Real Estate & Property Law

Nevada SCT: Upon Further Review, It's a Per Se Regulatory Taking

By rht

Thanks to Patty Salkin's Law of the Land blog for summarizing the recent Supreme Court of Nevada opinion in Hsu v. County of Clark, No. 46461 (Dec. 27, 2007).  Read Professor Salkin's summary or the opinion itself for the complete details, but these are the facts in a nutshell:

The county enacted building height restrictions on property around the Las Vegas airport.  A property owners within the zone brought an inverse condemnation action, asserting the height restriction imposed a physical occupation of their airspace, and that the ordinance was a per se regulatory taking.  In an unpublished order, the Nevada Supreme Court held that a per se taking did not occur, and that the applicable analysis was under the Penn Central test [Penn Central Trans. Co. v. City of New York, 438 U.S. 104 (1978)].  On remand, the trial court dismissed, and the property owner again appealed.

During the pendency of the second appeal, the Nevada Supreme Court published an opinion in a similar case, McCarran Int'l Airport v. Sisolak, 137 P.3d 1110 (Nev. 2006), which held that airport height restrictions were a physical invasion and thus a per se (not Penn Central) taking.  The issue presented in Hsu was whether the earlier unpublished Nevada Supreme Court controlled as "law of the case," or whether the subsequent Sisolak rule would control.

The court determined that the usual rule of law of the case must under some circumstances yield to equitable principles.  Generally speaking, when an appellate court states a rule of law applicable to a case, that rule may not be revisited as the litigation progresses.  This doctrine is related to the doctrines of stare decisis (as applied, for example, by the U.S. Supreme Court in John R. Sand & Gravel v. United States, No. 06-1164 (Jan. 8, 2008)), and issue and claim preclusion, which prevent relitigation of issues and cases in the interest of finality and judicial economy.

However, the doctrine of law of the case is merely a prudential rule, not jurisdictional, and a court may refuse to apply it if the rule in the case is "clearly erroneous" or would "work a manifest injustice."  Slip op. at 7.  The court held that the law of the case doctrine will not apply when the applicable law changes during the pendency of a case.  The court noted that Sisolak determined that an ordinance that imposes a height restriction to allow aircraft to fly through a landowner's airspace was a per se regulatory taking of private airspece, and that determination should apply to Hsu.

This case presents an interesting contrast to the recent decision in John R. Sand & Gravel, where the U.S. Supreme Court held that decisions going back to the 1880's would not be revisited under the doctrine of stare decisis.

Full post as published by inversecondemnation on January 14, 2008 (boomark / email).