Pilot Counsel

A legal case threatens airports

January 1, 2007

John S. Yodice is the legal counselor to AOPA. He owns a Cessna 310, which he flies for business and pleasure.

Here is a legal case that arguably could have significant long-range implications for all airports in the United States. In any event, I believe that pilots and aircraft owners, with their abiding interest in the preservation of airports, will find this decision and the background law interesting.

Clark County operates the McCarran International Airport in Las Vegas. As many other airport owners do, McCarran has an ordinance restricting the height of buildings on property near the airport. Indeed, Clark County, just as any other recipient of federal airport aid, is required to give the federal government its assurance that it took steps, by enacting ordinances, to protect the airspace needed for aerial approaches to the airport. This Clark County ordinance has been on the books since 1955. It was later, during the 1980s, that a purchaser invested in three unimproved parcels of land about a mile away from the west end of the airport. The parcels were each zoned for the development of a hotel, a casino, or apartments. When the purchaser acquired the property, the 1955 ordinance restricted the height for development on the property to 150 feet above the airport elevation. The property was at a higher elevation than the airport, and consequently the ordinance actually limited the height to between 80 and 90 feet above the ground.

In 1990, McCarran airport began expanding its runways in accordance with a 1979 master plan. The county adopted two other ordinances that were designed to protect the approach and departure paths to the airport. The first ordinance put the purchaser's property in a precision instrument approach zone, which subjected the property to a 50-to-1 slope restriction, and resulted in an actual height restriction between 41 and 51 feet. The second ordinance imposed an 80-to-1 slope restriction in a departure critical area of the airport that resulted in a height restriction on the property of 3 to 10 feet. But these height restrictions were not absolute. All three ordinances provided that any property affected by them could be granted a variance, coordinated with the FAA, to raise the height restrictions in order to achieve "substantial justice."

In addition to the ordinance restrictions, this particular property also was subject to a "perpetual avigation easement" granted by a previous owner. This easement affected half of the property and granted aircraft the right to fly through the airspace over it. This came about because the county required the grant of an easement as a standard precondition to development approvals for property anywhere in the county.

Years went by with the land vacant. In 2000, a potential purchaser of the property submitted building plans to the county and the FAA for a four-story resort hotel and casino, and sought a variance from the height restrictions to build up to 70 feet but not less than 66 feet. A variance was granted to build up to a height of 66 feet. However, the approval lapsed because the developer failed to start construction within the required one-year period.

Eventually the owner decided to file suit against the county for "inverse condemnation," complaining that the height restrictions constituted a taking of his property under the U.S. and Nevada constitutions. He alleged that under state and federal law he had a property interest in the airspace over his land up to 500 feet, and that the county ordinances denied him the use of that airspace, substantially decreasing the value of his land. At the trial, he produced experts who testified regarding the devaluation of the property caused by the ordinances. In reliance on this testimony, a jury returned a verdict against the county and in favor of the landowner for $6.5 million, which with interest, costs, and attorneys fees increased to $16.6 million. The county appealed this verdict to the Nevada Supreme Court.

At this point, a word about the background of the law involved in this case will help us put the Nevada Supreme Court decision in context. The U.S. Constitution, and the constitutions in probably all of the states including Nevada, prohibits the government from taking private property for public use without just compensation. The classic "taking" is one in which the government directly takes a person's private property. As the law developed, in 1922 the U.S. Supreme Court adopted a "regulatory takings" concept recognizing that government regulation of private property may be so onerous in some instances that its effect is tantamount to a direct taking, and that such regulatory takings may require compensation under the Constitution. For example, a land use regulation that, although not directly taking a person's property, completely deprives the owner of all economically beneficial use of the property is a taking requiring compensation. So the problem becomes: Where does appropriate land use regulation end and a regulatory taking begin? This is a very shadowy area. The U.S. Supreme Court has not provided a set formula to make this determination. The effect of the regulation on a piece of property is measured on a case-by-case basis using several factors to determine whether the regulation constitutes a taking.

Consider this development of the law in context with the development of the law of ownership in the airspace. In early common law, a landowner was considered to own the airspace above his property. This concept was very limited by nations exercising jurisdiction over the navigable airspace above their respective nations. The airspace over the United States is considered to be in the public domain, subject only to the ownership of the airspace by the landowner, necessary to the landowner's use and enjoyment of the property. So the airspace, apart from the immediate reaches above the land, is part of the public domain. As the law developed, flights over a person's private land were held not to be a taking unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land.

Now back to the appeal of this case to the Nevada Supreme Court. The Nevada Supreme Court affirmed the $16.6 million award against the county. It held that the landowner had a valid interest in the airspace over his property up to 500 feet, and that the height restrictions of the ordinances did constitute a taking of his property. The mere presence of aircraft flying below 500 feet above ground level, according to the court, constitutes a physical occupancy of the property.

Why 500 feet? The Nevada court undertook a very interesting analysis that will sound somewhat familiar to pilots. The court looked to the federal aviation statutes that define the "navigable airspace" to mean "airspace above the minimum altitudes of flight prescribed by regulations...[including] airspace needed to ensure safety in takeoff and landing of aircraft." The court interpreted current regulations to define "minimum safe altitudes" as heights of 1,000 feet over congested areas or 500 feet over other than congested areas, except where necessary for takeoff or landing. On this basis, the court held that "the airspace above required minimum altitudes for flight, as established by federal regulations, is in the public domain, while the ownership of the airspace below such minimum safe altitudes [500 feet] is vested in the owner of the subjacent land, who is entitled to compensation for flights invading that airspace when taken by the government." The court said that although aircraft may fly below 500 feet under the regulations when necessary for takeoff and landing, this right does not divest the property owner of his protected property right to his usable airspace, concluding that Nevadans hold a property right in the usable airspace above their property up to 500 feet.

What about the "perpetual avigation easement" allowing aircraft to fly in the airspace over the property? The Nevada Supreme Court also held that a regulation, which requires the granting of an easement in order to get permission to develop, is automatically a taking if the easement is not narrowly drafted. The court refused to give the effect of the broad easement.

This case could have significant long-range implications for all airports in the United States. It doesn't take much to realize that the analysis of the Nevada Supreme Court decision could impose staggering liability on any airport at which aircraft arriving or departing the airport are regularly flying over private property at less than 500 feet, even airports presumably protected by zoning, easements, and other height restrictions that historically have been relied on to protect the approaches to the airports. Clark County is asking the U.S. Supreme Court to review the decision of the Nevada Supreme Court. Virtually all of the affected aviation associations, including AOPA, are joining in this request, asking the court to balance the interests of landowners to the immediate reaches of the airspace over their land with the "public right of freedom of transit to the navigable airspace" recognized in the Federal Aviation Act (and the "right of flight" under Nevada law) protected by appropriate land use regulation.