dissenting in part and concurring in part:
As a preliminary matter, I dissent to parts of the majority opinion that take statements out of context from United States v. Causby1 and Griggs v. Allegheny County2 to conclude that the mere presence of aircraft flying below 500 feet above ground level constitutes a physical occupancy of Sisolak’s property. Neither case found that aircraft overflights, takeoffs or landings, in and of themselves, constitute a taking under the Fifth Amendment of the United States Constitution. Rather, it was the effect of the planes upon the owners’ property that resulted in a taking. Likewise, the majority states that a regulation which requires the granting of an easement is automatically a taking under Nollan v. California Coastal Commission.3 However, Nollan only holds that such a requirement may be a taking if the easement does not relate to the health, safety or welfare purpose of the regulation or is overly broad to accomplish that purpose.
Second, I dissent from the majority opinion’s application of Loretto v. Teleprompter Manhattan CATV Corp.4 to support its conclusion that a taking occurred in this case under the Federal Constitution. I believe that the correct federal analysis requires the use of Penn Central Transportation Co. v. New York City.5
I concur with the majority that a broader interpretation of the principles articulated in Loretto or Penn Central for airport approach zone cases may be warranted under the Nevada Constitution for two reasons: (1) commercial aircraft did not exist in 1864; and (2) prior to the Supreme Court’s holding in Causby, landowners were generally considered to have an infinite interest in adjacent airspace.6 Moreover, it is true that, at the time of the Nevada Constitution, the idea of a regulatory taking did not exist. It was created by the U.S. Supreme Court in the seminal case of Pennsylvania Coal Co. v. Mahon.7 Finally, the establishment of landing patterns and approach zones and the regulation of physical structure heights in such zones necessarily regularly fimnels aircraft over particular pieces of property rather than impacting all landowners in an airport’s vicinity.
However, I dissent from the broad statement that our eminent domain provision was intended to give landowners greater protec*677tion than that given under the Fifth Amendment of the United States Constitution. This contradicts over a century of precedent. In addition, other than general statements that the County Ordinances violated the Federal and State Constitutions, Sisolak never provided any analysis to support an argument that the Nevada Constitution provides more expansive rights under eminent domain. Such a broad, sweeping holding, without any reference to Nevada’s constitutional debates or other significant supporting analysis, is unwise and unwarranted.8
For the reasons stated below, I do not agree that the County Ordinances in question, 1221 and 1599, authorize the physical invasion of Sisolak’s property in violation of Loretto. Instead, the appropriate taking analysis is governed by the Supreme Court’s opinion in Penn Central. Although, as discussed below, the Ordinances contain aspects that are troubling under Penn Central, neither side had the opportunity to fully litigate this case pursuant to Penn Central. Therefore, to be fair to all parties, I would remand the case to the district court with instructions to apply Penn Central after giving the parties time to present any additional evidence relevant to a Penn Central analysis. In addition, on remand, the parties could present additional arguments or analysis of how airport approach zones should be treated under the Nevada Constitution, through a broader reading of Loretto or Penn Central.
Lingle analysis of takings cases
To avoid confusion in future cases, the U.S. Supreme Court clarified its eminent domain jurisprudence involving the relationship between land use regulations and the Fifth Amendment in Lingle v. Chevron U.S.A. Inc.9 The Lingle Court delineated the elements necessary to establish a taking under each of the four different theories recognized by the Court involving land use regulations.10 The Court noted that the four theories are encompassed in four cases, Lucas v. South Carolina Coastal Council,11 Loretto, Penn Central and Nollan.12 Each theory has key elements, which the Supreme Court outlined.
*678For a Lucas taking, the landowner must demonstrate that the regulation completely deprives the owner of all economically beneficial use of the property.13 Loretto involves regulations that allow a permanent physical invasion of a landowner’s property by the government or third parties.14 A Nollan taking occurs when the granting of a land use application is conditioned upon concessions by a landowner, such as an easement, that go beyond the scope of the governmental interest the regulation is designed to protect.15 Finally, Penn Central is used to analyze any regulation that does not fit in the other three categories. Under Penn Central, 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.16
Sisolak agrees that Lucas does not apply to his property since the Ordinances do not destroy all beneficial use of the property. He argues instead that granting height variances conditioned upon conveyance of an avigation easement under Ordinances 1221 and 1599 constitutes an unconstitutional exaction under Nollan and that the creation of approach zones and critical approach zones by the Ordinances permits planes to physically invade his property in violation of Loretto. Sisolak contends that a combination of these actions amounts to a taking. However, under Lingle and Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,17 these theories cannot be combined to effect a taking.
I concur with Sisolak that the avigation easements imposed by Clark County against his property in the past, and as a condition of a variance grant in 2001, are unconstitutional exactions under Nollan. Ordinances 1221 and 1599 impose height restrictions to avoid creating aviation hazards for planes landing or taking off from McCarran Airport. The avigation easements go beyond this purpose because they also protect McCarran from future claims that noise and fumes from aircraft are creating a nuisance or destroying the existing use and enjoyment of the property.18 However, Sisolak has failed to demonstrate any damages resulting from the overly broad easements because the easements themselves do not prohibit building above a certain height. Thus, he has no takings claim until the government attempts to enforce the easement. Rather, his remedy at this time is to invalidate the easement. It can*679not be used to support the damage award below. His claim must be analyzed under Loretto or Penn Central.
Loretto inapplicable
The United States Supreme Court has emphasized that Loretto takings are a narrow category of takings.19 To constitute a taking under Loretto, a regulation must grant, on its face, the government or a third party rights in the plaintiff’s property.20 A regulation that simply limits what a landowner can do with his or her property does not amount to a taking under Loretto.21 Ordinances 1221 and 1599 impose building height restrictions upon property located within zones relating to runways at McCarran and other airports. They do not, on their face, establish any easement or other right to use a landowner’s property.
While the majority is correct that landowners have an interest in the airspace adjacent to their real property, the right only exists to the extent necessary to the landowner’s use and enjoyment of the property. The landowner does not have a separate interest in the air itself. As the Supreme Court said in United States v. Causby:
The airplane is part of the modern environment of life, and the inconveniences which it causes are normally not compen-sable under the Fifth Amendment. The airspace, apart from the immediate reaches above the land, is part of the public domain. We need not determine at this time what those precise limits are. Flights over private land are not 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.22
The majority opinion is flawed when it concludes that creation of an approach zone gives aircraft the right to use Sisolak’s airspace. The aircraft are entitled to use airspace below 500 feet above ground level for takeoff and landing, and a landowner’s use of the airspace is concurrent with the right of aircraft overflights pursuant to federal23 and state law.24 The majority refers to these statutes but then ignores them to conclude that the Ordinances permit the planes to invade the airspace.
*680Of course this is not to say that aircraft may fly over a property with impunity. Where aircraft operations interfere with a property’s existing use, a claim for nuisance or inverse condemnation may exist based upon the extent of the damage created by the overflights.25 In addition, like any other regulation, airport height restriction regulations may go too far and result in a claim for inverse condemnation under the guidelines set forth in Penn Central.
Penn Central analysis
When a regulation does not fall within one of the limited physical takings cases, it may still constitute a taking requiring compensation under Penn Central. Penn Central employs a fact-intensive ad hoc analysis to determine whether the impact of a regulation upon property rises to the level of a constitutional taking. As noted by the majority, the Supreme Court has identified several factors to be considered in Penn Central cases: (1) does the regulation impose restrictions generally upon all property within an area, or does it target certain landowners; (2) is the regulation designed to benefit a particular government project or enterprise; and (3) does the regulation destroy the landowner’s investment-backed expectations in the property.26 No one factor is controlling in the analysis.27 In addition, before a claim under Penn Central may be litigated, the impact of the regulation on the property must be established.28 Regulations that rely on government action to determine the effect of the regulation upon the property (such as variance procedures) are not ripe for court action until limits of the regulation are established.29
The County alleges that Sisolak’s claim for inverse condemnation is not ripe for adjudication because Sisolak’s only request for a variance was granted and there has been no definitive determination of how high a structure may be built upon the property. I disagree. The record reflects that the district court found, based upon affidavits and live and deposition testimony, that Sisolak could not build a structure exceeding sixty-six feet above ground level.30 Although the County presented contrary evidence, weight *681and credibility decisions lie within the discretion of the district court.31 Substantial evidence supports the district court’s finding,32 and thus, the matter is ripe for adjudication under Penn Central.
Several aspects of the Ordinances are troubling under Penn Central; namely, evidence suggests that the regulations were designed to (1) benefit a particular government project, the expansion of McCarran Airport; (2) avoid eminent domain proceedings; and (3) create approach zones that may burden specific pieces of property for a benefit conveyed to all property owners in Clark County. Moreover, the variance procedure is conditioned on an unconstitutional exaction easement. However, Sisolak presented no evidence on how the Ordinances impacted his investment-backed expectations. Because no factor is controlling and Penn Central requires a weighing of the factors, fairness requires allowing all parties to present any additional evidence that they may have before a final takings determination is made. I would therefore remand the case for further proceedings under Penn Central.
I concur with the majority holding that actual relocation is not necessary to award fees under the federal relocation act so long as the record establishes a nexus that the ordinances were enacted to further a particular project and that project is federally funded. I also concur in the conclusions regarding prejudgment interest.
328 U.S. 256 (1946).
369 U.S. 84 (1962).
483 U.S. 825 (1987).
458 U.S. 419 (1982).
438 U.S. 104 (1978).
Causby, 328 U.S. at 260-61.
260 U.S. 393 (1922).
In fact, a review of the Nevada constitutional debates indicates that the language added to the Nevada Constitution regarding compensation being “made, or secured” was intended to protect the government, not the landowner. See Debates & Proceedings of the Nevada State Constitutional Convention of 1864, at 60-63 (Andrew J. Marsh off. rep., 1866).
544 U.S. 528 (2005).
Id. at 538-39, 546-48.
505 U.S. 1003 (1992).
Lingle, 544 U.S. at 538, 546-47.
Id. at 538.
Id.; Loretto, 458 U.S. at 440.
Lingle, 544 U.S. at 546-47.
Id. at 538-39.
535 U.S. 302 (2002).
In essence, protecting the government from a future claim of inverse condemnation under Causby, 328 U.S. 256.
Lingle, 544 U.S. at 538.
458 U.S. at 426-28.
Yee v. Escondido, 503 U.S. 519 (1992) (holding rent control regulations are not a physical invasion under Loretto because they only regulate what landowners can do with their property, they do not compel a landowner to lease property to any particular person).
328 U.S. at 266.
49 U.S.C. § 40102(a)(30) (2000).
NRS 493.030, 493.040 and 493.050(l)(a).
Causby, 328 U.S. at 262-64.
438 U.S. at 124.
Palazzolo v. Rhode Island, 533 U.S. 606, 634 (2001) (O’Connor, J., concurring).
Id. at 619-21 (majority opinion).
Id.
When deciding jury instructions, the district court concluded that the County’s evidence supporting heights exceeding one hundred feet above ground level was too speculative and instructed the jury that no building would be permitted above sixty-six feet above ground level. Although this was improper *681under Loretto, and the district court did not review the evidence for futility or exhaustion under Penn Central, given his statements, I see no point in remanding the case for this purpose as his ruling clearly reflects his findings regarding the evidence.
See City of Las Vegas v. Bustos, 119 Nev. 360, 365, 75 P.3d 351, 354 (2003).
See id.