Thursday, September 21, 2006
One of the most notable land use court decisions this summer was the Nevada Supreme Court’s striking another blow for property owners who claim that zoning has “taken” their property rights. The plaintiff in the 1980s had bought vacant land near the Las Vegas airport that was already subject to zoning height restrictions. With increased air traffic at America’s most booming big city, Clark County passed more restrictive zoning ordinances. These restricted construction considerably below the 500-foot “navigable airspace” set forth by federal law. As they approached and took off from the airport, some planes actually passed less than 500 feet above the plaintiff’s land.
Applying both the federal Constitution and the Nevada Constitution, which sets forth a “rich history of protecting private property owners against government takings,” the Nevada court concluded that the county ordinances “appropriated his private property for a public use without the payment of just compensation,” because of a “Lorretto-type” physical intrusion. The plaintiff was awarded more than $16 million, including interest.
I understand the position that frequent flights could be considered a physical intrusion, but I find it harder to understand how the height ordinances themselves are a compensable taking. The court concluded that the plaintiff had a “valid property interest in the airspace above his land” up to 500 feet; does this mean that any regulation of such airspace is a taking? Considering that buildings should not, of course, rise to anywhere near the levels at which planes fly, what if planes flew to a minimum height of 600 feet over plaintiff’s land and the zoning ordinance thus limited buildings to 400 feet –-would this still constitute a compensable taking?
The case is at McCarran International Airport v. Sisolak, 37 Pacific Reporter 3d 1110 (2006).
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