U.S. Department 

of Transportation 

Federal Aviation 

Administration 

January 26,2015 

Office of Airport Compliance and 

Management Analysis 

Certified Mail -Return Receipt 

Steven M. Taber 

TABER LAW GROUP 

13 Atlanta 

Irvine, CA 92620 

John L. Watkins 

Roy E. Hadely, jr. 

Thompson Hine 

Two Alliance Center 

3560 Lenox Road, Suite 1600 

Atlanta, GA 30326-4266 

Dear Messrs. Taber, Watkins, Hadley, and Hine: 

BOO Independence Ave., S.W. 

Washington, D.C. 20591 

Re: Virginia One Development, LLC, et al. v. The City Of Atlanta, FAA Docket No. 16-12-09 

Enclosed is a copy of the determination of the Federal Aviation Administration (FAA) with respect 

to the above-referenced matter. The City of Atlanta, Georgia, is not currently in violation of its 

Federal obligations set forth in its airport grant assurances and existing Federal statutes with 

respect to this complaint. 

Accordingly, the above-referenced matter is dismissed. The reasons for dismissal are set forth in 

the enclosed Director's Determination. The Director's Determination is an initial Agency 

determination and does not constitute a Final Agency Decision and order subject to judicial 

rev1ew. 

Sincerely, 

Randall S. Fiertz 

Director, Office of Airport Compliance 

and Management Analysis 

Enclosure 
CERTIFICATE OF SERVICE 

.. llI HEREBY CERTIFY that on January&, 2015, I caused to be placed in the 

United States mail (first class mail, postage paid), a true copy ofthe Director's 

Determination for FAA Docket No. 16-12-09 addressed to: 

Steven M. Taber, Esq. 

TABER LAW GROUP 

13 Atlanta 

Irvine, CA 92620 

staber@taberlaw.com 

John L. Watkins, Esq. 

Thompson Hine 

Two Alliance Center 

3560 Lenox Road, Suite 1600 

Atlanta, GA 30326-4266 

John. Watkins@thompsonhine.com 

Roy E. Hadly, Jr., Esq. 

Thompson Hine 

Two Alliance Center 

3560 Lenox Road, Suite 1600 

Atlanta, GA 30326-4266 

Roy.Hadley@thompsonhine.com 

Hand Delivered to: 

FAA Part 16 Airport Proceedings Docket 

FAA Office of Airport Compliance and Management Analysis, AC0-1 00 

Claudia Roberts 

Office of Airport Compliance and 

Management Analysis 
UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

Virginia One Development, INC, Avery Park Partners, LLC 

d/b/a Avery Park, DSH Diplomat, LLC d/b/a Diplomat 

Townhomes, Colony Creek, LLC, and Crossings Townhomes, 

LLC, 

Complainants, 

v. 

FAA Docket 16-12-09 

The City of Atlanta, Georgia, 

Respondent. 

DIRECTOR'S DETERMINATION 

I. INTRODUCTION 

This matter is before the Federal Aviation Administration (FAA) based on a formal complaint filed in 

accordance with the FAA Rules of Practice for Federally Assisted Airport Enforcement Proceedings (FAA 

Rules of Practice), Title 14 Code of Federal Regulations (CFR) Part 16. 

Virginia One Development (VOD), LLC, Avery Park Partners, LLC d/b/a Avery Park, DSH Diplomat, 

LLC d/b/a Diplomat Townhomes, Colony Creek, LLC, and Crossings Townhomes, LLC, (Complainants) 

have filed a formal complaint pursuant to Title 14 CFR, Part 16 against the City of Atlanta, Georgia, 

(Airport/Respondent). The City of Atlanta is the owner, sponsor, and operator of the Hartsfield-Jackson 

Atlanta International Airport (ATL), Georgia. 

Complainants allege that the Airport has violated Grant Assurance 5, Preserving Rights and Powers; Grant 

Assurance 16, Conformity to Plans and Specifications; Grant Assurance 21, Compatible Land Use; and 

Grant Assurance 35, Relocation of Real Property Acquisition because it failed to acquire Complainants' 

property identified in the ATL Noise Exposure Map (NEM) 1 

as being impacted by aircraft noise. 

Complainants argue that "since the ATL NCP has been approved by the FAA, the [Airport] is bound by its 

grant assurances to comply with the ATL NCP as it was approved by the FAA."2 

Complainants also state the Airport "shows a fundamental misunderstanding of the Airport Improvement 

Program, its associated grant assurances and the Part 16 process. Atlanta fails to understand that Atlanta 

must comply with the grant assurances at all times in order to continue to receive the considerable amount 

of federal funding is granted by the FAA each year. 

3 

1 As part of the Airport's 14 CFR Part 150 Compatibility Program (NCP). The 14 CFR Part 150 NCP consists ofao optimum combination of 

preferred noise abatement and land use management measures, and a plan for the implementation of the measures. The implementation plan 

also includes the estimated cost for each of the recommended measures to the airport sponsor, the FAA, airport users, and the local units of 

government. Implementation ofthe plan by the City is voluntary. 2 FAA Exhibit 1, Item 5, page 8. 3 FAA Exhibit I, Item 5, page 3. 

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Virginia One Development (VOD), LLC, et aL v. The City Of Atlanta-FAA Docket No. 16-12-09 

Complainants also claim that, "[ d]espite the fact that the FAA approved the ATL NCP in January, 2008, 

Atlanta has yet to acquire any of the (Complainants] properties or provide sound mitigation for their 

properties. The [Complainants] have attempted to engage Atlanta in negotiations for the purchase of their 

properties and to provide sound insulation, but Atlanta has rebuffed every effort. Instead, Atlanta has 

created new obstacles and added new requirements that were not mentioned in the ATL NCP before it will 

consider complying with its obligations under the ATL NCP." 4 

As remedy, Complainants request that the FAA (1) find the Airport in violation of Grant Assurances 5, 16, 

21, and 35, (2) discontinue all federal funding until the [Airport] "corrects its violations," and (3) withdraw 

its approval of the ATL NCP until such time as the [Airport] issues "a schedule for completion of the 

acquisition and sound insulation phases of the program.''5 In response, the Airport denies the allegations 

and affirms that the Complainants "have made fundamental misstatements regarding the facts and have 

made equally fundamental mischaracterizations regarding the (14 CFR) Part 150 program and the roles of 

the [Airport] and the [FAA]."6 The Airport states that the 2010 "Consent Order" it entered into in Federal 

court in no way violates the grant assurance,"7 and asks that the Complaint be dismissed by the FAA. The 

Airport also requested that the Director dismiss the Complaint, deny any and all relief, and award to the 

City of Atlanta its litigation expenses, including reasonable attorneys' fees ... " 8 

Based on the Director's review and consideration of the evidence submitted, the administrative record, the 

relevant facts, and the pertinent laws, regulations, and policies, the Director concludes that the Airport is not 

in violation of its Federal obligations with respect to Grant Assurance 5, Preserving Rights and Powers; 

Grant Assurance 16, Conformity to Plans and Specifications; Grant Assurance 21, Compatible Land Use; 

and Grant Assurance 35, Relocation of Real Property Acquisition. 

The basis for the Director's conclusion is set forth herein. 

II. THE PARTIES 

A. The Airport 

ATL is a federally funded, public access, FAA-designated, large hub airport owned and operated by the 

City of Atlanta, Georgia. The Airport, consisting of approximately 4, 700 acres and five runways, is 

classified as a commercial service airport with more than 931,000 annual operations.9 The Airport serves 

more than 48 domestic and foreign airlines and ranks first as the busiest commercial airport in the United 

States used by over 90 million passengers annually (2013). 10 The Airport has 200 gates and its terminals 

and concourse spaces total over 6.8 million square feet. The Airport is located in Fulton and Clayton 

counties, and among the local political jurisdictions that abut the Airport is the City of College Park, 11 

which extends to the airport's northwest quadrant (See Figure 1). 12 

4 FAA Exhibit I, Item I, page 3. 5 FAA Exhibit I, Item I, page 3. 6 FAA Exhibit I, Item 3, p. 1. 7 Specific discussions in FAA Exhibit 1, Item 3, and Item 6. 8 FAA Exhibit I, Item 3, page 35. This type of relief is outside the Director's authority under the 14 CFR Part 16 process. See 14 CFR 16.109 

Orders Terminating Eligibility for Grants, Cease and Desist Orders, and Other Compliance Orders. 9 For additional details on ATL, see FAA Form 5010 Airport Master Record for ATL at 

http://www .gcr !.com/50 I Oweb/REPORTS/ AFD 111320 14ATL.pdf and http://www.atlanta-airport.com/ Airport/ ATLI ATL _FactSheet.aspx. 10 Among 805 U.S. airports, 12 months ending August 2014. See Bureau of Transportation Statistics (BTS), U.S. Department of Transportation 

(US DOT), http://www.transtats.bts.gov/airports.asp?pn~J&Airpo!FATL. 

II The City of College Park, a 9.7 square mile area, is located west of the Airport. Based on year 2000 US Census data, approximately 20,380 

persons reside within the City of College Park (with approximately 92 percent of the population residing within the Fulton County portion of the 

City). College Park has, and is, undergoing expansion by annexing neighboring, unincorporated portions of north Clayton and south Fulton 

counties. Within the 2007 noise contours, the vast majority of the incompatible land uses within the City of College Part are residences (singlefamily and multi-family) located west of Hershel Road. A review of future land use plans for the area indicates that these areas are expected to 

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Virginia One Development (VOD), LLC, et al. v. The City Of Atlanta- FAA Docket No. 16-12-09 

Figure 1 - Geographic brakewdown of the local political jurisdictions surrounding the Airport. These include the cities of Atlanta, College 

Park, East Point, Forest Park, Hapeville, Jonesboro, Lake City, Union City, Morrow, Riverdale, Fulton County, and Clayton County. Hw 

JAIA stands for Hartsfield-Jackson Atlanta International Airport. Source: FAA Exhibit I, Item I, Exhibit 11, page C-1. 

The Airport is considered the largest employment center in the State of Georgia. There are approximately 

58,000 airline, ground transportation, concessionaire, security, federal government, City of Atlanta, and 

airport tenant employees at the airport. The total airport payroll is $4.3 billion, resulting in a direct and 

indirect economic impact of $5.6 billion on the local and regional economy. The total annual regional 

economic impact of the airport is more than $18.7 billionY 

The planning and development of the Airport has been financed, in part, with federal funds provided by the 

FAA to the City under the Airport Improvement Program (AlP), authorized by the Airport and Airway 

Improvement Act ofl982, as amended, 49 USC, § 4 7101, et seq. Since 1982, over $870 million in federal 

AlP grants has been conferred to the Airport. Of these, over $326 million (or 37%) were for noise 

mitigation measures (sound insulation) and land acquisition for noise compatibility purposes. The last two 

AlP noise grants, issued in 2012 and 2014, totaled $23 million. 14 

In addition, significant funds generated by the disposal of noise acquired land (e.g., $13 million between 

1992 and 2007) have also been utilized for airport development. 15 The Airport also collects Passenger 

Facility Charges (PFC) as authorized by the Aviation Safety and Capacity Expansion Act of 1990 and now 

codified under Section 40117 of Title 49 USC. A total of approximately $160 million a year are collected 

through PFCs. 16 

The Airport also includes Federal assistance in the form of surplus property conveyances. In June 1946, 

with the end of WWII, the airfield closed and the US government conveyed the airfield and its facilities to 

the City of Atlanta as a civil airport. 17 As a result, the Airport has incurred obligations in the form of 

remain incompatible with aircraft noise. FAR Part 150 Study Noise Exposure Maps Report, March 21, 2007, p. C-1 and C-2. See FAA Exhibit 

1, Item I, Exhibit 11-13. Also, see See http://www.atlanta-airport.com/docs/Environmental/20080908_HJAIA_NEM_Report.pdf. 12 See FAA Exhibit 1, Iteml, Exhibit 9. 13 FAA Exhibit I, Item, 25, page 71. 14 See FAA Exhibit I, Item 18, FAA- Office of Airports, Grant History Report for ATL, Report Date: 1112112014, page 13. 15 See FAA Exhibit 1, Item 22, Appendix B Noise Land Financial Summary. 16 FAA Exhibit I, Item 25, page 29. 17 See FAA Order 5190.6B, FAA Airport Compliance Manual (Order), issued on September 30, 2009, paragraph 1.9. 

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Virginia One Development (VOD), LLC, et al. v. The City Of Atlanta- FAA Docket No. 16-12-09 

restrictive deed covenants arising from conveyances of land executed under the powers and authority 

contained in the provisions of the Surplus Property Act (SPA) of 1944 as amended, 49 USC § 4715l-l53Y 

The Instrument of Transfer is the means by which the United States Government transferred its interests in 

the Airport to the City of Atlanta and, in conjunction with the AlP grants, is a controlling Federal interest in 

several parcels of the airport today. 

Figure 2- Aerial photograph of the ATL airport with the noise contours. The 65 DNL contour is shown in blue while the DNL 70 contour is 

depicted in yellow. The general area where the Complainant's properties are located is identified by the green rectangle (Avery Park, 

Harrington Park, and Diplomat Townhomes) and oval outlines (Hartsfield Landing and Roosevelt Park). Source: ATL NCP, FAA Exhibit 1, 

Item I, Exhibit 28. 

B. The Complainants 

The Complainants are five (5) real estate entities who are either current or former owners of multi-family, 

residential properties, either wholly or partially within, or in close proximity to, the 65 and 70 DNL noise 

contours19 of ATL. These properties are all located in two general areas off-airport; approximately 8,000 

feet from the western end of the Airport's runways (See Figure 2 above). The Complainants are: 

• Virginia One Development, LLC, (Virginia One or VOD~ is the owner of Hartsfield Landing, 

3001 Roosevelt Highway, College Park, Georgia, 30337. 0 

18 FAA Order 5190.2R List of Public Airports Affected by Agreements With the Federal Government, April30, 1990. 19 Sound is measured by its pressure or energy in terms of decibels- (dB). Day-Night Average Sound Level (DNL) is a 24-hour equivalent 

sound level. DNL is the standard Federal metric for determining cumulative exposure of individuals to noise. The DNL 65 dB contour as the 

cumulative noise exposure level above which residential land uses are not compatible. Noise contours are used for land use compatibility and 

noise exposure and mitigation purposes. See 14 CFR Part 150. 20 The Airport notes that" ... Hartsfield Landing is within the 65 DNL and is outside the city limits of College Park. .. the Developer for this 

property is Virginia One Development LLC (VOD)." FAA Exhibit 1, Item 1, Exhibit 10. The City engaged in extensive discussions with VOD 

regarding providing sound insulation. In reality, at the same time, it was seeking funding for sound insulation from the City, VOD actually 

planned to demolish the buildings and construct new ones, and sought federal funding and State tax credit financing for this project. The 

Georgia Department of Community Affairs rejected VOD's project in December of2010. After its project was rejected, VOD abruptly changed 

course, abandoned its efforts to develop the property, and has engaged in an all-out effort to pressure the City into acquiring its property even 

though it is not in the 70 DNL and is thus not even eligible for acquisition. VOD's property is also not eligible for sound insulation because the 

property is currently abandoned, not occupied, boarded up, and has been completely gutted ... t11e property in its current state is compatible with 

airport noise." FAA Exhibit 1, Item 3, pages 8-9, pages 22-27 under the heading The Status of Developers' Properties. 

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Virginia One Development (VOD), LLC, et al. v. The City Of Atlanta- FAA Docket No. 16-12-09 

• A very Park Partners, LLC, is the owner of A very Park, 2609 Charlestown Drive, College 

Park, Georgia, 30337. 

• DSH Diplomat, LLC, is the owner of Diplomat Townhomes, 2700 Camp Creek Parkway, 

College Park, Georgia, 30337.21 

• Colony Camp Creek, LLC, is the owner of Harrington Park, 2800 Camp Creek Parkway, 

College Park, Georgia, 30337. 

• Crossings Townhomes, LLC, is the owner of Roosevelt Park, 2601 Roosevelt Highway, 

College Park, Georgia.22 

Although the Director's Determination refers to "Complainants" as one entity (and they are for the purpose 

of the arguments) it necessary to point out that there are significant differences between the properties 

owned by Complainants. This may be relevant if additional detail is sought on a particular property, 

property owners, or more specific action concerning one or more of these properties. For example, some 

ofthe properties are located in the 65 DNL while others in the 70 DNL contour. Not all properties are 

located within the limits of the City College Park, with Hartsfield Landings outside College Park.23 Some 

properties may be currently occupied as residences; some may not occupied and may be damaged.24 

III. PROCEDURAL IDSTORY 

On August 6, 2012, the Complainants filed a Formal Complaint and Requestfor Investigation Pursuant to 

14 CFR Part 16 alleging the Airport violated 49 USC, §§40101 et seq., §§47101 et seq., and airport Grant 

Assurances 5, 16, 21, and 35.25 

On August 27, 2012, the FAA issued the Notice of Docketing?6 

On September 18,2012, the Airport filed its Answer to the Complaint and Requestfor Investigation27 and a 

Motion to Dismiss the Complaint. 28 

On October 16,2012, the Complainants filed a Consolidated Reply to Respondent's Answer and Motion to 

Dismiss Pursuant to 14 CFR Part 1629 

On October 22, 2012, the Respondent filed a Reply to the Complainants' Reply.30 

21 On February 18, 2014, Complainants filed a Notice of Change of Ownership in which they stated that "DSH Diploma~ LLC no longer owns 

Diplomat Townhomes ... but that the "change in ownership of Diplomat Townhornes does not affect the issue of whether the City of Atlanta's 

violated its grant assurance" or "whether the new owners of Diplomat Townhomes are entitled to noise insulation or acquisition of their 

property under the NCP." FAA Exhibit 1, Item 15. The Director notes that the change of ownership of Diplomat Townhomes does not affect 

the issues in this case namely compliance with the grant assurances, but it does establish the fact that the Complainants in this case are the four 

( 4) remaining entities, and thus any further reference to "Complainants" in this case do not include the Diplomat Townhomes or its new owners. 

affect the review of the alleged issues, namely compliance with the grant assurances. As example of such data, see FAA Exhibit 1, Item 16, 

pages 3-4. 22 FAA Exhibit I, Item I, page 4-5. 23 See Figure 1 and Figure 2. 24 FAA Exhibit 1, Item 3, pages 8-9, pages 22-27 under the heading The Status of Developers' Properties. 25 FAA Exhibit 1, Item 1, page 2. 26 FAA Exhibit I, Item 2. 27 FAAExhibit I, ltem3. 28 FAA Exhibit I, Item 4. 29 FAA Exhibit I, Item 5. 3

° FAA Exhibit 1, Item 6. 

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Virginia One Development (VOD), LLC, et al. v. The City Of Atlanta-FAA Docket No. 16-12-09 

On Febrnary 11,2013, Complainants filed aMotion to Supplement Record31 

On Febrnary 20, 2013, the Respondent filed a Response to the Complainants' Motion to Supplement the 

Record.32 

On April 9, 2013, Complainants filed an inquiry with the FAA's Office of the Chief Counsel raising 

concern over the fact that the Complaint had not yet been adjudicated and requesting a timeline for the 

d . . 33 ecJsJOn. 

On August 14,2013, Complainants filed a Second Motion to Supplement the Record34 

On August 19, 2013, the Respondent filed a Motion to Supplement the Record,35 and a Notice of 

Withdrawal. 36 

On August 27, 2013, the Respondent filed a Response to Complainants' Motion to Supplement the Record 

Dated August 14, 201337 

On Febrnary 18,2014, the Complainants filed a Notice of Change in Ownership38 

On May 12,2014, the Respondent filed aMotion to Supplement the Record39 

IV. BACKGROUND 

In the early 1970s, the Airport began an informal noise study, which resulted in the establishment of 

departure tracks to mitigate noise. Subsequent changes were developed as part of a comprehensive land use 

and airport noise compatibility study, which was conducted in the late 1970s and early 1980s. 40 In 1976, 

initial steps were taken to alleviate the noise problem with the initiation of two land acquisition and 

relocation programs. 

In 1980, the Airport began purchasing homes in noise-impacted areas as defined by a comprehensive noise 

analysis establishing the DNL noise contours, and conducted as part of a Noise Assessment and Abatement 

Study. FAA Airport Improvement Program (AlP) funds were used to fund some of the acquisition of 

approximately 455 homes. This was also an integral part of the Land Use Compatibility Plan for the City of 

Atlanta. 41 Further updates to this plan resulted in the FAA approval of the Airport's first Part 150 NCP in 

1984-1985.42 In 1999-2001, the Airport began the process of updating the existing Part 150 NCP. This was 

part of an Environmental Impact Statement (EIS) on which the FAA issued its Record of Decision on 

September 27,2001. Thereafter in 2003, the Airport undertook the 14 CFR FAR Part 150 Study discussed in 

this case which culminated in the January 2008 approval by the FAA. 43 

31 FAA Exhibit I, Item 7. 32 FAA Exhibit I, Item 8. 33 FAA Exhibit I, Item 20. 34 FAA Exhibit I, Item I 0. 35 FAA Exhibit I, Item 12. 36 FAA Exhibit 1, Item 11. This pertains to a change of legal counsel for the Airport. 37 FAA Exhibit I, Item 13. 

Js FAA Exhibit 1, Item 15. 39 FAA Exhibit 1, Item 16. In addition, on three occasions, July 8, 2013, December 30, 2013, and November 6, 2014, the FAA's Director, 

Airport Compliance, issued notices extending the time for a determination in order to permit a fair and complete determination. See FAA 

Exhibit I, Item 9, Item I4, and Item 17. 40 FAAExhibit I, Item I, Exhibit II, pageA-6. 41 FAA Exhibit I, Item I, Exhibit I I, page A-6. 42 http://www.atlanta-airport.com/fifth/environmental/Noise.aspx. 43 FAA Exhibit I, Item I, Exhibit I I, page 1-2. 

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Virginia One Development (VOD), LLC, eta!. v. The City Of Atlanta-FAA Docket No. 16-12-09 

In 2003, as part of that process, the Airport had established the Noise Mitigation Advisory Council (NMAC) 

to serve as the principal forum for coordinating the NCP update with College Park and other local political 

jurisdictions.44 Two committees of the NMAC, the Operations Advisory Committee (OAC) and the Land Use 

Advisory Committee (LUAC), provided technical input for the preparation of the NCP update. The objectives 

included providing input and guidance "into the development and implementation of Part 150 aircraft 

operational, land use compatibility alternatives, and mitigation priorities."45 In 2005, a NEM46 and draft 

recommendations regarding property acquisition and sound insulation were discussed, leading to the 

preliminary recommendation "to identity noise sensitive sites within the 70 DNL + contour as eligible for 

voluntary property acquisition."47 

On August 3, 2006, a draft NCP update was released and indicated that approximately 878 residential 

structures were located in the 70 DNL contour, the vast majority of which were multi-family uuits in seven 

apartment complexes. The draft recommendations for the NCP update were reviewed on that date. 

Comments were requested and received into the fall of 2006. At the time, the cost of the voluntary property 

acquisition was estimated at $43 million.48 Noteworthy is that by early 2006, as noise mitigation measures, 

approximately 2,720 residences were acquired by the Airport at a total cost of$71.5 million. The sound 

insulation p.rogram was initiated in phases as well. During the first phase, more than 1, 700 structures received 

insulation. 9 

In October 2006, the Airport released its Noise Information Brochure to illustrate its ongoing programs. It 

described many aspects of noise impact and mitigation, and included a description of the roles and 

responsibilities of all those involved, including those of the FAA, the airport proprietor, state and local 

governments, planning agencies, air carriers and local residents. 50 

On March 21,2007, the Airport submitted to the FAA Volume One of the Part 150 Study (Noise Study). This 

volume of the Study contained anewNEM. 51 On AprillO, 2007, the FAA Airports District Office (ADO) 

confirmed that the NEM was in compliance. 5

2 

The Airport submitted FAA Volume Three of the Part 150 Study on April30, 2007, documenting public 

participation in the process, 5

3 and on September 7, 2007, Volume Two of the Part 150 Study, was submitted, 

44 See Figure 2. 45 FAA Exhibit I, Item I, Exhibit 15. Also, "the initial step in the FAR Part !50 Study was to conduct scoping meetings. In the year 2003, a 

total of20 meetings were held including meetings with HJAIA's [Airport] Noise Mitigation Advisory Council (NMAC), the City of Atlanta, 

Clayton County, the City of College Park, DeKalb County, the City of East Point, the City of Forest Park, Fulton County, and the cities of 

Hapeville, Jonesboro, Lake City, Morrow, Riverdale, and Union City." FAA Exhibit l, Item 1, Exhibit 11, page 1-4. 46 When an airport operator conducts aFAR Part 150 Study, the FAA requires that two NEMs be submitted for approval-an NEM that reflects 

the existing condition at the time the study is submitted and an NEM that reflects conditions forecast to occur five years in the future. 47 FAA Exhibit I, Item I, Exhibit 15. 48 FAA Exhibit I, Item I, Exhibit 15. 49 The Airport also reports that "each eligible structure received an individual noise insulation survey to determine what sound attenuation 

method was needed. Residents participating in the acoustical treatment programs have been required to also participate in an avigation 

easement program. Avigation easements allow the Airport to operate aircraft over a particular land area under a long-term agreement with the 

land owner." See http://www.atlanta-airport.com/fifth/environmental/NoiseAbaternentHistory.aspx. 50 See FAA Exhibit 1, Item 23, page 6 for details. 51 14 CFR § 150.7 defines a noise exposure map as, "a scaled, geographic depiction of an airport, its noise contours, and surrounding area 

developed in accordance with section A150.101 of appendix A of this part." 52 FAA Exhibit I, Item 3, page 12. 53 The Airport's Part 150 Study is being published in three volumes: 

• Volume I presents the first four sections of the FAR Part 150 Study document (the NEM report) which includes the data necessary to 

develop the oilicial NEMs and includes the maps themselves; 

• Volume II presents Sections 5 through 9 of the FAR Part 150 Study document (the NCP report) that will include the technical 

analyses of noise mitigation measures and recommendations of the Study; and 

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Virginia One Development (VOD), LLC, et al. v. The City Of Atlanta- FAA Docket No. 16-12-09 

which included the Noise Compatibility Program Report (NCP). 54 The NCP documented potential aircraft 

and airport operational noise abatement and mitigation actions that if implemented would reduce land use 

incompatibility with aircraft noise in the immediate vicinity of the Airport. 55 

On January 25, 2008, the ADO approved the Airport's NCP including its seven proposed action measures.56 

The major portion of the NCP focused on the sound insulation and property acquisition programs to protect 

the citizens in the communities surrounding the A~ort from the effects of arrcraft noise. 57 The NCP noted 

that the sound mitigation and acquisition programs

5 would get underway after FAA approval and that the 

timing for actual acquisition of property and sound insulation would be based on the approval ofthe NEMs 

and NCP, as well as the availability offederal and Airport funds. 5

9 

As part of its approval, the FAA noted "the Part 150 NCP is a local program, not a Federal program," and 

that the "FAA does not substitute its judgment for that of the airport operator with respect to which 

measures should be recommended for action." 60 In addition, the FAA outlined several of the limitations of 

the Part 150 and approval processes. 61 The FAA addressed the concerns of the City of College Park 

regarding the NCP despite the fact that the City of College Park failed to submit its comments within the 

mandated time feriod. The FAA responded at length to each of College Park's concerns in an attached 

memorandum.6 The issues discussed included College Park's belief that the Airport had not followed the 

procedures with respect to local consultation as part of its drafting and implementation processes. In that 

respect, College Park stated that it "is inappropriate for the [Airport] to undertake land acquisition within 

the City of College Park without the consent, participation, and management of the City of College Park. "

63 

In its analysis, the FAA stated the "NCP gives the owner of the affected properties the choice of whether to 

continue residential use of the property" and that "this is consistent with the airport sponsor's grant 

obligation to take reasonable steps to assure to restrict the use of land next to the airport to uses that are 

compatible with airport operations." 64 The FAA added "with respect to this specific airport, sound 

insulation has been considered to the extent appropriate because property owners for land that straddle the 

65 DNL contour and the 70 DNL contour can opt not to be acquired, and instead, request sound 

insulation." FAA also stated, and that "six of the seven properties at issue straddle the contours, and the 

• Volume III (the Public Participation Program) provides a discussion of the Study's public participation process. A summary ofthe 

process is provided in Section 1.4 ofVolume L 

54 FAA Exhibit 1, Item 3, pages 12-13 and FAA Exhibit 1, Item 1, pages 6-7. Also see FAA Exhibit 1, Item 11-13 for the study report. 55 Non-compatible Land Use- The use ofland, which is defined in Appendix A, Table 1 of 14 CFR Part 150, which is normally incompatible 

with the aircraft and airport operations (such as homes, schools, nursing homes, hospitals, and libraries). See Table X, Land Use Compatibility 

Guidelines-FAR Part 150, of this guide to review the FAA land use compatibility table. 56 FAA Exhibit 1, Item 1, Exhibit 14 & 15. Also see Federal Register Notice, FAA Exhibit 1, Item 1, Exhibit 29. 57 FAA Exhibit 1, lteml, page 8. 58 See Section 6 of Volume II Sound Insulation and Property Acquisition, which identifies residences and other noise sensitive uses located 

within the 65 DNL contour" and recommends that Atlanta acquire residential properties within the 70 DNL contour and provide sound 

insulation to residences and other noise sensitive structures located between the 65 and 69 DNL contours. FAA Exhibit I, Item 1, Exhibit 13, 

ATL NCP, pages 6-1- 6-2. For the actual language of two of the approved actions see FAA Exhibit 1, Item 1, p. 11. 59 FAA Exhibit 1, Item 1, Exhibit 13, page 9-3. 60 FAAExhibit 1, Item 1, Exhibit 14. 61 See Background on the FAA Record of Decision on Airport's 14 CFR Part 150 NCP below and FAA Exhibit 1, Item 1, Exhibit 14. 62 FAA Exhibit 1, Item 1, Exhibit 15. 63 FAA Exhibit 1, Item 14 and 15. The City of College Park has stated, "in addition to being the state's largest employer, the Airport has shaped 

the population and development of College Park over the years as a number of residential properties have been purchased through noise 

mitigation efforts. As the Airport has grown and noise levels generated by aircraft have increased, some areas within the City have become 

unsuitable for inhabitation, causing fluctuations in the City's resident population. The most recent acquisitions through the noise mitigation 

program have taken a number of multifamily housing units out of service. Additional property acquisitions to enable the development of the 

Rental Car Center and the ATL Skytrain have also contributed to a reduction in residential population in recent years. Census 2010 reports that 

the population of College Park has experienced a decrease of approximately 32% since 2000, dropping from 20,382 to 13,942." See FAA 

Exhibit 1, Item 27, p. v 64 FAAExhibit 1, Item 1, Exhibit 15. 

Page 8)48 
Virginia One Development (VOD), LLC, et aL v. The City Of Atlanta- FAA Docket No. 16-12-09 

owners would therefore be able to opt for either measure .... these measures, as applied to the impacted 

properties, are at the [Complainants'] discretion."65 

Despite the FAA analysis, which the City of College Park deemed insufficient, on April 18, 2008, College 

Park filed a Verified Complaint for Declaratory Judgment and Injunctive Relief in the United States 

District Court for the Northern District of Georgia (City of College Park, et a!., v. The Citv of Atlanta, et 

al., Civil Action File No. 1 :08-cv-1464-JEC).66 Per court ordered mediation, the parties settled the case on 

appeal, and67 on August 2, 2010, the United States District Court entered a "Consent Order" between the 

Airport and the City of College Park. 68 

One of the Consent Order terms pertained to the Airport's Part 150 program and stated that the Airport 

"agrees to modify its current Part 150 Program to eliminate authorization to acquire any apartment 

complex within College Park other than Clubhouse Apartments." The Consent Order also states that the 

Airport "agrees to consult with College Park, within the confines of Federal guidelines and other applicable 

law, on what properties, identified in the existing and future Part 150 documents as eligible for receipt of 

noise mitigation funds, are to be mitigated and the timing of the mitigation. "

69 

In January 2011, the FAA was notified by a representative of Virginia One Development LLC (VOD, 

which is one of the Complainants in this Part 16 case), that VOD had "encountered obstacles" while 

attempting to develop the Hartsfield Landing property. VOD had acquired the property in 2009 but "all 

developments have failed to date and the property owner would like to sell the property to the Airport."70 

This was followed later in 2011 by VOD taking legal action against the Airport in state court, resulting 

from the rejection by the Airport to provide funding for sound insulation for the Hartsfield Landing 

property, as VOD had requested. The Airport rejection was based in part on its belief that here had been 

misrepresentations concerning the nature of the project, including uncertainty as to what development 

would take place - demolition of the properties or re-development as affordable residential properties. The 

case also involved possible state (Georgia Department of Community Affairs, DCA) and Federal funding71 

(US Department of Housing and Urban Development, HUD).72 

On May 15,2012, the Complainants wrote to the Airport and stated that the Airport "has violated its Grant 

Assurances," and that the Airport "has violated its FAA-approved Part 150 Program by failing to acquire 

property owned by [Complainants] and/or failing to provide sound mitigation funding for the properties 

owned by the [Complainants] despite having received funds from the FAA for the acquisition or sound 

mitigation." 73 Complainants also noted that they were "considering filing a Complaint and Request.for 

Investigation with the FAA pursuant" to 14 CFR Part 16.74 This was followed, between May 17 and July 

2, 2012, by several rounds of correspondence between the Complaints and the Airport concerning the 

disputed issues.75 These attempts at resolution were unsuccessful. 

65 FAA Exhibit I, Item I, pages 12-13. 66 FAA Exhibit I, Item 3, Exhibit I. 67 See Consent Order, FAA Exhibit 1, Item 3, Exhibit 2, page 2. 68 FAA Exhibit I, Item I, page II. 69 See Consent Order, FAA Exhibit I, Item 3, Exhibit 2, pages 5-6. 70 FAA Exhibit I, Item I, Exhibit 31. 71 Including tax credits. 72 Per the record, HUD did not approve the owner's (one of the Complainants) financing request due to noise concerns (65 DNL). See FAA 

Exhibit 1, Item 5, page 15. See also FAA Exhibit 1, Item 3, page 22-27 under the heading The Status of Developers' Properties, and FAA 

Exhibit 1, Item 8 and Exhibit A-C. The Director considers the arguments of the parties within the context on this Part 16, not potentially 

unrelated litigation in State court, which may or may not include other sources of state and federal funding, regulations, or policies. The detail 

in this background shows a history of interaction and litigation between the Airport and at least one of the Complainants. 73 FAA Exhibit I, Item I, Exhibit 16. 74 FAA Exhibit I, Item I, Exhibit 16. 75 FAA Exhibit I, Item I, Exhibits 17-23. 

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On August 6, 2012, the Complainants filed a Formal Complaint and Request for Investigation Pursuant to 

14 CFR Part 16 alleging the Airport had violated 49 USC, §§40101 et seq., §§47101 et seq., and airport 

Grant Assurances 5, 16, 21, and 3 5. 76 The Complainants expanded upon their allegations by adding, 

" ... since the FAA approved the ATL NCP in January, 2008, the [Complainants] have requested that [the 

Airport] follow through with the commitments it made to the FAA in the ATL NCP and acquire and/or 

provide sound mitigation to their property. 77 Complainants also note that "once the [Complainants'] 

property had been determined to be severely impacted by noise from the airport in the ATL NCP, the 

[Complainants] were damaged economically and have found it impossible to sell to other potential 

purchasers because it had been identified by the ATL NCP as property that [the Airport] will acquire or 

sound mitigate." 78 

On September 14,2012, the Airport notified FAA of its intent to amend the NCP by adding Section 6.10 

because of the Consent Order of August 2010.79 A few days later, on September 18, 2012, the Airport 

filed its Answer to the Complaint80 

as well as a Motion to DismissY In its Answer, the Airport denied the 

allegations and took the position that its actions concerning the Part 150 NCP were consistent with Grant 

Assurances 5, 16, 21, and 35.82 

On April 9, 2013, Complainants notified the Environmental Protection Agency (EPA), the Federal 

Aviation Administration (FAA), and the City of Atlanta, that "pursuant to 42 USC§ 49ll(a)(l), they 

intended to file a civil action against the Airport for its violations of noise control requirements ... pursuant 

to 40 U.S.C. § 44715."83 

Specifically, Complainants allege "the [Airport] violated the Noise Control Act by failing to comply with 

provisions of 14 CFR Part 150." Complainants added that" ... pursuant to the FAA's approval, the 

[Airport] is obligated under 14 CFR Part 150" to (a) offer Owners sound insulation for their properties that 

are located within the 65 DNL; and (b) offer acquisition of their properties that are located within the 70 

DNL contour. 84 

The Complainants also asserted that the Airport "has already determined that Complainants' claims are 

valid by submitting the Part 150 NCP to the FAA for approval," and that the "FAA's Record of Decision 

indicates that the City of Atlanta now has the obli§ation pursuant to 14 CFR Part 150 of following through 

on the promises that it made in its Part 150 NCP." 5 

On May 2, 2013, the FAA notified the Airport that it had "evaluated and accepted the Noise Exposure 

Maps [NEMs] and supporting documentation dated December 13, 2012." The FAA determined that, (1) 

the 2012 noise contours and supporting documentation meet the requirements for the current Noise 

Exposure Map as of the date of submission, (2) the 2017 noise contours and supporting documentation are 

76 FAA Exhibit 1, Item 1, page 3. 77 FAA Exhibit !,Item 1, page 14. 78 FAA Exhibit !,Item 1, page 14. 79 FAA Exhibit 1, Item 3, Exhibit 8. 80 FAA Exhibit 1, Item 3. 81 FAA Exhibit 1, Item 4. 82 FAA Exhibit 1, Hem 3. 83 FAA Exhibit I, Item 12, Exhibit I. 84 FAA Exhibit I, Item 12, Exhibit 1. 85 FAA Exhibit 1, Item 12, Exhibit 1. As background, Complainants offer the following: "In 2007, the City of Atlanta submitted its threevolume Noise Compatibility Program, which allegedly was in compliance with 14 CFR Part 150 for approval by the Federal Aviation 

Administration. As part of the Part 150 NCP, the City promised that it would provide sound insulation to landowners within the 65 DNL and 

acquire property within the 70 DNL to those landowners who so desired. The FAA issued a Record of Decision on January 25, 2008, approving 

the Part 150 NCP, so long as the City of Atlanta complied with the obligations under the Part 150 NCP, including the sound insulation and 

property acquisition program." 

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accepted as the description of the futnre conditions, and (3) the documentation provides sufficient 

evidence that consultation was accomplished in accordance with section 150.21(b)." 86 

The FAA also noted that the "acceptance of theN oise Exposure Maps is limited to the determination that 

the maps were developed in accordance with the procedures contained in Appendix A of Part 150." The 

FAA also stated that "such acceptance does not constitute approval of your data, information, or plans," 

and that it does not "approve or endorse a Noise Compatibility Program, potential related federal funding 

of projects identified in such a program, or any related operating restrictions at the subject airport."87 

On May 21,2013, the Airport formally requested the FAA amend the NCP in order to comply with the 

United States District Court Consent Order dated May 25,2010 and that it intended to "seek public 

comment on the proposed NCP amendment." The Airport added that a legal advertisement had been 

placed in the March 10, 2013 Atlanta Journal-Constitution (which contained the proposed NCP amendment 

text), and that a similar notice had been posted on the Airport's own Web site. The Airport noted that the 

public comment period granted for this was 30 days. 88 

On July 26, 2013, the Airport filed a declaratory judgment action in the United States District Court for the 

Northern District of Georgia asking the Court to rule on the validity and enforceability of the Consent 

Order in relation to the Aircraft Safety and Noise Abatement Act of 1979,49 USC 47501 et seq., and Part 

150 of Title 14 of the Code of Federal Regulations, 14 CPR Part 150, promulgated thereunder."89 The 

Airport also stated "the Court's decision should provide a definitive resolution ofthe issues regarding the 

Consent Order."90 In its filing, the Airport requested the Court to declare that: 

(a) The Consent Order is a valid and binding order of this Court; 

(b) The [Airport] has considerable discretion under applicable federal law and regulation, in 

implementing and administering the Airport-NCP, including, but not limited to, taking into 

consideration the stated wishes of College Park and other municipalities that may be affected 

by Airport operations; 

(c) [Developers ]

91 have no right under the Consent Order to require the City to acquire their 

properties, regardless of whether the properties are otherwise eligible for acquisition under 

the Airport-NCP; 

(d) [Developers ]

92 have no right under federal law to require the City, as an airport sponsor, to 

acquire their properties regardless of whether the properties are potentially otherwise eligible 

for acquisition or other relief under the Airport-NCP; and 

(e) The [Airport] has discretion in implementing the Airport-NCP and may exercise that 

discretion in deciding whether or not to acquire potentially eligible properties or to provide 

sound insulation to potentially eligible properties, so long as it has a rational basis for its 

action. "

93 

86 FAA Exhibit I, Item 19. 87 FAAExhibit I, Item 19. 88 FAA Exhibit I, Item 24. 89 FAA Exhibit 1, Item 12, pages 2-3. 9

° FAA Exhibit l, Item 12, pages 2-3. 91 Complainants in these 14 CFR Part 16 proceedings. 92 Complainants in these 14 CFR Part 16 proceedings. 93 FAA Exhibit I, Item 12, Exhibit2, page 10. 

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In August 14, 2013, Complainants filed A Second Motion to Supplement Record as part of the Part 16 

complaint. Complainants argue that by amending the NCP as per the Consent Order, the Airport "has to 

recognize that it has an obligation to carry out the mitigation measures that were approved as part of the 

Part 150 NCP irrespective of the Consent Decree (or the [NCP] Amendment)" and that "College Park has 

to recognize that the initial decision as to whether the property should be acquired is the [Complainants'], 

not College Park's or [the Airport's]."94 

Complainants also stated "if College Park wants to purchase the [Complainants'] properties with federal 

funding and keep them residential (but in compliance with the Part 150 NCP), the [Complainants] would 

not complain ... " and that the Airport "would retain its obligation as the airport sponsor to ensure that 

College Park complies with the Part 150 NCP ... " Complainants took the position that "all of College 

Park's issues with respect to the Part 150 NCP have been specifically addressed by the FAA in its Record 

of Approval." 95 

On Aprill4, 2014, the FAA notified the Airport that "[a]fter careful consideration of [the May 21, 2013] 

request, the FAA has determined that immecliate formal amendment of the ATL NCP is not necessary." 

The FAA explained that "the NCP is a voluntary program on the City's part and is not a mandate for 

implementation," and that "in this case, as an apparent clarification between the airport sponsor and the 

local land use authority [College Park], the FAA fmds it acceptable for the Airport to modify future actions 

currently addressed in Land Use Measure 1 of the NCP to reflect the legal directives outlined in the 

Consent Order ... Therefore, although the next ATL NCP update should reflect such changes, an immediate 

formal update to the NCP is not necessary."96 

V.ISSUES 

Upon review of the allegations and the relevant airport-specific circumstances summarized above, the FAA 

has determined that the following issues require analysis to provide a complete review of the Airport's 

compliance with applicable Federal law and policy: 

Issue 1: Whether the Airport is in violation of Grant Assurance 5, Preserving Rights and Powers, by 

not implementing the NCP as approved by the FAA and by not acquiring or sound insulating 

Complainants' properties. 

Issue 2: Whether the Airport is in violation of Grant Assurance 16, Conformity to Plans and 

Specifications by not implementing the NCP as approved by the FAA and by not acquiring or sound 

insulating Complainants' properties. 

Issue 3: Whether the Airport is in violation of Grant Assurance 21, Compatible Land Use for failing 

to take appropriate action to restrict the use ofland near the airport to uses that are compatible with 

normal airport operations. 

Issue 4: Whether the Airport is in violation of Grant Assurance 35, Relocation of Real Property 

Acquisition, and failed to comply with 49 CFR Part 24 by not implementing the NCP as approved 

by the FAA and by not acquiring or sound insulating Complainants' properties. 

94 FAA Exhibit I, Item 10, Taber letter to Airport, July II, 2013. 95 FAA Exhibit 1, Item 10, Taber letter to Airport, July 11, 2013. Complainants also object to the manner in which the Airport amended its 

NCP '"in violation of the Administrative Procedures Act" since "it did not give any notice to the owners of property that it knew would be 

affected by this amendment." Complainants add that the Airport failed "to follow the law and-regulations concerning public comments and 

hearings with respect to changes in the Part 150 NCP." 96 FAA Exhibit I, Item 16, page 6, and Exhibit B. 

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VI. APPLICABLE FEDERAL LAW AND FAA POLICY 

The Federal role in civil aviation has been augmented by various legislative actions that authorize 

programs for providing Federal funds and other assistance to local communities for the development of 

airport facilities. In each such program, the airport sponsor assumes certain obligations, either by 

contract or by restrictive covenants in property deeds and conveyance instruments, to maintain and 

operate its airport facilities safely and efficiently and in accordance with specified conditions. 

Commitments assumed by airport sponsors in property conveyance or grant agreements are important 

factors in maintaining a high degree of safety and efficiency in airport design, construction, operation 

and maintenance, as well as ensuring the public fair and reasonable access to the airport. 

A. The Airport Improvement Program (AlP) 

Title 49 USC,§ 47101, et seq., provides for Federal airport financial assistance for the development of 

public-use airports under the Airport Improvement Program (AlP) established by the Airport and Airway 

Improvement Act of 1982, (AAIA) as amended. Title 49 USC, § 47107, et seq., sets forth assurances to 

which an airport sponsor agrees as a condition of receiving Federal financial assistance. Upon acceptance 

of an AlP grant, the assurances become a binding contractual obligation between the airport sponsor and 

the Federal Government. The assurances made by airport sponsors in AlP grant agreements are important 

factors in maintaining a viable national airport system. 

B. Airport Sponsor Assurances 

As a condition precedent to providing airport development assistance under AlP, 49 USC,§ 47107, et seq., 

the Secretary of Transportation and, by extension, the FAA must receive certain assurances from the 

airport sponsor. Title 49 USC,§ 47107(a) sets forth the statutory sponsorship requirements to which an 

airport sponsor receiving Federal financial assistance must agree. The FAA has a statutory mandate to 

ensure that airport owners comply with these sponsor assurances.97 FAA Order 5190.6B, FAA Airport 

Compliance Manual (Order), issued on September 30, 2009, provides the policies and procedures to be 

followed by the FAA in carrying out its legislatively mandated functions related to compliance with 

Federal obligations of airport sponsors. The FAA considers it inappropriate to provide Federal assistance 

for improvements to airports where the benefits of such improvements will not be fully realized due to 

inherent restrictions on aeronautical activities. The FAA grant assurances that apply to the circumstances set 

forth in this Complaint include: (1) Grant Assurance 5, Preserving Rights and Powers; (2) Grant Assurance 

16, Conformity to Plans and Specifications; (3) Grant Assurance 21, Compatible Land Use; and ( 4) Grant 

Assurance 35, Relocation of Real Property Acquisition. Additionally, because Grant Assurance 6 Consistency 

with Local Plans, Grant Assurance 7 Consideration of Local Interest, and Grant Assurance 31 Disposal of 

Land are referenced and are relevant, these are also discussed below. 

(1) Grant Assurance 5 Preserving Rights and Powers 

Grant Assurance 5, Preserving Rights and Powers, (Grant Assurance 5) requires the airport owner or 

sponsor to retain all rights and powers necessary to ensure the continued operation of the airport consistent 

with its Federal obligations. This assurance implements the provisions of the AAIA, 49 USC,§ 47107(a), 

et seq. Assurance 5 requires, in pertinent part, that the sponsor of a federally obligated airport 

97 See, e.g., the Federal Aviation Act of 1958, as amended and re-codified, Title 49 USC, §§ 40101, 40113, 40114, 46101, 46104, 46105, 46106, 

46110; and the Airport and Airway Improvement Act of1982, as amended and re-codified, Title 49 USC,§§ 47105(d), 47106(d), 47107(k), 

47107(1), 47111(d), 47122. 

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Virginia One Development (VOD), LLC, et al. v. The City Of Atlanta-FAA Docket No. 16-12-09 

"a. It will not take or permit any action which would operate to deprive it of any of the rights and 

powers necessary to perform any or all of the terms, conditions, and assurances in this grant 

agreement without the written approval of the Secretary, and will act promptly to acquire, 

extinguish or modifY any outstanding rights or claims of right of others which would interfere with 

such performance by the sponsor. This shall be done in a manner acceptable to the Secretary. 

b. It will not sell, lease, encumber, or otherwise transfer or dispose of any part of its title or other 

interests in the property shown on Exhibit A to this application or, for a noise compatibility 

program project, that portion of the property upon which Federal funds have been expended, for 

the duration of the terms, conditions, and assurances in this grant agreement without approval by 

the Secretary. If the transferee is found by the Secretary to be eligible under Title 49, United States 

Code, to assume the obligations of this grant agreement and to have the power, authority, and 

financial resources to carry out all such obligations, the sponsor shall insert in the contract or 

document transferring or disposing of the sponsor's interest, and make binding upon the transferee 

all of the terms, conditions, and assurances contained in this grant agreement. 

d For noise compatibility program projects to be carried out on privately owned property, it will 

enter into an agreement with the owner of that property which includes provisions specified by the 

Secretary. It will take steps to enforce this agreement against the property owner whenever there is 

substantial non-compliance with the terms of the agreement. "

98 

FAA Order 5190.6B elaborates on Grant Assurance 5. It states, in part that 

"A sponsor cannot take any action that may deprive it of its rights and powers to direct and control 

airport development and comply with the grant assurances. Grant Assurance 5, Preserving Rights 

and Powers, requires a sponsor not to sell, lease, encumber, or otherwise transfer or dispose of any 

part of its title or other interests in the property shown on Exhibit "A" without the prior written 

approval of the FAA. [)f particular concern to the FAA is granting a property interest to tenants on 

the airport. These property interests may restrict the sponsor's ability to preserve its rights and 

powers to operate the airport in compliance with its federal obligations. Providing developers with 

an option to acquire a fee interest in federally obligated airport property is not acceptable to the 

FAA under Grant Assurance 5, Preserving Rights and Powers" and "Grant Assurance 

5 ... prohibits the airport sponsor from entering into an agreement that would deprive it of any of its 

rights and powers that are necessary to perform all of the conditions in the grant agreement or 

other federal obligations. "99 

(2) Grant Assurance 6 Consistencv with Local Plans 

"The project is reasonably consistent with plans (existing at the time of submission of this 

application) of public agencies that are authorized by the State in which the project is located to 

plan for the development of the area surrounding the airport. "

100 

(3) Grant Assurance 7 Consideration o(Local Interest 

"It has given fair consideration to the interest of communities in or near where the project may be 

located " 101 

98 Grant Assurance 5, FAA Exhibit 1, Item 32, and http://www.faa.gov/airports/aip/grant_ assurances/medialairport-sponsor-assurances-aip.pdf. 99 FAA Order 5190.6B, pages 6-2 and 6-4. 100 Grant Assurance 6, FAA Exhibit 1, Item 32. 

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Virginia One Development (VOD), LLC, eta!. v. The City Of Atlanta- FAA Docket No. 16-12-09 

(4) Grant Assurance 16 ConfOrmity to Plans and Specifications 

Grant Assurance 16, Conformity to Plans and Specifications, requires, in pertinent part, that the sponsor of 

a federally-obligated airport 

" ... will execute the project subject to plans, specifications, and schedules approved by the Secretary. 

Such plans, specifications, and schedules shall be submitted to the Secretary prior to commencement 

of site preparation, construction, or other performance under this grant agreement, and, upon 

approval of the Secretary, shall be incorporated into this agreement. Any modification to the 

approved plans, specifications, and schedules shall also be subject to approval of the Secretary, and 

incorporated into the grant agreement. [Grant Assurance 16] "

102 

(5) Grant Assurance 21 Compatible Land Use 

Grant Assurance 21, Compatible Land Use, requires, in pertinent part, that the sponsor of a federallyobligated airport 

" ... will take appropriate action, to the extent reasonable, including the adoption of zoning laws, to 

restrict the use of land adjacent to or in the immediate vicinity of the airport to activities and 

purposes compatible with normal airport 

operations, including landing and takeoff of aircraft. In addition, of the project is for noise 

compatibility program implementation, it will not cause or permit any change in land use, within 

its jurisdiction, that will reduce its compatibility, with respect to the airport; of the noise 

compatibility program measures upon which Federal funds have been expended 103 

FAA Order 5190.6B provides additional details on Grant Assurance 21. It states that 

" ... Grant Assurance 21 ... relates to the obligation of the airport sponsor to take appropriate 

actions to zone and control existing and planned land uses to make them compatible with aircraft 

operations at the airport. The FAA recognizes that not all airport sponsors have direct 

jurisdictional control over uses of property near the airport. However, for the purpose of 

evaluating airport sponsor compliance with the compatible land use assurance, the FAA does not 

consider a sponsor's lack of direct authority as a reason for the sponsor to decline to take any 

action at all to achieve land use compatibility outside the airport boundaries. In all cases, the 

FAA expects a sponsor to take appropriate actions to the extent reasonably possible to minimize 

incompatible land. Quite often, airport sponsors have a voice in the affairs of the community 

where an incompatible development is located or proposed The sponsor should make an effort to 

. h l d l . l "104 

ensure proper zomng or ot er an use contra s are m p ace, an d 

" ... in cases where the airport sponsor does not have the authority to enact zoning ordinances, it 

should demonstrate a reasonable attempt to inform surrounding municipalities on the need for 

land use compatibility zoning. The sponsor can accomplish this through the dissemination of 

information, education, or ongoing communication with surrounding municipalities. Depending 

upon the sponsor's capabilities and authority, action could include exercising zoning authority as 

101 Grant Assurance 7, FAA Exhibit 1, Item32 102 Grant Assurance 16, FAA Exhibit 1, Item 32. 103 Grant Assurance 21, FAA Exhibit 1, Item 32. 104 FAA Order 5190.6B, page 20-2. Remedial, or corrective, measures typically include sound insulation or land acquisition. Preventive 

measures typically involve land use controls that amend or update the local zoning ordinance, comprehensive plan, subdivision regulations, and 

building code. 

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granted under state law or engaging in active representation and defense of the airport's interests 

before the pertinent zoning authorities. The sponsor may also take action with respect to 

implementing sound insulation, land acquisition, purchase of easements, and real estate disclosure 

programs or initiatives to mitigate areas to make them compatible with aircraft operations. 

Sponsors without zoning authority may also work to change zoning laws to protect airport 

interests. "

105 

(6) Grant Assurance 31 Disposal o(Land 

Grant Assurance 31 Disposal of Land, requires, in pertinent part, that the sponsor of a federally-obligated 

airport 

" .. .for land purchased under a grant for airport noise compatibility purposes, including land 

serving as a noise buffer, it will dispose of the land, when the land is no longer needed for such 

purposes, at fair market value, at the earliest practicable time ... 

... disposition of such land under (a) (b) or (c) will be subject to the retention or reservation of any 

interest or right therein necessary to ensure that such land will only be usedfor purposes which 

are compatible with noise levels associated with operation of the airport. " [Grant Assurance 31 J 

(7) Grant Assurance 35 Relocation o(Real PropertvAcquisition 

Grant assurance 35, Relocation of Real Property Acquisition, requires that the sponsor of a federallyobligated airport to 

" ... be guided in acquiring real property, to the greatest extent practicable under State law, by the 

land acquisition policies in Subpart B of 49 CFR Part 24 and will pay or reimburse property 

owners for necessary expenses as specified in Subpart B. 

... provide a relocation assistance program offering the services described in Subpart C and fair 

and reasonable relocation payments and assistance to displaced persons as required in Subpart D 

and E of 49 CFR Part 24 . 

.. . make available within a reasonable period of time prior to displacement, comparable 

replacement dwellings to displaced persons in accordance with Subpart E of 49 CFR Part 24. " 106 

Grant Assurance 35 derives from the laws enacted by Congress to ensure that people whose real property is 

acquired, or who move as a result of projects receiving Federal funds, will be treated fairly and equitably 

and will receive assistance in moving from the property they occupy.

107 

49 CFR Part 24 covers issues such as the replacement housing payment for homeowner-occupants, specific 

rules governing replacement housing payments, and cost determinations. 108 Advisory Circular AC 

150/5100-17 Land Acquisition and Relocation Assistance for Airport Improvement Program Assisted 

Projects provides guidance to sponsors of airport projects developed under AlP to meet the requirements 

105 FAA Order 5190.6B, pages 20-4 and 20-5. 106 Grant Assurance 35, FAA Exhibit 1, Item 32, and http://www.faa.gov/airports/aip/grant_ assurances/media/airport-sponsor-assurancesaip.pdf. Also, see Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally-Assisted Programs. The Uniform 

Act and the implementing rule provide uniform and equitable treatment of persons displaced from their homes, businesses, or farms, and 

establish uniform and equitable land acquisition policies for public programs using federal funds. 107 See http://www.fhwa.dot.gov/real_ estate/uniform_ act/. 108 See 49 CFR Part 24.401-404. 

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Virginia One Development (VOD), LLC, et al. v. The City Of Atlanta-FAA Docket No. 16-12-09 

of the Uniform Relocation Assistance and Real Property Acquisition Act of 1970 (PL 91-646, as 

amended) 109 and 49 CPR Part 24. AC 150/5100-17 states in part that: 

"The Uniform Act (42 USC 4601 et seq.) was enacted January 2, 1971. This law applies to any 

Federal project or program that requires real property acquisition and people to be displaced 

from their acquired home, business, farm, or nonprofit organization real property. The purpose of 

the Uniform Act is: 

a. To ensure that owners of real property to be acquired for Federal and federally-assisted 

projects are treated fairly and consistently, to encourage and expedite acquisition by 

agreements with such owners, to minimize litigation and relieve congestion in the courts, and 

to promote public confidence in Federal and federally-assisted land acquisition programs; 

b. To ensure that persons displaced as a direct result of Federal or federally-assisted projects 

are treated fairly, consistently, and equitably so that such displaced persons will not suffer 

disproportionate injuries as a result of projects designed for the benefit of the public as a 

whole; and 

c. To ensure that Agencies implement these regulations in a manner that is efficient and costeffective. "

110 

Under the regulation, the owner of property sold as a qualified "Voluntary Transaction" is not a displaced 

person and is not eligible for relocation assistance and payment benefits. However, "any tenant in 

occupancy when agreement is reached to purchase the property is displaced for the project and is eligible 

for all applicable relocation payments and assistance provided for under the Uniform Act."111 

C. Surplus Property Obligations 

Surplus property instrmnents of disposal are issued under the Surplus Property Act of 1944 (SPA). The 

Act authorizes conveyance of property surplus to the needs of the Federal government. 112 Public Law 80-

289, approved July 30, 1947, amended Section 13 of the Surplus Property Act of 1944. These 

conveyances are subject to the terms, conditions, reservations and restrictions prescribed therein. Surplus 

property instruments of transfer are one of the means by which the Federal government provides airport 

development assistance to public airport sponsors. 

The conveyance of surplus Federal land to public agencies for airport purposes is administered by the FAA 

pursuant to 49 USC § 47151, 47152, and, 47153. Public Law 81-311 specifically imposes upon the FAA 

the sole responsibility for determining and enforcing compliance with the terms and conditions of all 

instruments of transfer by which surplus airport property is or has been conveyed to non-federal public 

agencies pursuant to the SPA. Furthermore, pursuant to 49 USC§ 47122, the FAA has a statutory mandate 

to ensure that airport owners comply with their federal obligations. 113 

109 Sometimes referred to as the "Uniform Act." 110 See Advisory Circular AC 150/5100-17 Land Acquisition and Relocation Assistance for Airport Improvement Program Assisted Projects, 

page 1. http:/ /www.faa.gov/airports/resources/advisory ~ circulars/index.cfm/ go/document.current/documentNumber/150 ~51 00-17. 111 See Advisory Circular AC 150/5100-17 Land Acquisition and Relocation Assistance for Airport Improvement Program Assisted Projects, 

page 2. 

ll2 FAA Order 5190.68. 113 All surplus airport property instruments of disposal, except those conveying only personal property, provide that the covenants assumed by 

the grantee regarding the use, operation and maintenance of the airport and the property transferred shall be deemed to be covenants running 

with the land. Accordingly, such covenants continue in full force and effect until released under Public Law 81-311 or other applicable Federal 

law. 

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Virginia One Development (VOD), LLC, et al. v. The City Of Atlanta- FAA Docket No. 16-12-09 

In this case, under the provisions of the Surplus Property Act of 1944, the Airport assumed certain 

obligations, reservations, and conditions. Upon acceptance of surplus property conveyance by the City, the 

obligations in the instrument of disposal became a binding obligation between the City and the Federal 

government. Commitments assumed by the City in property conveyance are important factors in 

maintaining a high degree of safety and efficiency in airport design, construction, operation, and 

maintenance as well as ensuring the public reasonable access to the airport. 114 

D. The FAA Airport Compliance Program 

The FAA discharges its responsibilities for ensuring airport owners' compliance with their Federal 

obligations through its Airport Compliance Program. The FAA's airport compliance efforts are based on 

the contractual obligations an airport owner accepts when receiving Federal grant funds or the transfer of 

Federal property for airport purposes. These obligations are incorporated in grant agreements and 

instruments of conveyance in order to protect the public's interest in civil aviation and to ensure 

compliance with Federallaws. 115 

The FAA Airport Compliance Program is designed to ensure the availability of a national system of safe 

and properly maintained public-use airports operated in a marmer consistent with the airport owners' 

Federal obligations and the public's investment in civil aviation. The Airport Compliance Program does 

not control or direct the operation of airports. Rather, it monitors the administration of the valuable rights 

pledged by airport sponsors to the people of the United States in exchange for monetary grants and 

donations ofF ederal property to ensure that the public interest is being served. 

FAA Order 5190.6B sets forth policies and procedures for the FAA Airport Compliance Program.116 The 

Order establishes the policies and procedures to be followed by FAA personnel in carrying out the FAA's 

responsibilities for ensuring airport compliance. It provides basic guidance for FAA personnel in 

interpreting and administering the various continuing commitments made to the United States by airport 

owners as a condition of receiving a grant of Federal funds or the conveyance of Federal property for airport 

purposes. 

FAA Order 5190.6B analyzes the various obligations set forth in the standard airport sponsor assurances, 

addresses the nature of those assurances, addresses the application of those assurances in the operation of 

public-use airports, and facilitates interpretation of the assurances by FAA personnel. The FAA 

Compliance program is designed to achieve voluntary compliance with Federal obligations accepted by 

owners and/or operators of public-use airports developed with FAA-administered assistance. 

Therefore, in addressing allegations of noncompliance, the FAA will make a determination as to whether 

an airport sponsor is currently in compliance with the applicable Federal obligations. Consequently, the 

FAA will consider the successful action by the airport to cure any alleged or ~otential past violation of 

applicable Federal obligation to be grounds for dismissal of such allegations. 17 

114 In this case, because (1) the Complaint did not reference the Surplus Property Act of 1944, its properties, or obligations, and (2) the 

arguments presented for adjudication do not necessary mirror the surplus property obligations, the Director's decision does not incorporate a 

review for compliance with the SPA The overview of the SPA is provided here in order to establish a complete record of the applicable federal 

obligations affecting the Airport. 115 The Airport Compliance Program is administered by FAA's A CO-l 00 Airport Compliance and Management Analysis. The Airport 

Compliance Division oversees the Airport Compliance Program. The division holds primary responsibility for interpreting, recommending, and 

developing policies and resolving matters that involve the Federal obligations of airport sponsors. It also adjudicates formal complaints and 

FAA-initiated investigations under Title 14 Code of federal Regulations Part 16, Rules of Practice for Federally Assisted Airport Enforcement 

Proceedings, and monitors airport sponsor compliance with limits on the use of airport revenue. 116 See http://www .faa.gov/airports/resources/publications/orders!compliance ~ 5190 _ 6/. 117 See e.g. Wilson Air Center v. Memphis and Shelby County Aimort Authority, FAA Docket No. 16-99-10, (8/30/01) Wilson Air Center, LLC 

v FAA, 372 F.3d 807 (6'" Cir. 2004). 

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E. FAA Enforcement Responsibilities 

The Federal Aviation Act of 1958, as amended, 49 USC,§ 40101, et seq., assigns the FAA Administrator 

broad responsibilities for the regulation of air commerce in the interests of safety, security, and development 

of civil aeronautics. The Federal role in encouraging and developing civil aviation has been augmented by 

various legislative actions, which authorize programs for providing fimds and other assistance to local 

communities for the development of airport facilities. In each such program, the airport owner or sponsor 

assumes certain obligations, either by contract or by restrictive covenants in property deeds and conveyance 

instruments, to maintain and operate its airport facilities safely, efficiently, and in accordance with specified 

conditions. 

Commitments assumed by airport owners or sponsors in property conveyance or grant agreements are 

important factors in maintaining a high degree of safety and efficiency in airport design, construction, 

operation and maintenance, as well as ensuring the public reasonable access to the airport. Pursuant to 49 

USC, § 47122, the FAA has a statutory mandate to ensure that airport owners comply with their Federal 

grant assurances. 

F. The Complaint Process 

Pursuant to 14 CFR 16.23, a person directly and substantially affected by any alleged noncompliance may 

file a complaint with the FAA. The complainant shall provide a concise but complete statement of the 

facts relied upon to substantiate each allegation. The complaint shall also describe how the complainant 

was directly and substantially affected by the things done or omitted by the respondents. 118 If, based on the 

pleadings, there appears to be a reasonable basis for further investigation, the FAA will investigate the 

subject matter of the complaint. In rendering its initial determination, the FAA may rely entirely on the 

complaint and the responsive pleadings provided. Each party shall file documents it considers sufficient to 

present all relevant facts and arguments necessary for the FAA to determine whether the sponsor is in 

complianceY9 

The proponent of a motion, request, or order has the burden of proof. A party who has asserted an 

affirmative defense has the burden of proving the affirmative defense. This standard burden of proof is 

consistent with the Administrative Procedure Act (AP A) and Federal case law. The AP A provision states, 

"except as otherwise provided by statute, the proponent of a rule or order has the burden of proof." [5 

USC, § 556( d). 120 Title 14 CFR, § 16.229(b) is consistent with 14 CFR, § 16.23, which requires that the 

complainant must submit all documents then available to support his or her complaint. 

Similarly, 14 CFR, § 16.29 states that "[ e ]ach party shall file documents that it considers sufficient to 

present all relevant facts and argument necessary for the FAA to determine whether the sponsor is in 

compliance." Title 14 CFR, § 16.31 (b-d), in pertinent parts, provides that "the Director's determination will 

set forth a concise explanation of the factual and legal basis for the Director's determination on each claim 

made by the complainant. A party adversely affected by the Director's determination may appeal the initial 

determination to the Associate Administrator as provided in §16.33." 

In accordance with 14 CFR, § 16.33(b) and (e), upon issuance of a Director's determination, "a party 

adversely affected by the Director's determination may file an appeal with the Associate Administrator 

within 30 days after the date of service of the initial determination;" however, "if no appeal is filed within 

118 14 CFR, Part 16, § 16.23(b) (3, 4). 119 14 CFR, Part 16, § 16.29. 120 See also, Director, Office of Worker's Compensation Programs, Department of Labor v. Greenwich Collieries, 512 US 267,272 (1994); Air 

Canada eta!. v. Department ofTransportation, 148 F3d 1142, 1155 (DC Cir, 1998). 

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the time period specified in paragraph (b) of this section, the Director's Determination becomes the final 

decision and order of the FAA without further action. 

A Director's Determination that becomes final because there is no administrative appeal is not judicially 

reviewable." Title 14 CFR, § 16.247(a) defines procedural recourse for judicial review of the Associate 

Administrator's fmal decision and order, as provided in 49 USC,§ 46110 or section 519(b)(4) of the Airport 

and Airway Improvement Act of 1982, as amended, (AAIA), 49 USC,§ 47106(d) and 47111(d). 

G. Airport Noise and the 14 CFR Part 150 Program 

Congress, in the Aviation Safety and Noise Abatement Act of 1979 (ASNA), 49 USC §47501 et seq., has 

provided for a program to address noise impacts from aircraft operations on areas surrounding airports. The 

statute requires the FAA to establish a single system for determining the exposure of individuals to airport 

noise and to establish a standardized airport noise compatibility planning program.

121 Specifically, Congress 

directed the FAA to: (1) establish a single system of noise measurement to be uniformly applied in measuring 

noise at airports and in surrounding areas for which there is a highly reliable relationship between projected 

noise and surveyed reactions of people to noise; (2) establish a single system for determining the exposure of 

individuals to noise from airport operations; and (3) identify land uses that are normally compatible with . f. d" "d 1 . 122 vanous exposures o m lVI ua s to no1se. 

By regulation (Part 150), 123 the FAA established as the single system for determining noise exposure the 

calculation of the yearly day-night average sound level (DNL) expressed in terms of A-weighted decibels 

[dB( A)]. Under FAA regulations, this calculation must be made by computer model known as the Integrated 

Noise Model (INM), which incorporates information concerning the number of aircraft operations at the 

airport, the mix of aircraft, the general flight tracks, and information about the noise characteristics of the 

aircraft operating at the airport. The INM is used to develop a noise exposure map (NEM) of an airport's 

surrounding area that depicts noise contours, or lines of equal noise exposure. 

Although actual sound levels are frequently measured, it is impractical to develop a noise contour based on 

such measurements; therefore, the contours represent estimates of noise exposure derived from the INM. 

The DNL is a weighted day-night average. The noise exposure map must show contours for DNL levels of 

65, 70, and 75 dB( A). For purposes of Part 150, the FAA has determined that all land uses are compatible 

with sound levels that are less than DNL 65 dB( A) and has designated what land uses are compatible with 

sound levels higher than DNL 65 dB(A). 124 

Part 150 also establishes a voluntary noise compatibility program. An airport operator wishing to participate 

must submit to the FAA a plan that incorporates a noise exposure map showing current conditions and a map 

showing conditions based on forecasted operations at least five years into the future. 125 The plan also will 

include proposed program measures and procedures and an analysis of their expected effect on reducing 

noise exposure and land uses designated as non-compatible. The airport operator must provide an adequate 

opportunity for the public, the affected states and localities, appropriate planning agencies, and the 

aeronautical users of the airport to submit comments on the plan. The FAA reviews the plan (NCP) and 

either approves or disapproves the plan or portions thereof. 126 

121 49 usc 47502-47504. 122 FAA Order 5190.6B, page 13-5. 123 See 49 USC §47504 Noise Compatibility Programs. 124 See 14 CFR Part 150. Appendix A and B. 125 14 CFR 150.21(a). 126 14 CFR 150.23 and 14 CFRPart 150.35. 

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Virginia One Development (VOD), LLC, et al. v. The City Of Atlanta- FAA Docket No. 16-12-09 

Approval of a noise compatibility program, measures, or procedure by the FAA enables the airport sponsor to 

apply for federal grants to implement that compatibility program, measure, or procedure. 127 Consistent with 

ASNA, Part 150 requires airport operators preparing noise compatibility programs to analyze the following 

alternative measures including acquisition ofland in fee, and interests therein, including but not limited to air 

rights, easements, and development rights, construction of barriers and acoustical shielding, and sound 

insulation ofbuildings. 128 FAA approval under 14 Part 150 is only for the purpose of establishing the noise 

compatibility program. 14 CFR 150.5 Limitations of this Part provide details on the scope and detail of the 

process including: 

(a) Approval of a noise compatibility program under this part is neither a commitment by the 

FAA to financially assist in the implementation of the program, nor a determination that all 

measures covered by the program are eligible for grant-in-aid funding from the FAA. 

(b) Approval of a noise compatibility program under this part does not by itself constitute an 

FAA implementing action. A requestfor Federal action or approval to implement specific 

noise compatibility measures may be required, and an FAA decision on the request may 

require an environmental assessment of the proposed action, pursuant to the National 

Environmental Policy Act (42 USC 4332 et seq) and guidelines. 

(c) Acceptance of a noise exposure map does not constitute an FAA determination that any 

specific parcel of land lies within a particular noise contour. Responsibility for 

interpretation of the effects of noise contours upon subjacent land uses, including the 

relationship between noise contours and specific properties, rests with the sponsor or with 

other state or local government. 129 

VII. ANALYSIS 

A. Preliminary Issnes 

L Standing 

One of the preliminary issues to be addressed in this case is whether the Complainants have standing to file 

a 14 CFR Part 16 Complaint In its Answer, the Airport alleges that the Complainants "lack standing to 

file the Complaint"130 and only seek FAA support in furtherance of their businesses. 131 Specifically, 

Airport states that"[ d]espite the verbiage of Complainants' Part 16 Complaint, this is what this matter is 

really about: The Complainants are developers (hereinafter referred to as 'Developers') who, for the most 

part, recently purchased property near Hartsfield-Jackson International Airport (the Airport). Developers 

are seeking the assistance of the Federal Aviation Administration (FAA) to force the City to acquire their 

properties (presumably at a profit for them) under the Airport's Part 150 program." 132 One ofthe 

Developers (Virginia One Development, LLC) has filed a pending state court lawsuit seeking to force the 

City to acquire its property, even though it is not eligible for acquisition under the Airport's Noise 

127 See 49 USC 47504. 128 FAA Order 5190.6, pages 13-5 and 13-6. 129 14 CFR 150.5(c). In making its evaluations under NEPA, the FAA applies FAA Order 1050.1 E Environmental Impacts: Policies and 

Procedures and FAA Order 5050.4B, National Environmental Policy Act (NEPA) Implementing Instructions for Airport Projects. Under these 

guidelines, the FAA has chosen to use the DNL noise metric for the evaluation of noise impacts around airports. Those procedures also establish a 

"threshold of significance" for noise impacts. A significant noise impact would occur if analysis shows that the proposed action will cause noise 

sensitive areas to experience an increase in noise ofDNL 1.5 dB or more at or above DNL 65 dB noise exposure when compared to the no action 

alternative for the same timeframe. See Order 1050.IE, page A-61. 130 FAA Exhibit I, Item 3, pages 9-10. 131 FAA Exhibit 1, Item 3, pages 2. 132 FAA Exhibit I, Item 3, pages 1-2. 

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Virginia One Development (VOD), LLC, et al. v. The City Of Atlanta- FAA Docket No. 16-12-09 

Compatibility Program (NCP) approved by the FAA ... the remedy that Developers now seek (elimination 

ofF AA participation in funding the Airport's NCP) would effectively prevent the City from acquiring their 

property ... The purpose of the Airport's NCP is not to provide a mechanism to allow Developers to flip 

commercial properties. The FAA should decline the Developers' invitation to be the lever in their effort to 

manipulate and coerce the City in the administration of the NCP."133 

In the initial Complaint, Complainants allege that they have "standing to file this Complaint pursuant to 49 

USC§ 47107 and 14 CFR §16.23." 14 CFR 16,23 states, in part, that "a person directly and substantially 

affected by any alleged noncompliance ... or a person qualified under 49 CFR 26. I 05( c) may file a 

complaint under this part!' The Complainant must also and to "describe how [it] the complainant was 

directly and substantially affected by the things done or omitted to be done by the respondents!'134 

For the purpose of filing this Part 16, and in describing how they were directly and substantially affected, 

Complainants argue two issues. First, Complainants state that they are "affected" by the location of the 

properties within the 65-70 DNL contours, which constitute "impacted" areas within the provisions of the 

14 CFR Part !50 process. 135 Second, Complainants argue that the Airport's violations of its federal 

obligations (by failing to adhere to the 14 CFR Part !50 process) and failure to purchase their properties 

results in a significant financial loss. 136 

A plain reading of the Complaint and pleadings does indicate that the "noise impact" and the financial 

implications are represented as being "directly and substantially affected." In fact, Complainants state that 

"once the ... [properties have] been determined to be severely impacted by noise from the airport in the 

ATL NCP, the [Complainants] were damaged economically and have found it impossible to sell to other 

potential purchasers because it had been identified by the ATL NCP as property that Atlanta will acquire or 

sound mitigate."137 Since most of the properties are located in noise-impacted areas (Figure 2), which in 

turn can result in the inability to develop the properties as intended, which is a logical concern, the Director 

finds that Complainants have provided sufficient evidence in the record for FAA to conclude that 

Complainants are directly substantially affected by the alleged actions of the Airport. Finally, the 

pleadings also support a stmctured argument concerning several grant assurances, namely, grant assurances 

5, l6,2l,and35. 

Therefore, the Director finds that the Complainants have provided evidence in the record necessary to 

allege that they are affected by the Airport's actions and thus finds that Complainants do have standing to 

file this 14 CFR Part 16 Complaint. 

2. Airport's Motion to Dismiss 

On September 18, 2012, the Airport filed a Motion to Dismiss the Complaint138 by asserting that the 

Complainants had failed to comply with the provisions of 14 CFR § 16.21 (Informal Resolution) 139 because 

"the Complainants did not initiate and engage in good faith efforts to resolve the disputed matter with the 

133 FAA Exhibit I, Item 3, pages 1-2. 134 FAA Exhibit I, Item 1, pages 4-5. 135 FAA Exhibit 1, Item 1, page 12. 136 See FAA Exhibit 1, Item 1, pages 1-12. 137 FAA Exhibit 1, Item 1, page 14. Moreover, the economic damages are mentioned at numerous places in the record, including as elements in 

litigation (Federal and State, FAA Exhibit 1, Item I, Exhibits l, 2, 3-6), and in the interactions with the Georgia Department of Community 

Affairs (DCA) and Federal funding (US Department of Housing and Urban Development, HUD). See FAA Exhibit I, Item 5, page 15, and 

FAA Exhibit I, Item 3, page 22-27. 138 FAA Exhibit !,Item 4. 139 14 CFR 16.21 states in pertinent part, •• ... prior to filing a complaint under this part, a person directly and substantially affected by the alleged 

noncompliance shall initiate and engage in good faith efforts to resolve the disputed matter informally with those individuals or entities believed 

responsible for the noncompliance." 

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City." The Airport adds that informal resolution "requires something more than a few letters and phone 

calls" and that Complainants "made no effort to involve a third party neutral (as contemplated by the 

regulation), nor did they make any effort to reach a reasonable accommodation."140 

The Airport also notes that if Complainants "had cooperated with the City with respect to the evaluation for 

sound insulation and had sought the approval from representatives of the City of College Park (who are 

accountable to Developers as residents of the City of College Park) to permit the City's acquisition of their 

properties, the issues that have been raised in this proceeding may very well have been resolved."141 In 

addition, the Airport claims that the Complainants had failed to state or prove a legal claim for relief under 

Grant Assurances 5, 16, 21 and 35.

142 The Complainants disagree with these allegations, and respond that 

there have been good faith efforts to resolve the matter informally. The Complainants also disagree with the 

claim that they have failed to state or prove a legal claim for relief under Grant Assurances 5, 16,21 and 

35.143 

A review of the record shows that there is evidence that the Complainants did in fact attempt to resolve the 

matter before filing the Part 16 Complain in a manner sufficient to meet the requirement. The record 

contains numerous documents showing contacts between Complainants and the Airport in the two years 

preceding the filing of the Complaint in August 2012. In addition to the Complainants' certification that 

steps were taken to resolve the matter informally, 144 the record contains written, telephone and e-mail 

contacts between the parties in 2010, 145 litigation in 20 II (Fulton County Superior Court), 146 and extensive 

correspondence in 2012. 147 These are indicative that there were a number of attempts to resolve the matter 

before filing the 14 CFR Part 16 Complaint. 

As for the Airport's claim that the Complainants had failed to state or prove a legal claim for relief under 

Grant Assurance 5, 16,21 and 35, the record also shows that all of the arguments made by the Complainant 

concerning the alleged grant assurance violations are clearly articulated and referenced. 148 

Therefore, the Director finds that the Complainants have satisfied the requirements of §16.21, and have 

stated a reasonable legal claim within the framework of the grant assurances and 14 CFR Part 16. 

Therefore, the Motion to Dismiss is denied. 

3. Background on the Order of Consent 

College park and the City of Atlanta entered into a Consent Order dated August 2, 20 I 0 in United States 

District Court in a lawsuit concerning possible land acquisition by the Airport within the City of College 

Park pursuant to court ordered mediation. 149 The Consent Order issued by the court resulted from a May 

24,2010 Joint Motion for Relief from Order and Opinion and Judgment150 151 is an "enforceable Consent 

Order outlining the terms of the settlement."152 The Consent Order outlined the agreement of the parties 

(the Airport and the City of College Park) on several issues, including the following: 

14° FAA Exhibit 1, Item 4, page 2. 141 FAA Exhibit I, Item 4, page 2. 142 FAA Exhibit!, Item 5, pages 2-9. 143 FAA Exhibit I, Item 5, pages 2-9. 144 FAA Exhibit I, Item I, Exhibit 25. 145 FAA Exhibit I, Item I, page 7, Exhibit 25, and Exhibit 16. Also, see FAA Exhibit l, Item 3, and Exhibit 10. 146 FAA Exhibit!, Item 2, Exhibits 3-6. 147 FAA Exhibit I, Item I, Exhibits 16-24. 148 FAA Exhibit I, Item 4, page 5. 149 Civil Action No. I :08-CV -1464. Also see FAA Exhibit 1, Item 3, Exhibit 2 for chronological details on the Consent Order, including details 

on the issues considered and agreed upon. 150 Under Federal Rule of Civil Procedure 60(b )(6). 151 FAA Exhibit I, Item 3, p. 20. 152 See Consent Order, FAA Exhibit 1, Item 3 pages 21-22 and Exhibit 2. 

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Virginia One Development (VOD), LLC, et al. v. The City Of Atlanta- FAA Docket No. 16-12-09 

• Atlanta agrees to modify its current Part 150 Program to eliminate authorization to acquire 

any apartment complex within College Park other than Clubhouse Apartments, located at 3800 

Hershel Road. For purposes of this Consent Order, an apartment complex means any building 

with four (4) or more residential units. 

• Atlanta agrees to consult with College Park, within the confines of the Federal guidelines and 

other applicable law, on what properties identified in the existing and future Part 150 

documents as eligible for receipt of noise mitigation funds are mitigated and the timing of the 

mitigations. 

• Atlanta agrees to discuss with College Park, within one hundred twenty (120) days of the Order 

Date, a potential arrangement whereby, for future real property acquisitions for operations of 

the airport andfor which Atlanta is tax exempt, the City of Atlanta will pay a Payment in Lieu 

of Taxes. " 153 

Several elements of the Consent Order terms pertain to the Airport's Part 150 program and to several of the 

issues in this case. One is the term that states, "[the Airport] agrees to modify its current Part 150 Program 

to eliminate authorization to acquire any apartment complex within College Park other than Clubhouse 

Apartments." The other is the term that states that "[the Airport] agrees to consult with College Park, 

within the confines of Federal guidelines and other applicable law, on what properties, identified in the 

existing and future Part 150 documents as eligible for receipt of noise ruitigation funds, are mitigated and 

the timing of the mitigation."154 

A plain reading of the Consent Order shows that by including the text "within the confines of Federal 

guidelines and other applicable law" and "existing and future Part 150 documents," it incorporated the 

applicable FAA regulatory framework, to include Part 150, as part of the solution to address the noise 

ruitigation issues. 

On September 12,2012, and because of the Consent Order, the Airport submitted an NCP amendment to 

the FAA (Atlanta ADO) to reflect the Consent Order. The amendment, inserted in the NCP as Section 

6.10 Compliance with Federal Consent Order, notes: 

"The Consent Order prohibits Atlanta from certain land acquisition activities within the College 

Park city limits. Other than the Clubhouse Apartments, located at 3800 Herschel Road, no 

apartment complexes located within the city limits of the City of College Park may be acquired 

without the consent of the City of College Park. For purposes of this prohibition, an apartment 

complex shall mean any building with four or more residential units. "

155 

4. Background on the FAA Record of Decision on Aimort's Part 150 NCP 

On January 25, 2008, the FAA completed its evaluation of the Airport's NCP contained in the FAR Part 

150 Study Noise Compatibility Program Report and related documents submitted under the provisions of 

153 See FAA Exhibit I, Item 3, Exhibit 2. The Consent Order states that the "parties agree that compliance with these requirements is subject to 

applicable law." Applicable law includes, inter alia, the revenue use restrictions detailed in the Policy and Procedures Concerning the Use of 

Airport Revenue (Revenue Use Policy), 64 Fed. Reg. 7,696 (Feb. 16, 1999). 154 See Consent Order, FAA Exhibit 1, Item 3, Exhibit 2, pages 5-6. The Complainants reference is as follows: "[the Airport] agrees to modifY 

its current Part 150 Program to eliminate authorization to acquire any apartment complex within College Park other than Clubhouse 

Apartments, located at 3800 Hershel Road. 155 See Consent Order, FAA Exhibit I, Item 3, Exhibit 8. 

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49 USC Section 47504. The FAA "approved seven ofthe seven proposed action measures in the Noise 

Compatibility Program in full. "1 56 

In its approval letter, the FAA remarked, "the 14 CFR Part 150 NCP is a local program, not a Federal 

program and that the FAA does not substitute its judgment for that of the airport operator with respect to 

which measures should be recommended for action." 157 In addition, the FAA stated that its approval is 

limited to the following: 

• The NCP was developed in accordance with the provisions and procedures of Part 150; 

• Program measures are reasonably consistent with achieving the goals of reducing existing 

non-compatible land uses around the airport and preventing the introduction of additional 

non-compatible land uses; 

• Program measures would not create an undue burden on interstate or foreign commerce, 

unjustly discriminate against types or classes of aeronautical uses, violate the terms of 

airport grant agreements, or intrude into areas preempted by the Federal Government; 

and 

• Program measures relating to the use o.f flight procedures can be implemented within the 

period covered by the Program without derogating safety, adversely affecting the efficient 

use and arrangement of the Navigable Airspace and Air Traffic Control Systems, or 

adversely affecting other powers and responsibilities of the Administrator prescribed by 

law. ,/58 

The FAA also noted (in an attached memorandum) many regulatory and policy statements, which are not 

only relevant to the Complaint but also, set realistic expectations on what Part 150 does and does not. 

These include: 

• Approval of the Part 150 NCP update does not foreclose direct involvement of College 

Park; 

• The NCP update includes a measure to coordinate the re-development ofland purchased 

under the residential acquisition program with affected local political jurisdictions; 

• The Part 150 process does not require the airport sponsor to include plans for reuse of the 

properties or plans for where tenants will be relocated in its NCP but that if the airport 

sponsor implements the NCP measure and acquires residential property, the City of Atlanta 

must comply with the Uniform Relocation Assistance and Real Property Acquisition 

Policies Act of 1970, which requires the airport sponsor to assist displaced individuals in 

obtaining comparable replacement housing; 

• The airport sponsor has authority to acquire multifamily residential properties using its 

powers as a municipal entity outside the Part 150 program; 

• The Part 150 process is but one method by which [the Airport] may seek to acquire 

property for noise mitigation purposes; and 

• The Part 150 program is not intended to harm local commuuities and undesirable negative 

financial and other impacts of voluntary acquisition of apartment complexes in College 

156 FAA Exhibit I, Item I, Exhibit 14. 157 FAA Exhibit I, Item I, Exhibit 14. 158 FAA Exhibit l, Item I, Exhibit 14. 

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Park can be addressed by various means, including efforts by the City of Atlanta to 

properly coordinate redevelopment of the acquired property with College Park. 159 

Moreover, in 2011, FAA noted that, as part of an e-mail communication with the Airport on the NCP that 

" ... the property is eligible for inclusion in the airport's compatibility program; 

should the airport decide to acquire this property [emphasis added}, the offir would be 

based on current fair market value and would be in compliance with the appropriate FAA 

Orders (i.e., Order 5100.37); 

... once the funding is awarded to the airport, it is their responsibility to manage the program. 

We encouraged the owner to continue to work with you on how the acquisition of their 

property would best fit in your established schedule. "160 

Finally, as mentioned above, in Apri114, 2014, the FAA notified the Airport that "the 14 CFRPart 150 

Program is a voluntary program. The FAA's approval of an NCP measure in a Record of Approval is not a 

mandate for implementation. Instead, FAA's approval simply means that, if implemented as written and 

approved, the measure meets the requirements within 14 CFR Part 150 ... the FAA finds it acceptable for the 

airport to modify future actions currently addressed in Land Use Measure 1 of the NCP to reflect the legal 

directives outlined in the Consent Order."161 

The above not only establishes the limitations of the Part 150 process in terms of obligations, but also explains 

the Airport's role vis-a-vis the FAA as well as the role and authorities of the local political jurisdictions in the 

matter. This clarification concerning the 14 CFR Part 150 process and the NCP are critical in the discussions, 

which follow. 162 

B. Issue 1 -Whether the Airport is in violation of Grant Assurance 5, Preserving Rights and 

Powers by not implementing the NCP as approved by the FAA and by not acquiring or sound 

insulating Complainants' properties. 

Grant Assurance 5 Preserving Rights and Powers requires the Airport retain all rights and powers 

necessary to ensure the continued operation of the airport consistent with its Federal obligations. It 

requires in part that the Airport: 

" ... will not take or permit any action which would operate to deprive it of any of the rights and 

powers necessary to perform any or all of the terms, conditions, and assurances in this grant 

agreement without the written approval of the Secretary, and will act promptly to acquire, 

159 FAA Exhibit 1, Item 1, Exhibit 15. See Disposition of Comments Regarding Hartsfield-Jackson International 

Airport Part 150 Noise Compatibility Program, Date: January 24, 2008. 160F AA Exhibit l, Item I, Exhibit 31. 161 FAA Exhibit I, Item 16, page 6, and Exhibit B. 162 As part of its discussion concerning Part 150, the Complainants argue that the Airport "has added additional criteria to the criteria listed in 

the ATL NCP and FAA Order 5190.6B, Airport Compliance Handbook, (Sept. 30, 2009) (the "Handbook"), by requiring that all property to be 

acquired or sound mitigated comply with building code prior to its consideration for sound mitigation or acquisition. None of the conditions 

that Atlanta has placed on the [Complainants] were approved by the FAA nor contained in the Handbook. The [Complainants] have repeatedly 

requested that Atlanta supply the legal basis for the new criteria (i.e., criteria other than those specifically mentioned in the ATL NCP or the 

Handbook), but Atlanta has refused to supply any such legal basis." FAA Exhibit I, Item I, page 16. The Airport disagrees and states that their 

requirements are consistent with FAA guidance. FAA Exhibit I, Item I, Exhibit 23. On this ancillary issue, the Director takes the position that 

if AlP funds are used to sound insulate properties, then FAA requirements, including AlP funding guidance, would have to be used regardless 

of the discussion or exchanges in these proceedings by the parties. 

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Virginia One Development (VOD), LLC, eta!. v. The City Of Atlanta- FAA Docket No. 16-12-09 

extinguish or modifY any outstanding rights or claims of right of others which would interfere with 

such performance by the sponsor. This shall be done in a manner acceptable to the Secretary . 

... For noise compatibility program projects to be carried out on privately owned property, it will 

enter into an agreement with the owner of that property which includes provisions specified by the 

Secretary. It will take steps to eriforce this agreement against the property owner whenever there is 

substantial non-compliance with the terms of the agreement. " [Grant Assurance 5 ] 163 

The Complainants claim that the Airport's agreement to the Consent Order in Federal Court164 preventing 

the acquisition or sound insulation of Complainants' properties identified in the NCP and approved by the 

FAA is a violation of Grant Assurance 5. Complainants add that the Consent Order "deprives [the Airport] 

of rights and powers necessary to perform any or all ofthe terms and conditions of the ATL NCP," 165 and 

as a result, the Airport not only "restricts its ability to acquire property but also puts limitations on its 

ability to properly and effectively implement its sound mitigation program." 166 Complainants refer to 

amending the Part 150 NCP as violating the grant assurances because "the Consent Order" bars the 

"[Airport] from acquiring any property within the boundaries of College Park." 167 

The Complainants assert that these actions, "acquisition and sound mitigation were approved by the 

FAA ... and therefore were considered to be reasonable actions to be taken by the Airport to control and 

manage ... noise ... " 168 and by having "voluntarily limited itself from acquiring property that it has 

identified as non-compatible ... for which it has an approved NCP," the Airport is in violation of Grant 

Assurance 5. 169 Complainants also take the position that the Airport is "not acting in good faith" and uses 

the Consent Order "it voluntarily entered into, without the consent of the FAA or the [Complainants ]."170 

Furthermore, Complainants take the position that "the Amendment cannot be approved by the FAA 

because it is in violation of 14 CFR § 150.35 which "states that the FAA will only approve an NCP if the 

program measures would not create an undue burden on interstate or foreign commerce

171 and are 

reasonably consistent with achieving the goals of reducing existing non-compatible land uses around the 

airport and of preventing the introduction of additional non-compatible land uses." Complainants also 

emphasize that "since the Amendment will impact the salability of the property affected by the 

Amendment and it is specifically aimed at leaving multi-family residences in place that are within the 70 

DNL contour, the Amendment does not meet this requirement as well." 172 

163 Grant Assurance 5, FAA Exhibit 1, Item 32, and http://www.faa.gov/airports/aip/grant_assurances/media/airport-sponsor-assurances-aip.pdf. 164 United States District Court for the Northern District of Georgia 165 FAA Exhibit I, Item I, page 19. 166 FAA Exhibit I, Item I, pages 18-19. 167 FAA Exhibit 1, Item 10, Taber letter to Airport, July 11,2013. Complainants' Grant Assurance 5 allegation of violation is that "by including 

the Amendment in its Part 150 NCP indicating that [the Airport] would not acquire property in accordance with Part 150, [the Airport] will have 

taken affirmative steps to deny itself the ability to obtain airport development land or noise land and/or ensure that the development of the 

property is compatible with aircraft noise." It cannot be consistent with achieving the goal of reducing non-compatible uses to allow an 

amendment that limits the ability of [the Airport] to acquire property that [the Airport] has deemed to be severely impacted by aircraft noise. In 

addition, both the FAA and the [Airport] are aware that College Park's desire is keep the property located in the 70 DNL contour as residential 

properly, a use which is not compatible with the Part !50 NCP." FAA Exhibit I, Item 10, Taber letter to Airport, July II, 2013. 168 FAA Exhibit l, Item 1, page 18. 169 FAA Exhibit l, Item 5, page 4. 17° FAA Exhibit I, Item 5, page 2. 171 Complainants also argue that "since at least one of the Property Owners is an out-of-state entity, there has been a substantial burden on 

interstate commerce by Atlanta's failure to act on the Part 150 NCP and its hiding behind its voluntary entry into a restrictive Consent Decree 

that will violate Atlanta's duties under federal law." FAA Exhibit 1, Item 10, Taber letter to Airport, July 11, 2013. This argument is meritless 

because the reference to interstate commerce is related to aeronautical operators, not a real estate developer. The FAA's aviation responsibilities 

assigned to the FAA are outlined under the Federal Aviation Act of 1958, as amended, 49 U.S.C. § 40101 et seq. These are limited to air 

transportation. 

172FAA Exhibit I, Item 10, Taber letter to Airport, July 11,2013. 

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Additionally, the Complainants contend that "the Consent Order does not stop [the Airport] from 

acquiring" properties in College Park "until it modifies the ATL NCP" and that the Airport has a "legal 

obligation to the FAA to comply with the ATL NCP and its grant assurances irrespective of what other 

contracts or agreements it might have entered into with another party. " 173 Finally, the Complainants 

supplement their claims by stating that the Airport's entering into the Consent Order "violates one of the 

central holdings of the Administrator in Town of Fairview v. City of McKinney, FAA Docket No. 16-99-

04 and by doing so, violates Grant Assurance 5" because "[the Airport] took affirmative steps to deny itself 

the ability to obtain airport development land or noise land." 174 

In response, the Airport maintains that Complainants have a misconception concerning the NCP, and that 

Complainants fail to state how issues related to the Airport's administration of its NCP program with 

respect to acquisition and sound insulation of incompatible properties are relevant to Grant Assurance 5. 175 

The Airport adds that the properties "are not airport properties" and that it has "taken no action which 

would in any way .. .impede its rights to control the airport" in a manner consistent with Grant Assurance 

5. 176 The Airport disagrees with the Complainants' assertion that an approved NCP provides the Airport 

with no discretion in dealing with local authorities or in managing the NCP and states that the position 

argued by Complainants is "fundamentally inconsistent with federal mandates regarding NCPs."177 The 

Airport recognizes that although "the NCP provides for voluntary measures to provide potential assistance 

through possible noise insulation ... and possible acquisition," the NCP "is the Airport sponsor's program" 

and is "administered at the discretion of [the Airport]. " 178 

The Airport adds that the FAA's interest is to make "sure that properties selected for sound insulation or 

acquisition and to be funded in large part by federal grant money qualify for the program" and not "to 

dictate to the Airport which properties must be insulated or acquired." 179 The Airport summarizes its 

position by stating that the Part 150 process is of a "voluntary nature ... that there is no mandatory 

implementation of the NCP, meaning that the NCP does not establish a right or entitlement on behalf of 

[Complainants]. " 180 

In reviewing the arguments, the Director first notes that although Complainants' properties are not "airport 

properties," this is true only insofar as those properties are (1) not located within airport boundaries and (2) 

the Airport has no control over them. Grant Assurance 5 applies to all airport properties, within or outside 

airport boundaries. For example, airport properties acquired well outside of the airport, for either noise 

mitigation or another reuse airport function (e.g., off-site parking), are still airport properties subject to the 

grant assurances. 

181 

However, the Director does not agree with the Complainants that the applicability of Grant Assurance 5 

extends to any and all actions on the part of the Airport concerning a property it does not own but might be 

interested in for noise mitigation purposes (in the NCP), as it is the case here. Accordingly, Complainants' 

assertion as to this Grant Assurance 5 claim has no merit. 

173 FAA Exhibit I, Item 5, page 4. 174 FAA Exhibit 1, Item 5, page 6. 175 FAA Exhibit I, Item 3, page 26. 176 FAA Exhibit 1, Item 3, page 27. The Airport notes that "the [FAA Order] identifies of 'particular concern' the granting of property interests 

to tenants on [emphasis added] the airport." FAA Exhibit I, Item 3, page 28. 177 FAA Exhibit 1, Item 3, page 27. 178 FAA Exhibit 1, Item 3, pages 3 and 4. 179 The Airport also states that "property owners have no right to relief because, as one example, possible relief is dependent upon the 

availability of funds, which is not a certainty. In other instances, for example, sound insulation would be futile because the buildings have 

multiple code violations or are simply not capable of being effectively insulated. There are a myriad of possible considerations that come into 

play with particular properties. The FAA should not interject itself into these determinations." FAA Exhibit 1, Item 3, page 4. 180 FAA Exhibit I, Item 16, page 2. 181 FAA Exhibit 1, Item 5, pages 5-6. 

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The Director also observes that certain aspects of Complainants' understanding of the "rights and powers" 

requirement in Grant Assurance 5, and the scope of the Part 150 process, have been misunderstood. First, 

Complainants take the position that "College Park has to recognize that the initial decision as to whether 

the property should be acquired is the [Complainants'], not College Park's or [the Airport's.]" However, 

for the purpose of a 14 CFR Part 150 NCP and related projects, Complainants' discretion in decisionmaking is one of either accepting an offer of purchase or sound insulation, or not. It is not to dictate that a 

particular offer by the airport sponsor be made. 

Second, Complainants argue that if the Airport would simply acquire the properties as Complainants 

request, the Airport "would retain its obligation as the airport sponsor to ensure that College Park complies 

with the Part 150 NCP."182 Yet, adherence to, modifications and implementation of the Part 150 NCP or 

its measures, is an airport sponsor action, not one transferable to a local public jurisdiction, and certainly 

not to Complainants. The City of College Park does not need to "comply" with the Airport's NCP since 

the Airport in essence "owns" the Part 150 process, not the City of College Park. 

In regulation and policy, the Part 150 (and NCP) is a voluntary program proposed and administered by the 

airport sponsor. Land acquisition for noise compatibility is eligible for federal participation if it is an 

element of a Noise Compatibility Program prepared by the airport owner and approved by the FAA in 

accordance with Part 150. Consequently, the FAA's role is to make sure that federal funds spent under the 

program are consistent with the NCP, as approved, and responsive, on the part of the Airport, to local 

conditions and concerns of surrounding municipalities. It is not the FAA's role, nor is it a requirement, to 

mandate that specific properties be acquired or others sound insulated. That is outside the scope of the Part 

150 process. 

There is a significant distinction between a property owner deciding whether to accept sound insulation or 

acquisition, if the Airport makes such an offer, and stating, as Complainants do, that Grant Assurance 5 (or 

any other grant assurance, e.g., 16, 21, or 35) requires that a particular property must be acquired or sound 

insulated. Moreover, the FAA's Airport District Office was clear in its Aprill4, 2014letter about the role 

of the agency -FAA's approval of an NCP is not a mandate for implementation, and the local land use 

authority, not the FAA, makes determinations regarding specific land uses.

183 

On the issue of the Consent Order, the Director disagrees with Complainants' position that the "Consent 

Order is of no importance to the F AA" 184 It would be unreasonable and inappropriate for the FAA to agree 

that, under Grant Assurance 5, and for voluntary noise compatibility program projects, the Airport must 

enter into an agreement with the owner of that property regardless of the implications concerning local 

jurisdictions, zoning laws, variances, and other responsibilities. 

The Airport's interactions with the City of College Park resulted in court mandated mediation and an Order 

of Consent. The fact that the Airport had discussions with College Park and even entered into litigation 

with the City on a local land use matter illustrates that the Airport is not only exercising its rights and 

powers within the framework provided by Part 150 (e.g., cooperation with local political jurisdictions), but 

also is acting in a manner consistent with other federal obligations. This includes Grants Assurances 6 and 

7, which incorporate and require coordination with local political jurisdictions.185 As noted above, Grant 

Assurance 5 mentions entering "into an agreement with the owner of that property which includes 

provisions specified" by the FAA. However, this requirement, as part of the acquisition process, is 

designed to protect the Airport's rights and powers and federal obligations interests. Compliance with 

182 FAA Exhibit I, Item 10, Taber letter to Airport, July 11. 2013. 183 FAA Exhibit 1, ltem 16, Exhibit B. 184 FAA Exhibit I, Item 5, page 7. 185 See Figure 2. 

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Grant Assurance 5 is not a mandate for the Airport to enter into an agreement with the Complainants 

regardless of other related matters and consequences. 

Similarly, this perception of a "mandate" cannot be used as justification to consider the Consent Order 

unrelated to the issue because it was "voluntary" or because it was "entered into without the consent of the 

FAA or the [Complainants ],"186 as Complainants argue. As pointed out by Complainants, the FAA is not a 

party to the recently filed declaratory judgment action, 187 which is a legally binding action stemming from 

litigation in Federal court concerning a local land use matter. 188 It is also consistent with and within the 

rights and powers of an airport sponsor, given that it does not involve any AlP-funded property purchases, 

and specifically requires that compliance with its requirements is subject to applicable law. 189 

As discussed above, the inherent limitations of the Part 150 process do not permit the interpretation that 

strict non-adherence to a voluntary NCP is de facto inconsistent with the grant assurances, including Grant 

Assurance 5. This is especially true since FAA's approval of an NCP measure is not a mandate for 

implementation, and the Part 150 process itself provides for updates, amendments, and changes, including 

those designed to accommodate local concerns. 

190 

In the end, the Airport is interacting with the local political jurisdictions as part of its noise-based 

acquisition process in a marmer consistent with FAA obligations and guidance. In fact, the record shows 

existing and expected coordination processes between the Airport and the City of College Park. College 

Park's Comprehensive Plan191 2011-2013 reflects that "continued coordination with the [Airport] 

regarding future growth at the airport to address neighborhood preservation and impacts of continued 

growth."192 College Park has also stated that its policy is to "participate in the Airport Area Working 

Group, which [began] meeting in fall 2011 in order to improve coordination of and development, planning, 

aesthetic and transportation improvements, and economic development around the Airport."193 

In addition, as the record reflects, the FAA has taken the public position that if College Park demonstrates 

that it is capable of carrying out the projects [noise programs] within its jurisdiction, then it may be eligible 

to receive grants to implement those projects" as provided by 49 USC 4 7504( c )(1 ), ( c )(3). 194 If a nonsponsor talces part in noise programs under federal statutes, it certainly does not support the argument that 

186 FAA Exhibit 1, Item 5, page 2. 187 FAA Exhibit 1, Item 13, page 2. 188 The Airport explains that Complainants "in essence argue that the FAA and the City should ignore the Consent Order entered by the United 

States District Court for the Northern District of Georgia. This suggestion not only fails as a matter of common sense, but also because the 

Order has the force oflaw." FAA Exhibit I, Item 3, page 6. 189 As the Airport notes ''the Consent Order has the force of law and cannot be ignored by the [Airport] or the FAA. [Complainants] would 

essentially have the FAA te11 a federal judge that an Order she entered has no force and effect. [Complainants] have yet to explain why this is 

legally permissible, much less proper." FAA Exhibit 1, Item 6, page 7. 190 In its Answer, the Airport states that ''the Part 150 Program requires airport sponsors to consult with and work with local authorities. In 

addition, "as is reflected in exhibits submitted by Developers, the City of College Park has long had concerns about the Airport acquiring 

property within its city limits. College Park has particularly expressed concerns, for example, that the acquisition of multi-family residences 

negatively affects its tax base. The courts have previously recognized that legitimate concerns, including those raised by the City of College 

Park, justified completely excluding multi-family residences from the Airport's prior NCP .... "[a]fter mediation and negotiation, resulting in 

the entry of a Consent Order that, with one exception, prevents the City from acquiring multi-family residences within the city limits of College 

Park." See FAA Exhibit I, Item 3, pages 4-6. 191 Comprehensive Plan- Similar to a Master Plan, the comprehensive plan is a governmental entity's official statement of its plans and policies 

for long-term development. The plan includes maps, graphics and written proposals, which indicate the general location for streets, parks, 

schools, public buildings, airports and other physical development of the jurisdiction. 192 FAA Exhibit 1, Item 27, page 7. 193 College Park Comprehensive Plan 2011-2031, page 51. See http://wVI!W.collegeparkga.com/DocumentCenter!HomeNiew/746. 194 FAA Exhibit 1, Item 1, Exhibit 15. If the FAA determines that College Park is capable to receive grants to carry out projects in this 

approved NCP update, either from the FAA directly or from the City of Atlanta," the FAA would need to address, "among other things, 

whether the issuance of grants directly to College Park would be reasonably consistent with the program and achieving the goals of airport noise 

compatibility planning under 49 USC §47501 et seq., as implemented by 14 CFR Part 150 and the national priority system for funding." FAA 

Exhibit I, Item I, Exhibit 15. 

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Virginia One Development (VOD), LLC, et aL v. The City Of Atlanta- FAA Docket No. 16-12-09 

the Airport is obligated under 14 CFR Part 150 or its graut assurances, to acquire property or sound 

insulate, as Complainants assert. It is unreasonable to assert that an airport making changes to its NCP or 

delaying its implementation because oflocalland use concerns is outside of this discretion aud thus would 

result in a violation of a grant assurance (including Graut Assurance 5). 

AlP property acquisition does not include the Complainant's perception of what is "mandatory" within the 

scope of the grant assurances. Sponsor acquisition is "mandatory" when it is to accommodate AlP 

construction (Airport projects) aud only within the scope of that AlP project. This meaus that it if the 

airport sponsor chooses not acquire the property or is unable to do so, the FAA will not fund the future AlP 

acquisition project. It does not mean that the airport sponsor is in violation of its current grant obligations. 

As the Airport states, "grant assurances are meant to make sure that funds spent for federally supported 

programs are spent for appropriate purposes, not to mandate the spending of funds." 195 

Complainants have argued that "the Amendment cannot be approved by the FAA because it is in violation 

of 14 CFR § 150.35" audit is inconsistent "with achieving the goals of reducing existing non-compatible 

laud uses around the airport and of preventing the introduction of additional non-compatible laud uses."196 

This argument lacks merit because the Airport has been effective in reducing non-compatible laud uses 

around the airport and preventing the introduction of additional non-compatible land uses. The Airport's 

actions in reducing incompatible land uses around the airport are discussed below in detail under Graut 

Assurance 21. 197 

Finally, Complainants' reference to Town of Fairview v. City of McKinney, FAA Docket No. 16-99-04 is 

not persuasive. In that decision, the FAA does state that "FAA encourages airport proprietors to 

implement airport noise compatibility programs under Part 150. Part 150 Noise Studies are voluntary. 

However, once federally-funded, Part 150 studies must be completed and meet the requirements of Part 

150."198 

The reference to "once federally-funded, Part 150 studies must be completed aud meet the requirements of 

Part 150" has to be interpreted within the scope aud limitations ofthe Part 150 process which still permits 

an airport sponsor to make changes to its noise mitigation measures with or without FAA concurrence, and 

FAA review of whether AlP funds disbursed for a noise mitigation measure have been properly utilized. 

In the current case, the Airport (1) completed its Part 150 study and NCP, (2) FAA approved it, (3) Airport 

changed its NCP, (4) FAA concurred with the changes, aud (5) there is no evidence that AlP funds for 

noise mitigation measures were misused. 199 There is no evidence that the Airport gave away its rights and 

powers concerning an AlP-funded aud acquired property for noise mitigation purposes, which would be a 

violation of Grant Assurance 5. 200 

195 FAA Exhibit I, Item 16, page 2. 19'FAA Exhibit I, Item 10, Taber letter to Airport, July II, 2013. 197 The same rationale applies to Complainants' assertions that "since the Amendment will impact the salability of the property affected by the 

Amendment and it is specifically aimed at leaving mu1ti-family residences in place that are within the 70 DNL contour, the Amendment does 

not meet this requirement as well." FAA Exhibit 1, Item 10, Taber letter to Airport, July 11,2013. 198 Town of Fairview v. Citv of McKinney, FAA Docket No. 16-99-04, page 10. 199 The pleadings (multiple exhibits and the Background section of this document) in this case provide for this sequence of actions. The 

Director notes that in Town of Fairview v. City of McKinney, which included the review of·'whether McKinney's cancellation of the noise 

abatement procedure is a violation of its current Federal obligations," the FAA determined that there was no violation of"Grant Assurance 6 

and 7." Town of Fairview v. City of McKinney. FAA Docket No. 16-99-04, page 14, 20. FAA concurred with the airport sponsor's decision to 

stop implementing a noise measure, which illustrates that an airport sponsor can change its noise mitigation measures providing the FAA with 

an opportunity to review those changes. Also see FAA Exhibit 1, Item 16, page 6, and Exhibit B. 200 The Complainants cite JetAway Aviation. Inc .. v. Montrose Countv. FAA Docket No. 16-08-01, Director's Determination (July 2, 2009) as 

supporting the argument that the airport sponsor's preserving its rights and powers extends to control property outside the Airport's boundaries 

because that decision "held that Grant Assurance 5 prohibits the airport sponsor from giving away rights and powers the sponsor needs to 

control and manage the noise created by aircraft in the surrounding area. FAA Exhibit 1, ltem 5, page 5. The Director rejects the 

Complainants' reference to JetAway Aviation v. Montrose Countv: the complaint did not involve a noise compliance program or any issues 

involving the acquisition or sound insulation of incompatible properties. Grant Assurance 5 prohibits the airport sponsor from giving away 

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Against this background, the Director is not persuaded by the Complainants' allegations that the Airport, 

by entering into the Consent Order, deprived itself of the ability to take action that is appropriate under the 

FAA-approved NCP. 201 The actions the Airport has taken concerning Complainants' properties are not 

inconsistent with FAA guidance. Accordingly, the Director finds that the Airport has not violated of Grant 

Assurance 5 Preserving Rights and Powers. 

C. Issue 2- Whether the Airport is in violation of Grant Assurance 16, Conformity to Plans and 

Specifications by not implementing the NCP as approved by the FAA and by not acquiring or 

sound insulating Complainants' properties. 

Grant Assurance 16, Conformity to Plans and Specifications, requires, in pertinent part, that the sponsor of 

a federally-obligated airport: 

" ... execute the project subject to plans, specifications, and schedules approved by the Secretary. 

Such plans, specifications, and schedules shall be submitted to the Secretary prior to commencement 

of site preparation, construction, or other performance under this grant agreement, and, upon 

approval of the Secretary, shall be incorporated into this agreement. Any modification to the 

approved plans, specifications, and schedules shall also be subject to approval of the Secretary, and 

incorporated into the grant agreement." [Grant Assurance 16]. 

The Complainants assert that the Airport "is bound by its grant assurances to comply with the ATL NCP as 

it was approved by the FAA." More specifically, the Complainants contend that Grant Assurance 16 

allows for modifications to an NCP with FAA approval,202 but that given that (1) the Airport "is refusing 

to comply with the provisions of the ATL NCP," and (2) "has added additional criteria to the eligibility 

requirements that have not been approved by the FAA," the Airport is in violation of Grant Assurance 

16."203 

Complainants interpret the textual reference to "other performance" in Grant Assurance 16 as including 

an airport's conducting a Part 150 NCP. In support of their allegation, Complainants cite FAA guidance, 

such as AC 150/5070 Airport Master Plans, AC 150/5020 Noise Control and Compatibility Planning for 

Airports, and ACRP Re{/.ort Handbook for Considering Practical Greenhouse Gas Emission Reduction 

Strategies for Airporti 4 

as supporting documentation?05 

The Airport disagrees with the Complainants' assertions and states that Grant Assurance 16 is only 

applicable to construction projects and is not applicable to the Airport's NCP. The Airport further denies 

the Complainants' assertion that the [Airport] has amended the eligibility requirements of the NCP and 

maintains that the Airport "has enforced its NCP Report along with the requirements set forth in the 

Airport Improvement Program Handbook. " 206 

As with other grant assurances, Grant Assurance 16 reflects requirements in terms of a specific grant 

project. That is why the reference to "this grant agreement" is made in the language of the Grant 

rights and powers it needs to control and operate the airport. It obligates the sponsor to retain financial and legal control of airnort nroperty to 

ensure the airnort's continued operation as an aimort [emphasis added]." See DD at 21. 201 Nor is there any evidence that the Respondent abrogated its right and powers by agreeing to the terms ofthe Consent Order in a manner 

contrary to Grant Assurance 5. A Respondent cannot be found in violation of Grant Assurance 5 merely by the assertions of Complainants. 

Goodrich v. Endicott, FAA Docket No. 16-08-03 (April3, 2009), page 30. 202 FAA Exhibit I, Item I, page 19-20. 203 FAA Exhibit 1, Item 1, page 20. 204 See http://www.trb.org/Main!Blurbs/l665l9.aspx. 205 FAA Exhibit l, Item 5, pages 8, and FAA Exhibit I, Item 5, Exhibits Band C. 206 FAA Exhibit I, Item 3, pages 27-28. This Handbook (FAA Order 51 00.28) provides guidance and sets forth policies and procedures for the 

Airport Improvement Program (AlP). 

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Assurance itself.207 Moreover, the reference to "other performance" in Grant Assurance 16 does not 

expand applicability to another undetermined class or type of project, as the Complainants argue, but to 

actions related to that site or construction project/grant.208 

Relevant FAA technical guidance on this matter clarifies the project/grant issue. For example, FAA Order 

5100.38, which is the main guidance document on AlP projects, identifies Grant Assurance 16 and its 

applicability to "apply until the grant is closed. " 209 When addressing "Specifications," FAA Order 51 00.3 8 

Airport Improvement Program HandbooK10 refers to "FAA Standards (or Specifications)" as guided by 

FAA Order 5300.1 Modifications to Agency Airport Design, Construction, and Equipment Standards. "

211 

The same Order references "Plans and Specifications" in terms of (l) "engineer's reports," (2) "obtain 

prior FAA approval for modifications to standards," and (3) "notify ... ofany limitations .... within the 

project [emphasis added]."212 

From a different perspective, since the Airport has not fully implemented its Part 150 NCP, may choose to 

modify it, or has yet to finalize many of the steps in a possible property acquisition, including coordination 

with several local political jurisdictions,213 

a finding of non-compliance with Grant Assurance 16 is not 

justified, as the Complainants argue.

214 As stated previously, the process contemplates changes, and 

updates, and these steps would require coordination with local jurisdictions and could ultimately involve 

litigation. 

As stated by Complainants, FAA Advisory Circular 150/5070 Airport Master Plans does include 

discussions concerning noise mitigation projects. It makes references to (l) "existing airport noise or 

environmental programs should be discussed in the environmental overview," (2) "planners should use 

appendices for the majority of the technical documentation, such as noise analisis ... ," (3) AC 150/5020-1, 

and (4) "frequent coordination with local, regional, and state organizations ... " 15 In fact, the AC 150/5070 

provides a myriad of additional guidance on interacting with local and state jurisdictions?16 AC 150/5070 

207 This is consistent with the Director's position taken relative to project specific grant assurances in prior Part 16 cases. For example, in 

Town of Fairview. Texas. v. Citv of McKinney. Texas. FAA Docket 16-04-17, the FAA noted in describing Grant Assurance 6 and 7 as 

'" ... from this language [Grant Assurance language], it is clear that the obligation is project specific and is an obligation for grant approval (see 

subtitle of statute, Project Grant Application Approval). The original implementation of the RNAP [noise procedure] was not associated with 

any federally-funded project. Since Respondent's submissions under Part 150 are not ripe for discussion, this Office finds that Grant Assurance 

6 is not applicable to this case." The FAA supplemented this by stating that "even after our review of the Part 150 Noise Compatibility Plan is 

complete, Grant Assurance 6 may still be inapplicable. Grant Assurance 6 pertains to project specific requirements at the time of grant 

approval. Complainants also would need to specify how Part 150 was violated and its relationship to a specitlc grant assurance. Furthermore, if 

an airport sponsor were not able to meet such project specific requirements, it is unlikely that FAA would accept the Part 150 Noise 

Compatibility Plan and approve the grant for the airport." DD, pages 16-17 and footnote 22. 208 FAA Exhibit 1, Item 5, pages 7-8. References by the Complainants to AC 150/5070-6B Airport Master Plans is inaccurate because the 

document mentions noise within the context of a reference to another document, AC 150/5020-1 Noise Control and Compatibility Planning for 

Airports. In addition, the Complainants' reference to the ACRP Report Handbook for Considering Practical Greenhouse Gas Emission 

Reduction Strategies for Airports does not conflict with the fact that FAA defines the applicability of Grant Assurance 16 to specific 

grants/projects. 

209 FAA Order 5100.38, pages 2-10. 210 See http://www.faa.gov/regulations _policies/orders_ notices/index.cfm/go/document.information/documentid/1 025767. 2

" FAA Order 5100.38, pages 3-19. 212 FAA Order 5100.38, pages 3-24. 213 For example, Section 103 ofthe ASNA Act requires that noise exposure maps be prepared in consultation with public agencies and planning 

agencies in areas surrounding the airport. See AC 150/5020-1 Noise Control And Compatibility Planning for Airports, p. 25. Advisory Circular 

AC 150/5020-1 Noise Control and Compatibility Planning for Airports provides general guidance for noise control and compatibility planning, 

specific guidance for preparation of airport noise exposure maps and airport noise compatibility programs by airport sponsors for submission 

under FAR Part 150 and the Aviation Safety and Noise Abatement Act of 1979. 214 FAA Exhibit I, Item 5, pages 8-9. 215 FAA Exhibit 1, Item 5, Exhibit 3, and examples at pages 31, 32, 78, and 116. 216 The AC also notes that The FAA Community Involvement Manual, document F AA-EE-90-03, should be consulted to help develop a 

community involvement program. This manual can be accessed in the 'Communications Tools' section of the Airport Noise Compatibility 

Planning Toolkit. There are a number of State DOTs that have similar guidance. Additional discussion on community involvement can be 

found under the 'Community Consultation' section of the FAA document Best Practices Guide-initiative 6 to May 2001 Report to Congress on 

Streamlining the Environmental Process, which is available at http://www.faa.gov/airports_airtraffic/airports/environmental!." 

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does not mandate or otherwise require, under penalty of grant assurance violations, that a plan remain 

unchanged or that the Airport's ability to modify the plan is restricted. It certainly does not refer to a 

violation of Grant Assurance 16 for modifying an Airport Master Plan or delaying implementing an 

element of the plan due to local or state considerations. 

Notwithstanding the above, this is not a situation where an actual noise mitigation grant has been issued, a 

project initiated, or the failure of a sponsor to meet the approved plans and specifications for the project, 

such as not insulating homes as funded or not demolishing all of the acquired properties.217 The fact is that 

there is no actual grant or project in effect at this time (and at the time of the Complaint) concerning noise 

mitigation of the affected properties.218 Accordingly, the Director finds that the Airport is not in violation 

of Grant Assurance 16. 

D. Issue 3 - Whether the Airport is in violation of Grant Assurance 21, Compatible Land Use for 

failing to take appropriate action to restrict the use of land near the airport to uses that are 

compatible with normal airport operations. 

Grant Assurance 21, Compatible Land Use, requires, in pertinent part, that the sponsor of a federallyobligated airport: 

" ... take appropriate action, to the extent reasonable, including the adoption of zoning laws, to 

restrict the use of land adjacent to or in the immediate vicinity of the airport to activities and 

purposes compatible with normal airport operations, including landing and takeoff of aircraft. In 

addition, if the project is for noise compatibility program implementation, it will not cause or 

permit any change in land use, within its jurisdiction, that will reduce its compatibility, with 

respect to the airport, of the noise compatibility program measures upon which Federal funds have 

been expended. " [Grant Assurance 21]. 

The Complainants allege a violation of Grant Assurance 21 on the grounds that the Airport (1) " failed 

to take all reasonable action to restrict the use of land around [ ATL] to uses that are compatible with 

airport operations;" (2) has failed to "take appropriate actions to the extent reasonably possible to 

minimize incompatible land;" and (3) has not attempted "to prevent or mitigate the effect of hazards to 

the best of its abilities ... "

219 In addition, Complainants argue that the "NCP commits [the Airport] to 

take action to prevent the residences from being severely impacted by aircraft noise and remove them 

as incompatible land uses .... "

220 

Complainants also contend that the Airport "has a legal obligation to the FAA to comply with the Part 150 

NCP and also a legal obligation to comply with its grant assurances, irrespective of what other contracts or 

agreements it might have entered into with another party," and that by amending "its Part 150 NCP to 

incorporate the Consent Order and bar [the Airport] from acquiring any property within the boundaries of 

College Park" the Airport "is in clear violation of Grant Assurance 21 ... "

221 The Grant Assurance 21 

allegation is that by "entering into the Consent Order and proposing the Amendment, [the Airport] 

effectively has barred itself from talcing 'appropriate action' to restrict incompatible land use under Grant 

217 At this time, the FAA has no evidence that the Airport has set aside or earmarked AlP funds for sound insulation or property acquisitions 

projects involving the Complainants' projects. 218 References made to a cost of $42-43 million in 2006 are an estimate, not a grant amount See FAA Exhibit 1, Item 1, Exhibit 14, January 24, 

2008 memorandum, page 2. Another reference in the record states that "the total cost for the acquisition phase of the NCP would $42 mi11ion, 

which included administrative costs, payouts for displaced owners and tenants, as well as the cost for acquisition." FAA Exhibit I, Item I, page 

10, andFAAExhibit 1, ltem3, page 18. 219 FAA Exhibit !,Item I, page 21. 22° FAA Exhibit 1, Item 5, pages 10-11. 221 FAA Exhibit 1, Item 10, Taber letter to Airport, July 11,2013. 

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Assurance 21, giving College Park the power to veto any acquisition of incompatible land. Thus, the 

Amendment is in violation of the grant assurance." 222 

The Complainants maintain that when an airport sponsor "is not able to directly control the property 

that is impacted by operations at the airport," Part 150 "directs the sponsor to acquire the property or 

provide sound mitigation."223 References are made to FAA Order 5190.6B by stating that "the [FAA 

Order] elaborates on the airport sponsor's duties with respect to Grant Assurance 21 explaining that it 

relates to the obligation of the airport sponsor to take appropriate actions to zone and control existing 

and planned land uses to make them compatible with aircraft operations at the airport. The lack of 

jurisdictional control over the incompatible land use does not excuse the sponsor from declining to 

take any action at all to achieve land use compatibility outside the airport boundaries. "

224 

Indeed, a Part 150 NCP is meant to address that particular situation: when the airport sponsor is not 

able to directly control the property that is impacted by operations at the airport, Part 150 directs the 

sponsor to acquire the property or provide sound mitigation." 225 Complainants also states that the 

FAA "stated that acquiring property and sound mitigating property is consistent with the airport 

sponsor's grant obligation to take reasonable steps to assure to restrict the use of land next to the 

airport to uses that are compatible with airport operations" and thus "the converse should also be true: 

failing to acquire the propert~ and failing to sound mitigate the property is inconsistent with the 

sponsor's grant obligations." 26 

The Director notes that throughout the pleadings, both parties discuss extensively the compatible land 

uses in the 65 and 70 DNL, referencing both land use acquisitions and sound insulation. Since the 

properties in question are either in the 65 or 70 DNL, or straddling both contours and the Part 150/ AlP 

processes would dictate what type of mitigation a property would be eligible for, the Director does not 

take a position on whether a particular mitigation measure is adequate. Moreover, at issue is the 

action(s) of the Airport, either land acquisition or sound insulation, not whether one is more adequate 

than the other or if a particular location is impacted. Therefore, issues such as assertions regarding 

consideration of ambient sound levels, property in 65 DNL v. 70 DNL, identification of properties 

potentially eligible, potential eligibility for acquisition, and potential eligibility for sound insulation227 

need not be resolved by the Director in this Part 16 proceeding. 

The same rationale applies to issue such as "INM modeling," "changes to noise monitoring data," 

"Human Health Effects of Aircraft Noise memorandum,"228 and references to the adequacy or accuracy 

of the 2007 Noise Exposure Map, which are discussed by the parties.229 The Director's position is 

supported by the fact that under 49 USC §47507 Non-Admissibility of Noise Exposure Map and 

Related Information as Evidence, 

"no part of a noise exposure map or related information described in section 47503 of this title 

that is submitted to or prepared by, the Secretary of Transportation and no part of a list of land 

uses the Secretary identifies as normally compatible with various exposures of individuals to 

222 FAA Exhibit 1, Item 10, Taber letter to Airpor1; July II, 2013. 223 FAA Exhibit I, Item 1, page 21. 224 FAA Order 5190.6B, page 20-2. 225 FAA Exhibit 1, Item 1, page 20-21. 226 FAA Exhibit I, Item 1, page 2 I. 227 An example is discussed in FAA Exhibit I, Item 3, pages 14-17. 228 See FAA Exhibit 1, Item 10, Taber Law Group Memorandum, June 4, 2013. 229 See FAA Exhibit I, Item 7 and Item 8. 

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noise may be admitted into evidence or used for any other ~urpose in a civil action asking for 

relief for noise resulting from the operation of an airport. "2 0 

The Complainants further argue that "[the Airport], through its agreement to the Consent Order, seems 

to ensure that at least property within the borders of College Park will remain residential and therefore 

incompatible with operations at ATL."231 Complainants recognize that because "minimizing 

incompatible land use is the goal of the FAA's Part 150 program, and the ATL NCP in particular," the 

Airport "took the appropriate action of drafting the ATL NCP" but failed to follow through and 

undertake the obligations and commitments it made under the ATL NCP to the [Complainants]."232 As 

characterized by Complainants, the Airport "has consistently refused to take reasonable steps to ensure 

that the use of the land that it has identified as being impacted will be used for uses that are compatible . h . . 233 w1t auport operatiOns. 

Complainants dismiss the Airport's defense that the Consent Order is representative of its "reasonable 

attempt to work with the community of College Park," but rather, "the Consent Order capitulates to 

College Park's demands to stop acquisition efforts for properties located within the 70 DNL. "

234 

Complainants maintain that "[r]egardless of whether [the Airport] believes that it can ignore its 

promises to the [Comfslainants] to sound mitigate and/or acquire the properties," it is in violation of 

Grant Assurance 21.2 5 Complainants cite Keathly v. City of McKinney, Texas and the Collin County 

Regional Airport, FAA Docket No. 16-03-14, in support of its argument, but recognize that the 

circumstances were "slightly different." Complainants assert that with regard to compatible land use 

issues, FAA typically addresses two questions in order to determine if a sponsor has violated its obligations 

(1) are the facility's operations compatible with local airport operations and (2) if not, could the sponsor 

have prevented the facility from operating near the airport. 236 

Using this premise, Complainants argue that Atlanta in the ATL NCP determined that all of the properties 

are not compatible with local airport operations due to their presence in the 70 DNL and/or 65 DNL 

contours, and committed to take action to prevent the residences from being severely impacted by aircraft 

noise and remove the incompatible land uses. Complainants conclude that Atlanta, however, has not taken 

the action it said it would to prevent the impact, and this is not consistent with Atlanta's obligation to take 

reasonable steps to assure to restrict the use of land next to the airport to uses that are compatible with . . 237 mrport operatiOns. 

In response, the Airport contends that it is fully compliant with Grant Assurance 21. The Airport 

expands this by stating that while the assurance "contemplates that the sponsor would use zoning laws 

to restrict land use adjacent to or in the immediate vicinity of the airport," the Airport "does not have 

jurisdiction over the lands at issue in this action," and that "zoning and land use is governed by the 

City of College Park or Fulton County." The Airport affirms that "the City has not caused or permitted 

any change in land use that would reduce the compatibility of the adjacent land use." 238 The Airport 

explains that following the 2008 approval of the NCP by the FAA, it has "been actively engaged in 

implementing its program and, where appropriate, acquiring and mitigating properties." The Airport 

also states that it has had "extensive interaction with municipalities and members of the public 

230 49 USC §47507 Non-Admissibility of Noise Exposure Map and Related Information as Evidence, 231 FAA Exhibit I, Item I, pages 21-22. 232 FAA Exhibit 1, Item 1, page 22. 233 FAA Exhibit 1, Item l,page21. 234 FAA Exhibit I, Item 5, pages I 0-11. 235 FAA Exhibit I, Item I, page 21-23. 236 FAA Exhibit 1, Item l, page 21-22. 237 FAA Exhibit I, Item I, page 21-22. 238 FAA Exhibit I, Item 3, page 29. 

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Virginia One Development (VOD), LLC, et al. v. The City Of Atlanta- FAA Docket No. 16-12-09 

concerning the noise compatibility program."239 The Airport references the NCP in recounting that 

"over the past 20 years, the [Airport] has acquired or sound insulated noise sensitive properties located 

within the 65 DNL ... ," that "the vast majority of the noise sensitive properties closest to the Airport 

were acquired, and that "[t]o date, the [Airport] has spent approximately $192 million purchasing 

impacted properties," and "another $78 million and $42 million will be spent ... "

240 

In further support, the Airport also cites FAA guidance [FAA Order 5190.6B §20.2(d)], which states 

that "in cases where the airport sponsor does not have the authority to enact zoning ordinances, it 

should demonstrate a reasonable attempt to inform surrounding municipalities on the need for land use 

compatibility zoning. The sponsor can accomplish this through dissemination of information, 

education, or ongoing communication with surrounding municipalities."241 The Airport then notes that 

it "has gone far beyond any reasonable attempt to inform and educate the surrounding municipalities, 

including the City of College Park," including extensive interaction with municipalities and members 

of the public concerning the noise compatibility program" and "numerous meetings with the City of 

College Park in furtherance of its noise compatibility plan."242 

Finally, the Airport asserts that Complainants' reference to Keathly v. City of McKinney, Texas, FAA 

Docket No. 16-03-14, is misplaced because it "involved [a City] permitting a recycling facility in close 

proximity to the airport," and because the Director "concluded that [the City] had not violated Grant 

Assurance 21." In contrast, the Airport argues that it has not permitted and "has no control over the 

construction of residences," and that it "has engaged in no activity that caused an incompatible use of 

property."243 

As discussed in detail above under Issue 1 (Grant Assurance 5) and Issues 2 (Grant Assurance 16), the 

Consent Order is legally enforceable. Moreover, as discussed previously, the Consent Order does not 

prevent the Airport from complying with Grant Assurance 21 because (1) the voluntary Part 150 NCP 

remains in effect and is ongoing, and (2) the Airport has coordinated with local jurisdictions. Both are 

elements of achieving compatible land use. 

The fact that the Airport has not fully implemented its Part 150 NCP, chooses to make changes to it, or 

because it has yet to finalize many of the steps in a possible property acquisition is consistent with the 

premise in Grant Assurance 21. This grant assurance calls for appropriate action, to the extent reasonable, 

to restrict the use ofland adjacent to or in the immediate vicinity of the airport to compatible uses through 

noise compatibility program measures. The NCP gives the owner of the affected properties the choice of 

whether to continue residential use of the property. This is consistent with the airport sponsor's grant 

obligation to take appropriate action to the extent reasonable to restrict the use ofland next to the airport to 

uses that are compatible with airport operations. 

A review of the record indicates that since 1982, over $870 million in federal AIP grants has been accepted 

by the Airport, $326 million (or 37%) of which were for noise mitigation measures (sound insulation) and 

noise land acquisition.244 In addition, the Airport spends about $8 million annually for home insulation.245 

239 FAA Exhibit I, Item 3, pages 30-31. 240 FAA Exhibit I, Item 3, pages 29-30. 241 FAA Exhibit I, Item 3, pages 29-31. 242 FAA Exhibit 1, Item 3, page 30. 243 FAA Exhibit I, Item 3, page 301. 244 The Airport purchases certain residential parcels of land that are considered to be within the area designated as "noise impacted" surrounding 

the Airport The costs of acquisition and relocation of residents in this area are eligible under the Federal Aviation Administration (FAA) Noise 

Abatement Grant Program for reimbursement. The FAA funds approximately 75% to 80% of these costs with the remainder financed by the 

Airport. The FAA retains a continuing interest in the properties equal to its original funding percentage and restricts the use of such properties 

to purposes, which are compatible with the noise levels associated with the operation ofthe Airport. All costs associated with acquiring these 

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Virginia One Development (VOD), LLC, eta!. v. The City Of Atlanta-FAA Docket No. 16-12-09 

The last two noise grants, issued in 2012 and 2014, totaled $23 million.246 Several hnndred homes and 

parcels all around the airport have been acquired over the past 30 years to mitigate and reduce noise 

impacts.247 The NCP, as approved by the FAA on January 24, 2008, identified a total cost of about 

$130 million, with $95 million in AlP Noise Grants and $35 million in Passenger Facility Charges 

(PFC).248 

The Airport has also used a significant amount of its own funds for noise mitigation. For example, in 

2005, as part of Grant No. 3-13-008-67, the Airport allocated over $6 million from its own 

appropriations to the project.249 It is also relevant to note that the Airport launched a new Noise 

Insulation Program (NIP) in 2010.250 The NIP is a voluntary program approved by the FAA and was 

designed to make properties near the Airport more compatible with aircraft noise. More than 4,000 

apartment units and 40 single-family homes are eligible for noise insulation improvements through the 

program. Also in 2010, the Airport issued its first annual environmental report, chronicling the 

Airport's environmental programs, including noise mitigation.251 As mentioned above in the case of 

ATL, the DNL 65 dB contour has been reduced since the 1980s despite a tripling of airport operations (See 

Figure 3 below). 252 

-

2! "' 

50 

·e o 

CT 

Ill 

-

Area within 65 and 70 Day-Night Levels (DNLs) 

1982 1997 

Year 

2007-2010 

11170 DNL 

65DNL 

Figure 3 - Graphic depicting the reduction in the noise impacted areas from 1982 

through 2010. Source: Annual Environmental Report, 2010 Progress Update, FAA 

Exhibit I, Item 26. 

parcels of land are recorded under the caption "Land purchased for noise abatement" on the Airport's balance sheets. FAA Exhibit 1, Item 25, 

page 41. 245 Land Use Management and Airport Controls Trends and Indicators of Incompatible Land Use, December 2007, page 6. See 

http :1 /web.mit. edu/ aeroastro/partner/reports/landmgt -proj 6-2008-0 I. pdf 246 See FAA- Office of Airports, Grant History Report.for ATL, Report Date: 11/21/2014, page 13. 247 See Hartsfield-Jackson Atlanta International Airport Noise Land Reuse Plan Original Plan Filed- October, 2009 FAA Exhibit 1, ltem 22 

and http://www.atlanta-airport.com/docs/Airport/EnvironmentaL 248 Passenger Facility Charge (PFC) Program- The PFC Program, first authorized by the Aviation Safety and Capacity Expansion Act of 1990 

and now codified under Section 40117 of Title 49 USC, provides a source of additional capital to improve, expand and repair the nation's 

airport infrastructure. It can be used for noise projects. For example, in April2010, the FAA approved PFC Application Number: 10-11-C-00-

ATL Impose and Use a PFC. One of the projects approved was "Noise Mitigation Program." See 

http://www.regulations.gov/# !documentDetaii;D~F AA-20 I 0-04 70-000 I. 249 See Ordinance 05-0-1050 at http://citycouncil.atlantaga.gov/2005/IMAGES/Adopted/0705/050!050.pdf. 250 By providing an array of extensive acoustical treatments to an eligible property, interior noise levels can be greatly reduced, improving the 

quality of life for all occupants, the NIP will provide these treatments at no cost to the property owner ... To be potentially eligible, properties 

must meet two criteria: (I) they must be located within the currently FAA-approved noise contours; and (2) they have not been treated in a 

previous NIP. The currently approved contours are those contained in the 2007 Noise Exposure Map (NEM). This NEM was developed using 

the most recent operations data to include aircraft flight paths, aircraft types, number of aircraft operations, times of operations, and runway 

assignments. Properties contained within the NEM boundaries are located within the cities of Atlanta, College Park, East Point, Forest Park, 

Hapeville, and Fulton and Clayton counties, and they encompass a wide variety of property types including single family, multi-family, schools, 

daycare, community centers, healthcare/retirement, churches, and fire stations." http://www.atlanta-airport.com/Airport/nip/. 

2s1 FAA Exhibit LItem 25, page 10. 

2s2 See GA0-12-890 Airport Noise Grants- FAA Needs to Better Ensure Project Eligibility and Improve Strategic Goal and Performance 

Measures. page 11. See http://www.gao.gov/assets/650/648148.pdf. 

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Virginia One Development (VOD), LLC, eta!. v. The City Of Atlanta- FAA Docket No. 16-12-09 

Thus, the record shows that the Airport has been consistently engaged in noise mitigation for several 

decades, expending large amounts of funds in both property acquisition and sound insulation. The 

Airport has also had in place a very comprehensive noise land reuse plan, which includes restricted 

covenants for any disposal to prevent the re-introduction of noise sensitive developments.253 

This is consistent with Grant Assurance 31 Disposal of Land, 254 which discussed the disposition of 

noise land with restrictions to "ensure that such land will only be used for purposes which are 

compatible with noise levels associated with operation of the airport." Public participation has also 

been extensive as illustrated by the twenty Part 150 scoping meetings the Airport participated on 

between February 6 and March 11,2003,255 which support the Airport's current Part 150 process. 

These actions are convincing indications that the Airport has taken action to mitigate noise, rather than 

not. It does not show that the Airport failed "to take all reasonable action to restrict the use of land 

around the airport to uses that are compatible with airport operations," as the Complainants assert. 256 

The record contains no information indicating that the Airport has taken action, which has resulted in 

an incompatible land use. The record does show that Airport consulted with the FAA (ADO) regarding 

the NCP as necessary, and has done so for a long time. In fact, and contrary to the Complainants 

allegation, as part of the Consent Order, the Airport agreed to several actions, which are, by definition, 

consistent with establishing compatible land use. One such term in the Consent Order discussing noise 

mitigation after acquisition stated, "if purchased by College Park, the ... site shall be subject to the 

restrictive covenants [emphasis added]. "257 There is no evidence in the record to suggest that the ADO has 

had concerns over whether the Airport has violated any Federal obligation due to changes to its NCP or 

variations in the way it implements it. 

Accordingly, the Director finds the facts presented in the record do not support a finding that the Airport is 

in violation of Grant Assurance 21, Compatible Land Use. 

E. Issue 4 - Whether the Airport is iu violation of Grant Assurance 35, Relocation of Real 

Property Acquisition and failed to comply with 49 CFR Part 24 by not implementing the NCP 

as approved by the FAA and by not acquiring or sound insulating Complainants' properties. 

Grant Assurance 3 5 Relocation of Real Property Acquisition requires that the sponsor of a federallyobligated airport: 

253 A reuse plan illustrates that the noise mitigation process in place is complete in that it also ensures that non-compatible land uses are notreintroduced. See FAA Exhibit I, Item 22. For example, the reuse plan notes that "'as part of future noise land disposal transactions, the 

following statement regarding retained property rights shall be made part of the transaction: "RES1RICTIVE COVENANTS- This transfer 

and any subsequent transfer of any interest in the property transferred herein shall be expressly made subject and subordinate to and contain 

the following covenants to assure future uses will be compatible with the operation of the Hartsfield-Jackson Atlanta International Airport: 

Grantee agrees on behalf of itself, its heirs, successors, transferees, and assigns that the land herein conveyed shall never be used generally for 

any purpose inconsistent with noise land uses as may be promulgated by the Federal Aviation Administration and the Hartsfield-Jackson 

Atlanta International Airport Noise Compatibility Program from time to time, and specifically for any residential purpose or other noisesensitive land use (including, but not limited to, single-family homes, multi-family homes, apartment complexes, senior living complexes, 

assisted living complexes, daycare centers or hospitals). Nor shall the land herein conveyed be used for any airport parking unless such use is 

approved, in writing, by the City of Atlanta, or its successors and assigns, through its Aviation General Manager. It is further expressly agreed 

that this restrictive covenant is intended to run with the land, in perpetuity, and is made in favor of, and for the benefit of, the City of Atlanta in 

the operation, and the airlines in the use of, the Airport, and the United States of America, by and through its agency the Federal Aviation 

Administration." FAA Exhibit 1, Item 22, page 4. 254 See FAA Program Guidance Letter 08-02 Management of Acquired Noise Land: Inventory- Reuse- Disposal, February 1, 2008. See FAA 

Exhibit 1, Item 22, Appendix A, FAA Program Guidance Letter, and FAA Exhibit 1, Item 5, Exhibit 1. Note: This specific guidance may have 

been superseded since referenced in the pleadings. See Appendix R. Noise Compatibility Planning/Projects ofF AA Order 51 00.38D. 255 FAA Exhibit 1, Item 1, Exhibit 12, page 10-3. Also, see page 10-9 for a more extensive listing of the many meetings with the local political 

jurisdictions and other interested parties. 256 FAA Exhibit I, Item I, page 22-23. 257 Consent Order, FAA Exhibit 1, Item 3, Exhibit 2, page 5. 

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Virginia One Development (VOD), LLC, et al. v. The City Of Atlanta-FAA Docket No. 16-12-09 

" ... will be guided in acquiring real property, to the greatest extent practicable under State law, 

by land acquisition policies in Subpart B of 49 CFR Part 24 and will pay or reimburse property 

owners for necessary expenses as specified in the Subpart. In addition, the airport sponsor is to 

provide a relocation assistance program offering the services described in Subpart C and fair 

and reasonable relocation payments and assistance to displaced persons as required in Subpart 

D and E of 49 CFR Part 24." [Grant Assurance 35] 

On this issue, Complainants argue that the AiTort's failure to acquire certain Complainants' properties 

results in a violation of Grant Assurance 35?5 Complainants allege that the Airport has violated Grant 

Assurance 35 and 49 CPR Part 24 because (1) "the ATL NCP specifically states that [the Airport] intends to 

acquire certain properties held by the [Complainants] and provide sound mitigation for others" and (2) that 

it "intends to use Federal assistance for the acquisition of real property."259 Complainants add that the 

Airport has violated Grant Assurance 3 5 and 49 CPR Part 24 because "once property to be acquired has been 

identified," it failed to make "every reasonable effort to acquire the real property expeditiously by 

negotiation" and to treat the Complainants (as displaced persons) "fairly, consistently, and equitably so that 

[the Complainants] will not suffer disproportionate injuries as a result of the project." 260 

Complainants assert that "one method of establishing a violation of Grant Assurance 35" is to demonstrate 

that the [Airport] has the intention of displacing them as a result of acquiring real property with federal 

funds."261 Complainants support their allegations by stating that the Airport "delayed" progress, changed its 

criteria for property acquisition, failed "to give the [Complainants] any reasonable explanation why their 

property has not been acquired or provided sound mitigation or been provided," and failed to provide "a 

schedule as to when [Complainants] could expect to have [the Airport] acquire" or "sound mitigate their 

properties."262 Complainants also take the position that the Order of Consent is unrelated because it is 

"voluntary" 263 and was "entered into without the consent of the FAA or the [Complainants]"264 and that the 

City of College Park is a "third party" unrelated to the issue between the Airport and Complainants.Z65 

258 FAA Exhibit 1, Item 1, pages 24- 25. These arguments are reiterated in FAA Exhibit 1, Item 5, pages 12-13. Specifically, Complainant's 

state that "Atlanta has acted in bad faith in carrying out its acquisition and sound mitigation program by (1) failing to act expeditiously, since it 

has now been over 4 years from the time the FAA approved the ATL NCP, yet Atlanta has only acquired one propetty, which according to the 

Memo, Atlanta was already in the process of negotiating to acquire at the time it submitted the ATL NCP for approvaL" Thus, Atlanta's failure 

to acquire additional properties is in violation of 49 C.F.R. §§ 24.1 and 24.1 02(a) as well as Grant Assurance 35. Moreover, Atlanta has failed 

to treat the [Complainants] "fairly, consistently, and equitably so that [the [Complainants] will not suffer disproportionate injuries as a result of 

project." 49 CFR § 24.l(b). It has consistently acted in bad faith in ignoring the advice of the FAA and has added additional criteria to its 

acquisition and sound mitigation program that have not been made known to the [Complainants] (or the FAA)." FAA Exhibit 1, Item 1, page 

24-25. 

259 FAA Exhibit 1, Item 1, p. 23. In supporting its arguments, the Complainants refer to Pacific Coast Flyers, Inc., et al., v. Countv of San 

Diego. Califomi~ FAA Docket 16-04-08. In that decision, the Director noted that" 

Grant Assurance 35, Relocation and Real Property Acquisition, requires an airport sponsor to be guided in 

acquiring real property by the land acquisition policies in 49 CFR Part 24. The purpose of these requirements is 

to implement the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as 

amended (42 U.S.C. 4601 et seq.), which guide acquisition of real property to be acquired for Federal and 

federally assisted projects. Since the PAC/Burrows development at CRQ does not involve the acquisition of real 

property for Federal and federally-assisted projects, Grant Assurance 35 and 49 CFR Part 24 do not apply." Pacific Coast Flyers v. Countv of 

San Diego. California, p. 46. 26° FAA Exhibit 1, Item 1, p. 24-25. 261 FAA Exhibit 1, Item 1, page 24. Complainants further argue that "there can be no doubt that has failed to comply with its duties under Grant 

Assurance 35 in this regard" because the "NCP specifically states that [the Airport] intends to acquire certain properties held by the 

[Complainants] and provide sound mitigation for others. Thus, there can be no doubt that Atlanta has the intention of displacing the 

[Complainants]. Moreover, the ATL NCP documents that Atlanta intends to use federal assistance for the acquisition of real property." FAA 

Exhibit 1, Item 1, page 24. 262 FAA Exhibit 1, Item 1, pages 24-25. 263 FAA Exhibit I, Item 5, page 2. 264 FAA Exhibit 1, Item 5, page 2. 265 FAA Exhibit 1, Item 5, page 12. 

Page 40148 
Virginia One Development (VOD), LLC, eta!. v. The City Of Atlanta- FAA Docket No. 16-12-09 

In its Answer, the Airport notes that three of the [Complainants'] properties are only eligible for sound 

insulation, and not acquisition, and that as a result, Grant Assurance 35 does not apply to those properties. 

Concerning the remaining properties, the Airport takes the position that because of the Order of Consent is in 

federal court litigation, those properties are not "being acquired"266 at this time. The Airport further rejects 

the Complainants' claim that they are "di::J?laced persons" because there has been no property acquisition and 

hence there cannot be displaced persons? 7 

The Airport cites Benton v. Savanah Aimort Com'n 241 GaApp. 536 S.E.2d 383 (1999) in which the court 

found that the fsrovisions of the [Uniform Relocation Act] do not create a private right of action in 

landowners."2 8 The Airport rejects the Complainants' claims that it has not made a "reasonable effort" to 

acquire the properties, that it has not treated the Complainants "fairly, consistently and equitably" and that is 

has not given "any reasonable explanation why their property has not been acquired."269 

The Airport affirms it "is actively implementing its NCP and will continue to do so" and that it "has 

repeatedly advised the [Complainants] ... that their property cannot be acquired without the consent of 

College Park due to the Consent Order." 270 On the allegations regarding "a schedule for implementation," 

the Airport notes that the 14 CFR 150 process does not require "a detailed property-by-property schedule of 

when voluntary measures will be considered." The Airport also states that "timing for implementation is 

necessarily dependent on a number of issues, including FAA approval [as well as] the availability of funds," 

working with "local political jurisdictions," where the issue is to allow them to have "flexibility to set their 

own priorities" with respect to the Part 150 Program."271 Finally, the Airport states that as an alternative to 

property acquisition, it could consider and evaluate sound insulation as mitigation for noise impacts. 272 

A plain reading of Grant Assurance 35 clearly indicates that if applicable, the Airport has to adhere to four 

requirements in 49 CFR Part 24: (I) follow land acquisition policies therein, (2) pay or reimburse property 

owners for necessary expenses, (3) provide a relocation assistance program, and ( 4) provide assistance to 

displaced persons. Because the litigation between the Airport and the City of College Park, and the 

subsequent court Order of Consent, are legal and within that legal framework, they do establish a valid 

baseline or reference from which to ascertain compliance. 

The assertion, by the Complainants, that the Airport "hides behind the Order of Consent" 273 

or that the 

Consent Order is unrelated because it is "voluntary" and was "entered into without the consent of the FAA or 

the [Complainants ]"274 is without merit. The Order of Consent is a legal enforceable document addressing a 

local land use and development matter between the airport sponsor and the local political jurisdiction. The 

fact that the City of Atlanta entered into the Order of Consent is not inconsistent with FAA's policies, 14 

CFR Part 150, or the grant assurances (see Grant Assurances 6 and 7) which incorporate and require 

coordination with local political jurisdictions, as discussed above in previous Issues. 275 

266 FAA Exhibit I, Item 3, page 31. 267 FAA Exhibit I, Item 3, page 31. 268 FAA Exhibit I, Item 3, pages 31-32. 269 FAA Exhibit I, Item 3, page 32 and see also pages 7-8. The Airport explains part of its actions that have involved explaining its actions in 

terms of communicating \\lith Complainants. 27° FAA Exhibit I, Item 3, page 32. 271FAA Exhibit 1, Item 3, pages 13-14. The Airport quotes from the NCP and states that it "has secured some federal and local matching 

monies to fund portions of the property acquisition and sound insulation programs. Once the approval of the NEM portion of the study is 

received from the FAA [Airport] staff will work with the property owners, local political jurisdictions, and school districts to develop an 

implementation plan for the acquisition, reuse, or insulation of these properties. Every effort will be made by the [the Airport] to accelerate the 

program to the greatest extent possible." FAA Exhibit 1, Item 3, page 14. 272 FAA Exhibit I, Item 3, pages 32-33. 273 FAA Exhibit I, Item 5, page 12. 274 FAA Exhibit I, Item 5, page 2. 275 See FAA Exhibit I, Item I, Exhibit 14, and FAA Exhibit I, Item 5, pages 12-13. 

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Virginia One Development (VOD), LLC, et al. v. The City Of Atlanta- FAA Docket No. 16-12-09 

Contrary to the Complainants' assertion, the City of College Park is not a mere "third party" unrelated to the 

issue between the Airport and Complainants.276 The City of College Park is the local political jurisdiction 

with zoning and other authorities, and thus, is, as viewed by the FAA, a necessary party to any resolution. In 

fact, the 2008 NCP Record of Approval specifically noted (1) that the "[Airport] and political jurisdictions 

will coordinate regarding redevelopment oflands purchased under the residential acquisition program," (2) 

that "the Airport "has no control over land use and zoning decisions beyond the Airport's boundaries," and 

(3) that "land use planning and zoning is the responsibility oflocal governrnents."277 

To argue, as the Complainants do, that the Airport has an obligation to negotiate and acquire the properties 

irrespectively of local jurisdictions or that the Airport is required to do so under Grant Assurance 35 (and 49 

CFR Part 24) lacks foundation. 278 The allegation is also not persuasive because it is early into the potential 

property acquisition process by the Airport. As Complainants note, and although it is true that there has been 

planning for the possible property acquisition with Federal funds, the process (at the time of the Complaint) 

lacks specificity. Therefore, there is no basis for FAA to make a finding that the Airport has been acting 

contrary to its grant assurance requirements. 

Several basic and critical steps or actions in the process have yet to be determined as per the applicable 

guidance. For example, both the FAA's Program Sponsor Certification- Real Property Acquisition (49 CFR 

Part 24 & Uniform Act of 1970) and Acquisition- Relocation Records Checklist 279 and Project Clearance 

Under 49 CFR Part 24 Requirementi80 include numerous items, issues, and steps which cannot be addressed 

without the additional information which would be available had the process been more advanced?81 

To assert that there has been a violation of Grant Assurance 35 when the actual properties for possible 

acquisition have not yet been identified, not to mention the level of compensation, completion of appraisals, 

offers, relocations, replacement housing, payments or post-acquisition uses have not yet been agreed upon, 

completed or decided, is premature, and not reasonable. This is especially true when the 'justification" for 

the violation hinges on (I) on-going coordination between the Airport and the local jurisdiction on the 

possible re-development of any purchased properties, and (2) taking into account FAA guidance on 49 CFR 

Part 24, and (3) consideration of state and local laws, zoning, ordinances, housing codes, growth policies. 

All of these are reasonable issues to consider. 

The allegations that the Airport has failed to make "every reasonable effort to acquire the real property 

expeditiously by negotiation" and to treat the Complainants (as displaced persons) "fairly, consistently, and 

equitably"282 is unsupported by the facts. The record clearly shows that the Airport has been and continues to 

be engaged with the local political jurisdictions in determining the appropriate course of action (e.g., 

acquisition v. sound insulation) and under which conditions. 

The litigation, the Consent Order entered by the US District Conrt for the Northern District ofGeorgia,283 

and local coordination, all point towards significant efforts, rather than a lack of effort, to resolve the matter. 

276 FAA Exhibit 1, Item 5, page 12. 277 FAA Exhibit I, Item I, Exhibit 14 (See Land Use Measure No.2 and No.6). 278 FAA Exhibit I, Item 5, page 12. 279 See Advisory Circular AC 150/5100-17, Figure 8-2. 280 Advisory Circular AC 150/5100-17, page 5. 281 For additional infonnation on this type of process, see FAA Order 5100.37 Land Acquisition and Relocation Assistance for Airport Projects, 

August 1, 2005. This Order provides guidelines and identifies responsibilities for FAA acceptance and monitoring of airport sponsor 

compliance with provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act (Uniform Act) (42 USC 4601 et 

seq), as amended, on airport projects receiving Federal fmancial assistance. This Order incorporates all applicable requirements as provided in 

the Uniform Act implementing regulation 49 CPR Part 24, Uniform Relocation Assistance and Real Property Acquisition for Federal and 

Federally Assisted Prograrus (70 FR 590, January 4, 2005 and as may be amended). 282 FAA Exhibit 1, Item I, page 23-25. 283 See FAA Exhibit I, Item 3, Exhibit 2. 

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Virginia One Development (VOD), LLC, et al. v. The City Of Atlanta- FAA Docket No. 16-12-09 

In fact, as mentioned above in multiple instances, the record reflects consistency with the applicable FAA 

requirements and policies. Similarly, the allegation that there has been a "4 years" delay and that the Airport 

changed its criteria for property acquisition resulting in a violation is not convincing. Such an amount of 

elapsed time (4 years) is not unreasonable in such situations, especially when litigation is involved. The fact 

of the matter is that such an extensive program will have varying schedules for implementation and would be 

subject to changing prioritizations, local considerations, coordination with property owners, FAA funding, 

and many other variables. 

As discussed above, changes to the NCP as well as to property acquisition procedures, especially because of 

a court's Order of Consent, and while maintaining consistency with FAA requirements concerning local 

plans and interests, are not unreasonable actions. To argue, as the Complainants do, that once the Airport 

has submitted the NCP (and approved by the FAA), it has no authority or discretion to modify it to take 

into account certain legitimate local authorities' interests regarding its implementation and management,284 

is not persuasive, as discussed above under previous issues. 

The FAA-approved Part 150 NCP does not commit the Airport or the FAA to an actual purchase but does 

provide for coordination with local political jurisdictions, and seeks "consistency with local land use 

authority of communities."285 In fact, as the Airport point out, the argument could be made that the 

Airport's actions are supported by its responsibilities under Grant Assurance 6 Consistency with Local 

Plans which requires that "the project [be] reasonably consistent with plans of public agencies that are 

authorized by the State in which the project is located to plan for the development of the area surrounding 

the airport" and Grant Assurance 7 Consideration of Local Interest, which states that the Airports "has 

given fair consideration to the interest of communities in or near where the project may be located."286 

If the Airport were to ignore local plans and interests, disregard the Consent Order, and move unilaterally 

forward with the property acquisitions as sought by the Complainants, such action could jeopardize its 

compliance with grant assurances. 

Finally, the Director rejects the Complainants' arguments that the Airport's actions violate the Uniform 

Relocation Act (implemented by 49 CFR Part 24). As the Airport correctly states, Grant Assurance 35 

applies to situations in which land is being acquired with federal funds, but since the Airport has not 

acquired the properties in question, Grant Assurance 35 cannot be applicable to this matter at this time.287 

The argument that "intention" to acquire property entitles a property-owner to benefits under 49 CPR Part 

24, is unsupported. 

The Director cannot make a finding of violation of Grant Assurance 35 on the speculative grounds that 

property may or may not be acquired, especially with the detailed background in this case. There is no 

justification for the FAA to interpret the Airport actions as "inactions." In any event, the Airport has 

acknowledged its obligations under this grant assurance in its pleadings. Based on the above, the Director 

finds that the Airport's actions concerning the non-acquisition of certain properties, as argued by the 

Complainants, do not rise to the level of a violation of Grant Assurance 35. 

284 FAA Exhibit 1, Item 5, page 3-4. 285 FAA Exhibit 1, Item 1, Exhibit 14, January 24, 2008 memorandum, page 4. 286 See FAA Exhibit I, Item 6, pages 6-7. Specifically, the Airport states that "the Consent Order in no way violates Grant Assurance 5. The 

City has discretion in the management of its NCP and is entitled to determine what properties it may acquire or remediate with sound mitigation 

construction. Indeed, Grant Assurances 6 and 7 provide additional grounds for the entry of the Consent Order. Grant Assurance 6 

requires that the 'nroject [emphasis added] is reasonably consistent with plans (existing at the time of submission of this application) of public 

agencies that are authorized by the State in which the project is located to plan for the development of the area surrounding the airport."' Grant 

Assurance 7 requires that the Sponsor has given fair consideration to the interest of communities in or near where the project may be located.' 

(Emphasis added.) In resolving the City of College Park litigation with the entry of the Consent Order, the City took into account the interest of 

the local community in implementing the NCP." 287 FAA Exhibit 1, Item 6, pagelO. 

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Virginia One Development (VOD), LLC, eta!. v. The City Of Atlanta-FAA Docket No. 16-12-09 

VIII. Findings and Conclusions 

The Director finds that the Airport has considerable discretion under applicable federal law and 

regulations, in implementing and administering its FAA-approved voluntary Part 150 NCP, including, but 

not limited to, taking into consideration local concerns from political jurisdictions that may be affected by 

Airport operations. This discretion may include deciding whether to acquire potentially eligible properties 

or to provide sound insulation to potentially eligible properties. This coordination with local political 

jurisdictions in matters of land use is consistent with applicable statutes, regulations, grant assurances, and 

FAA policies. Thus, upon consideration of the submissions of the parties, the entire record herein, the 

applicable law and policy and for the reasons stated above, the Director, Airport Compliance, and 

Management Analysis, finds and concludes that: 

• The Airport's actions concerning the Consent Order and its 14 CFR Part 150 NCP do not 

deprive the Airport from its rights and powers necessary to operate the airport and thus do 

not constitute a violation of Grant Assurance 5 Preserving Rights and Powers. 

• The Airport is not in violation of Grant Assurance 16 Coriformity to Plans and 

Specifications, because Grant Assurance 16 is grant-specific and there is no grant at this 

time associated with the acquisition or sound insulation ofthe properties in question. 

• The Airport is not in violation of Grant Assurance 21 Compatible Land Use, because its 

recent actions, as well as its action since 1982, have been very consistent with the requirement 

to mitigate incompatible land uses near the airport. 

• The Airport is not in violation of Grant Assurance 35 Relocation of Real Property 

Acquisition because there has been no specific action(s), which would be ripe for review 

under this requirement. 

ORDER 

ACCORDINGLY, the Director finds that the City of Atlanta (Airport) is not in violation ofFederallaw 

and the Federal grant obligations. All Motions not expressly granted in this Determination are denied. 

RIGHT OF APPEAL 

This Director's Determination is an initial agency determination and does not constitute final agency action 

and order subject to judicial review. [14 CFR 16.247(b)(2)]. A party to this Complaint adversely affected 

by the Director's Determination may appeal the initial determination to the FAA Associate Administrator 

for Airports pursuant to 14 CFR l6.33(c) within thirty (30) days after service of the Director's 

Determination. 

Director, Office of Airport Compliance 

and Management Analysis 

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Virginia One Development (VOD), LLC, eta!. v. The City Of Atlanta-FAA Docket No. 16-12-09 

INDEX OF THE ADMINISTRATIVE RECORD 

The following items constitute the administrative record in this proceeding: 

FAA Exhibit 1 

Item 1 

Part 16 Complaint dated August 6, 2012, including Exhibits 1 -32: 

Exhibit 1 Tax Bill Avery Park 2609 Charleston Drive. 

Exhibit 2 Tax Bill Harrington Park 2800 Camp Creek Parkway. 

Exhibit 3 Tax Bill Colony at Camp Creek 3222 Kennelworth Drive. 

Exhibit 4 Tax Bill Roosevelt Park 2601 Roosevelt. 

Exhibit 5 Tax Bill Diplomat Townhomes 2700 Camp Creek Parkway. 

Exhibit 6 Not included as part of the submission. 

Exhibit 7 Tax Bill Hartsfield Landing 3001 Roosevelt. 

Exhibit 8 ATL Airport Master Record. 

Exhibit 9 Wikipedia Article. 

Exhibit 10 AlP Grants to ATL. 

Exhibit 11 March 21,2007 HJAIA FAR Part 150 StudyNEM Report (Vol. I). 

Exhibit 12 April30, 2007 FAR Part 150 Study Public Participation Program (Vol. III). 

Exhibit 13 September 5, 2007 FAR Part 150 Study Noise Compatibility Report (Vol. II). 

Exhibit 14 January 25,2008 FAA Record of Decision (Including Record of Approval). 

Exhibit 15 January 24, 2008 Serritt Memo. 

Exhibit 16 May 15, 2012 Letter from Steven Taber to L. E. Miller and C. Hampton. 

Exhibit 17 May 17, 2012 Letter from John Watkins to Steven Taber. 

Exhibit 18 May 22, 2012 Taber Watkins Letter Scheduling Settlement Conference. 

Exhibit 19 June 7, 2012 Taber Hadley Letter reSettlement Meeting. 

Exhibit 20 June 11,2012 Hadley Taber re Telephone Call. 

Exhibit 21 June 11, 2012 Taber Hadley Letter re Telephone Call. 

Exhibit 22 June 25, 2012 Taber Hadley Letter re Telephone Call w Exhibit. 

Exhibit 23 July 2, 2012 Hadley Taber Letter response to 06-25-12letter. 

Exhibit 24 July 5, 2012 Taber Hadley Letter re Response to 07-02-12 Letter. 

Exhibit 25 July 26, 2012 Declaration of Steven M. Taber (unsigned). 

Exhibit 26 April23, 2007 Federal Register Notice of Receipt ofNEMS Report. 

Exhibit 27 July 24, 2007 Federal Register Notice Requesting Suspension of Review. 

Exhibit 28 NCP Figure 6-2 with Labels Indicating Landowner's Properties. 

Exhibit 29 February 4, 2008 Federal Register Notice indicating approval of ATL NCP. 

Exhibit 30 August 2, 2010 Wynterbrook Consent Order Fully Executed W Exhibits (4). 

Exhibit 31 January 18,2011 Favors Nissalke email re: Conference Call. 

Exhibit 32 Airport Sponsor Grant Assurances (3-2005). 

Item2 

FAA Notice of Docketing, August 27, 2012. 

Item3 

The City of Atlanta's Answer to the Complaint and Request for Investigation, September 18,2012, including 

Exhibits 1-11: 

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Virginia One Development (VOD), LLC, et al. v. The City Of Atlanta- FAA Docket No. 16-12-09 

Exhibit 1 US District Court- Document 1: Verified Complaint for Declaratory Judgment and 

Injunctive Relief. Filed 04/18/2008. 

Exhibit 2 US District Court- Document 64: Consent Order, and 4 exhibits. Filed 08/02/2010. 

Exhibit 3 Fulton County Superior Court: Complaint. Filed 08/09/2011. 

Exhibit 4 Fulton County Superior Court: Affidavit of Dr. Thomas E. Nissalke, with exhibits. 

Executed 07119/2012. 

Exhibit 5 Fulton County Superior Court: Excerpts of Deposition Transcript of Mike Flannagan. 

Taken 06/15/2012. 

Exhibit 6 Fulton County Superior Court: Excerpts of Deposition Transcript of Nicole Flarrnagan. 

Taken 07/16/2012. 

Exhibit 7 US Department of Transportation Federal Aviation Administration: Affidavit of Thomas 

E. Nissalke. Executed 09/13/2012. 

Exhibit 8 Letter of Thomas E. Nissalke of City of Atlanta, Department of Aviation to Scott L. 

Seritt. Dated 09/14/2012. 

Exhibit 9 Fulton County Board of Assessors Tax Office Records. 

Exhibit 10 Email from Mike Flannagan to Tom Nissalke. Dated 03/24/2010. 

Exhibit 11 Final Policy on Part 150 Approval of Noise Mitigation Measures: Effect on the Use of 

Federal Grants for Noise Mitigation Projects. 

Item4 

The City of Atlanta's Motion to Dismiss the Complaint and Request for Investigation, September 18, 2012. 

ItemS 

Complainants' Consolidated Reply to Respondent's Answer and Motion to Dismiss Pursuant to 14 CFR 

Part 16, October 16,2012. 

ltem6 

Exhibit 1 PGL-08-02. 

Exhibit 2 ACRP Report 056. 

Exhibit 3 AC 150-5070 6B chgl. 

The City of Atlanta's Reply to Developers' Consolidated Reply Regarding Part 16 Complaint and Request 

for Investigation, October 22, 2012. 

Item 7 

Complainants' Motion to Supplement Record, February 11, 2013. 

Exhibit A Sanford Fidell memorandum and data CD. 

ItemS 

Respondent's The City of Atlanta's Response to Developer/Complainants' Motion to Supplement the 

Record, February 20, 2013, including Exhibits A-B: 

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Virginia One Development (VOD), LLC, et al. v. The Ciiy Of Atlanta- FAA Docket No. 16-12-09 

Exhibit A Virginia One Development, LLC, v. The Citv of Atlanta, Plaintiffs' Responses to 

Defendants City of Atlanta's First request for Admission, Superior Court of Fulton 

County, State of Georgia. (Includes exhibits). 

Exhibit B Virginia One Development, LLC, v. The City of Atlanta, Deposition of Thomas E. 

Nissalke, Superior Court of Fulton County, State of Georgia, June 13,2012. 

ltem9 

Notice of Extension ofTime, July 8, 2013. 

Item 10 

Complainants' Second Motion to Supplement Record, August 14, 2013, including Exhibits B-D: 

Exhibit B Ciiy of Atlanta's Proposed Amendment to its Part 150 Noise Compatibility Program 

(NCP). 

Exhibit C Comments the Landowners Submitted to Atlanta's in response to the proposed NCP 

amendment. 

Exhibit D City of Atlanta Declaratory Judgment Complaint. 

Item 11 

Notice of Withdrawal, August 19, 2013. 

Item 12 

Respondent's The City of Atlanta's Motion to Supplement the Record, August 19, 2013, including Exhibits 

1-3: 

Exhibit 1 Letter from Steven M. Taber to EPA, FAA, and Ciiy of Atlanta, April9, 2013. 

Exhibit 2 Complaint for Declaratory Judgment, The City of Atlanta, Georgia v. Avery Park 

Partners, LLC d/b/a Avery Park, Colony Creek, LLC, and The City of College Park, July 

26,2013. 

Exhibit 3 Article entitled Uncertainties in Measuring Aircraft Noise and Predicting Community 

Response to It. Noise Control Eng., Jan-Feb. 2007. 

Item 13 

Respondent's The City of Atlanta's Response to Claimant's Motion to Supplement the Record Dated August 

14, 2013, August 27, 2013. 

Item 14 

Notice of Extension of Time, December 30, 2013. 

Item 15 

Complainants' Notice ofChange in Ownership, February 18,2014. 

Item 16 

Respondent's The City of Atlanta's Motion to Supplement the Record, May 12,2014, including Exhibits AB: 

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Virginia One Development (VOD), LLC, et al. v. The City Of Atlanta-FAA Docket No. 16-12-09 

Exhibit A - The City of Atlanta, Georgia vs. A verv Park Partners, LLC, Deposition of David Scott 

Henderson, and exhibits, February 19, 2014. 

Exhibit B- Letter from FAQA ADO to Mr. Thomas E. Nissalke, Aprill4, 2014. 

Item 17 

Notice of Extension of Time, November 6, 2014. 

Item 18 

AlP Grant History for ATL, FAA, November 21,2014. 

Item 19 

FAA letter to Airport, May 2, 2013. 

Item 20 

Complainants' inquiry with the FAA's Office of the Chief Counsel, April9, 2013. 

Item 21 

Respondent The City of Atlanta's Notice of Leave of Absence, June 23,2014. 

Item22 

Hartsfield-Jackson Atlanta International Airport Nosie Land Reuse Plan, October 2009. 

Item23 

Atlanta International Airport Nosie Aircraft Noise Information, October 19,2006. 

ltem24 

Letter from Airport to FAA, May 21, 2013. 

Item 25 

Hartsfield-Jackson Atlanta International Airport 2010 Annual Report, 2010. 

Item 26 

Annual Environmental Report 2010 Progress Update, Hartsfield-Jackson Atlanta International Airport, 

2010. 

Item 27 

College Park Comprehensive Plan. 2011-2031 

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