Attorney says Sisolak should be compensated for airspace invasion

Thursday, Feb. 17, 2005 | 9:41 a.m.

CARSON CITY -- An attorney told the Nevada Supreme Court Wednesday that McCarran International Airport permanently invaded the airspace over adjacent property and that landowner Steve Sisolak should be compensated.

Laura Wrightman Fitzsimmons, attorney for Sisolak, urged the court to uphold a $16.5 million judgment against the airport and Clark County for the taking of this airspace.

Kirk Lenhard, attorney for the county and airport, argued that District Judge Mark Denton was wrong when he ruled this was a "per se" taking of airspace by the county and airport.

He said the case was about a "valid exercise of police powers to protect the public and traveling public."

The court took the arguments under submission and Chief Justice Nancy Becker said the attorneys submitted the "best briefs and the best arguments we have had."

Lenhard said the county did not occupy the property of Sisolak, a member of the board of regents of the University and Community College System of Nevada. He said the property value actually increased.

Fitzsimmons said when Sisolak purchased the two five-acre parcels on the southwest corner of Las Vegas Boulevard South and Arby Avenue, he had the right to build to 175 feet.

The county then imposed a height restriction of 35 feet but allowed variances. Sisolak received approval from the county in March 2001 to develop a four-story resort hotel to a height of 66 feet. The approval lapsed after no construction had begun within a year.

An adjustment of the airport put the Sisolak property directly within the low approach and departure zones, Fitzsimmons maintains.

She said planes are now flying over the property at below 500 feet. "This interfered with the use of the property," she said. Lenhard said that does not constitute an occupation or a taking of the property by government.

If the judgment is upheld by the Supreme Court, Fitzsimmons said the airlines will pay the $16.6 million. "They are using the air space," she said.

Lenhard argued the county had a right to set the height restrictions over the property. And he said Sisolak had no right to sue because the county never rejected a request for a variance. "There was no application to build to a higher elevation," he said.

Fitzsimmons said the landowner does not have to apply for a variance in order to sue for damages if the value of his land is lowered. She argued the land was devalued by "millions of dollars."

Judge Denton decided that there was a "per se" taking of the air rights of Sisolak and he should be compensation. A district court jury set the damages at $6.5 million and interest and fees have escalated the judgment to $16.6 million.

The two attorneys disagreed on the ruling by the U.S. Supreme Court. Lenhard said Judge Denton ignored the decision of the high court in allowing damages. Fitzsimmons argued the Denton ruling was in line with the holdings of the Supreme Court and with the Supreme Courts in seven other states.

Fitzsimmons said a 1940s Nevada law provides that it property of an owner is interfered with by government, "It constitutes a taking."

Lenhard argued the public has a right of flight over private property.