Supreme Court takes up county appeal

Monday, Feb. 14, 2005 | 9:39 a.m.

CARSON CITY -- A $16.6 million judgment against Clark County and McCarran International Airport for imposing height restrictions on property near the airport comes before the Nevada Supreme Court on Wednesday.

A District Court jury awarded $6.5 million to Steve Sisolak, who owns 10 acres about one mile from the airport runway at the southwest corner of Las Vegas Boulevard South and Arby Avenue. The award has grown to $16.6 million with interest and fees.

Four organizations have filed friend of the court briefs in support of the appeal of Clark County to nullify the judgment and overturn the ruling of District Judge Mark Denton that the regulation was a "per se" taking of airspace from Sisolak, a member of the university Board of Regents.

The Sisolak-Clark County case is one of 15 appeals to be heard by the full court the week in Carson City.

Sisolak had purchased the 10 acres in the 1980s and had received approval from the county in March 2001 to develop a four-story, 600-room hotel with an approximate height of 66 feet. The approval lapsed a year later.

The height regulation permitted land uses to at least 35 feet but allowed landowners to apply for a variance.

Kirk Lenhard, attorney for the county and airport, said in a pre-hearing brief that the enactment of the height regulation "promoted the public health and safety by preventing the creation of aviation hazards and did not deprive Sisolak of any constitutionally protected property right."

Lenhard says the available airspace up to 66 feet was sufficient to allow Sisolak to pursue his development. He argues that the Nevada Legislature "conveyed the power to the county to adopt airport regulations -- without causing a compensable taking."

He said the county never rejected Sisolak's proposed development.

But Laura Wrightman Fitzsimmons, attorney for Sisolak, maintains, "The courts have the duty to protect the rights of landowners in cases such as this one."

The 66-foot height restriction, said Fitzsimmons, is "still insufficient to develop the property to the highest and best use." When Sisolak purchased the property, the height restriction was 100 feet.

Fitzsimmons argues that the airport regulation put Sisolak's property "directly within the low approach and departure zones" of the airport.

Supporting the airport's position in friend of the court briefs were the American Planning Association, the Air Transport Association of America, the Airports Council International-North American and the Airport Authority of Washoe County.

The court will also consider the appeal of Debra Camp whose husband was injured and then died when his car was hit by another car in Las Vegas driven by a suspect who was being pursued by police. A district judge dismissed the damage claim.