Skies still not clear of cases over airspace restrictions

Landowners suing Clark County for airspace restrictions on their properties have become like planes circling a busy runway.

At least a dozen cases have been launched over the years, costing the county about a quarter of a billion dollars so far.

Landowners claim that height limits imposed below flight paths keep them from developing high-rise resorts on properties near McCarran International Airport. They say it amounts to a taking and that the county should compensate them for the estimated loss of income.

Airport officials don't want airliners crashing into tall buildings. They say they need the height limits to ensure the safety of airlines, passengers and people who occupy buildings near the airport.

The county settled four airspace cases in July, including one lawsuit that has bounced around the legal system since the mid-1990s.

Three of the airspace lawsuits were bundled with two noise grievances into a single $26.7 million settlement.

Attorneys on both sides described the agreements as reasonable.

"It was a fair resolution," said Kirk Lenhard, an attorney representing the airport.

STT Land, Tien Fu Hsu and MBP sued the county because of height limits. Hsu and Sheryl Mickle filed lawsuits based on noise.

This agreement forbids attorneys from disclosing the dollar amounts awarded to each litigant, Lenhard said.

The county passes litigation costs to the airlines by raising the fees they pay per passenger to use the airport. Airport officials say the carriers could raise ticket prices to offset the fees. Three major airlines at McCarran wouldn't comment on whether they pass the costs to travelers.

Given the potential liability, county officials were wise to cut a deal, said Jim Leavitt, an eminent domain attorney representing STT, Hsu and MBP.

"I think they looked at these and said, 'There's a ton of exposure,' " Leavitt said. "The county made a good decision in settling them. Nevada doesn't mess around when it comes to property rights."

STT was a pivotal case because it challenged the 15-year deadline for filing airspace lawsuits, Lenhard said. The airport's main height limits were established in 1990, giving landowners until 2005 to sue, he said.

STT claimed the county never properly notified the owners of the height restrictions and, thus, the clock didn't start ticking until the owners learned of the rules a few years ago.

Lenhard said he was glad the county settled out of court with STT and avoided a judicial test of the 15-year statute of limitations.

If the courts ever nullify or weaken the time limit, it would open the county to more than a billion dollars in litigation, Lenhard said. "I can't stress enough how important it is for the statute of limitations' cases to get resolved."

The county hasn't landed safely yet, he said.

Huntsman Trust is challenging the statute on similar grounds as STT, saying the county never properly informed it of the height limits.

A District Court judge ruled the deadline applied to Huntsman Trust, Lenhard said.

The group has filed an appeal, and the case is expected to go before the Nevada Supreme Court in the next few months.

That same judge said that another plaintiff, 70 LP, also failed to meet the deadline. That company now claims a newer height restriction hampers it and will argue its case to a jury in mid-2010.

Attorney Paul Ray, who represents Huntsman and 70 LP, said both his clients have strong cases.

Newer height rules are so severe that 70 LP can't build structures much taller than 5 feet on some parts of its land, Ray said.

On another front, the county wrapped up the 14-year-old Hsu case, the granddaddy of local airspace cases.

Hsu took a twisted path.

A jury awarded Hsu $13 million a decade ago. The Supreme Court later overturned that finding. Then in 2007, the high court changed its original ruling and ordered the county to pay a settlement.

In a separate height-limits case, the county in July agreed to pay $13.5 million to Pierre Boueri, who owns 5 acres south of the airport.

Laura Fitzsimmons, who represents Boueri, said the county has a history of dragging out airspace feuds and paying more money as a result.

Its $15 million payout to Vacation Village in June -- when it could have saved as much as $8 million by settling years ago -- finally prompted county leaders to demand that the disputes get resolved quickly, Fitzsimmons said.

Lenhard denied that the county is pressing him to settle.

"My marching orders I have gotten are take care of the statute of limitations (cases)," Lenhard said.

Contact reporter Scott Wyland at swyland@reviewjournal.com or 702-455-4519.