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.

* Clark County, Nev., Ordinance 728 (Feb. 3, 1981).

First, the County adopted Ordinance 1221, amending Ordi-

nance 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.” 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.

[n 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 | for a horizontal

distance of 20,000 fect 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 arid 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

> Ordinance 1221 defined the runway approach zone as an airspace

extending to a horizontal distance of fifty thousand feet from the runway,

limiting an owner's use of airspace one foot above ground level for every

50 fect away from the runway for the first ten thousand feet and to a 40:1

slope restriction (one foot above ground level for every 40 feet away from

the runway) for the remaining forty thousand feet.

1599 provided for a variance procedure similar to that in

Ordinance 1221.

In addition to the height restrictions created by the Ordi-

nances, Sisolak’s property was burdened by a perpetual

avigation easement granted by Sisolak’s predecessor in inter-

est in response to a demand by the County in approving a

development application.° The easement authorized aircraft

flights over one half of the property’ 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 ease-

ments since at least 1973 as a standard precondition for devel-

opment 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 pro-

posed building plans to the FAA and the County for approval.

" An avigation casement is “a signed, acknowledged recognition of the

right of overflight from any airport, including the right to make the noise

necessary to operate the aircraft operating from such an airport.” Clark

County, Nev., Code § 30.08.030 (2005).

"Only the second five-acre parcel acquired by Sisolak was proposed

tor development by the predecessor in interest. Therefore, the easement

encumbered only half of Sisolak’s property.

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 plan-

ner 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 com-

mence 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 com-

plained that the height restrictions constituted a per se taking

of his property under the United States and Nevada Con-

stitutions. Further, Sisolak alleged that low and frequent

flights over his property from McCarran Airport devalued the

property by subjecting it to noise, dust, and fumes and con-

stituted a compensable taking. The County denied Sisolak’s

allegations.

Sisolak then filed a motion for summary judgment on the

liability issue, in which he asserted that, under state and

federal law, he had a property interest in the airspace up to

500 feet.” He argued that the County, by passing various

ordinances, denied him the use of the airspace above the

property by appropriating it for public use, which constituted

a per se taking. Claiming that the occupancy of his airspace

substantially decreased the value of his land, Sisolak de-

manded just compensation.

In support of his position, Sisolak submitted a video re-

cording taken from the vacant land that showed planes flying

over the property. Neither the airport nor Sisolak provided

records showing the exact number of planes using the air-

space or at what altitude the planes flew over Sisolak’s

property. Instead, Sisolak relied on estimates to assert that,

on average, approximately 100 planes per day used his

airspace at altitudes below 500 feet.

Opposing Sisolak’s motion, the County filed a counter-

motion for summary judgment, arguing that Sisolak did not

have a vested property interest in the airspace over his land.

According to the County, Sisolak had failed to demonstrate a

per se taking because he had not shown that the flights over

his land were so low and so frequent as to deprive him of the

existing use of the property. Further, the County contended,

the Ordinances did not require Sisolak to acquiesce to a

physical invasion of the property and, in any case, Sisolak’s

claim was not ripe because he had never been denied a

variance.

After a hearing, the district court denied Sisolak’s motion,

finding that genuine issues of material fact remained re-

“ The airspace above 500 feet constitutes “navigable airspace,” defined

as “airspace above the minimum altitudes of flight prescribed by regu-

lations . . . including airspace needed to ensure safety in the takeoff and

landing of aircraft,” and is considered to be in the public domain. 49

U.S.C. § 40102(a 30) (2000).

garding whether Sisolak was injured by the County’s use of

the airspace. Although the district court agreed with Sisolak

regarding the inverse condemnation law, it could not discern

from the evidence whether the County unequivocally agreed

that aircraft flew through Sisolak’s airspace at altitudes lower

than 500 feet. Subsequently, the district court indicated that

the flights would constitute a per se taking if Sisolak showed

that his property was subject to overflights at altitudes lower

than 500 feet.

Approximately two months later, the parties provided three

items of evidence regarding the flight of aircraft below 500

feet. First, the parties filed a portion of the deposition of a

McCarran Airport employee, in which the employee testified

that it was “more likely than not” that, on occasion, aircraft

flew over Sisolak’s property at altitudes lower than 500 feet,

but that he was unable to specify the exact altitudes. £*-ond,

they supplied a map depicting flight tracks for Mcvwarran

Airport that indicated that a flight track went over Sisolak’s

property. Third, the parties presented the County’s response

to Sisolak’s first set of interrogatories in which the County

acknowledged that “[u]pon visual observation, defendants

believe that aircraft have flown over the subject property at an

altitude lower than 500 feet.”

The district court found that the evidence established that

airplanes were flying through Sisolak’s airspace at an altitude

lower than 500 feet. Accordingly, the district court held that

Sisolak had established a prima facie case for a per se taking,

relying on Loretto v. Teleprompter Manhattan CATV Corp.,”

Kaiser Aetna v. United States,'° and Nollan vy. California

Coastal Commission.''

* 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).

' 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979).

'' 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987).

Subsequently, the County tiled a motion to amend the

court’s order or, in the alternative, to dismiss Sisolak’s com-

plaint. In its motion, the County argued that the order was

inconsistent with the district court’s prior orders and deci-

sions, specifically, that the district court’s previous decisions

were premised on the use of the airspace above Sisolak’s land

and that the order granting summary judgment was based on

the Ordinances.

Alternatively, the County argued that if the district court

did not amend its order, it should dismiss Sisolak’s com-

plaint on ripeness grounds. Citing Pennsylvania Coal Co. v.

Mahon,'* the County argued that a regulatory takings case Is

only ripe for adjudication when the landowner exhausts all

administrative remedies. According to the County, Sisolak

had never applied for a variance; therefore, Sisolak’s takings

claim was not ripe for review. Sisolak opposed the motion,

claiming that his argument had always been that the effect

of the Ordinances was a physical invasion of his airspace,

resulting in a per se takings claim and that, therefore, exhaus-

tion of administrative remedies was not necessary. The

district court denied the motion to amend.

Trial

After the district court held that the Ordinances effected a

per se taking of Sisolak’s private property, the matter pro-

ceeded to trial for the determination of just compensation duc.

The parties stipulated to dismiss all claims raised in the

complaint concerning noise, dust, fumes, fucl, particles and/

or vibrations caused by or resulting trom the operation of

aircraft over Sisolak’s property.

One of Sisolak’s experts testified regarding devaluation

of Sisolak’s property caused by the Ordinances. This ex-

pert appraised the property for its highest and best use at

'- 260 U.S. 393, 43 S.Ct. 158. 67 L.Ed. 322 (1922).

10a

$10,890,000, as of May 2001, taking into account Ordinance

728, but not Ordinances 1221 and 1599. According to this

expert, the property’s best use in the “before condition”

would be a hotel or timeshare with a height of approximately

110-180 feet. To determine the extent of the taking, the

expert subtracted the value in the “before condition” from the

property’s value in the “after condition,” the highest and best

use of the property after taking into account the height

restrictions. Despite the fact that, if strictly enforced the

Ordinances prevented Sisolak from building any structure

exceeding 3 to 10 feet on his property, Sisolak only sought

damages for the area above 66 feet, the extent of the variance

previously granted by the County for the proposed Forbidden

City project. As a result, the expert, working under the

assumption that a developer could build to a height of 66 feet,

calculated that Sisolak’s property was worth $4,791,000 in

the “after condition.” Therefore, Sisolak’s first expert con-

cluded that the taking was worth $6,980,000.

Sisolak’s second expert also concluded that the highest and

best use of the property, without considering Ordinances

1221 and 1599, would be a hotel, casino or timeshare, since

that was the trend in the surrounding area,'° and that the prop-

erty was worth $12,200,000 for these uses. After appraising

Sisolak’s property at $5,230,000 in the “after condition,” with

the assumption that Sisolak could build to 66 feet, this expert

concluded that the taking resulted in a loss to Sisolak of

$6,970,000.

The County’s expert witness did not consider a smaller

scale casino to be appropriate on the property, since it would

mainly rely on local residents for support and the area sur-

'? Across the street from Sisolak’s property are two new three-story

hotels. These properties do not fall within the critical departure zone.

Thus, they are subject to less strict height restrictions than Sisolak’s

property

lla

rounding Sisolak’s property did not have the population

density necessary for such a project. According to the

County’s expert, the highest and best use of the property

would be a commercial development, four- to five-story

timeshare or hotel, such as those recently built in the vicinity.

This expert appraised Sisolak’s property, in the “before

condition,” at $6,735,000.

With respect to the Ordinances’ impact, the County expert

stated that they did not negatively influence Sisolak’s prop-

erty. After the enactment of Ordinance 1221, according to

this expert, property values in the area had continued to

increase and property development had commenced. Taking

into consideration that more regulated property is less

desirable than property with fewer restrictions, the County’s

expert appraised Sisolak’s property at $6,535,000 in the after

condition, thus estimating a loss of $200,000.

Over the County’s objection, the district court instructed

the jury that it “must determine the fair market value of

Mr. Sisolak’s property after the imposition of Ordinances

1221 and 1599, under the condition that a variance would be

granted to construct a building no higher than 66 feet above

ground level.” The jury then returned a verdict in Sisolak’s

favor for $6,500,000. Subsequently, the district court entered

a judgment in inverse condemnation and awarded Sisolak a

total of $16,617,730.68, reflecting the $6,500,000 jury award,

$107,730.68 in costs, $1,950,000 in attorney fees, and

$8,060,000 in interest.

The County appeals. The American Planning Association,

Air Transport Association of America, Inc., Airports Council

International-North America and the Airport Authority of

Washoe County filed amicus curiae briefs in support of the

County’s position on appeal.

|2a

DISCUSSION

We must determine whether Sisolak had a valid property

interest in the airspace over his property; whether the height

restrictions constituted a regulatory per se taking of the prop-

erty, and whether the district court abused its discretion

during trial and post-trial proceedings relating to the award

of just compensation, attorney fees and costs, and prejudg-

ment interest.

Sisolak has a valid property interest in the airspace above

his land

An individual must have a property interest in order to

support a takings claim.'* Accordingly, the court must first

determine “whether the plaintiff possesses a valid interest in

the property affected by the governmental action, [that 1s,]

whether the plaintiff possessed a ‘stick in the bundle of

property rights,’” before proceeding to determine whether the

governmental action at issue constituted a taking.'” The term

“property” includes all rights inherent in ownership, including

the right to possess, use, and enjoy the property.'°

The County argues that the district court erred by finding

that Sisolak has a vested property interest in the airspace

above his property up to 500 feet. The County contends that

neither federal nor state law recognizes a constitutionally

protected property interest in the airspace above land.

Further, the County argues that Sisolak had no interest in the

airspace over one-half of the property based on the plain

terms of the perpetual avigation easement conveyed to the

County by his predecessor in interest. Accordingly, the

'* Karuk Tribe of California v. Ammon, 209 F.3d 1366, 1374

(Fed.Cir.2000).

Id.

'° Black's Law Dictionary 1252 (8th ed.2004).

l3a

County argues that no taking was possible as a matter of law.

We disagree.

lhe Supreme Court of the United States has recognized, in

its seminal case involving airspace takings, that a landowner

has an interest in at least some of the airspace above his or

her land.'’ In United States v. Causby, the Supreme Court

reasoned that “[t]he landowner owns at least as much of the

space above the ground as he can occupy or use in connection

with the land. The fact that he does not occupy it in a

physical sense- by the erection of buildings and the like — is

not material.”

After Caushy, Congress redefined “navigable airspace” to

mean “airspace above the minimum altitudes of flight pre-

scribed by regulations . . . [including] airspace needed to

ensure safety in takeoff and landing of aircraft.”'’ Current

regulations define “minimum safe altitudes” as heights of

1000 feet above the highest obstacle in congested areas or

500 feet over other than congested areas, except where

necessary for takeoff or landing.”’

Therefore, the airspace above required minimum altitudes

for flight, as established in federal regulations, is in the public

domain, while the ownership of the airspace below such

minimum altitudes ts vested in the owner of the subjacent

land, who is entitled to compensation for flights invading that

airspace when taken by the government. The United States

Supreme Court emphasized, in Griggs v. Allegheny County,

that although airplanes may fly below 500 feet when nec-

essary for takeoff and landing, this right docs not divest the

” United States v. Causbv, 328 U.S. 256, 264, 66 S.Ct. 1062, 90 L.Ed.

| 206 (1946)

Id. (citation omitted).

49 U.S.C. § 40102(a)( 30) (2000).

14 C.F_R. § 91.119 (2006)

l4a

property owner of his protected property right to his usable

airspace. Rather, a landowner may still make a claim for

: ‘ : - : 7

compensation for the government’s use of that airspace.~*

This reasoning applics with equal force under Nevada law.

Article 1, Section | of the Nevada Constitution states that

acquiring, possessing and protecting property are inalienable

rights. In this, it is clear that Nevadans’ property rights are

protected by our State Constitution. These property rights

include at least the useable airspace of the subadjacent land.”

Although NRS 493.030 declares state government sover-

eignty in the airspace above the fand in Nevada,’ NRS

493.040 states that “[t]he ownership of the space above the

lands and waters of this state is declared to be vested in the

several owners of the surface beneath, subject to the right

of flight described in NRS 493.050.” Thus, the landowners

own the usable airspace above their property up to 500 feet,

subject to intrusion by lawful air flight.

“' 369 U.S. 84, 88-89, 82 S.Ct. 531, 7 L-Ed.2d 585 (1962); id. at 90, 82

S.Ct. 531 (“Without the ‘approach areas,’ an airport is indeed not oper-

able. Respondent in designing it had to acquire some private property.

Our conclusion is that by constitutional standards it did not acquire

enough.”’).

*? Rav S. Matson, et al. v. U.S., 145 Ct.Cl. 225, 171 F.Supp. 283 (1959).

> We note that at the time our Constitution was adopted in 1864, only

the fixed-wing glider was in existence, and it is doubtful our framers were

concerned about the use of airspace at the time. The first successful con-

trolled powered flight by the Wright Brothers occurred in 1903.

“* NRS 493.030 states:

Sovereignty in the space above the lands and waters of this state

is declared to rest in the State, except where granted to and as-

sumed by the United States pursuant to a constitutional grant

from the people of the State.

“Sovercignty” is defined, in part, as “[s]upreme dominion, au-

thority, or rule,” or “[t}he supreme political authority of an tnde-

pendent state.” Black's Law Dictionary 1430 (8th ed.2004).

lSa

NRS 493.050(1)(a) states that air flight is lawful unless it

interferes with the “then existing use to which the land or

water, or the space over the land or water, is put by the

owner.” Based on the plain language of the statute, “then

existing use” refers to the condition of the property when

flights occur and is not intended to create a limitation or

restriction on the development or use of land. Nor does the

statute prohibit landowners from occupying or using their

airspace up to 500 feet. To conclude otherwise would require

this court to find an unspecified height restriction on all

undeveloped property in Nevada. We reject that suggestion.

The statutory construction, consistent with the assurances

found in our Constitution, makes the lawful right to flight

subordinate to the ownership of the space above the lands.

Therefore, airplanes may fly over Sisolak’s property below

500 feet so long as they do not interfere with his current

or future use of the property. While NRS 493.030, NRS

493.040, and NRS 493.050(1)(a) recognize lawful air flight

over private property, those statutes ensure the landowners’

ownership and use of their airspace up to 500 feet. [t is for

that reason that NRS 37.010(14) recognizes that eminent

domain may be exercised for “[a]irports, facilities for air

navigation and aerial rights-of-way.” Thus, we conclude that

Nevadans hold a property right tn the useable airspace”

above their property up to 500 feet.*°

* Like most property rights, the use of the airspace and subadjacent

land may be the subject of valid zoning and related regulations which do

not give rise to a takings claim. At issue in this case is the permanent

physical invasion of airspace and the resulting exclusion of the Jandowner

therefrom caused by the Ordinances.

The County argues that Sisolak never obtained a vested property

right in his airspace because he failed to obtain zoning or use permit

approvals to undertake a project to use the airspace, and thus his airspace

was not constitutionally protected from uncompensated takings. This

argument lacks merit because NRS 493.040 vests ownership in the space

above land, up to 500 feet, in the owners of that property.

l6a

Further, the perpetual avigation casement conveyed to the

County by Sisolak’s predecessor in interest did not abrogate

Sisolak’s property interest in the airspace or serve as a de-

fense to the inverse condemnation claim. We have reasoned

that

“an casement obtained by a government entity for a pub-

lic use is only as broad as necessary for the accom-

plishment of the public purpose for which the easement

was obtained and, to the extent the easement holder

exceeds this right, it will be regarded as a trespasser and

is responsible for damages.””’

The easement in this case does not contain any height

restriction terms but is simply an overflight easement exacted

by the County to preclude liability for aircraft noise. To

interpret the County’s casement as permitting the use of all of

Sisolak’s airspace for overflights is overly broad and not

narrowly crafted to accomplish the reasonable. government

purpose of providing flights access to and from McCarran

Airport. Thus, it cannot be read to unconditionally transfer

the airspace rights above Sisolak’s property to the County.

Although similar avigation casements are recorded against

property throughout Clark County as a condition of building

permits, requiring an uncompensated easement as a condition

to development is improper and cannot be used by the County

as a defense to the taking of a landowner’s airspace without

compensation. The Supreme Court, in Nollan v. California

Coastal Commission, reasoned that “to obtain easements of

access across private property the State must proceed through

its eminent domain power” because “requiring uncompen-

*” $.0.C., Inc. v. The Mirage Casino-Hotel, 117 Nev. 403, 409, 23 P.3d

243, 247 (2001) (quoting Dixon v. City of Phoenix, 173 Ariz. 612, 845

P.2d 1107, 1114 (Ariz.Ct.App.1992)).

8 Nollan v. California Coastal Comm'n, 483 U.S. 825, 832, 107 S.Ct.

3141, 97 L.Ed.2d 677 (1987).

17a

sated conveyance of [an] easement outright would violate

the Fourteenth Amendment.””’ Therefore, the district court

did not err in instructing the jury that the perpetual aviga-

tion easement provided no defense to the taking of Siso-

lak’s airspace.

Although we conclude that Sisolak has a property interest

in the useable airspace above his property up to 500 feet and

that the district court correctly instructed the jury regarding

the avigation easement, we must still consider whether the

district court applied the correct legal analysis in granting

summary judgment on the issue of liability.

The district court did not err when it found the County liable

for a Loretto-tvpe per se regulatory taking of Sisolak’s

property”

Whether the government has inversely condemned private

property is a question of law that we review de novo.’ We

conclude that under both the United States and Nevada

Constitutions, the facts of this case present a regulatory per se

taking and that Sisolak is due just compensation for the

government’s physical invasion of his property.

The Takings Clause of the Fifth Amendment of the United

States Constitution, applicable to the states through the Four-

teenth Amendment,” prohibits the government from taking

*° Id. at 834, 107 S.Ct. 3141.

" The district court characterized the taking as a physical taking. As

clarified by Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 125 S.Ct. 2074,

161 L.Ed.2d 876 (2005), and discussed in this opinion, the district court

actually described a physical regulatory per se taking.

' See City of Austin v. Travis County Landfill, 73 S.W.3d 234, 241

(Tex.2002); $.0.C., Inc., 117 Nev. at 407, 23 P.3d at 246.

° Chicago, Burlington & Q. R’d v. Chicago, 166 U.S. 226, 17 S.Ct.

581, 41 L.Ed. 979 (1897).

18a

private property for public use without just compensation.”

Article 1, Section 8(6) of the Nevada Constitution states

“[p]rivate property shal! not be taken for public use without

just compensation having been first made, or secured.”

Before 1922, “it was generally thought that the Takings

Clause reached only a ‘direct appropriation’ of property, or

the functional equivalent of a ‘practical ouster of [the owner’s]

possession.””* However, beginning with Pennsylvania Coal

Co. v. Mahon, the United States Supreme Court determined

that state regulation of property may also require just com-

pensation, observing that, “while property may be regulated

to a certain extent, if regulation goes too far it will be

recognized as a taking.” Thus, the Court developed “regu-

latory takings” jurisprudence under the Fifth and Fourteenth

Amendments of the United States Constitution. “{T]he

Court recognized that government regulation of private prop-

erty may, in “yme instances, be so onerous that its effect is

tantamount to a direct appropriation or ouster—and that such

‘regulatory takings’ may be compensable under the Fifth

Amendment.””’

Further, the Supreme Court defined “two categories of

regulatory action that generally will be deemed per se takings

‘for Fifth Amendment purposes.””* Categorical rules apply

when a government regulation either (1) requires an owner to

3 US. Const. amend. V.

4 Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014, 112

S.Ct. 2886, 120 L.Ed.2d 798 (1992) (quoting Legal Tender Cases, 79 U.S.

(12 Wall.) 457, 551, 20 L.Ed. 287 (1871) and Transportation Co. v.

Chicago, 99 U.S. 635, 642, 25 L.Ed. 336 (1879)).

> 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922).

” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537, 125 S.Ct. 2074,

161 L.Ed.2d 876 (2005).

58 fd. at 538, 125 S.Ct. 2074.

19a

suffer a permanent physical invasion of her property or

(2) completely deprives an owner of all economical beneficial

use of her property.” In determining whether a property

owner has suffered a per se taking by physical invasion, a

court must determine whether the regulation has granted the

government physical possession of the property or whether

it merely forbids certain private uses of the space.’ If the

regulation forces the property owner to acquiesce to a perma-

nent physical occupation, compensation is automatically war-

ranted, since this constitutes a per se taking. “This element of

required acquiescence ts at the heart of the concept of occu-

pation.””' The second type of per se taking, complete depri-

vation of value, is not at issue in this case because Sisolak

never argued that the Ordinances completely deprived him of

all beneficial use of his property.

“Outside these two relatively narrow categories . . . regula-

tory takings challenges are governed by the standards set

forth in Penn Central Transportation Co. v. New York City,

438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978).

While the Supreme Court has not provided a “set formula to

determine where regulation ends and taking begins,”? it

prefers to “engag[e] in. . . essentially ad hoc, factual inquir-

ics” and established three guideposts in Penn Central to ex-

” Id. We also recognized these categorical rules in Kelly v. TRPA, 109

Nev. 638, 648. 855 P.2d 1027, 1033 (1993).

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning

Agency, 535 U.S. 302, 322-23, 122 S.Ct. 1465, 152 L.Fd.2d 517 (2002);

Yee v. Escondido, 503 U.S. 519, 522-23, 112 S.Ct. 1522, 118 L.Ed.2d 153

(1992).

*" ECC v. Florida Power Corp., 480 U.S. 245, 252, 107 S.Ct. 1107, 94

L.Ed.2d 282 (1987).

_ Lingle, 544 U.S. at 538, 125 S.Ct. 2074; see also Kelly, 109 Nev. at

648, 855 P.2d at 1033.

3 Goldblatt v. Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 8 L.Ed.2d

130 (1962).

20a

amine whether a regulation that does not constitute a physical

invasion and does not deprive the owner of all viable eco-

nomic use nevertheless effects a compensable regulatory

taking.” A court should consider (1) the regulation’s eco-

nomic impact on the property owner, (2) the regulation’s

interference with investment-backed expectations, and (3) the

character of the government action.* [n examining whether a

regulatory taking has occurred, a reviewing court must con-

sider the property as a whole.*® Additionally, an allegation

that a regulation has diminished the property’s value, or

destroyed the potential for its highest and best use, does not,

without more, constitute a taking.*’ A Penn Central-type

regulatory taking requires compensation only if “the purpose

of the regulation or the extent to which it deprives the owner

of the economic use of the property suggest that the regu-

—

4 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978).

45 Id

*° Id. at 130-31, 98 S.Ct. 2646 (“*Taking’ jurisprudence does not divide

a single parcel into discrete segments and attempt to determine whether

rights tn a particular segment have been entirely abrogated. In deciding

whether a particular governmental action has effected a taking, [the] Court

focuses rather both on the character of the action and on the nature and

extent of the interference with rights in the parcel as a whole. . . .”); see

also Tahoe-Sierra, 535 U.S. at 331, 122 S.Ct. 1465 (district court erred

by disaggregating property into a thirty-two month segment of time from

the remainder of the property owner’s fee simple estate and considering

whether property owners were deprived of all economically viable use

during tht period).

*” See Euclid v. Ambler Co., 272 U.S. 365, 397, 47 S.Ct. 114, 71 L.Ed.

303 (1926) (regulations valid although they effected a seventy-five per-

cent diminution in value of property); Hadacheck v. Los Angeles, 239

U.S. 394, 414, 36 S.Ct. 143, 60 L.Ed. 348 (1915) (ordinance prohibiting

highest and best use of land as a brickworks was valid, although it re-

duced the value of property from $800,000 to $60,000); William C. Haas

v. City & Cty. of San Francisco, 605 F.2d 1117, 1121 (9th Cir. 1979) (zon-

ng regulations were not a taking although they reduced the value of prop-

erty from $2,000,000 to $100,000).

2la

lation has unfairly singled out the property owner to bear a

burden that should be borne by the public as a whole.”

The matter is ripe for review under the regulatory per se

takings analysis

As a preliminary matter, we address the County’s conten-

tion that this matter 1s not ripe for review because the County

never denied a variance. The Supreme Court has required

exhaustion of administrative remedies in cases where a

regulation is alleged to have gone too far in burdening private

property, ““[insisting] on knowing the nature and extent of

permitted development before adjudicating the constitutional-

ity of the regulations that purport to limit it.”””’ However, the

Supreme Court has reasoned that if a regulation effects an

“unconditional and permanent” taking, the matter is ripe for

the Court’s review.” Further, in cases involving a physical

occupation of private property, the government “has a cate-

gorical duty to compensate the former owner,””! and the ex-

tent of the occupation is relevant only to determine the

amount of compensation due, not whether the regulation

effects a taking.’ Thus, Sisolak was not required to exhaust

administrative remedies by applying for a variance before

bringing his inverse condemnation action based on a regula-

tory per se taking of his private property.

“Yee v. Escondido, 503 U.S. 519,

L.Ed.2d 153 (1992)

™ Lucas v. South Carolina Coastal Council, 5305 U.S. 1003, 1011, 112

S.Ct. 2886, 120 L.Ed.2d 798 (1992) (quoting MacDonald, Sommer &

Frates v. Yolo County, 477 U.S. 340, 351, 106 S.Ct. 2561, 91 L.Ed.2d 285

(1986)).

*” [d. at 1012, 112 S.Ct. 2886 (also reasoning that the landowner did

not have to pursue any subsequently created permit procedures before his

takings claim would be considered ripe).

Tahoe-Sierra, 535 U.S. at 322, 122 S.Ct. 1465.

** Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 437,

102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).

22a

——

Sisolak did not have to prove low and frequent overflights to

establish a regulatory per se taking

With respect to takings cases involving overflights, the

Supreme Court has held that when low and frequent airplane

overflights substantially devalue the current use and enjoy-

ment of property, a compensable event occurs. In United

States v. Causby, low and frequent overflights by military air-

craft destroyed a chicken farming business because the noise

from the overflights caused the chickens to reduce egg pro-

duction and to die from fright.” The Supreme Court noted

that, if the flights rendered the farmer’s land uninhabitable, it

would be as if the government “had entered upon the surface

of the land and taken exclusive possession of it.”* Because

the limitation on the land’s utility profoundly diminished its

value, the Court held that “[f]lights over private land are not a

taking, unless they are so low and so frequent as to be a direct

and immediate interference with the enjoyment and use of the

land.””°

Further, in Griggs v. Allegheny County, the Supreme Court

considered whether a county-operated airport took an ease-

ment over a house through noise and air pollution from fre-

quent and low overflights.”° The Court noted that “use of

‘and presupposes the use of some of the airspace above it... .

An invasion of the “superadjacent airspace’ will often ‘affect

the use of the surface of the land itself.””’’ Based upon

evidence that the homeowners had abandoned their residence

because they became “nervous and distraught” from extreme

3 328 U.S. 256, 259, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946).

4 Id. at 261, 66 S.Ct. 1062

°° Id. at 266, 66 S.Ct. 1062.

>” Id. at 89, 82 S.Ct. $31 (citation omitted) (quoting Caushy, 328 U.S.

at 265, 66 S.Ct. 1062).

23a

v ‘ Sk .

noise generated by airplane overflights,~ the Court held that

. ° s9

the owners were duc just compensation.

In Causbv and Griggs, landowners presented evidence of

low and frequent overflights, which diminished the value of

the existing use of their property. Thus, some courts have

interpreted Caushy and Griggs to require that a prima facie

case for inverse condemnation based upon a physical taking

include evidence of low and frequent overflights causing a

direct and immediate interference with the enjoyment and use

of the land.” However, Caushv and Griggs did not concern

the regulation of property through airport height restriction

ordinances, but rather the resultant nuisance from overflights

on subjacent land. Therefore, because this case does involve

ordinances affecting use of property, we conclude that a

regulatory per se taking occurred without resorting to the low

and frequent overflight analysis. Further, Sisolak’s evidence

that airplanes fly lower than 500 feet above his property was

sufficient proof of a permanent physical invasion of his

airspace.

The ordinances effect a regulatory per se taking of Sisolak’s

property under the United States and Nevada Constitutions

We agree with Sisolak that, under the United States and

Nevada Constitutions, the ordinances authorize the permanent

physical invasion of his airspace. The ordinances exclude the

owners from using their property and, instead, allow aircraft

to exclusively use the airspace as a critical departure area

within an airport approach zone. The essential purpose of the

erdinances adopted to facilitate flights through private

property is to compel landowner acquiescence.

* td. at 87, 82 S.Ct. 531.

Id. at 90. 82 S.Ct. 531

" See Brown v. U.S., 73 F.3d 1100, 1104 (Fed.Cir.1996); Village of

Willoughby Hills v. Corrigan, 29 Ohio St.2d 39, 278 N.E.2d 658, 664

(1972).

24a

In contrast to Penn Central-type regulatory takings cases,

regulatory per se takings cases “are relatively rare, easily

identified, and usually represent a greater affront to individual

property rights.’°' Before its seminal physical occupation

takings case, Loretto v. Teleprompter Manhattan CATV

Corp.,”’ the Supreme Court determined that the United States

Government took private property when it attempted to create

a public right of access to a pond that, until substantial im-

provements by its private landowners, was incapable of being

used as a navigable waterway.” In that case, Kaiser Aetna v.

United States, the Court distinguished a taking “in which the

Government is exercising its regulatory power in a manner

that will cause an insubstantial devaluation of . . . private

property,” from a physical invasion of private property.”

And the Court concluded that “the imposition of the naviga-

tional servitude in this context will result in an actual physical

invasion of the privately owned marina.””” The Court further

concluded that “even if the Government physically invades

only an easement in property, it must nonetheless pay just

compensation.”

The Supreme Court clarified its regulatory per se takings

analysis in Loretto when it considered “whether a minor but

permanent physical occupation of an owner’s property au-

thorized by government constitutes a ‘taking’ of property for

which just compensation is due.” In Loretto, a New York

*' Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning

Agency, 535 U.S. 302, 324, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002).

* 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).

"’ Kaiser Aetna v. United States, 444 U.S. 164, 178, 100 S.Ct. 383, 62

L.Ed.2d 332 (1979).

Id. at 180, 100 S.Ct. 383.

*° Id.

*? 458 U.S. at 421, 102 S.Ct. 3164.

25a

statute required landlords to permit a cable television com-

pany to install cables and junction boxes in their buildings.”

Che Supreme Court held that the New York statute authorized

a permanent physical occupation of the landowners’ property

that required compensation.” Although it reasoned that Kaiser

Aetna was not a per se taking case because the easement of

passage was not a permanent occupation of land, the case

nevertheless “reemphasize[d] that a physical invasion is a

government intrusion of an unusually serious character.”

Here, the district court found that the presence of aircraft

over Sisolak’s property at altitudes below 500 feet, as permit-

ted by the Ordinances, constituted a permanent physical inva-

sion of his property and was sufficient to establish a taking.”

We agree. The district court properly concluded that Ordi-

nances 1221 and 1599 permit airplanes to permanently invade

Sisolak’s property and appropriate it for public use without

just compensation.

We disagree with the County’s argument that the Ordi-

nances do not require Sisolak to submit to the government’s

or public’s use of his property since the Ordinances do not

direct the flight of aircraft in any way and do not directly

authorize the physical invasion of Sisolak’s airspace. Al-

*® td. at 423, 102 S.Ct. 3164.

Id at 441, 102 S.Ct. 3164.

"' The district court relied on Kaiser Aetna, Loretto, and Nollan v.

California Coastal Commission, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d

677 (1987), to conclude that the ordinances effected a per se taking of

Sisolak’s airspace. However, as clarified by the Supreme Court in Lingle,

Nollan ts more appropriately deemed a land exaction case, rather than

a per se taking case. However, the district court’s reliance on Nollan is

understandable because of the No//an Court’s discussion of physical inva-

sions in the context of an easement. The district court’s reference to

Nollan does not alter our conclusion that the height restriction Ordinances

resulted in a Loretto-type physical invasion taking.

26a

though the airplanes flying over Sisolak’s property are not

constantly occupying the airspace in a temporal sense, the

invasion is nevertheless permanent because the right to fly

through the airspace is preserved by the Ordinances and

expected to continue into the future. The Ordinances grant

airplanes permanent permission to traverse Sisolak’s airspace,

and Sisolak established that airplanes fly over his property at

altitudes below 500 feet. The County is using Sisolak’s

airspace as and when it chooses and intends to do so indefi-

nitely. Therefore, the Ordinances authorize a physical inva-

sion of Sisolak’s property and require Sisolak to acquiesce to

a permanent physical invasion. As a result, the County has

appropriated private property for public use without com-

pensating Sisolak and has effectuated a Loretto-type per se

regulatory taking.

Although predating the Supreme Court’s decision in Loretto,

several state supreme courts have concluded that height re-

striction ordinances, almost identical to the County’s, resulted

in unconstitutional takings of property for public uses.’ The

New Jersey Supreme Court has considered the constitutional-

ity of an airport zoning ordinance that restricted the height of

structures within approach and turning zones.’ The court

held the ordinance unconstitutional as a taking of private

property for public use, stating that “(t]he City may not under

the guise of an ordinance acquire rights in private property

which it may only acquire by purchase or by the exercise of

its power of eminent domain.”

Likewise, the Indiana Supreme Court has held that a zon-

ing ordinance restricting the height of buildings within a

”? See Roark v. City of Caldwell, 87 Idaho 557, 394 P.2d 641, 646-47

(1964); Indiana Toll Road Commission v. Jankovich, 244 Ind. 574, 193

N.E.2d 237, 242 (1963); Yara Engineering Corporation v. City of

Newark, 132 N.J.L. 370, 40 A.2d 559 (1945).

” Yara Engineering Corp., 40 A.2d at 560.

4 Id. at S61.

27a

specified distance of an airport, without providing for pay-

ment of compensation, unconstitutionally appropriated the

property rights of the landowner in the airspace above the

land.” The court stated that “mere regulation under the

police power which can be modified at the discretion of

regulating authority is wholly different from the taking or

appropriating of private property by the government for a

specific public use.”

Relying on these two cases, the Idaho Supreme Court has

aiso concluded that the provisions of a city ordinance restrict-

ing the height of structures on the plaintiff landowncr’s

property and limiting the use of the land constituted a taking

of private property for public use, for which the city had to

pay just compensation. ”

The fact that the County enacted the Ordinances to ensure

the safety of those arriving at or departing from McCarran

\irport does not change the conclusion that a regulatory

per se taking occurred. As the Supreme Court reasoned in

Griggs, “*an adequate approach way Is as necessary a part of

an airport as is the ground on which the airstrip, itself, is

constructed.””’* However, in designing the airport, a local

government has to acquire cnough private property in order to

avoid a future taking of adjacent private property for public

use without just compensation.”” Accordingly, we conclude

that under federal law the Ordinances effectuated a Loretto-

type regulatory per se taking of Sisolak’s property, enttling

Sisolak to just compensation.

lankovich, 193 N.F.2d at 242

Roark, 394 P.2d at 646-47

169 US. 84, 90,82 S.Ct. 531, 7 L.Ed. 2d 385 (1962) (quoting Acker

nan ys Port of Seattle, 35 Wash.2d 400, 348 P.2d 664, 671 (1960))

28a

Our dissenting colleagues conclude that a Penn Central

type regulatory taking has occurred as a result of the height

restrictions imposed by the County Ordinances. This conclu-

sion ts not unreasonable, given the difficulty in applying the

federal takings jurisprudence. We, therefore, take this oppor-

tunity to clarify what constitutes a regulatory per se taking

under our State Constitution.”

When it comes to interpreting

a State constitution, we have recognized that “states may

expand the individual rights of their citizens under state law

beyond those provided under the Federal Constitution.”

Similarly, the United States Supreme Court has emphasized

that a state may place stricter standards on tts exercise of the

takings power through its state constitution or state eminent

domain statutes.”

The first right established in the Nevada Constitution's

declaration of rights ts the protection of a landowner’s inal

ienable rights to acquire, possess and protect private prop-

erty There is no corollary provision in the United States

Constitution. Article 1, Section 8(6) of the Nevada Constitu

tion requires the government to make or secure just com-

pensation before taking private property Early in our state's

history, this court recognized that “|t}he property of a citizen

can only be taken by an act of the legislature for a public use

’ i

i ] { i \ i Sta

( stil i } .

\ i

‘5 ; }

- > ‘

’ ' sit

s i

29a

when a necessity exists therefor, and when compensation to

the owner has first been made or secured.”** The constitu-

tional requirement that the government must first make or

secure just compensation before taking private property “is a

personal [right] for the benefit of the property owner and

subject to being watved by him.””” The rights of property

owners are “constitutionally satisfied when they receive just

compensation for their properties.”

In this, the Nevada Constitution contemplates expansive

property rights in the context of takings claims through emt-

nent domain. The drafters of our Constitution imposed a

requirement that just compensation be secured prior to a tak-

ing, and our State enjoys a rich history of protecting private

property owners against government takings. To clarify regu-

latory takings jurisprudence under the Nevada Constitution,

a per se regulatory taking occurs when a public agency seck-

ing to acquire property tor a public use enumerated in NRS

37.010, fails to follow the procedures set forth in NRS Chap-

7,”

ter 37, Nevada's statutory provision on eminent domain, and

appropriates or permanently invades private property for pub-

ic use without first paying just compensation rhus, the

72 (1954)

379 P.2d 466.

lat in Cuses where

scessury cannot. because of con

by uirport Zoning regulations

¥ approach protection be

ws rather than by airport

subdivision within which the

located, or the political sub

ved by it may acquire, by pur

nanner provided by the law

30a

adoption of ordinances that established a permanent physical

invasion of the airspace above Sisolak’s property, thercby

appropriating the airspace for the County’s use, effectuated a

per se taking of his property under the Nevada Constitution.”

The district court did not abuse its discretion during its trial

and post-trial proceedings

Because the district court did not err in holding the County

liable for a per se taking of Sisolak’s airspace, Sisolak was

entitled to just compensation.” We conclude that the district

court did not abuse its discretion during its trial and post-trial

proceedings on just compensation, attorney fees, costs, and

interest. First, the district court properly instructed the jury

regarding the maximum allowable building height on the

property. Second, the district court had a valid basis for tts

under which political subdivisions are authorized to acquire

property for public purposes, such air right, avigation casement

or other estate or interest in the property or nonconforming

structure or use in question as may be necessary to effectuate the

purposes of this chapter

*“ We reject the County's contention that the government cannot afford

to regulate by purchase in matters concerning public safety. First, the

County is in a position to trade public property for other suitable property

needed for airport operations. Second, the record indicates that only a

limited number of property owners are affected by the most onerous re-

strictions in Ordinances 122] and 1599, while the remaining property ts

already owned by McCarran Airport or the University of Nevada, Las

Vegas. Further, a McCarran Airport representative acknowledged that it

is ultimately the airlines that would pay a judgment in an eminent domain

proceeding, not the taxpayers. and any judgments against the County will

not likely materially affect us financial condition. Finally, any financial

burden that the County must bear as a result of having to pay just com

pensation ts irrelevant to the inquiry under the United States and Nevada

Constitutions as to whether the regulations elfected a per se taking of

private property

ay . . . y

< ' . +> ‘>

See ¢ lark County \ Sun State Properties 119 Nev 329 335, >

P.3d 954, 9S8 (2003) (statime that state and federal constitutional law

requires the payment of just cor Ipensation to the property owner)

3\a

award of attorney fees and costs. Finally, the district court

did not abuse its discretion by awarding prejudgment interest.

Accordingly, we affirm the district court’s award of compen-

sation, attorney fees and costs, and prejudgment interest.

The district court did noi abuse its discretion by instructing

the jury that 66 feet was the maximum allowable building

height on the property

The County contends that the district court caused an in-

flated compensation award by erroneously instructing the jury

that 66 feet was the maximum allowable building height on

the property. Specifically, the County argues that the district

court should not have negated the trial testimony of their

obstruction and hazard expert, which implied that Sisolak

could obtain a variance of more than 66 feet.”’ We conclude

that, because the County’s expert based his opinion on FAA

regulations rather than the height restrictions imposed by the

Ordinances, the district court did not abuse its discretion by

excluding the expert’s testimony from the jury’s considera-

tion.

“Constitutional principles provide that just compensation ts

measured by the fair market value of the condemned prop-

“fT )he market value of the property should be

determined by reference to the highest and best use for which

erty.”

the land ts available and for which it is plainly adaptable.

However, the highest and best use must be “reasonably prob-

The County's expert testified that at the property's four comers, the

maximum building height that would not create an aviation hazard. when

ipplving the most restrictive criteria used by the FAA, was 102 feet at the

northwest corner, | 15 feet at the southwest corner, 127 feet at the north-

east corner, and 196 feet at the southeast corner

; , ny as \ ,*XCc 7+ > -

Sun Slate f" IPCRILCS | I Nev ul $35 ~ P yal il 9%

County of Clark v. Alper. 100 Nev. 382, 386-87, OSS P.2d 943, 946

32a

able. In determining fair market value, the trier of fact

may consider “any elements that fairly enter into the question

of value which a reasonable businessman would consider

when purchasing.”

9993

Although evidence regarding variance procedures is trrele-

vant to establish whether a property owner is entitled to

compensation for a regulatory per se taking, such evidence is

still relevant in calculating the amount of compensation due.”

Evidence of future changes affecting the property, such as

variances or zoning ordinances, is admissible to determine the

amount of compensation due if the change is reasonably

probable. For example, in Citv of Las Vegas v. Bustos, the

district court determined that, given the changes in the

neighborhood and surrounding properties, it was reasonably

likely that a prospective buyer of the property in question

could obtain a zoning change from residential to commer-

cial.” Additionally, we concluded that “[t]he trier of fact

may consider the effect of future rezoning or variances on the

highest and best use of the condemned property when deter-

mining its value.””’ We noted that there was “undisputed

evidence” that the city had converted most of the land sur-

rounding the property, zoned residential, to commercial use.”

City of Las Vegas v. Bustos, 11WY Nev. 360, 362, 75 P.3d 351, 352

(2003)

* State ex rel. Dep't Hwys. v. Linnecke, 86 Nev. 257, 261-62, 468 P.2d

8, 10-11 (1970). quoted in Sun State Properties. 119 Nev. at 335. 72 P.3d

it 958

Tahoe-Sierra, 535 U.S. at 322, 122 S.Ct. 1465 (“When the govern-

ment physically takes possession of an interest in property for some public

purpose, it has a categorical duty to compensate the former owner, regard-

less of whether the interest that is taken constitutes an entire parcel or

merely a part thereof.” (citations omitted))

" 119 Nev. at 361-62, 75 P.3d at 351-52

r 7 ae

ld at 30,

33a

As a result, we concluded that the district court properly

relied on that evidence in making its award of compensation.

Here, the County’s expert testimony regarding maximum

building heights under FAA regulations was irrelevant be-

cause the County Ordinances imposed more stringent height

restrictions on Sisolak’s property. Therefore, the jury did not

have to consider whether the County would approve a vari-

ance application from Sisolak for more than 66 feet in deter-

mining just compensation for the taking. The district court

properly based the jury instruction on valuation testimony

given by both the County’s and Sisolak’s appraisers, who

calculated the difference in value to the property by relying

on the previously granted variance of 66 feet. Accordingly,

we affirm the award of damages.

The district court did not abuse its discretion by awarding

attorney fees and costs

We have established that a landowner has no constitutional

right to recover attorney fees as a part of the just compensa

tion for land taken by eminent domain.” Neither does NRS

Chapter 37, Nevada’s eminent domain statute, provide for

attorney fees except upon abandonment of the action by the

condemnor.’”” Although we will not disturb a district court’s

award of attorney fees and costs absent an abuse of discre-

tion, the award must be authorized “by a statute, rule or

i)!

contract.” We conclude that the district court properly

based its award of attorney fees on a relevant provision of the

Unitorm Relocation Assistance and Real Property Acquisi-

. 1)

tion Policies Act (Relocation Act}

‘Lamar v. Urban Renewal dvency, 84 Nev. 580, 381, 445 P.2d 869,

$70 (1968)

US. Design & Constr. v 1 BE W. Local 357. 118 Nev. 458, 462, 50

P.3d 170, 173 (2002)

$2 LU S.C. $8 4601-4655 (2000)

34a

The Relocation Act requires that a state government entity

receiving federal funds institute formal condemnation pro-

ceedings to acquire any interest in real property by exercising

the power of eminent domain.'”’ Further, the Relocation Act

states that the court “shall” award “reasonable attorney, ap-

praisai, and engineering fees, actually incurred because of the

condemnation proceedings” only when “the final judgment is

that the . . . agency cannot acquire the real property by

condemnation; or... the proceeding is abandoned.”'”

However, plaintiffs may recover attorney fees and costs if

they succeed in an inverse condemnation claim against the

government.” As one federal court has recognized, “[i]t is

inevitable that the successful plaintiff in the . . . inverse

condemnation action will be forced to pay greater litigation

expenses than would have been necessary if the [state or]

federal agency had properly performed its function and con-

demned the property in question.”'’° Therefore, this provi-

sion 1s an attempt by Congress “to rectify this situation ... by

allowing recovery of litigation expenses for a successful

plaintiff in an inverse condemnation action.”

rhe provisions of the Relocation Act apply to all Nevada

political subdivisions and agencies.“ [n particular, NRS

342.105(1) provides that

[ajny department, agency, instrumentality or political

subdivision of this State, which ts subject to the

provisions of the federal [Relocation Act], and the regu-

> 465108) ("No [recipient airport) shall intentionally ma

necessary tor an Owner to institute legal proceedings to prove the |

the taking of his real property.)

~ Id &$ 4654(a)

ld \ 4654(¢ }

lations adopted pursuant thereto, and which undertakes

any project that results in the acquisition of real prop-

erty Or in a person being displaced from his home,

business or farm, shall provide relocation assistance and

make relocation payments to each displaced person and

perform such other acts and follow such procedures and

practices as are necessary to comply with those federal

equirements.

(Emphasis added.)

The provistons of NRS Chapter 342 apply when “the pub-

lic body administering the programs or projects [1s] funded in

whole or in part by the federal government.”'”” In County of

Clark v. Alper, we reversed the award of attorney fees to the

owner of property taken by the county to widen a public

street because the owner failed to show that the county

received federal financial assistance to pay for all or any part

of the project

We disagree with the County’s argument that, in order for

the Relocation Act to apply, there must be a specific nexus

between the federal funding and the taking at issue as well as

landowner displacement. Here, the Relocation Act entitles

Sisolak to an award of attorney fees because the County

received federal funding for numerous improvements at

McCarran Airport, including runway reconstruction and land

acquisition. The County was cligible to receive the federal

funding specifically because it made assurances that it took

steps, by enacting the Ordinances, to protect the airspace

needed for acrial approaches to the airport and to prevent

future construction into that airspace

36a

Further, the Relocation Act does not limit eligibility for

attorney fees to persons who have actually been displaced and

who require relocation assistance. Because Sisolak ts a

property owner who was successful in his inverse condemna-

tion action, the plain terms of the Relocation Act allowed the

district court to award reasonable attorney fees and costs.

Therefore, we conclude that the district court did not abuse its

discretion by awarding Sisolak attorney fees and costs.

The district court did not abuse its discretion by awarding

prejudgment interest

The district court followed our decision in A/per when tt

awarded prejudgment interest from the date the County passed

Ordinance 1221 until the district court entered its judgment in

the case. In Alper, we reasoned that “[w]here the market

value of the property is not paid contemporancously with the

taking, the owner ts entitled to interest for the delay in pay-

ment from the date of the taking until the date of the pay-

ment.”''> An award of prejudgment interest “compensate[s]

the landowner for the delay in the monetary payment that

occurred after the property had been taken.” We conclude

that the district court did not abuse its discretion by awarding

prejudgment interest.

CONCLUSION

The district court correctly concluded that the presence of

aircraft over Stsolak’s property at altitudes lower than 500

teet AGL, as permitted by the Ordinances, constituted a

physical invasion of his private property. Sisolak suffered a

operations including assurances that “appropriate action, including the

adoption of zoning laws, has been or will be taken to the extent reasonable

to restrict the use of land next to or near the airport to uses that are

compatible with normal airport operations”)

~ 100 Nev. at 392, 685 P.2d at 950

37a

Loretto-type regulatory per se taking under both the United

States and Nevada Constitutions because Ordinances 1221

and 1599 appropriated his private property for a public use

without the payment of just compensation. The Ordinances

deny Sisolak his right to exclude others from his private

property and instead require that Sisolak acquiesce to a

permanent physical invasion of his property. Finally, the

Penn Central-type takings analysis does not govern this

action. Accordingly, we order the judgment of the district

court affirmed

GIBBONS, DOUGLAS. PARRAGUIRRE JJ. and

AGOSTI. Sr. /.. concur

. 38a

BECKER, J/., dissenting in part and concurring in part.

As a preliminary matter, I dissent to parts of the majority

opinion that take statements out of context from United States

v. Caushy and Griggs v. Allegheny County’ to conclude that

the mere presence of aircraft flying below 500 fect above

ground Icvel constitutes a physical occupancy of Sisolak’s

property. Neither case found that aircraft overflights, takeoffs

or landings, in and of themselves, constitute a taking under

the Fifth Amendment of the United States Constitution

Rather, 1t was the effect of the planes upon the owners’

property that resulted in a taking. Likewise, the majority

States that a regulation which requires the granting of an

casement is automatically a taking under Nol/an v. California

Coastal Commission. However, Nollan only holds that such

a requirement may be a taking if the casement does not relate

to the health, safety or welfare purpose of the regulation or 1s

overly broad to accomplish that purpose

Second, | dissent from the majority opinion’s application

ot Loretto v. Teleprompter Manhattan CATV Corp * to sup-

port its conclusion that a taking occurred tn this case under

the Federal Constitution. [| believe that the correct federal

analysis requires the use of Penn Central Transportation Co

Vew York Cin

| concur with the majority that a broader interpretation of

the principles articulated in Loretto or Penn Central tor

airport approach zone cases may be warranted under the

Nevada Constitution for two reasons: (1) commercial aircraft

Yi Ss & 46S ¢ 4 WL Fd | im (1 Ode

H9LIS 84 8? Sf -” SS (1962)

4831'S & {) ~ { 71 Ed 1677419

ISK TIS 1y {} ~ | H4 | tad 1 86% )»

39a

did not exist in 1864; and (2) prior to the Supreme Court’s

holding in Caushy, landowners were generally considered to

have an infinite interest in adjacent airspace.” Moreover, it is

true that, at the time of the Nevada Constitution, the idea of a

regulatory taking did not exist. It was created by the U.S.

Supreme Court in the seminal case of Pennsylvania Coal Co

v. Mahon.’ Finally, the establishment of landing patterns and

approach zones and the regulation of physical structure

heights in such zones necessarily regularly funnels aircraft

over particular pieces of property rather than impacting all

landowners in an airport's vicinity.

However, I dissent from the broad statement that our

eminent domain provision was intended to give landowners

greater protection than that given under the Fifth Amendment

of the United States Constitution. This contradicts over a

century of precedent. In addition, other than general state-

ments that the County Ordinances violated the Federal and

State Constitutions, Sisolak never provided any analysis to

support an argument that the Nevada Constitution provides

more expansive rights under eminent domain. Such a broad,

sweeping holding, without any reference to Nevada's con-

stitutional debates or other significant supporting analysis, ts

unwise and unwarranted.”

For the reasons stated below, | do not agree that the County

Ordinances in question, 1221 and 1599, authorize the phys-

cal invasion of Sisolak’s property in violation of Loretto

40a

Instead, the appropriate taking analysis is governed by the

Supreme Court’s opinion in Penn Central. Although, as

discussed below, the Ordinances contain aspects that are

troubling under Penn Central, neither side had the oppor-

tunity to fully litigate this case pursuant to Penn Central.

Uherefore, to Se fair to all parties, | would remand the case to

the district court with instructions to apply Penn Central after

giving the parties time to present any additional evidence

relevant to a Penn Central analysis. In addition, on remand,

the parties could present additional arguments or analysis of

how airport approach zones should be treated under the

Nevada Constitution, through a broader reading of Loretto or

Penn Central

Lingle analysis of takings cases

To avoid confusion in future cases, the U.S. Supreme Court

clarified its eminent domain jurisprudence involving the

relationship between land use regulations and the Fifth

Amendment in Lingle v. Chevron U.S.A. Inc ” The Lingle

Court delineated the elements necessary to establish a taking

under each of the four different theories recognized by the

Court involving land use regulations.'” The Court noted that

the four theories are encompassed in four cases, Lucas v.

South Carolina Coastal Council,’ Loretto, Penn Central and

Nollan.'> Each theory has key elements, which the Supreme

Court outlined.

For a Lucas taking, the landowner must demonstrate that

the regulation completely deprives the owner of all ecconom-

ically beneticial use of the property. Loretto involves

25 8.Ct. 2074, 161 L.Ed.2d 876 (2005)

ld. at 538-39, 546-48, 125 8.Ct. 2074

905 ULS. 1003, 112 S.Ct. 2886, 120 L.kd.2d

544 US. at 538. 546-47, 125 8.Ct. 2074

125 S.Ct. 2074

4\a

regulations that allow a permanent physical invasion of a

landowner’s property by the government or third parties.'* A

Vollan taking occurs when the granting of a land use

application is conditioned upon concessions by a landowner,

such as an easement, that go beyond the scope of the

governmental interest the regulation is designed to protect.’”

Finally, Penn Central is used to analyze any regulation that

does not fit in the other three categories. Under Penn

Central, the effect of the regulation on a piece of property is

measured on a case-by-case basis using several factors to

determine whether the regulation constitutes a taking. ’°

Sisolak agrees that Lucas does not apply to his property

since the Ordinances do not destroy all beneficial use of the

property. He argues instead that granting height variances

conditioned upon conveyance of an avigation casement under

Ordinances 1221 and 1599 constitutes an unconstitutional

exaction under No//an and that the creation of approach zones

and critical approach zones by the Ordinances permits planes

to physically invade his property in violation of Loretto

Sisolak contends that a combination of these actions amounts

to a taking. However, under Lingle and Tahoe-Sierra Pres-

ervation Council, Inc. v. Tahoe Regional Planning Agency,''

these theories cannot be combined to effect a taking.

I concur with Sisolak that the avigation easements imposed

by Clark County against his property in the past, and as a

condition of a variance grant in 2001, are unconstitutional

exactions under No//an. Ordinances 1221 and 1599 impose

height restrictions to avoid creating aviation hazards for

planes landing or taking off from McCarran Airport. The

avigation casements go beyond this purpose because they also

‘Id > Loretto. 458 US. at 440, 102 S.Ct. 3164

’ Lingle, $44 U.S. at $46-47, 125 S.Ct. 2074

“Ja at 338-39, 125 $.Ct. 2074

-s- Ff

“S385 US. 302. 122 S.Ct. 1468. 152 L-Fd.2d $17 (2002)

42a

protect McCarran trom future

claims that noise and fumes

trom aircraft are creating a nuisance or destroying the exist-

ing use and enjoyment of the property.” However. Sisolak

has failed to demonstrate any damages resulting from the

overly broad easements because the casements themselves do

not prohibit building above a certain height. Thus, he has no

takings claim untul the government attempts to enforce the

easement. Rather, his remedy at this time is to invalidate the

easement. It cannot be used to support the damage award

below. His claim must be analyzed under Loretto or Penn

C entral

Loretto iInappil ahle

The United States Supreme Court has emphasized that

Loretto takings are a narrow category of takings.'” To

constitute a taking under Loretto, a regulation must grant, on

its face; the government or a third party rights in the

plaintiff's property.”” A regulation that simply limits what a

landowner can do with his or her property does not amount to

a taking under Loretto.” Ordinances 1221 and 1599 impose

building height restrictions upon property located within

zones relating to runways at McCarran and other airports

They do not, on their face, establish any casement or other

right to use a landowncr’s property.

While the majority is correct that landowners have an

interest in the airspace adjacent to their real property, the

x - -

In essence, protecting the govermment from a future claim of inverse

condemnation under Caushy, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206

” Lingle, $44 U.S. at 538, 125 S.Ct. 2074

458 U.S. at 426-28. 102 S.Ct. 3164

Yee v. Escondido, 503 U.S. 519, 112 S.Ct. 1522, 118 L.Ed.2d 153

(1992) (holding rent control regulations are not a physical invasion under

Loretto because they only regulate what landowners can do with their

property, they do not compel a landowner to lease property to any

particular person)

43a

right only exists to the extent necessary to the landowner’s

use and enjoyment of the property. The landowner does not

have a separate interest in the air itself. As the Supreme

Court said in United States v. Caushy

The airplane is part of the modern environment of life,

and the inconveniences which tt causes are normally not

compensable under the Fifth Amendment. The airspace,

apart from the immediate reaches above the land, is part

of the public domain. We need not determine at this

time what those precise limits are. Flights over private

land are not a taking, unless they are so low and so

frequent as to be a direct and immediate interference

with the enjoyment and use of the land.”

The majority opinion is flawed when it concludes that

‘reation of an approach zone gives aircraft the right to use

Sisolak’s airspace. The aircraft are entitled to use airspace

below 500 feet above ground level for takeoff and landing,

and a landowner’s use of the airspace is concurrent with the

right of aircraft overflights pursuant to federal*’ and state

law.’ The majority refers to these statutes but then ignores

them to conclude that the Ordinances permit the planes to

invade the airspace.

Of course this is not to say that aircratt may fly over a

property with impunity. Where aircraft operations interfere

with a property’s existing use, a claim for nuisance or inverse

condemnation may exist based upon the extent of the damage

created by the overflights. In addition, like any other

regulation, airport height restriction regulations may go too

> 328 US. at 266, 66 S.Ct. 1062

*49 U.S.C. § 40102(a)(30) (2000)

* NRS 493.030, 493.040 and 493.0S0(1 (a)

* Caushy, 328 U.S. at 262-64, 66 S.Ct. 1062.

44a

far and result in a claim for inverse condemnation under the

guidelines set forth in Penn Central

Penn Central analysis

When a regulation does not fall within one of the limited

physical takings cases, it may still constitute a taking requir-

ing compensation under Penn Central. Penn Central employs

a fact-intensive ad hoc analysis to determine whether the

impact of a regulation upon property rises to the level of a

constitutional taking. As noted by the majority, the Supreme

Court has identified several factors to be considered in Penn

Central cases: (1) does the regulation impose restrictions

generally upon all property within an area, or does it target

certain landowners; (2) 1s the regulation designed to benefit a

particular government project or enterprise; and (3) does the

regulation destroy the landowner’s investment-backed expec-

tations in the property.-” No one factor is controlling in the

analysis.” [In addition, before a claim under Penn Central

may be litigated, the impact of the regulation on the property

must be established.“” Regulations that rely on government

action to determine the effect of the regulation upon the

property (such as variance procedures) are not ripe tor court

action until limits of the regulation are established.~’

The County alleges that Sisolak’s claim for inverse con-

demnation is not ripe for adjudication because Sisolak’s only

request for a variance was granted and there has been no

definitive determination of how high a structure may be built

upon the property. I disagree. The record reflects that the

district court found, based upon affidavits and Itve and depo-

~ 438 U.S. at 124, 98 S.Ct. 2646

*” Palazzolo v. Rhode Island, 533 U.S. 606, 634, 121 S.Ct. 2448, 150

L.Ed 2d 592 (2001) (O°Connor, J., concurring)

fd. at 619-21, 121 S.Ct. 2448 (majority opinion).

* i

45a

sition testimony, that Sisolak could not build a structure

exceeding sixty-six feet above ground level.” Although the

County presented contrary evidence, weight and credibility

decisions lie within the discretion of the district court.’

Substantial evidence supports the district court’s finding, ’~ and

thus, the matter 1s ripe for adjudication under Penn Central

Several aspects of the Ordinances are troubling under Penn

Central, namely, evidence suggests that the regulations were

designed to (1) benefit a particular government project, the

expansion of McCarran Airport; (2) avoid eminent domain

proceedings; and (3) create approach zones that may burden

specific pieces of property for a benefit conveyed to all

property owners in Clark County. Moreover, the variance

procedure is conditioned on an unconstitutional exaction

casement. However, Sisolak presented no evidence on how

the Ordinances impacted his investment-backed-expectations.

Because no factor is controlling and Penn Central requires a

weighing of the factors, fairness requires allowing all parties

to present any additional evidence that they may have before

a final takings determination is made. I[ would therefore

remand the case for further proceedings under Penn Central.

J concur with the majority holding that actual relocation is

not necessary to award fees under the federal relocation act so

long as the record establishes a nexus that the ordinances

When deciding jury instructions. the district court concluded that the

County's evidence supporting heights exceeding one hundred feet above

ground level was too speculative and instructed the jury that no building

would be permitted above sixty-six feet above ground level. Although

this was improper under Loretto, and the district court did not review the

evidence for futtity or exhaustion under Penn Central, given his

statements, | see no point in remanding tne case tor this purpose as his

ruling clearly reflects his findings regarding the evidence

See Citv of Las Vegas v. Bustos, 119 Nev. 360, 365, 75 P.3d 351,

$4 (2003)

; See id

46a

were enacted to further a particular project and that project ts

federally funded. | also concur tn the conclusions regarding

prejudgment interest.

47a

MAUPIN, J., dissenting.

While ! agree with the majority that this inverse con-

demnation action must be resolved under a regulatory takings

analysis, | disagree that a per se regulatory taking has

occurred. In my view, the district court should have ordered

the parties to litigate this takings claim under Penn Central

Transportation Co. v. New York City.

DISCUSSION

Regulatory takings

In line with the United States Supreme Court’s recent deci-

sion in Lingle v. Chevron U.S.A. Inc., regulatory takings

occur under federal takings jurisprudence when the govern-

ment requires an owner to suffer a permanent physical inva-

sion of property (Loretto v. Teleprompter Manhattan CATV

Corp.), when a regulation completely deprives an owner of

“all economically beneficial use” of property (Lucas v. South

Carolina Coastal Council),’ when a regulation requires the

conditioning of land use beyond that which the regulation is

designed to protect (No/lan v. California Coastal Commis-

sion), or when a regulation, which does not deprive the

owner of all viable economic use, impacts the property to the

degree that it interferes with legitimate property interests

(Penn Central)... When the regulation at issue does not fit

within the first three categories, the takings claim must be

resolved under Penn Central.’

' 438 U.S. 104, 98 S.Ct. 2646, 57 L.Fd.2d 631 (1978)

"$44 U.S. 528. 125 S.Ct 2074, 161 L-Ed.2d 876 (2005)

'458 ULS. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (state law

requiring landlords to permit cable companies to tnstall cable facilities in

apartment buildings effected a taking).

"505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992).

* 483 U.S. 825, 831-32, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987).

"438 U.S. 104, 98 S.Ct. 2646. 57 L..Ed.2d 631 (1978).

” See Lingle, 544 U.S. at 538, 125 S.Ct. 2074.

48a

As stated in Lingle

Although our regulatory takings jurisprudence cannot

be characterized as unified, [the three] inquiries (re-

flected in Loretto, Lucas, and Penn Central) share a

common touchstone. Each aims to identify regulatory

actions that are functionally equivalent to the classic

taking in which government directly appropriates private

property or ousts the owner from his domain. Accord-

ingly, each of these tests focuses directly upon the

severity of the burden that government imposes upon

private property rights.”

Che majority agrees that neither a Lucas nor Nollan taking

has occurred. Rather, it concludes that, under Loretto, the

height restriction ordinances at issue effected a permanent

physical invasion of the subject property.

In my view, because the air tratfic over this property comes

and goes, the Ordinances in question have not operated as a

permanent physical ouster. Rather, they establish height

restrictions to buildings that are subject to a variance process.

Accordingly, | conclude that Loretto, Lucas and Nollan are

not implicated. Under this analysis, the matter should be

remanded for resolution under Penn Central tor determi-

nations concerning (a) the regulations’ economic impact, (b)

the regulations’ interference with investment-backed expec

tations, and (c) the character of the government action.” As

discussed below, such a resolution would be subject to a

preliminary determination of ripeness.

“Jd at $39, 125 S.Ct. 2074

Penn Central, 438 US. at 124. 98 S.Ct. 2646

49a

Ripeness

~ j

Exhaustion

A regulatory takings claim under Penn Central is generally

not ripe without exhaustion of administrative remedies

resulting in a “tinal decision” regarding the property owner’s

ability to develop his property.” In Williamson Planning

Commission v. Hamilton Bank, the Supreme Court observed

Our reluctance to examine taking claims unul such a

tinal decision has been made is compelled by the very

nature of the inquiry required by the Just Compensation

Clause. Although “[t}he question of what constitutes

a ‘taking’ for purposes of the Fifth Amendment has

proved to be a problem of considerable difficulty,” this

Court consistently has indicated that among the factors

ot particular significance in the inquiry are the economic

impact of the challenged action and the extent to which

it interferes with reasonable investment-backed expecta-

tions. [Those tactors simply cannot be evaluated until the

administrative agency has arrived at a final, definitive

position regarding how it will apply the regulations at

issue to the particular land in question.

Che final decision requirement “responds to the high degree of

discretion characteristically possessed by land-use boards tn

softening the strictures of the general regulations they

administer.”'~ Accordingly, without a final regulatory deci-

sion applying the challenged regulation, a court cannot evalu-

Williamson Planning Comm nv. Hamilton Bank. 4

195, 105 S.Cr. 3108, 87 L.Ed.2d 126 (1985)

3 U.S. 172, 190,

id. at 190-91, 105 S_-Ct. 3108 (citations omitted)

~ Suitum v. Tahoe Regional Plannine Agency, 520 U.S. 725, 738. 117

S.Ct. 1659, 137 L.Fd.2d 980 (1997): see alsa MacDonald. Sommer &

Frates v. Yolo County, 477 U.S. 340, 348. 106 S.Ct. 2561. 91 L.Ed.2d 285

(1986) (“A court cannot determine whether a regulation has gone “too far’

unless it Knows how far the regulation goes.)

SOa

ate the economic impact of the regulation with regard to the

extent tt interferes with reasonable investment-backed expec-

tations and, thus, cannot conduct the Penn Central examina-

tron without resorting to speculation. A final decision

requires, at a minimum, “(1) a rejected development plan, and

(2) a denial of a variance.”'* Further, the application for

development must be one that is meaningful, /.e., not one that

is for “‘exceedin

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