Agenda - Planning Commission - 03/06/2008

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" /' I{ i\, February 10, 20081 Volume 21 No.3 } The court found that the public comments were attacks on the plan based on objections to the existing gravel area and operation of the school, which w~re areas beyond the scope of the statute. Inverse Condemnation-Landowners claim airport transition zone height restrictions result in a taking of their property without compensation Citation: Tien Fu Hsu v. County of Clark, 2007 WL 4532632 (Nev. 2007) In 1981 and 1990, the county passed two ordinances that placed "transition zone" height restrictions on property surrounding Mc- Carran International Airport. Property affected by these restric- tions included property owned by Hsu and his co-landowners (col- lectively, "Hsu"). In 1995, Hsu counterclaimed against the county in an eminent domain action. Hsu argued that, with these restric- tions, the county "took" his property. Hsu claimed the county pre- vented him from using the property above a certain height because of aircraft flight. Hsu also argued that the county failed to pay him for this taking. Hsu claimed this taking without compensation vio- lated the Nevada and United States Constitutions, The district court ruled that the ordinances imposing the tran- sition zones over the property were a "per se"-by themselves- physical taking of Hsu's property. The court found this taking was a matter of law-meaning the issue did not need to go to trial because there were no issues of fact in dispute. In its holding, the district court found that the transition zone height restrictions pre- served the right of aircraft to fly through the airspace at altitudes lower than 500 feet. The court further found that aircraft actually used the airspace. On appeal, the Supreme Court of Nevada reversed the district court's decision. The Supreme Court of Nevada found that the height restrictions did not result in a physical taking. Rather, the court said, they were a regulated use of the property. The Supreme Court of Nevada said that the takings issue should have been de- cided on regulatory takings principles. Accordingly, prior to bring- ing a lawsuit, Hsu was required to exhaust administrative reme- dies, such as first filing for a variance. The case was remanded. On remand, the case was eventually dismissed without preju- dice. Hsu then filed an appeal to the Supreme Court of Nevada. In between Hsu's two appeals, the Supreme Court of Nevada is- sued an opinion in a similar case. In that case, the court concluded that "runway approach zone" height restrictions were a regulatory' 5 145