Wednesday, June 18, 2003 | 9:43 a.m.
CARSON CITY -- In a case that has attracted the attention of airports, property rights advocates and local governments, Clark County is appealing a $22.1 million judgment that it must pay neighbors for the use of air space next to McCarran International Airport.
The Nevada Supreme Court will hear oral arguments June 25 in a case in which four of the seven justices have disqualified themselves and there are eight friend-of-the-court briefs.
A court spokeswoman said this was the first time that a majority of the court has have stepped down, and this is a record number of friend-of-the-court briefs in any single case.
Kirk Lenhard, attorney for Clark County, says the group that owns the adjacent property has "no constitutionally protected property interest in the air space." He said the "right of flight is entirely a federal or state concern."
However, Kermitt Waters and Michael Berger, attorneys representing the property owners, said airport regulations allow aircraft to enter the airspace and stop landowners from using it.
They said the airport operators took an "aviation easement over private property for public use, and just compensation is due." Waters and Berger also asked the court to increase the attorney fees and damages for interest lost during the past decade.
In 1994 Clark County started condemnation proceedings for land to widen Tropicana Avenue, which runs adjacent to the airport. The case was settled for $758,000. But the property owners filed a counterclaim seeking compensation for air space rights.
The owners of the property are Tien Fu Hsu, Lisa Su Family Trust, Peter Kiao, Westpark Inc., Lucky Land Co. and other associated companies. The owners operated a trailer park, a lounge and billboards.
District Judge Mark Gibbons, now a member of the Supreme Court, ruled the property owners could be compensated. A District Court jury awarded $13 million for the air rights, which Gibbons reduced to $12.6 million. Another $7.9 million in interest and $1.3 million in attorney fees were awarded.
The justices who disqualified themselves were Gibbons, Myron Leavitt, Robert Rose and Miriam Shearing. District Judge Jerome Polaha of Reno will replace Rose and retired Justice Cliff Young will be sitting in for Shearing.
Among those submitting friend-of-the-court briefs were Defenders of Property Rights, the Pacific Legal Foundation, the American Planning Association, the Tahoe Regional Planning Agency, the Reno Airport Authority, the International Municipal Lawyers Association, Airports Council International, Inns of Nevada, the state Transportation Department and the city of Las Vegas.
Structural height restrictions were set in the vicinity of 35 feet to protect against any aviation hazards.
Lenhard said the property owners secured variances to construct two billboards 50 feet high. But he said the owners never intended to develop the property for other uses. They never prepared plans for any structure in excess of 35 feet, he said.
It was wrong, Lenhard said, for Gibbons to assume the landowners "enjoyed an unlimited property right to the subject airspace." They never had a "vested right" to the airspace, he argued.
Waters and Berger argued that Clark County placed the parcel in a "transition zone" of property adjacent to the runway to be used for airplanes to maneuver at low altitudes.
"The county authorized any pilot to trespass in privately owned airspace next to its airport at any time and for any reason," the two lawyers said.
This property is close to the Las Vegas Strip, where a number of new hotel-casinos were being built during this period. The lawyers said an appraiser had found that the best use for this property was a 400-foot-high hotel-casino. But height limitations prevented that.
Lenhard responded that the property owners never prepared any plans for a building in excess of 35 feet. He said the District Court wrongly assumed that the height regulation authorized the public use of the airspace. The county, he said, only established a height limitation.
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