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"Significant Airport Legal Decision"

Saturday, August 18, 2007

Significant Airport Legal Decision
Analysis By Jay C. White, General Counsel, California Pilots Association

The Nevada Supreme Court has set what may be a new standard for airport land
use planners. Developer Steve Sisolak planned to construct a high rise
building near the Las Vegas McCarran Airport. But first, he had to consider
a Las Vegas City Ordinance that restricted building heights. The ordinance
required that before a permit would be issued the developer must grant the
airport an avigation easement. The building location was situated in an area
where airline aircraft would be flying low when taking off or landing at the
airport. The ordinance also set a height limit in accordance with FAA glide
slope specifications for take off and landing. This limit would have
substantially limited the height of Sisolak's proposed structure. He argued
that this was a "taking" that decreased the value of his land  for which he
should be compensated. A jury agreed that the property value had been
decreased and awarded Sisolak damages of $6.5 million. The decision was
affirmed by the 9th US Circuit Court of Appeal July 23, 2007.

What is new and significant about this decision is the court's reference to
the Federal Aviation Regulations for guidance.
FARs establish the minimum safe flight altitude as 500 feet over other than
congested areas. The court declared that airspace above 500 feet was in the
public domain, but ownership of airspace below that altitude is vested in
the owner of adjacent land. An owner is entitled to compensation for flights
invading that airspace when "taken" by the government, meaning a devaluation
of the property.

Although this is a significant court decision, it should not be interpreted
too broadly. First, this was a lawsuit against a governmental entity that
could have restricted use of the property under its power of eminent domain.
Had it done so the owner would have been entitled to reasonable compensation
for the decrease in value. Developer Sisolak was able to show that the
restrictive city ordinance caused a substantial economic devaluation of his
property. A private property owner would not be able to impose such a
restriction by ordinance. Moreover, not every flight below 500 feet over
private property would necessarily interfere with or decrease the value of
the underlying property. Time will tell what impact this Nevada Court
decision will have on airport land use planning and operation. Unfortunately
it will likely cause confusion and uncertainty among airport land use

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