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October 19, 2017

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With new hire, NDOT serves notice it won’t give away the store on eminent domain settlements

Nevada lawyers working for companies and individuals whose land is being “eminent domained” by the state Department of Transportation to make room for the expansion of Interstate 15 are beginning to quake in their Dolce & Gabanas.

Is that because lawyering eminent domain cases is so document-heavy and mind-numbingly complex that private attorneys are quaking in fear that they might lose track of their valuable contingency fees?

No. It’s because the Nevada attorney general just made a smart hire. It is no stretch to say attorney Laura Fitzsimmons wrote the book on the state’s eminent domain law.

Fitzsimmons represented County Commissioner Steve Sisolak in a precedent-setting eminent domain case against Clark County in 2003. The courts awarded Sisolak $6.5 million related to height restrictions on property that he had long held near McCarran International Airport. That amount grew to $23.5 million when interest and legal fees were added because Clark County attorneys appealed and lost before the Nevada Supreme Court five years later.

Also, in 2008, Fitzsimmons won another $180 million for her clients after Clark County agreed to settle its inverse condemnation lawsuits. Those county payouts, by the way, came from airport accounts that were filled by airline user fees, not from the county’s general tax fund.

What’s inverse condemnation?

It relates to an allegation that government took someone’s land but didn’t provide just compensation for it.

Observers say it’s not simply that Fitzsimmons is smart and highly motivated to win; it’s that she is one of the toughest, most thorough litigators in Nevada.

But now she’s not working for private industry, right? She’s going to work for the state?

That’s right. And that’s why lawyers who have been trying to get as much money from the state and Clark County for years suddenly are staring at themselves in the mirror.

Currently, sources say, Fitzsimmons is working on an issue regarding the eminent domain issues related to the Boulder City bypass. In the long term, however, the expectation is that her rare knowledge passed on to state lawyers will help the Department of Transportation as it moves forward on Project Neon, a $1.5 billion expansion of 3.7 miles of the highway from about the Spaghetti Bowl south to Sahara Avenue.

That $1.5 billion is an early estimate. In October, the state Board of Examiners expressed astonishment when the board received the $10.6 million bill for 2.8 acres that originally was thought to cost $4.7 million.

But Project Neon, shepherded by former DOT Director Susan Martinovich, has saddled the state with the daunting task of securing 52 properties. Some of those properties may be owned by businesses or homeowners who will have to move, and that forces the state to pay for a new house or a new business office for them.

As might be expected, sources say, lawyers are trying to eke out more from the state than what the state believes is fair.

Doesn’t the state have attorneys to handle this kind of thing?

It does, but only a handful. Further, the DOT years ago consolidated many of its right-of-way staff in Carson City, just about as far from the reality of Las Vegas as possible. That makes it difficult to coordinate between lawyers on the ground in Las Vegas dealing with eminent domain and DOT staff some 500 miles to the north.

So it’s Fitzsimmons to the rescue?

Kind of. Sources say Fitzsimmons is appalled by the waste of millions in taxpayer dollars going toward “unsubstantiated” condemnation awards that would otherwise go toward the creation of jobs and infrastructure during this economic downturn.

Whatever Fitzsimmons' motivation, sources say, opposing attorneys should know she doesn’t suffer fools, and she will directly call “bull” if they present her with such.

State sources say hiring Fitzsimmons is the smartest thing the state has done since making Rudy Malfabon director of the Department of Transportation.

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