Award in airport suit overturned

Friday, Oct. 1, 2004 | 9:26 a.m.

CARSON CITY -- The Nevada Supreme Court Thursday overturned a judgment in which Clark County was ordered to pay $22.1 million to neighbors of McCarran International Airport who said they were entitled to damages because their airspace was condemned.

The property owners maintained they could not develop their property with such things as high-rise hotels because of the county airport height restrictions for takeoffs and landings.

The court's unanimous 52-page decision said the District Court "erroneously concluded that the county's height-restriction ordinances created a per se physical taking of the landowners' property."

Four of the seven justices disqualified themselves and there were eight friend of the court briefs filed, a record for any single case. Justice Mark Gibbons presided over the trial when he was a District Court judge in Las Vegas and disqualified himself from considering the appeal.

The property owners are Tien Fu Hsu, Lisa Su Family Trust, Peter Liao, Westpark Inc., Lucky Land Co., West Park Company 1 and other associated firms. The area covers 27 acres and includes such things as mobile home parks, a nine-unit apartment building, a bar as well as two billboard sign rentals.

In 1994 Clark County started the condemnation process for land to widen Tropicana Avenue adjacent to the airport. The case was settled for $758,000. But the property owners filed a counterclaim seeking compensation for air space rights saying the height restrictions limited the highest and best use of their property -- a hotel.

Gibbons ruled that it would be useless for the landowners to seek a required variance because prior requests to the county had been denied. As a result he ruled the landowners did not have to exhaust their administrative remedies before filing suit.

The Supreme Court said the judge erred "in determining, as a matter of law, that any attempts at approval of a high-rise project would have been futile."

The court said it was "incumbent upon these landowners to submit a meaningful application for development and resort to the variance process." It said there was no way of knowing whether Clark County would have approved a variance if the property owners had realistic plans for a resort development.

At the time the court said the landowners "apparently had no concrete plans" for a development to submit to Clark County.

The court said the landowners could now, if they choose, "submit meaningful development plans to the county with an application for a variance." If the county denies that, then the landowners can go back to district court to pursue their case.

Because the landowners did not go through the administrative procedures, the court said the case "is not yet ripe for judicial determination."

The jury returned a $13 million judgment against Clark County that Gibbons reduced to $12.6 million. Then interest, costs and attorney fees were added to bring the total judgment to $22.1 million.