Agenda - Planning Commission - 03/06/2008

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Zoning Bulletin -------... taking of private property. Hsu argued the court should re-analyze ) its original holding in light of its decision in the other case. Hsu further argued the court should reinstate the district court's initial judgment, including its finding on liability, the award of just com- pensation, and attorney fees and prejudgment interest. DECISION: Vacated and remanded. The court held that when a matter is pending on remand or is on appeal and the controlling law of Nevada is substantively changed, courts of the State may apply that change of law to the matter. This holding, the court said, was an exception to the "law of the case doctrine." That doctrine otherwise requires a rule of law by an ap- pellate court to be followed throughout the- progress of a case. The court noted that since Hsu's first appeal, there had been a major change related to takings in Nevada's airspace. The court agreed with Hsu, and concluded that it should re-analyze its original hold- ing in light of the change of law. In reanalyzing Hsu's takings claim, the court found that the county's actions were a per se regulatory taking. The court said that such a regulatory taking occurs whenever a regulation au- thorizes a permanent physical invasion. The court noted that for a regulation to be a taking, it must actually give the government physical possession of the property. The court noted it is not a tak- ing if the regulation only forbids certain uses of the property. The court also said a taking occurs when the regulation deprives the landowner of all economically viable uses of the property. The court acknowledged that the ordinances did not directly authorize a physical invasion of Hsu's property. The court also noted that the airplanes flying over Hsu's property were not con- stantly occupying the airspace. Still, the court found that the or- dinances resulted in a permanent physical invasion. This was be- cause the right to fly through the airspace over Hsu's property at altitudes lower than 500 feet was preserved by the ordinance and expected to continue into the future, and airplanes actually made use of the airspace. The court further concluded that because of the "per se" na- ture of the taking, Hsu was not required to exhaust administrative remedies, such as applying for a variance, prior to bringing suit. Accordingly, the court vacated the district court's dismissal order. The court instructed the district court to enter an order finding the county liable for the regulatory taking. 6 146 -... ) l \ )