Airport lawsuit retrial ordered

The Nevada Supreme Court ruled Thursday that a 17-year-old lawsuit filed against McCarran International Airport over property just east of the MGM Grand hotel-casino must be retried in District Court.

Tien Fu Hsu had won a $13 million judgment in 2001, when a jury determined that the value of his property was diminished by height restrictions that Clark County Commissioners approved in the 1990s for land around the airport.

After a series of appeals, the Nevada Supreme Court ruled Thursday that Hsu must return to District Court and show what type of variances he could have received from the county in 1995, when he sold the land. The court will then decide the difference in value between what Hsu could have developed prior to the restrictions versus what he could have built on the property in accordance with the height limit.

During the first trial, experts testified that Hsu could not receive any variances on the land in 1995 because airplanes flew right through the air space above the property.

Attorney Kermitt Waters, who represents Hsu, said his client has already spent millions of dollars on the legal battle.

“It’s very disappointing (that) they’re going to make us try it again,” Waters said. “Mr. Hsu is in his 80s; he’ll probably never see his money.”

Hsu bought the property in 1988 and originally planned to build a hotel-casino on the land where no height restrictions existed. When the height restrictions were passed in the 1990s, a 35-foot limit was placed on Hsu’s air space, shattering his dreams to build a resort.

Waters said his client should receive about $28 million for the land due to the loss in value, interest and attorneys fees he has paid over nearly two decades.

For the first time since the appeals process began, the Supreme Court ruled that the county is liable for some amount of compensation because Hsu lost his right to at least a portion of the air space above the land.

“The only good side is that the liability has now been established and it’s a matter of figuring out how much again,” Waters said. “The bad side is we have to spend money on the trial and they will appeal it again. You can bank on that.”

In 2005, the Nevada Supreme Court invalidated the $13 million judgment, ruling that there was no permanent physical invasion of Hsu’s airspace. It ordered the case back to District Court and gave Hsu a deadline for filing for zone changes or variances to develop the land.

Hsu instead sold his property, prompting the District Court to dismiss the case. Hsu appealed that decision to the Supreme Court, which rendered its ruling Thursday.

Hsu’s case is similar to a lawsuit filed by Steve Sisolak, a university regent and a developer. Sisolak recently landed a $6.5 million judgment, which is expected to balloon to $17 million after interest and fees are included, after he sued the county over air space restrictions.

Sisolak bought 10 acres about a mile west of an airport runway more than 20 years ago. At the time, he too planned to build a hotel-casino, but the height restrictions dashed his plans.

The judgment was appealed to the Supreme Court, which in 2005 ruled that Sisolak was deprived of all economically viable uses of the property.

Sisolak’s case was different from Hsu’s in that Sisolak’s property had been zoned for a high-rise structure. When the height restrictions were adopted, they stripped Sisolak of the designated use of the property.

Contact reporter Adrienne Packer at apacker@reviewjournal.com or (702) 384-8710.