dissenting:
While I agree with the majority that this inverse condemnation action must be resolved under a regulatory takings analysis, I disagree that a per se regulatory taking has occurred. In my view, the district court should have ordered the parties to litigate this takings claim under Penn Central Transportation Co. v. New York City.1
DISCUSSION
Regulatory takings
In line with the United States Supreme Court’s recent decision in Lingle v. Chevron U.S.A. Inc.,2 regulatory takings occur under federal takings jurisprudence when the government requires an owner to suffer a permanent physical invasion of property (Loretto *682v. Teleprompter Manhattan CATV Corp.),3 when a regulation completely deprives an owner of “all economically beneficial use” of property (Lucas v. South Carolina Coastal Council),4 when a regulation requires the conditioning of land use beyond that which the regulation is designed to protect (Nollan v. California Coastal Commission),5 or when a regulation, which does not deprive the owner of all viable economic use, impacts the property to the degree that it interferes with legitimate property interests (Penn Central).6 When the regulation at issue does not fit within the first three categories, the takings claim must be resolved under Penn Central.7
As stated in Lingle:
Although our regulatory takings jurisprudence cannot be characterized as unified, [the three] inquiries (reflected in Loretto, Lucas, and Penn Central) share a common touchstone. Each aims to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain. Accordingly, each of these tests focuses directly upon the severity of the burden that government imposes upon private property rights.8
The majority agrees that neither a Lucas nor Nollan taking has occurred. Rather, it concludes that, under Loretto, the height restriction ordinances at issue effected a permanent physical invasion of the subject property.
In my view, because the air traffic over this property comes and goes, the Ordinances in question have not operated as a permanent physical ouster. Rather, they establish height restrictions to buildings that are subject to a variance process. Accordingly, I conclude that Loretto, Lucas and Nollan are not implicated. Under this analysis, the matter should be remanded for resolution under Penn Central for determinations concerning (a) the regulations’ economic impact, (b) the regulations’ interference with investment-backed expectations, and (c) the character of the government action.9 As discussed below, such a resolution would be subject to a preliminary determination of ripeness.
*683 Ripeness
Exhaustion
A regulatory takings claim under Penn Central is generally not ripe without exhaustion of administrative remedies resulting in a “final decision” regarding the property owner’s ability to develop his property.10 In Williamson Planning Commission v. Hamilton Bank, the Supreme Court observed:
Our reluctance to examine taking claims until such a final decision has been made is compelled by the very nature of the inquiry required by the Just Compensation Clause. Although “[t]he question of what constitutes a ‘taking’ for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty,” this Court consistently has indicated that among the factors of particular significance in the inquiry are the economic impact of the challenged action and the extent to which it interferes with reasonable investment-backed expectations. Those factors simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question.11
The final decision requirement “responds to the high degree of discretion characteristically possessed by land-use boards in softening the strictures of the general regulations they administer.”12 Accordingly, without a final regulatory decision applying the challenged regulation, a court cannot evaluate the economic impact of the regulation with regard to the extent it interferes with reasonable investment-backed expectations and, thus, cannot, conduct the Penn Central examination without resorting to speculation.13 A final decision requires, at a minimum, “(1) a rejected development plan, and (2) a denial of a variance.”14 Further, the application for development must be one that is meaningful, /.<?., not one that is for *684‘“exceedingly grandiose development.’”15 Additionally, government ‘ ‘may not burden property by imposition of repetitive or unfair land-use procedures in order to avoid a final decision.”16
While I disagree with the majority that a regulatory per se taking has occurred in this instance, I do agree that Loretto and Lucas takings, like per se physical takings, do not require exhaustion of administrative remedies. However, because I conclude that the takings issue in this case should be resolved under Penn Central, the landowner, in my view, was required to prove to the trial court that he had exhausted his administrative remedies by submitting at least one plan for approval. In this case, the landowner concedes that he did not exhaust his administrative remedies before trial and that he cannot do so now.17
Futility
A limited exception exists to ‘ ‘the final decision [exhaustion] requirement if attempts to comply with that requirement would be futile.”18 However, as one court has explained, a landowner seeking to establish futility carries the burden of proving that the exception applies. The landowner must establish that the potential denial of a development permit is more than a mere possibility; rather, “a sort of inevitability is required: the prospect of refusal must be certain (or nearly so).”19 Thus, for example, in Lucas, the Court noted that it would have been futile for the landowner to submit a request for a “special permit” when the regulatory agency stipulated that it would not grant such a permit.20
Because the height restriction ordinances here are subject to variance procedures, and because the evidence in the record that might support a claim of futility was largely speculative, in particular, the testimony of the Clark County Department of Aviation planner concerning hypothetical projects, I would remand this matter for a new trial, during which the district court would assess the *685probative value of the evidence under the above futility analysis. Assuming an adequate showing of futility, the district court would then conclude the litigation under the Penn Central criteria.
CONCLUSION
I realize that the majority has determined to apply state constitutional principles to this takings analysis. This is certainly a reasonable approach. Having said this, I do not believe it necessary to deviate from federal takings jurisprudence to justly evaluate whether a compensable regulatory taking has occurred and whether the matter is ripe for such a determination.21 Thus, while I believe that the landowner can make out a regulatory takings case, he should do so under Penn Central.
438 U.S. 104 (1978).
544 U.S. 528 (2005).
458 U.S. 419 (1982) (state law requiring landlords to permit cable companies to install cable facilities in apartment buildings effected a taking).
505 U.S. 1003 (1992).
483 U.S. 825, 831-32 (1987).
438 U.S. 104 (1978).
See Lingle, 544 U.S. at 538.
Id. at 539.
Penn Central, 438 U.S. at 124.
Williamson Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 190, 195 (1985).
Id. at 190-91 (citations omitted).
Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 738 (1997); see also MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348 (1986) (“A court cannot determine whether a regulation has gone ‘too far’ unless it knows how far the regulation goes.”).
Hamilton Bank, 473 U.S. at 191.
Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1454 (9th Cir. 1987) (even if a landowner has submitted development plans and been rejected, an applied regulatory taking case might still not be ripe; a landowner must submit a “meaningful” application for development); see MacDonald, 477 U.S. at 353 n.9 (“Rejection of exceedingly grandiose development plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews.”).
Kinzli, 818 F.2d at 1455 (the futility exception is not triggered until at least one meaningful application for development is submitted and rejected; “[a] ‘meaningful application’ does not include a request for ‘exceedingly grandiose development’ ” (quoting MacDonald, 477 U.S. at 353 n.9)).
Palazzolo v. Rhode Island, 533 U.S. 606, 621 (2001).
The parties agree that the landowner has sold the subject property to a third party.
Herrington v. County of Sonoma, 857 F.2d 567, 569 (9th Cir. 1988); see also Strickland v. Alderman, 74 F.3d 260, 265 (11th Cir. 1996).
Gilbert v. City of Cambridge, 932 F.2d 51, 61 (1st Cir. 1991) (citations omitted).
Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1012 n.3 (1992).
I wish to note my vigorous agreement with the majority’s conclusion that the perpetual avigation easement conveyed to the County by Mr. Sisolak’s predecessor did not abrogate his property interest in the airspace over the subject parcels. In my view, the County’s arguments in that regard were completely without merit.
I finally agree that actual relocation is not necessary to award the landowner fees under the Uniform Relocation Assistance and Real Property Acquisition Policies Act.