# T H0 MPsoN ATLANTA CLEVELAND DAYTON WASHINGTON, D.C.**---J-l[l~E~------~~~-c-m--ci_N_N-AT-1~~~~--co-L-U-M-BU-S~~~~-N-EW-~-o-RK--~~~~~~**

JOHNL.WATKlNS, ESQ. Direct Line: (404) 407-3648 Email:jQlm.watkins@thompsonhine.com

# ~[E~[E~~[E~ AUG 19 

## ?013 August 16, 2013 

### PART 16

# DOCKETS 

# I VIA FEDERAL 

### EXPRESS FAA Docket Clerk FAAPart 16 Airport Proceedings Docket AGC-610 FederalAviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Re: Virginia One Development, LLC, eta!. v. The City ofAtlanta, Georgia U.S. Dept ofTransportation-FAA DocketNo. 16-12-09 Dear Sir/Madam: Please find enclosed for filing an original and three (3) copies ofRespondent The City of Atlanta'sMotion to Supplement the Recordin the above-referenced matter. Ifyouhave any questions or concerns, please do nothesitate to contactme.

JLW/ksw Enclosnres
cc: StevenM. Taber, Esq Roy E. Hadley, Jr., Esq.

THOMPSON HINE LLP ATTORNEYS AT LAW Two Alliance Center 

### Sincerely, 

# /I

..**l~**

# CJriAJlJ~rJ1:?/ 

# tf'{. 'watkins

3560 Lenox Road, Suite 1600 Atlanta, Georgia 30326-4266 www.ThompsonHine.com Phone: 404.541.2900 Fax: 404.541.2905

### BEFORE THE 

### U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. VIRGINIA ONEDEVELOPMENT, INC, AVERYPARK PARTNERS, LLC, d/b/a AVERY PARK, DSHDIPLOMAT, LLC d/b/a DIPLOMAT TOWNHOMES, COLONY CREEK, LLC, and CROSSINGS TOWNHOMES, LLC, ) ) ) ) 

### ) Case No.: FAADocketNo. 16-12-09 ) 

### Complainants, 

### )



# ~ **~rE~lEO~rE~** v. 

### ) AUG 19 

## 2013 ) 

### THE CITY OF ATLANTA, GEORGIA,



## ~ PART 16 DOCKETS Respondent. ) 

### RESPONDENT THE CITY OF ATLANTA'S MOTION TO SUPPLEMENT THE RECORD The following counsel for Respondent The City ofAtlanta should be served with documents in this proceeding: Roy E. Hadley, Jr., Esq Georgia BarNo. 003730 Roy.Hadley@thompsonhine.com John L. 

### Watkins, Esq. GeorgiaBarNo. 740515 Jolm.Watkins@thompsonhine.com

THOMPSON HINE 

### LLP

Two Alliance Center 3560 Lenox Road, Suite 1600 Atlanta, Georgia 30326 Telephone: 404-541-2900 Facsimile: 404-541-2905 Counsel for The City ofAtlanta

### Respondent the City ofAtlanta (the "City") has previously explained how certain ofthe Developer/Complainants

- in the guise of alleging violations of grant assurances - are attempting to use this forum as a mechanism to force the City to acquire their property under the Hartsfield-Jackson International Atlanta Airport (the "Airport") Noise Compatibility Program ("NCP") establishedpursuantto 24 C.F.R. Part 150. One issue in this matter raised by Complainants and Respondent is that the City is prohibited from acquiring certain property within the City ofCollege Park, Georgia, that would otherwise be potentially eligible for acquisition under the Airport's NCP pursuant to the terms of
a Consent Judgment entered by the United States District Court for the Northern District of Georgia. See Complaint and Request for Investigation at 

### 13-14 and Complainants' Ex. 24; Respondent's Answer to Complaint at 4-6 and 20-21 and Answer Ex. 2. The City seeks to supplement the record with three documents that are relevant to this
ISSUe: 

### (l) 

### On or about April 18, 2013, the City received a letter from Developers' counsel, Mr. Taber, threatening to institute litigation against the City to force the acquisition of Developers' property. A true and correct copy ofthis letter is attached hereto as Exhibit "1." This letter is a de facto admission that this proceeding is not aproper forum to decide issues regarding (1) any alleged obligation ofthe City to acquire Complainants' property or (2) the validity ofthe federal court Consent Order; and, (2) On July 26,2013, the City filed a declaratoryjudgment action in the United States District Court for the Northern District ofGeorgia against certain Developers asking the Court to rule onthe validity and enforceability ofthe Consent Order in relation to the Aircraft Safety and Noise Abatement Act of 1979,49 U.S.C. 47501 et seq. and Part 150 ofTitle 14 ofthe Code of

2

### Federal Regulations, 14 C.F.R. Part 150, promulgated thereunder. A true and correct copy ofthe Complaint is attached hereto as Exhibit 2. Developers' answer to the Complaint is due shortly, and the Court's decision should provide a definitive resolution of the issues regarding the Consent Order. (3) On or about February 5, 2013, Developers, through Mr. Taber, filed some information in this proceeding regarding noise monitoring prepared by Sanford Fidel!. The City has previously explained in detail why this information is, first, irrelevant and immaterial to the issues, and, second, unreliable and inadmissible under the Supreme Court's standards in Daubert. Respondent's Response to Motion to Supplement and Exhibits (February 18, 2013). Since the City's last filing, the City has obtained ajournal article written by Mr. Fidel!. A copy ofthis article, is attached hereto as Exhibit "3." In this article, Mr. Fidel! discusses in detail the general unreliability of noise monitors in accurately measuring aircraft noise events. Mr. Fidell writes, for example, that there is typically a standard deviation of3-5 

### dB in the accuracy ofmeasuring noise, and the results outside that range would be expected even at a 95 percent certainty level. Mr. Fidel! makes these comments as a general matter. As previously discussed, the monitors at the Airport are not used and have had demonstrated unreliability. In essence, Mr. Fidell's article confirms that his analysis, whatever it may purport to show, is based on inherently unreliable input data. As such, Mr. Fidel! has conceded that his mmlysis does not- and cannot- meet the rigorous standards established by Daubert. Based on the foregoing, the City respectfully requests the Agency to allow the supplementation ofthe record with Exhibits 1-3 attached hereto.

3

### This 16th day ofAugust, 2013.

THOMPSON HINE

### LLP 

### Two Alliance Center 3560 Lenox Road, Suite 1600 Atlanta, Georgia 30326 (404) 541-2900- Main (404) 541-2905- Facsimile



### 4John.
. Watkins, Esq.

## john~atkins@thompsonhine.com Georgia BarNo. 740515 Roy E. Hadley, Jr., Esq. roy.hadley(ii)thompsonhine.com Georgia Bar No. 003730 Attorneys for The City ofAtlanta

### CERTIFICATE OF SERVICE 

### I hereby certify that Ihave this day served the foregoing Respondent the City ofAtlanta's Motionto Supplementthe Record on the following personsbyU.S. Mail and Federal Express: Steven M. Taber, Esq. Taber Law Group P.O. Box 60036 (92602) 13 Atlanta Irvine, California 92620 FederalAviation Administration FAA Part 16 Airport Proceedings Docket AGC·610 800 Independence Avenue, S.W. Washington, D.C. 20591 This 16th day ofAugust, 2013. 

# c1;wi/!JP

Jo n

# t· Watkins



# l.J

5

# EXHIBIT 1

### April9, 2013 BY REGISTEREDMAIL Hon. Bob Perciasepe, Acting Administrator, Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Avenue, N.W. Washington, D.C. 20460 Hon. Michael Huerta, Administrator Federal Aviation Administration 800 Independence Avenue, SW Washington, D.C. 20591 Hon. Kasim Reed, Mayor City ofAtlanta, 55 Trinity Avenue SW Atlanta, Georgia 30303 

## H-JAIA

Re: 60-Day Notice oflntentto Suefor Violation ofRegulation Which Became Effective Pursuantto the Noise Control Act. Dear Hon. Perciasepe, Hon. Huerta, and Hon. Reed: This Jetter is written on behalfofAvery Park Partners, LLC d/b/aAvery Park, Colony Creek, LLC, Harrington Town Homes and Crossings, LLC 

### dibla! Park Roosevelt Park, and Virginia One Development, LLC (collectively, "Owners") to provide notice, pursuantto 42 U.S.C. 

### §4911(a)(1), oftheir intent to file a civil action against the City ofAtlanta for its violationsofnoise control requirements which became effective pursuantto 40U.S.C. 

### §44715. Specifically, Owners allege that the City ofAtlantaviolated the Noise Control Act by failing to comply with provisions of 14 C.F.R., Part 150. 

### I. 

### FACTS In 2007, the City ofAtlanta submitted its three-volume Noise Compatibility Program, which allegedly was in compliance with 14 C.F.R., Part !50, ("Part 150 NCP'') for approval by the Federal Aviation Administration. As part ofthe Part !50NCP, the City promisedthat 

### 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 ofDecision onJanuary 25,

P.O. BOX 60036 I IRVINE, CA 92602 I TEL 949.735·8217 I FAX 714.707.2428 I staber@t.aberlaw.com

### Hon. Perciasepe, Hon. Huerta, Hon. Reed April 8, 2013 Page 

### 2 2008, approving the Part 150 NCP, so long

### as the City ofAtlanta complied with the obligations under the Part 150 NCP, including the sound insulation and property acquisition program. All ofOwners' properties are identified in figure 6.2 ofthe Part 150NCP asbeing severely affectedbynoise created by the Airport. Foryourconvenience, the Ownersarethe landowners ofthe following properties: l. Roosevelt Park, 2601 Roosevelt Highway, College Park, Georgia 30337. 2. Hartsfield Landing, 3001 Roosevelt Highway, College Park, Georgia 30337. 3. Avery Park, 2609 Charlestown Drive, College Park, Georgia30337. 4. Harrington Park, 2800 CampCreek Parkway, College Park, Georgia 30337. 

### 5. CampCreekApartments, 3222 Kenilworth Drive, East Point, Georgia 30344. 6. Clubhouse Apartments, 3800 Herschel Road, College Park, Georgia30337 Therefore, pursuantto the FAA's approval, the City ofAtlanta is obligated under 14 C.F.R., Part !50to (a) offerOwners sound insulation for their properties that are located within the 65 DNL; and (b) offeracquisition oftheirpropertiesthat are located within the 70 DNL contour. The City ofAtlanta has already determined that Owners' claims are valid by submittingthe Part 150 NCP tothe FAAfor approval. Further, the FAA'sRecord ofDecision indicatesthat the City of Atlanta nowhasthe obligation pursuantto 14 C.F.R., Part 150 offollowing through on the promises that it made inits Part 150NCP. 

## n. LEGALBACKGROUND Section 491l(a) ofTitle 42 ofthe United States Code, states that: Except as provided in subsection (b)ofthis section, any person (other than the United States) maycommence a civil action on his ownbehalf.- (1) against any person (including (A) the United States, and (B) any othergovernmental instrumentality oragency to the extentpermitted by the eleventhamendmentto the Constitution) who is alleged to be in violation ofany noise control requirement (as defined in subsection 

### ([f]) ofthis section) ... Subsection 

### (f) of42 U.S.C. §4911 statesthat "[f]orpurposes ofthis section, the term "noise control requirement" means paragraph (1), (2), (3), (4), or (5) ofsection 4909(a) ofthis

### Hon. Perciasepe, Hon. Huerta, Hon. Reed April 8, 2013 Page 

### 3 title, or

### astandard, rule, orregulation issued under section4916 or 4917 ofthis title orunder section 44715 oftitle49." Since 14 C.F.R., Part 150 waspromulgatedpursuant, 

### interalia, to the authority given to theFederal Aviation Administration under 49 U.S.C. 

### §44715, this lawsuit falls within the scope of42 U.S.C. 

### §4911 provisions for citizen suits. 

### IH. CONCLUSION The City ofAtlanta is in violation ofthe Noise Control Act by failing to comply with its obligationsunder 14 C.F.R., Part 150. This letter provides the requiredparties with notice pursuantto 42 U.S.C. §49ll(b)that the Owners intend to file a civil suit pursuant to 42 U.S.C. 

### § 4911 for the City ofAtlanta'sviolation of 14 C.F.R., Part 150. Ifyou have 

### any questionsor comments, please feel free to call me at (949) 735-8217 or send me an e-mail at staber@taberlaw.com.

Yours very truly, TABERLAW GROUP, P.C.
' «W.·U/• 

## CJ;l(

**~~l,.** 

### (J Steven M. Taber

cc: Mr. Louis E. Miller, Aviation General Manager

# EXHIBIT 2

### Casr- 1_:13-cv-02480-SCJ Document 1 Filed 07/26/13 P<>qe 1 of 12



## UNITED STATESDISTRICT COURT FORTHE NORTHERNDISTRICT OF GEORGIA ATLANTADIVISION THE CITY OFATLANTA, GEORGIA Plaintiff,


## v. AVERYPARKPARTNERS,LLC d/b/a : AVERYPARK, COLONY CREEK, LLC,AND THE CITY OF COLLEGE PARK, GEORGIA, Defendants. CaseNo. 

## Judge

COMPLAINTFORDECLARATORYJUDGMENT Plaintiff, the City of Atlanta (the "City"), files this Complaint for Declaratory Judgment against Defendants Avery Park Partners, LLC d/b/a Avery Park ("Avery"), Colony Creek, LLC ("Colony Creek"), and the City of College Park, Georgia ("College Park"). 1. 

## This is an action for declaratory reliefpursuantto 28 U.S.C. § 

## 2201 et

2. The City is a municipal corporation incorporatedunderthe laws ofthe State ofGeorgia. The City is the owner and operator ofHartsfield-JacksonAtlanta International Airport (the "Airport").

### Caso 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Pqge 2 of 12



## 3. Defendants Avery and Colony Creek are developers (collectively, the "Developers")thatownproperty inthe City ofCollegePark. 4. Defendant Avery is the owner of Avery Park, 2609 Charlestown Drive, College Park, Georgia 30337, Parcel Identification Number 13-0004-LL045-5. Avery may be served with process at the office ofits registered agent for service ofprocess, David Scott Henderson, located at 105 Hendrix Drive, Canton, Georgia 30115. 5. Defendant Colony Creek is the owner ofHarrington Park, 2800 Camp Creek Parkway, College Park, Georgia 30337, Parcel Identification Number 14- 0224-LL-052-3, and Colony at Camp CreekApartments, 3222 KennelworthDrive, East Point, Georgia 30344, Parcel Identification Number 14-0225-LL-092-8. Colony Creek may be served with process at the office ofits registered agent for service ofprocess, David Scott Henderson, located at 105 Hendrix Drive, Canton, Georgia 30115. 6. Defendant City of College Park ("College Park") is a Georgia municipal corporation, partially situated within Fulton County, and incorporated under the laws ofthe State ofGeorgia. College Park may be served with process by serving the City Manager, Terrence Moore, located at City Hall, 3667 Main

2

### Cas" 1:13-cv-02480-SCJ Document 1 Filed 07/26/13

**P"~ge** 

### 3 of 12



## Street, College Park, Georgia 30337. College Park is named as a party because it has apotential interestin the outcome ofthis litigation. 7. The City and the City ofCollege Park were parties to a prior case in this Court styled City ofCollege Park, et al. v. The City ofAtlanta, Civil Action File No. 1:08-cv-1464-JEC (the "College Park Suit"). The College Park Suit, which involves in relevant part the City ofAtlanta's purchase ofproperty located in College Park, is related to this action. On or about July 30, 2010, Hon. Julie Carnes entered a Consent Order, which, with one exception, prevents the City from acquiring multi-family residences within College Park (the "Consent Order"). A true and correctcopy ofthe Consent Order is attachedhereto as Exhibit "A." 

## JURISDICTIONAND VENUE 

## 8. This Courthas subject matterjurisdiction ofthis action pursuantto 28 U.S.C. § 1331, and § 2201. Pursuant to 28 U.S.C. § 1331, the district courts have original jurisdiction of all civil actions asserting claims or protecting rights that arise under federal law. 9. Venue is proper in thisjudicial district under 28 U.S.C. 

## § 1391(b), as
a substantial part ofthe events giving rise to the claims in this Complaint occurred in thisjudicial district, the property that is the subject ofthe action is situated in

3**Ca~n** 

### 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 P-,ge 4 of 12



## this judicial district, and because Defendants are subject to jurisdiction in this judicial district. 10. This CourthaspersonaljurisdictionoverDefendants. 

## BACKGROUND 11. The Aircraft Safety and Noise Abatement Act of 1979, 49 U.S.C. 47501 et seq. ("Noise Abatement Act"), establishes a voluntary and uniform national program for addressing aircraft noise, and authorizes the Federal Aviation Administration ("FAA'') to regulate "airport noise compatibility planning" and to make federal funds available to reduce incompatible land uses in the vicinity of airports causedby aircraftnoise. 12. To implement the Noise Abatement Act, the FAA established the Noise Compatibility Planning Process as part ofthe Federal Aviation Regulations, listed as Part 150 ofTitle 14 ofthe Code ofFederal Regulations ("Part 150"). 13. Part 150 establishes uniform national methods for preparing noise exposure maps ("NEM"). NEM establish "noise contours," which are areas onthe NEM where computer-modeled average annual noise levels are indicated in a unit of measurement known as "DNL." In essence, DNL is a measure of noise exposure in decibels over a 24-hour period, weighted more heavily toward the nighttime hours.
4

# I I Case , 1 

### :13-cv-02480-SCJ Document 1 Filed 07/26/13 Paoe 5 of 12



## 14. Part 150 also delineates procedures, standards, and methodologies for
an airport's creation and implementation of Noise Compatibility Programs ("NCPs"), which are voluntary programs used to reduce noise impact within the airportvicinity consistentwith local interests. 15. In 2007, the City submitted a properly prepared NEM (the "2007 NEM"). The 2007 NEM was accepted by the FAA on April 10, 2007. A true and correct copy of the FAA's letter accepting the 2007 NEM is attached hereto as Exhibit"B." 16. In 2007, the City proposed amendments to the Airport's NCP, which
were approved by the FAA on January 24, 2008 (the "Airport-NCP") (attached hereto as Exhibit "C"). 17. The FAA-approved Airport-NCP allows the Airport to undertake voluntary measures to provide: (a) possible sound insulation for qualifYing properties located within the 65 DNL contour on the 2007 NEM; and (b) possible acquisition ofqualifYing properties locatedwithinthe 70 DNL contour. 18. As amended in 2007, multi-family properties became potentially eligible to participate in the Airport-NCP. Multi-family properties were not previously eligible.

5

### Case 1.:13-cv-02480-SCJ Document 1 Filed 07/26/13 Paae 6 of 12



## 19. In 2012, the City submitted the 2012 NEM to the FAA for approval. The 2012 NEMhas beenapprovedby theFAA. 20. Developers recently acquired their properties. Developers' properties
are located wholly or partially within the 70 DNL contour on the 2007 NEM and
onthe 2012 NEM. 21. As one ofthe general requirements in establishingNCPs, participating airport sponsors, such as the City, must consult and work with local.authorities. This is so because every locality is different. Although federal law establishes uniform standards for assessing noise and preparing NEMs, the law and regulations recognize that local considerations should be considered in implementingNCPs. 22. College Park is located adjacent to and generally west ofsome ofthe Airport, andthe Airportis partially locatedin College Park'sboundaries. 23. In response to the possible acquisition ofmulti-family properties in 

## College Park under the Airport-NCP, College Park filed the College Park Suit, in which it alleged, among other things, that the City's acquisition of property in College Parkviolatedthe VotingRights Act for various reasons. 24. After the City substantially prevailed in the College Park Lawsuit in this Court, College Park appealed to the United States Court of Appeals for the
6

### Case 1 

### :13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 7 of 12



## Eleventh Circuit. While College Park's appeal was pending, the City and College Park reached a mediated settlement, which resulted in the entry ofthe Consent Order. 25. The Consent Order is consistent with the directives offederal law and regulations requiring consultation and cooperation with local jurisdictions in implementing noise compatibility programs. The Consent Order also is consistent withthe directives offederal law and regulationsproviding for local administration ofnoise compatibility programs and providing airport sponsors with considerable discretion in implementing noise compatibility programs in a manner consistent with local interests. 26. The Consent Order, with one exception, effectively prevents the City from acquiringmulti-family residences within College Park. Since the entry ofthe Consent Order, the City has abided by the substance ofits terms by, among other things, not acquiring multi-family residences within College Park pursuant to the Airport-NCP. 27. Pursuant to the requirements of the Consent Order, the City's Department ofAviation has submitted an amendment to the Airport-NCP to the FAA, which includes language referencing the Consent Order'sterms pertainingto land acquisitionwithin CollegePark.
7

### Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Paae 8 of 12



### 28. Developers seek to force the City to acquire their properties under the Airport-NCP in violation ofthe Consent Order. Developers contend that, because their properties are located within the 70 DNL contour on the 2007 and 2012 NEM, the City is obligated by federal law to acquire their properties without regardto the terms ofthe ConsentOrder. 29. Developers have refused the City's suggestion for Developers to seek College Park's consenttothe acquisition oftheirproperties. 30. The City disputes Developers' interpretation of their alleged rights and the City's alleged obligations under federal law and regulation. Contrary to Developers' assertions, the City, as an airport sponsor, is vested with considerable discretionunderthe Airport-NCP in deciding whetherto acquire anyproperty. 31. The City, as an airport sponsor, is also vested with considerable discretion in cooperating with local politicaljurisdictions such as College Park in implementing the Airport-NCP, including, but not limited to, agreeing to provisions such as are containedinthe Consent Order. 32. In any event, Developers' position would require the City to violate the Consent Order, which is a valid and outstanding order andjudgment ofthis Court.

8

### Case 1.:13-cv-02480-SCJ Document 1 Filed 07/26/13 Paae 9 of 12



## 33. Developers have repeatedly attempted to bring pressure on the City to violate the Consent Order through regulatory proceedings and through federal and state political pressure based on incomplete or misleading statements offact. At the same time, Developers have refused the City's suggestion to contact College Parkto secure a waiver or consentregarding the Consent Order. Developers have therefore acted in bad faith and have caused the City urmecessary trouble and expense, entitlingthe City to an award ofattorney's fees underO.C.G.A. 

## §13-6-11. 34. On information and belief, College Park contends that the Consent Order constitutes a valid and outstanding order andjudgment ofthis Court, and opposes any action by the City to acquire Developers' properties under the Airport-NCP. 35. A ripe, justiciable controversy exists between the City, on the one hand, and Developers, onthe other. College Parkhas an interest inthe outcome of the controversy. RELIEF REQUESTED 36. The City seeks and is entitled to ajudicial declaration ofthe rights, obligations and responsibilities of the parties because the City has no other adequate remedy thatwill resolve the current controversies.

9

### Case 1 

### :13-cv-02480-SCJ Document 1 Filed 07/26/13 Pane 10 of 12



## 37. Specifically, the City requests the Court enter an Order declaring the rights, duties and obligations ofthe parties as follows: (a) The Consent Order is a valid and binding order ofthis Court; (b) The City, as the Airport sponsor, has considerable discretion under applicable federal law and regulation, inimplementing and administeringthe Airport-NCP, including, but not limited to, taking into consideration the stated wishes ofCollege Park and other municipalities that may be affected by Airport operations; (c) Developers have no right under the Consent Order to require the City to acquire their properties, regardless of whether the properties are otherwise eligible for acquisitionundertheAirport-NCP; (d) Developers 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 otherreliefunderthe Airport-NCP; and (e) The City, as an airport sponsor, 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 ithas arationalbasis for its action.
10

### Case 1 

### :13-cv-02480-SCJ Document 1 Filed 07/26/13 Pane 11 of 12



## 38. The City also requests that this Court enter an Order requiring the Developers to pay the City's attorney's fees and litigation expenses pursuant to O.C.G.A. § 

## 13-6-11. WHEREFORE, 

## the City requeststhat: (a) the Court enter an Order declaring the rights, duties and obligations ofthe parties, as set forth above; (b) the Court enter an Order awarding the City its reasonable attorney's fees and litigation expenses to be paid by Defendant Developers, in an amountto beproven attrial orupondisposition ofthis action; (c) the Court assess the costs of this action on Defendant Developers; and (d) the Court award the City such other and further reliefas isjust and proper. Respectfully submittedthis 26th day ofJuly 2013. Is/John L. 

## Watkins 

## John L. 

## Watkins, Esq. john.watkins@thompsonhine.com GeorgiaBarNo. 740515

11

## Roy E. Hadley, Jr., Esq.

roy.hadley@thompsonhine.com GeorgiaBarNo. 003730

### Case 1 

### :13-cv-02480-SCJ Document 1 Filed 07/26/13 Paoe 12 of 12

THOMPSON

## HINE LLP TwoAlliance Center 3560LenoxRoad, Suite 1600 Atlanta, Georgia 30326-4266 (404) 541-2900- Main (404) 541-4266- Facsimile

12

## Leslie J. 

## Suson leslie.suson@thompsonhine.com GeorgiaBarNo. 142162 Attorneys for The City ofAtlanta

### Case 1 

### ·13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 1 of 21



# EXHIBITA·.:.;,, 

### Case 1:13-cv-02480-SCJ Document 1·1- Filed 07/26/13 P<ige-2-af21--

- Case 1:08-cv-01464-JEC Document64 

## r=ned 08/02110 Page 1 of8



### CITYOFCOLLEGE PARKand CHARLES-E; 

### PHILLIPS,SR., 

### Plaintiffs 

## v. CITYOFATLANTA and SHlRt,EY FRANKLIN, 

### in herofficial capacity as 

### M:1yor oftiui

### City ofAtlanta, Defendants. 

### CONSENTORDER .:"":


## ·This mauer having come 

## bGfore the 'Court on.

**plai~tiffs'** 

## and deieridants'
. Joint

### Motion for 

### Reliefunder Federal Rule ofCivil 

### Procedure 6(l(b), 

### andthe Court, 

### having 

## reviewed the record and 

## the arguments of

## the partios, issuesthe following 

### ConsentOrder: 

## BACKGROUND On March 31, 2009, this 

### Coun issued an: (i] Order and 

### Opinion; and 

### [ii] Judgment, r\JJing on plaintiffs' Request for 

### Three-Judge Coun and Motion 

## tor Leave to FHe First Amended Complaint, denying such Motions, dismissing the


### case in its 

### entirety and vacating a previous 

### injunction issued by 

### the Court. 

### This

**~--** - ·-

**~ ~**  

### Court'sOrder and Opinion and Judgment are part ofthe record and. incorporated into this Consent 

### Qpderby reference.

### Case 1

### :13-cv-82480-SCJ Docttment+1-Filed 07/26/13 p,.ge 3 of21 Case 1:08-cv-01464-JEC Document 64 Filed 08/02/10 Page 2 of8



### On April 30, 2009, plaintiffs appealed this Court's Order and Opinion and

. Judgmentto the United StatesCguf!ofAppeals_forthe Eleventh Circuit.. Plaintiffs

tiled their Brief of Appellants with the United States Court of.Appeals tor the Eleventh Circuit on July
.

### J5, 2009. To date, through a series of extensions, detcndants' have

## notfiled their Brief

### ofAppellees. Ort September 

### JO, 2009, pursuant to a directive from the 

### United States Court 

### ofAppeals 

### for the Eleventh Circuit, plaintiffl) and defendants mediated this 

### ca:;e, reached a temative settlementagre\!ment and.since the initial mediation date, haw refined the tenns ofthe settlement, reduced it to writing and.obtained appropriate

. ' ; . 

### guvemlnental

# appro~~~~()f~i~h:~~~~~!1}~fit:fr~rn·their res)?$Ctiyemu.nicipalities.

.. ' ...- -- _,...**-~** . __..-.- . .:.-_ .. --. - - __. '..
. :_.. . .... -.' ' '···';_ ' .**~~** ... ,.;. 

## On May 

## 24,

# ~Q]Q,rM!v'ti[~.~~~~A¢f~n,d.~n~ fiiMaJgint 

### Motion for Relief



## ---;-:-->. : · _-_....:-**;_:~--L~x~<;:_};~~~~_;i~X>!~<**:.··:t>-.:

### ::-:·~>:.

### ~i;:.:·,--_._-_ :-::_:_.,_--.:.. - __-- , - -

-_ · - 

### from 

### Order and

### dpit!i911;;i!_(l~i&J~~g'ffl~ijt**J.IIJC!~r:·reder~l** Rule. of Civil 

### ProcedLtrc

. · . '>**.·._:=.-'.-,o.o~~-;~:oo**..:.,:,lt··::-,<:· :-:·_·•, ·· . ·_·•.,. -·

. ,---;;·;···


### this Court's

## ackno~>!'e<!girt~**tl)~t·J~e** parties 

### have settled the case on appeal, entering an enforceable 

### Consent Order outlining the tem1s of 

### the settlement, relieving the parties from the necessity and cost ofpursuing the appeal, allowing theappeal's

### remand to.this Court and its ultimatedismissal. 

### This Court has consic!ered the Joint Motion for Relief from Order and 

### Opinion and is willing to enter tHe Consent Order ret1etting the terms of the' parties' settlement ofthis case on appeal.---:-· 

### ···Case -1 

### '13-cv-02480-SG-J---Boeument 1"1 · Filed 

### 07/26/13 Page 4 of 21 Case 1:08-cv..()1464-JEC 

### Document 64 Filed 08!02/10 Page 3 of8



### CONCLUSION Based upon the above, and the consent ofthe parties, theCourt reaffirms its 

### issua11ce of

### the Order and 

### Opinion and Judgment and 

### further enters the following Consent Order:

I. 

### CONSENTORDER MEETINGSAND BRIEFINGS l.l.

### The City of**Atlanta~** 

### Oepartmeot or Aviation (''Atlanta"). agrees to invite and 

### allow one (I) representative 

### designated by the 

### City of College Park ("College Park'] to 

### attend 

### any planning 

### meeting held 

### at any 

### location 

### by

. - : .**Atlan~** 

### that, 

### i11 the**good{ait~etel1tlin!ltion**

# ofAtlanm, mate.ria!ly affects or .,
·- -·--,.,.·.'. ' ... ' . ,.. 

### could materia11y

### <~t'f:ectth~iigt~rest£ of(Jollege 

## Parkor

# asignificant number 

## ofits Citizcn_s. I;2.College Park will 

## parti<;ipateiis**~partner** in each planning meeting and will not use inforll)ation obtainee! by 

### it during any such meeting lor 

### any**purpos~** 

### other than to facilitate discussions with Department 

### ofA

### dation sta!T about tl1e subjects of such meeting, unless College Park 

### can show that such information obtained 

### by it during the applicable

### planningmeeting: 1.2.1. was in its possession or was known to the public 

### or published td the public prior 

### to its• disclosure during the · 

### applicable planningmeeting; or

### Case 1 

### '13-cv-82480·SCJ- Documentl-1 · Filed 07/26/13 -P'lge 5 of 21 

### Case1:08-cv-01464-JEC Document64 Filed 08/02/10 Page4 of8

1.2.2. subsequent

### to the 

### time of

### disclosure during the applicable planning meeting, becomes known to the public or appears in published 

### literan1re through no 

### fault-ofCollege 

### Park; or 1.2.3. 

### waS acquired by College Park 

### from a third-party, 

### 2.
. tllDVANCE.NOTlCE ' Atlanta agree's to provide CollegeParkat leastthirty(30)days earlier notice, than is otherwise required 

### by FAA or 

### Federal Rules, of 

### any proposed 

### action 

### by Atlanta that, in thegood faith determination ofAtlanta, materially affects orcould materially affect the interests of College 

### Park or a signiticimt number of**it~** 

### €itizens. 

## ., ' '
<1.'·. ·:;-. <: 

### 3. REPURCHAsEOFWYNTERBROOKAPARTMENTS 3.1.Co!lege 

## Park will, cpntemporaneously with the 

### date 

## ofits execution 

### ofthis Order {"'Order Date"), issue all permits necessary to 

### authorize Atlanta to erect fences, demolish and remove 

### existing structures and remedh1te 

### environmentalha?..ards on the Wynterbrooksite. 3.2.Atlama 

### will demolish, remove all 

### debris and remediatc any environmental

<'" •• 

### hazards on the Wynterbrook site promptly upon receipt from College 

### Park and any other governmental entities with jurisdiction 

### of the necessary penrtits and 

### diligently 'pursue such activities until completion · ("Wymerbrook Demolition Completion 

### Date").

4

### Case 1**·13~cv-02480~SCJ** 

### Documentl-1 Filed 

### 07/26/13 Page 6 of21 · Case 1

### :08-cv-01464-JEC Document 64 Filed 

### 08/02/10 Page 5of8



### 3.3.Atlantn 

### will notity College Park in writing ofthe Wynterbrook 

### Demolition Completion Date wiihin ten (10) days ofthat date, at which time College

. Park

## will have an option, exercisable by written notice to Atlanta within one



### hundred eighty (180) days of the .Wynterbrook Demolition Completion Date, to 

### purchaseat fai;·marketvalue the Wynterbrook site. · 

### 3.4."Fair market 

### value" for the Wynterbrook site shaH be determined as ofthe Wynterbrook Demolition Completion Date anc;i by the process detailed on 

### Exhibit "B". 3.5.1fpurchased by

## College Park, the Wynterbrook site shall be**~ubject** 

### to the 

### restri<>tivc covenantscontainedon 

### Exhibit"A". 3.6.lfCollege Park docs not exercise 

### its option to purchase the Wynlerbrook site within one hundred eighty (180) days ofthe Wynterbrook Demolition Completion Date, Atlanta, at 

## its expense and subjectto any applicable laws, including laws governingthe procurementof

### services, will promptly engage the services ofan economic development specialist/land planner to assist it inreturningthe Wynterbrooksite to productive use.



### .4. PART 150 PROGRAM Atlanta agrees to modify its current Part ISO Program to eliminate authoriz<ttion ·to acquire any aparurtent complex within College Park other than Clubhouse

### Case 1 

### '13-cv-02480-SCJ Document-1-1 Hied 07/26/13 PR.ge 

### 7 of 21 Case 1:08-cv-01464-JEC Document 64 Filed 08102/10 Page 6 of8


### Apartments, located at 3800 Hershel Road. forpurposes ofthis ConsentOrder, an apartmentcomplexmeans any buildingwithf0ur (4) ormoreresidential units. 5. NCP PROGRAM 

### S.l.Subjeet 

## tO the Section entitled "PART 150 PROGRAM", Atlanta agrees to 

### consult withCollege Park, within the confines ofthe Federal guidelines and other applicable law, on what properties, identified iq the existing and future Part !50 documents aseligible for receipt ofnoise mitigation funds•.
are mitigated and the timingofthe mitigations. 5.2.Thi.s consultation shall tak.e place prior to mitigation ofeach property and '· Atlantashall notify

### Collo::ge Parkwhen

**miti~ation** 

### ofeach property has been completed. If Atlanta groups 

### properties into packages for mitigation
.. 

### consultation may take

### place priorto 

### mitigation ofeach

### package (as oppo5cd to each property) and Atlanta may notify 

### College Park when mitigation of each

### package (as opposedto eachproperty) has

### been completed. "11lepatties may modifythis

### consultation andnotification 

### process at any

### time as 

### long U$ 

### the modification is agreed 

### lo in writing 

### by all parties ptior w 

### being implemented. 

### 6. OPERATIONALACQUISITIONS Atlanta agrees to discuss with College Park, within one hundred twenty ( 120l 

### days ofthe Order Date, a potential arrangement whereby, for 

### future real

**prop~11y**

### Case 1 

### ;13-cv-82480-SC;J Document 1-1 Fited 07/26/13 P:=tge 8DT21 

### Case 1:08-cv-01464-JEC Document 64 Filed 08/02/10 Page 7of8
acquisitions for operations ofthe airport and for which Atlanta is tax exempt. the CityofAtlanta will paya Paymentin Lieu ofTaxes. 7. 

### WYNTERBROOK SITE; MISCELLANEOUS 1.l.College Parkagrees that

### the portion of

### Frontage Road owned

## by the City of Atlanta abutting 

### the 

### Wynterbrook 'Site may 

# be and remain permanently closed 

### to vehicular traffic of 

### any kind dunng 

### the tenn of Atlanta's ownership 

### 1md that 

### the closure of frontage Road docs not and shall not constitute a violation· of any law, ordinance 

### cor other c(ldc 

### provision enforceable

### by.or-existing forthebenetit ofCollege Parkor its Citizens. 

### 7.2. The" parties have disposed- of this case through

### ·1hc execution of this ' '·>:- 

### ConsentOrderand the remand/dismissal ofthe

### appeal. Additionally. within three {3) days oftheOrderDate, College Park 

### will dismiss ··with prejudice" thefollowing litigation, each in its entirety: 7.2.1. 

## City ofCollege Parkv. 2600 Camp Creek, LLC v. The Citv of College Park, Jack P. Longino (as an individual). Joe Carn (as an individual), Russell Slider {as an individual), Tracey Wyatt (as an individual), Charles 

# c.

·Phillips. Sr (as an individual), William E. Johnson (as an individual) and Oscar Hudson (as 

### an individual), Fulton County SuperiorCourt, CaseNo. 2005-CV-1Ol6l2; 1

### and

1

### The parties acknowledge that on November 9, 2009,, College Park '·dismissed this lawsuitwithout prejudice. College Park agrees to tile an amended

Dismissal with Prejudice and to take any further actions, including tiling a motion or obtaining a Consent Order in this case in orderto dismiss it in its entirety with prejudice.
7.i 

### Case 1

### :13-cv"02480-SCJ Document 1-1 Filed 07/26/13 Pctge 9 of 21 Case 1:08-cv-01464-JEC Document 64 Filed 08/02/10 Page 8of8



### 7.2.2. City of College Park v. City of Atlanta, Fulton County SuperiorCourt,CaseNo2008-CV-t

### 48980. 7.3.All 

### parties 

### will bear their own costs; and no pany 

### will seek an order lor 

### attorney's fees orQtherlitigation 

### costs. 8. EFFECTIVE 

### DATE OFAGREEMENT ·The parries agree that'this (lrder 

## shall be 

### effective on the Order 

### Date and ' 

### shall remain effective until further 

## m·der 61' the Court, or 

## tor fifty (50) years, whichevershall first occur. 

### The parties agree that compliance wjth these requirements is subject to 

### applicable law.



### , SO ORDERED and AGREED 

# this30



# '~yo~2010. ,

By:



### By: 

# tkk fta?t.0 J,0LIE E. CARNES ·. ..



### C!-UEFUNiTED STATES DISTRICTJUDGE

R bertB. 

### Caput, Senior

### Asgistant 

### City Attorney, on behalfof 

### Defendants, 

### City ofAtlanta 

### and MayorShirley 

### franklin Executed:



### ~- '(" , 2010 GregMichell, on behalfof 

### ··Plaintiffs, 

### City ofCollegePark 

### and

Charles E. Phillips. 

### Sr. l:xecutcd:
_ ......--'20I0

### Case / 1 

### 3-cv-02480-SCJ Document 1-1 Filed07/26/13

# P~qe 10

### of 21·· ·::<, 

### Case 1:08-cv-01464-JEC Document64-1 

### Filed 08/02/10 

### Page 1

### of3



# ExHIBITA

### - -- -..case J

### ·1.3-cv-02480-SCJ Document 

### 1-1 Filed 

### fJ7/26/13 P">ge 

### 11of 

### 21
Case 1:08-cv-01464-JEC Document 64-1 Filed 08/02/10 Page 2 

### of3


### Exhibit A Restrictive

**Cove.~ants** 

### This transfer.and any 

### subsequent trarJ.Sfer ofany interest in 

### theproperty tninsferred hereinshall 

### be expressly made subject and subordinate
..to·•

### and contain 

### the following covemints to assure future uses will be compatiqle with

. the operation ofHartsfield Jackson Atlanta.International ·Airport: · · ·

Grantee agrees on behalfofitself, its heirs, successors, transferees, and assigns that the land herein conveyed· shall 

### be used only for !and uses compatible with those designated in Table I, 

### 'Land Use Compatibility with Yearly DaycNight Average Sound Levels', Section AlSO.!Ol, Appendix A to 14 CFR Part !50 ("Tiible !") 

### aridwitil FAAguidan(;e on certainland uses as identified in.F'AAA<ivlsoryCifcular 

### 150/5200-:)3B ("AG")andany " anien.dlllentsto Tablel and.theAC. 

### Inthe eventTable l 

### or:



### ~e

### AC

# shall be s\lge:rseded, the"FAA promulgation which shall be the successorinstrument settingforth the land 

# use c,ompatibilhies ,shall 

### be substituted in lieu of Table l or the .A,C, as appropriate ·(hereinafter,

**''Su.c~sser**

## Iristrumenis''). Compatibility ofuse shall be determined at the time a · building permit for an improvement on the land herein conveyed is issued and no subsequent amendment to Table 1, the AC, orSuccessorInstruments shall affectthe determination of compatibility as to the improvement constructed. Except as otherwise provided herein, all land uses allowed pursuant to local zoning and land use regulations are permissible uses under these covenants. However, 

### ·.the land herein conveyed shall not be used fpr Airport

Parking unless such use is approved, in writing, 

### by the CitYofAtlanta, orits successors and assigns, through its AviationGeneral Manager.
9-·«

**.~<:-**

<"-

/ 

### Case J·13-cv-0248El-SCJ ·Document 1-1 Filed 07/26/l'J pq_ge 12 of21
Case 1 :08-cv-01464-JEC Document64-1 Filed 08102/10 Page 3 of3



### As used herein, "Airport Parking" shall mean a parking

.. facility or facilities, including but not

**limit~d** 

### to, any

. surface parking lot or deck, or any portion or section

!4ereof, designed or

**o~rated** 

### to provide pal"lsing for persons travelling tO 

### or..from, or otherivise accessing, Hartsfield-Jackson Atlanta
..International Airport Incidental parking'offeredbyan operator

# to support ause specifically aJiowed

**~.tnder** 

### the 

### local zoning <Jlld land- use .regulations and" not inconsistent with this restrictive ·· ··covenant shall be permissible.

It is further expressly·agreed thatthisrestrictive covenant · is intended to run with the land, in perj:letuity, and is made in favor of, and for the benefit of, the City of Atlanta in the operation, and use of, Hartsfield-Jackson Atlanta InternationalAirport ·

**·~,:: ~**  .:;.

<'i 

### • "

Hi 

## . :.--.

..;:.

### .- -- ... Case 

### J ·1

### 3-cv-02480-SCJ Document 1-1 -Filed 07/26/13**P<~ge** 

### 13 of 21
Case 1:08-cv-01464-JEC Document 64-2 Filed 08102110 Page 1of3

/ 

# EXHIBIT B**--~-**

### Case 1

### '13-cv-02480-SCJ Document1-1 Filed 07/26113 P'\ge 14of 21
Case 1:08-cv-01464-JEC Document 64-2 Filed 08/02/10 Page 2 of3


### ExhibitB FairMarketValuePurchasePrice .·.The fair marketvalue,purchaseprice shall

**~determined** 

### as

**follow~:** 

### Appraisal Process 

### Within thirty (30) days ofCollege Park's written notice to Atlanta that 

### it is exercising its 

### optionJo purchase the Wyntecbrook Site, Atlanta·and, College Park shall each select a qualified real estate appraiser
..·To 

### be a qualified real estate · appraiser, the appraiser must have obtained the MAlmembership designation given 'by the Appraisal lnstihtte. The appraisers shall have forty-five (45) days · from the date of his/her notice to proceed from College Park and Atlanta, as

. applicable, to provide both Atlanta and College Park with their complete appraisal

reports for the Wynterbrciok site. Ifthe appraisers report opinions ofFair Market Value within five percent(5%)ofeach other, the averageofthe two appraisals will constitute the Purchase Price. Ifnot, unless the parties agree otherwise, the two appraisers will have fifteen (15) days to ·lilgree on a third qualified real estate appraiser who will do an independent appraisal within thirty (30) days thereafter and pro.,vide a complete apprais_al report to Atlanta an4, College Park. Ifthe lwo appraisers selected 

# by Atlanta and College Park fail to select 

# athird appraiser within the fifteen (15). 

### day.perlod, oQe will be selected by the



### Pr~si.dent of the Atlanta Area Chapter of the Appraisal Institute. The average of the three appraisals will then· constitute the ·Purchase Price. Each party will pay the 'expenses for the appraiser it selects and the expenses ofany third appraiserwill 

### be split fifty/fifty (50/50) 

### between the parties. Arty closing ofthesale of the Wynterbrook site is .conditioned on College Park and Atlanta obtaining any

.necessary legislative approvals. · Appraisal Considerations 

### Atlanta and College Park specifically agree that all appraisers shall prepare their appraisals using standard appraisal principles and be given and required to use the following assumptions in preparing them, in addition to any other factors which they may usc in their professionaljudgment:
a. 

### The appraisers shall utilize the Survey provided by the Parties hereto, and shall, using their professional discretion andjudgment,pla(!e a value on the property by a collective valuation oflikeor similar properties by applying a standardprice variabletolikeproperties ofvaryingsizes;"><;• 

### Case

**1· .~-cv-02480-SGJ**  

### Document 1-1 Filed07/26/13

**P<~ge** 

### 15 of 21
Case 1:08-cv-01464-JEC Document64-2 Fifed 08/02/10 Page 3 of3


### b. The appraisals shall take into account the flood plain maps applicable to the property as evidenced 

### by National Flood Insurance Program (FlRM) flood InsuranceRate Map FultonCounty, Georgiaand Incorporated Areas;
c. The appraisals shall take into.account,any and all easements ;md covenants (specifically the Restrictive Covenant attached to the Order as Exhibit "A") encumbrances or other statUtory or regulatory restrictions placed on the · property'suse by the Seller, the 

### FAA orapplicable.stateand Federal law due to. its proximity ·to• HartsfieldcJackson International Airport, specifically '· including, but
.not limited
.to, aepliCable noise reduction construction
.

requirements, andheight restrictions and avigation easementsattached to the Order as Exhibit"C".) Each appraiser shall acknowledge 

# in writing that he or she has received these considerations and will specifically reference them in his/herappraisal reports.


# .• , . ,.:,.. 

### " ,,.. <-'

12 **~** ..:

### · · ·· · ···- ··Gase**'·~3-ev-82480-SCJ** 

### Document1"1 Filed 07/26/13 r>9.ge 16 of 21 Case 1:08-cv-01464-JEC Document 64-3 Filed 08/02/10 Page 1of3

/



# EXHffiiTC:;.- 

### .ease 

### J.,3-cv-02480-SCJ Document 1-1 Filed 07/26/13 P".ge 17 of 21 Case 1:08-cv-01464-JEC Document 64-3 Filed 08/02110 Page 2of3



### ExhibitC Avigation and HeightEasemenr The Grantor (City ofAtlanta) hereby reserves an interest in the Property described in this deed that will create a servitude on particular areas thatwill restrictthe use ofthe surface and that will assurethe City ofAtlanta ofthe right and privilege ofa · use in the airspace for the right of flight of aircraft, the right to cause noise, vibration, dust, fumes, and fuel particles normally arising from the operation of aircraft in flight, the right to prohibit future obstructions into the airspace, and the right to enter the land to exercise the rights reserved under this easement. The Grantor shall endeavor, but shall not be required, to provide notice to owner in advance ofenteringthe land. The restrictions inthis easementshall include but not be 

### limitedto: (1) The rightto restrict orprohibitradio or electromagnetic interference to aircraftflying overhead. (2) Therighttorestrict orprohlbitlights, lighted signs, and otherlighted objectsthatunreasonably interfere with aircraftflying overhead. (3) The right to restrict or prohibit hazardous or objectionable smoke, fumes, or 

### vapor .that unreasonably interferes with aircraft flying overhead; ( 4) As depibted on..tjle 

### Ex.ltibit "D" Drawing, the right offlight shall include and be limited to, and the right to prohibit heights for buildings, structures and other improvements shall begin at 1,!27-feet above mean sea level at the eastern most edge ofthe parcel rising to an elevation of 1,175-feet above mean sea level at the western most edge of the parcel. Anypointbetween theeast and westelevations can I 

### be interpolated usinga slopingplane between thetwo elevations. (5) Therightto restrict orprohibit specific agricultural orhorticultural uses such as growth andharvesting oftimber, establishmentof

2

### The parties agree that an appropriate Exhibit "D", depicting the avigation .1 · 

### and height easements applicable to the Wynterbrook site will be prepared and attachedto the Limited Warranty Deedtransferringtitle to the Wynterbrook site.
l3

### Case)'\3-cv-02480-SCJ Document 1cl Filed 07/26/13 Pqge 

### 18 of 21 

### Case 1:08-cv-01464-JEC Document64-3 Filed 08102110 

### Page 3 of3
orchards orotherplantgrowth thatmay eventually po;netrate the imaginary surfacesdepicted on the Exhibit "D" Drawing. 

### (6) The rightto restrict orprohibit specific agricultural uses, construction ofponds, lakes, or ·other water impoundments, sanitary landfills, or other man-made improvements that may attract or result in the concentration of birds or waterfowl that will or may unreasonably interfere with aircraft flying overhead. However, nothing contained herein shall require the owner or occupant to construct underground stormwaterretentionor storm waterdetentionponds. (7) The right to require

## the removalby theowner ofany trees orportions of trees, now orhereafter existing, that penetrate imaginary surfaces as stated in Section (4), and the right to enterupon said properties and remove such trees or portions of trees 

### ifthe owner fails to do so within thirty (30) days after receipt ofwritten 22 notice from the City ofAtlantaoftherequirementto do so and, in such event, to collect the costofsuchremoval from the owner.

### Case-J •1.3-cv-02480"SCJ 

### Document1c1· FiledD?/26/13 P"\ge 19 of 21 Case 1:08-cv-01464-JEC Document 64-4 Filed 08/02/10 Page 1of2

**·~·**

"<):

_;

### Case**.1·1.3-cv~2480-SCJ** 

### ···Document 1-1 Filed 07/26/13- r>qge 20of 21

### Case 1 

### :13-cv-02480-SCJ Document 1-2 Filed 07/26/13 '?age 1 of3



# EXHIBITB

### Case 1 

### ·.13-cv-02480-SCJ Document 1-2 Filed 07/26/13 °age 2 of3

U.S. Department ofTransportation Federal Aviation Administration
April1

### o, 2007

Mr. Thomas E. Nlssalke, Ph.D. Director of Environmental and Technical Services City ofAtlanta!Department ofAviation P. 0. Box20509 · Atlanta; Georgia 30320-2509 Dear Mr. Nlssalke: ATlANTAAIRPORTS DISTRICT OFFICE 1701 Columbia Avenue Campus Building, Suite 2-260 College Park, Georgi

### a 30337

RE: Hartsfield-Jackson Atlanta International Airport NEM Compliance Determination and NCP Receipt/Review
1

h1s rs to notifjryorrttrat·!lrerR!era! Aviation

**AomtmsrratilTn~(FAAt11aS''e\faiOal:ed** your tmal submission of !he Noise Exposure Maps (NEM) and supporting documentation transmitted by your letter of March 29, 2007, in accordance with Section 103(a)(1) of the Aviation Safetf and Noise Abatement Act of 1979 (ASNA), (49 U.S.C., Section 47503). We have determined that they are in compliance With applicable requirements of 14 CFR Part 150. Further, 

### we have determined that the maps entitled "Noise Exposure Map; 2007 " ano "Noise Exposure Map: 2012" fulfill the requirements for the current and too forecast year noise exposure maps. FAA's determination that your Noise Exposure Maps are in compliance is llmlied to a finding that the maps were developed in accordance with the procedures contained in Appendix A of FAR Part 150. Such determination does not constitute approval of your data, information or plans. Should questions arise concerning the precise relationship of specific pr.operties to rtoise exposure contours depicted on your Noise Expo<>ure Maps, you should note that the FAA 

### will not be involved in any way in determining the relative locationsofspecific propertieswith regard to the depicted noise exposure contours, or in interpreting the maps to resolve questions concerning, for example, which properties should be covered by the provisions of Section 107 ofASNA, (49 U.S.C., Section 47506). Thesefunctions are-inseparable from the ultimate landuse central and planning responsibilities of.focal government. These local responsibilrties are not changed in any way under Part 150 or through -FAA's determination relative to your Noise Exposure Maps. Therefore, the responsibility for the detailed overlaying of noise exposure

### Case 1 

### :13-cv-02480-SCJ Document 1-2 

### Filed 07/26/13**~age** 

### 3 

### of 3

2
contours onto the maps depleting properties on the surface rests exclusively witfJ you, the airport operator, or with those public agencies and planning agencies with which consultation is re·quired under49 U.S.C. 47503 ofASNA, (49 U.s. c•. Section 47503). The FAA reiies on the certification by you, under 150.21 of f'AR Part 150, thatthe statutorily required consultation has been accomplished_ We are also in receipt of the proposed Noise Compatibiiity Program Amendment (NCP) submitted in conjunction with -the Noise Exposure Maps for the Hartsfield-Jackson Atlanta International Airport It should be clearly understood, however, that FAA's determination on a Noise Exposure Map under Part 150 shall not be construed as approval or endorsement of a NCP, potential related Federal funding ofsuch a program, or any related operating restrictions at the airport. The FAA must approve or disapprove such a program (other than the proposed use of flight procedures for noise control) within 180 days. For the purpose ol this review, the 180-day period begins on the date of the FAA. official signature of the notice in the Federal Register. The F/'A will publish notice in the Federal Register announcing ils determination on the Noise Exposure Maps for the Hartsfield-Jackson Atlanta International Airport. We will incfude in this notice that we have receiVed your NGP for review. Such notice will include pertinent 'information regarding the program as specified in Section 150.31 of FAR Part 150 and will invite comments by interested parties. Your notice of this d·etermination and !he availabflity of the Noise Exposure Maps, when published at least three times in a newspaper of general circulation in the.county or counties where affected parties are located, will satisfy the requirements of Section 107 of ANSA, (49 

## u.s.c. 47506). Your attention is called tothe requirements of Section 1502i(d) of FAR Part 150, invoiving the**---~·"** ..**pro~i~1sslon**..of
...r.evisiom:; to !litlse maps.of any actl.!al.-.orc.proposed-------- change in the operation ofthe Hartsfield,Jackson Atlanta international Airport which might 

### create any substantial, new, noncompatible use in any areas 

### depicted on 

### the Noise Exposure Maps, or significant reduction in any noise-sensitive areas depicted on the Noise Exposure Maps that were previously shown as noncompatible. Remedial mitigation is limtted to existing non-compatible land uses located within the existing 65 DNL noise exposure contour of the offiCial "Noise. Exposure Map: 

### 2.007" and is consistent 

### with FAA's 1998 remedial mitigation policy (64 FR 16409). Sincereiy,

# dedi-of~~ Scott L Serltt Manager


### cc: APP-400 AS0--610 AS0-7

### Case '·13-cv-02480-SCJ Document 1-3 Filed 07/26/13 '"'age 1 of 12



# EXHIBITC

### Case 1 

### ·1.3-cv-02480-SCJ Document 1-3 Filed 07/26/13**n~ge** 

### 2 of 12


# Federal Aviation Administration 

# Memorandum Date: January 24, 2008 From: ATL-ADO To: AS0-600 (through AS0-601A) Prepared by: Scott Seritt Subject: ACTION: Recommendation for Approval Hartsfield-Jackson Atlanta International Airport; Atlanta, Georgia Airport Noise Compatibility program (NCP)
On April 10, 2007, the Hartsfield-Jackson Atlanta International Airport (HJAIA) was notifiecl of FAA's determination of compliance of the Noise Exposure Maps under Section 103.(c) of the Aviation Safety and Noise Abatement Act of 1979 {"the Act"), {49 U.S.C.,, Section 47503). Following the finding that the Noise Exposure Maps were in compliance, we began the formal 180-day review period for the Hartsfield-Jackson Atlanta International Airport's proposed Noise Compatibility Program Update underthe provisions of 49 U.S.C., Section 47504. Notice was transmitted to AGC-200 on September 7, 2007, for publication in the Federal Register. The Southern Region has reviewed and evaluated the proposed Noise Compatibility Program Update and has concluded that it is consistent with the intent of the Act and that it meets the standards set forth in 14 CFR Part 150 for such programs. The standard 14 CFR Part 150 Noise Compatibility Program Checklist was reviewed to ensure that all required items were included in the proposed program. The NCP document and checklist are attached. The proposed program has been reviewed by.the Atlanta Airports District Office. It also
· was coordinated with Washington Headquarters to determine whethm the NCP

contained measures that were related to national policy issues. No national policy issues were identified. Notice was published in the Federal Register for the Noise Exposure Map, Receipt of Noise Compatibility Program, and Request for Review. During the public comment period, the City of College Park, Georgia presented a letter with**se~veral** 

### comments. Of those comments submitted, two were related to the**propos,~d** 

### NCP Update: 1. The HJAIA has failed to consult in any meaningful manner with**th'~** 

### neighboring jurisdiction of College Park; and 2. College Park objects to the

### Case " ·13-cv-02480-SCJ Document 1-3 Filed 07/26113

**"'::~ge** 

### 3 of 12
proposed intention to acquire seven apartment complexes in College Parle. Review of submitted documentation and conversations with HJAIA staff confirm that many coordination meetings (dating back to February 12, 2003 with a scoping meeting attended by the Mayor, City Manager and an additional seven City officials) have been held. Representatives of College Park attended the Noise Mitigation Advisory Council meetings, the Land Use Advisory Committee Meetings, and the Operations Advisory Committee meetings. These committees have been active throughoutthe c:ourse of this study. A Public InformationWorkshop was held in College Park on December 15, 2003. A Public Hearing was held on October 9, 2006. The Hearing was held at the Airport Marriott and was open to the public during the whole day. All requirements of public participation have been met. Also, the FAA met three times (in March, May, and June of 2007) with the City of Atlanta and the City of College Park, their consultants and their attorneys to discuss their comments. See the attached FAA Response to Comments. Throu9h the analysis of existing and future noise conditions and direct input from the wide variety of interests involved during the development of the study, a series of operational and land use related measures were identified and evaluated. Of those measures, a voluntary property acquisition for eligible residential uses, including multifamily residences, is recommended within the 70 DNL. Sound insulation will be available to eligible non-compatible land uses within the 65 DNL contour. The Department of Aviation has clarified, and the ADO concurs, that non-compatible land uses that lie within both the 70 and 65 DNL contours will have the option of selecting acquisition or sound insulation for their property. (See attached) This alternative was evaluated and recommended in accordance with 14 CFR Part 150. No other comments were received. Each proposed action in the Noise Compatibility Program Update was then reviewed and evaluated on the basis of effectiveness and potential conflict with Federal policy and prerogatives. These include safe and efficient use of the Nation's airspace, undue burden on interstate commerce, unjust discrimination and interference with a Federal regulatory compliance schedule (i.e., 14 CFR Part 91, Subpart E). Our recommendation on each of the proposed actions is described in the attached Recorcl ofApproval. Each approved action is described in detail in the HJAIA NCP.



# -- c;;2-z-dr-e/:



# -~!===='-- scott L. Seritt, Manager Atlanta Airports District Office 2 Attachments cc: APP-400 (with attachment) AS0-7 (with attachment) Dr. Thomas E. Nissalke, City of Atlanta/Department of Aviation Mayor .Jack Longino, City of College Park, GeorgiaSubject: 

### Case ·'·1.3-cv-02480-SCJ Document 1-3 Filed 07/26/13 n'l.ge 4 of 12



# Memorandum

U.S. Department ofTransportation Federal Aviation Administration

Disposition ofComments regardi11g Hartsfield-Jackson International Airport Part 150Noise Compatibility Program 

# JiJ Date: January 24, 2008

From: Scott Serritt, Atlanta Airport DistdctOffice Manager Reply to Attn. of:
To: Rusty Chapman, Manager, Airp01ts Division, Southern Region, AS0-7 Background On September 18,2007,the Federal Aviation Administration (FAA) published notice in the Federal Register announcing FAA's receipt ofthe City ofAtlanta's Part 150 Noise Compatibility Program (NCP) update for Hartsfield-Jackson International Airport (HJIA) and that FAA was accepting comments from the public through November 6, 2007. 72 Fed.Reg. 53,277. After the public comment period ended, FAA received two (2) letters on behalfofthe City ofCollege Park. The first letter, dated November 6, 20071, v.as from the Mayor ofthe City ofCollege Park, Jack Longino. The second letter, dated December 4, 2007, was received from the City Attorney for the City ofCollege Park, Mr. Steven M. Fincher. Both ofthe letters raised concerns with Hartsfield-Jackson International Airport's NCP update. Although the letters on behalfofCt)!lege Park were received after the close ofthe commentperiod, FAA considered and responded to the issues raised in reviewing the NCP for approval under Part 150. The comments are summarized and --------addr.es..O-bekJw
__**.~. -~** **--~---~-** City ofCollege ParkComments: 1a). The airport sponsor. City ofAtlanta, failed to meaningfully consult the City of College Park about acquisition ofapartment**complexe~** located within the City ofCollege Park as required by the Part 150 regulations. In support ofthis position, the City ofCollege Park contends: b) the City ofAtlanta can not rely on the Noise Mitigation Advisory Council (NMAC) and its subcommittees to fulfill the Part 150 consultation requirements; c) HJIA assured College Park that there would ben·:> more acquisition and demolition ofany property within College Park withoufthe direct involvement ofCollege Park d) HJIA proposes to remove a land use without consulting with College Park on the appropriate land use for the re-use/re-development ofthe affected properties which indicates no consultation occurred; and e) it is inappropriate for the City ofAtlanta to undertake land acquisition within the City ofCollege Park without the consent, participation and management ofthe City ofCollege Park. Each ofthese elements will be addressed separately as subparts to this comment.

## ( Case '·13-cv-02480-SCJ 

# l Document 1-3 Filed 07/26/13 Page 5 of 12

FAA Response: Ia). The consultation requirements for a Noise Compatibility Program are contained in 14 C.F.R. § 150.23(c). Specifically, "each noise compatibilityprogram must be developed and prepared
. . in consultation with FAA regional officials, the officials ofthe state and ofany public agencies and planning agencies whose area, or any portion orwhose area, of jurisdictionwithin the Ldn 65 dB noise contours is depicted on the noise exposure map." 14 C.F.R. § 150.23(c). The City ofAtlanta, the owner and operator ofHartsfield-Jackson International Airport (HJIA), began the process of updating the existing Part !50 NCP for HJIA in 2003. Volume I, Noise Exposure Maps Report, page 1-2. §1.3. According to the NCP update, in 2003 the City ofAtlanta establishedtheNoise Mitigation Advisory Council (NMAC) to serve as the principal forum for coordinating the NCP update with College Park and other local pohticaljurisdictions. Two committees ofthe NMAC, the Operations Advisory Committee (OAC) and the Land Use Advisory Committee (LUAC), provided technical input for preparation ofthe NCP update. Noise Exposure Maps Report, page 1-4, §1.4. The Charter ofthe NMAC states the miSsion ofthe NMAC is to assist [the City ofAtlanta] with the Part 

### !50 study and to provide a forum for effective communication and coordination with elected officials and local government planning/zoning departments. NCJ> Update Volume Ill, Appendix B, B-1. The objectives included providing input and guidance into the development and implementation ofPart 150 aircraft operational, land use compatibility alternatives, and mitigation priorities.Id. At

**B-;~.** The NCP update indicates the City ofCollege Park was represented on the NMAC, the OAC, and LUAC and attended almost every committee meeting. See generally Appendix G. The representative ofthe City ofCollege Park attended the October 27, 2005 NMAC meeting during which the Part 150 consultant presented draft 2003 and 2008 noise exposure maps and the draft recommendations regarding property acquisition and sound insulation were discussed. The maps depicted the apartment complexes as predominately in the 70 DNL contours. See Appendix G, 10127105 NMC Meeting Minutes. The minutes indicate that the preliminary recommendation was to identify noise sensitive sites within the 70 DNL+ contour as eligible for voluntary property acquisition. Within the 65-70 DNL contours, noise sensitive sites would be eligible for voluntary sound insulation. See Appendix G, I0127/05 NMAC Meeting Minutes. Before the NMAC met on August 3, 2006, the City ofCollege Park and others were provided with copies ofthe dralt NCP update. The draft NCP indicated that approximately 878 residential structures are located in the 70 DNL contour. Ofthese, five were single family residences and 873 were multi-family unites in seven apartment complexes. The draft recommendations for the NCP update were reviewed during the meeting. Comments were requested from NMAC members by August 11th The cost ofthe voluntary property acquisition was estimated at $43 million during this meeting. See, Appendix G, 813106 NMAC Meeting Minutes. The City ofAtlanta held a public hearing on October 9, 2006. College Park Mayor Jack Longino and two College Park Councilmen attended. Attorney Stephen Fincher also attended although it is not clear in what capacity. The comment period closed on October 23, 2006. However the City ofAtlanta agreed to accept comments from the City ofCollege Park until October 30, 2006. The City ofCollege Park submitted comments dated November 6, 2006 on the draft NCP. In these comments College Park expressed its' desire to participate as an NCP sponsor to facilitate implementation ofthese measures. College Park also indicated that 90 additional

**da~s** would be needed to submit further comments. See, Appendix T, NCP Update. Approximately 120 days later the City ofCollege Park submitted additional comments (dated March 22, 2007). In these comments College Park for the firsJ: time expressed strong objections to the draft NCP recommendations to acquire and demolish seven apartment complex•;s. The City asserted the right to actively consent to, participate in, and manage this measure. See, Appendix T, NCP Update. As College Park submitted these comments after the close ofthe comment period, there was no obligation on the part of the sponsorto address them as part ofthe NCP update under 14 CFR §I50.23(e)(7). In an effortto facilitate resolution ofthe issues regarding the property acquisition recommendations in the draft NCP, the FAA had three additional meetings with representatives from the City ofAtlanta and the City ofCollege Park, March 22, 2007. May 23, 2007, and June 6, 2007. The opportunities available for College Parkto raise objections to multifamily acquisition and consult with the City of Atlanta is further evidenced by College Park's letter to the FAA dated November 6, 2007, and signed by the Mayor of

### Case 1 

### ·13-cv-02480-SCJ Document 1-3 Filed 07/26/13 Pp.ge 6 of 12

College Park. In that letter, Mayor Longino states thatthere were "very high level discussions between the College Park Mayor and Council and the General Manager ofHJAJA, Ben DeCosta, in which DeCosta clearly heard from our policy makers that we desired no more ac:quisition and demolition ofANY property within College Park without the direct involvement ofCollege Park and received DeCosta's personal comrniunentthat no more such acquisitions would occur withoutthe consentofCollege Park." Based on these facts, the City ofAtlanta fulfilled the consultation requirements of 14 CFR §l50.23(c). The City of College Park was afforded notice and many opportunities to discuss with Atlanta the recommended measure for voluntary acquisition ofresidences (including apartment complexes) in the 70 DNL contour and for voluntary acquisition or sound insulation ofresidences in the 65 to 70 DNL contour during the Part I50 NCP update process. (As reflected in the Record ofApproval, the sponsor has clarified its intent that the owners ofthe multifamily residential properties straddling the 65170 DNL contour have the option ofvoluntary land acquisition or sound insulation. Five ofthe seven multifamily apartment complexes fall into this category.) The City ofAtlanta consulted with College Park as a member ofthe NMAC, OAC, and LUAC. TheNCP update indicates that College Parkhad specific notice thatthe recommendation for voluntary acquisition included apartment complexes as early as October2005. Since that time the City ofCollege Park has had numerous opportunitiesto discuss its concerns about this measure in depth with both the City ofAtlanta and the FAA. lb). Reliance on the Noise Mitigation Advisory Council and the Land Use Advisory Committee meetings to fulfill the consultation requirements is inadequate. FAA Response: Ib).The Part I50 regulations do not specifY how the airport sponsor is to meet the consultation requirements under I4 C.P.R.§ I50.23(c). Howeverthe FAA has guidance that it uses in this area. See FAA's 1990 "Community Involvement Manual" (http:/ lwww.faa.gov/about!office
_org!headquarters
_officeslaeplplanning-toolkit!media!VJ.A.pdf). The NCP indicates that the City ofAtlanta used the NMAC, LUAC, and OAC as a means to fulfill the Part ISO consultation requirements, The City ofCollege Parkwas represented on these committees. This approach is consistent with methods the FAA uses to conduel consultation. Based on minutes available from the various meetings this approach afforded all Council and Committee members the opportunity to raise and review their various concerns with Atlanta. The City of College Park was represented on the NMAC, the LUAC, as well as the Operations Advisory Committee. 1 c). HJIA assured College Parkthat there would be no more acquisition and demolition ofany property within College Parkwithoutthe direct involvement ofCollege Park. FAA Response: lc). As discussed above in Response to Comment la, the City ofAtlanta consulted College Park about the measures in the NCP that involve voluntary acquisition ofproperty within College Park. IfCollege Park demonstrates that it is capable ofcarrying out the projects within itsjurisdiction, then it may receive grants to implement those projects. 49 USC §47504(c)(I), (3). The FAA has been advised that on December I0, 2004, at a meeting between College Park and City ofAtlanta, when College Park voiced concerns regarding the ongoing acquisition ofproperty in College Park by City ofAtlanta, Mr. Ben DeCostacommitted to coordinating with College Park for future land acquisition. Mr. DeCosta specifically stated that he would notpurchase property within College Park without the city's concurrence. However, FAA 1s aware thatlVlr-:--IJeco·sta:nasatso made a corrumtment to assi.Sflhe:·resJaenrsonhe communities surroliil'dTrigTh----e--- airport that are negatively impacted by airport noise. Approval ofthe Part ISO NCP update does not foreclose direct involvement ofCollege Park. The NCP update includes a measure to coordinate the re-development ofland purchased underthe residential acquisition program with affected local politicaljurisdictions using the NMAC. We expect the City of Atlanta to fulfill this measure. If property owners in College Park elect sound insulation and College Park demonstrates that it is eligible, then it can receive grants to carry out those projects. Id). The NCP does not include plans for re-use/re-development ofthe properties nor does it include plans for where tenants will be relocated. HJIA proposes to remove a land use without consulting with College Park on the appropriate land use for the re-use ofthe affected properties. College Park believes that given the long term use ofthis property as multi-family residential, the most appropriate continuing use ofthis property remains multi-family use. This is a municipal planning responsibility that belongs to College Park and highlights why it is completely inappropriate and irresponsiblefor HJIA to undertake this profound community disruption- enabled by Federal dollars- withoutthe active consent, participation and management ofthe City ofCollege Park." The lack ofre-use/re-development plans indicates thatno consultation occurred.

### Case 1·13-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 7 of 12

FAA Response: 1d). See Response to Comment Ia regarding the City ofAtlanta's consultation with College Park and Response to Comment lc regarding coordination ofredevelopment ofland purchased within College Park. TheNCP gives the owner ofthe affected properties the choice ofwhether to continue residential use ofthe property. This is consistent with the airport sponsor's grant obligation to take reasonable steps to assure to restrict the use ofland next to the airport to uses that are compatible with airport operations. Compatibility with airport noise at these levels can be achieved by either acquisition or soundproofing. The NCP is also consistent with local land use planning authority ofcommunities as recognized under Part 150. Part J50 does not require the airportsponsorto include plans for reuse ofthe properties or plans for where tenants will be relocated in its NCP. However, the NCP update includes a measure to coordinate the re-development ofland purchased under the residential acquisition program with local politicaljurisdictions. In addition, ifthe airport sponsor implements the NCP measure and acquires residential property, the City ofAtlanta 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. 1(e). College Park needs to participate as a NCP sponsor so as to facilitate further NCP land acquisition and sound insulation initiatives. HJIA is not the most efficient northe most appropriate entity to be engaged in NCP property acquisition within thejurisdictional boundaries oFCollege Park consistent with federal grant obligations. FAA Response: Ie). Ifdetennined capable by the FAA, then College Park may receive grants to carry out projects in this approved NCP update, eitherfrom the FAA directly or from the City ofAtlanta. 49 U.S.C. §47504(c)(l), (c)(3). IfCollege Park applies for a grant then FAA must determine, among other things, whether the issuance ofgrants directly to College Park would be reasonably consistent with the program and achieving the goals ofairport noise compatibility planning under 49 U.S.C. §47501 et seq., as implementedby 14 C.F.R. Part 150 and the national priority system for funding. 2. The NCP process was inadequate because FAA local officials have prejudged the approval ofthe NCP's multifamilyresidential acquisition. In support ofthis position, the City ofCollege Park contends: a) there havebeen past purchases by City ofAtlanta ofmultifamily structures; b) the City ofAtlanta has engaged in negotiations to purchase the Wynterbrook Apartment Complex since 2002; and c) an April 2007 Federal Register notice was "misleading" and part of a secretive process to circumvent known objections by College Park, with an approval by the FAA within five business days. FAA Response: 2). Local FAA officials have not prejudged the approval ofthe NCP's voluntary multifamily residential acquisition measure. FAA considers the factors contained in 14 C.F.R. § 150.35 in determining whether or not a specific NCP measure should be approved or disapproved. 2a). The FAA has allowed purchase ofmult,ifamily structures in the past, withoutNCP authority. rA:'AReS)l"Ol1Se:·-·-----------·-
.. - ·-·· 2a). The airport sponsor has authority to acquire multifamily residential properties using its powers as a municipal entity outside the Part 150 program. See, NCP Update, Vol. II, Section 6.1, page 6-1, and Figure 6-1. 2b). Record reflects that HJIA.has been in negotiations to purchase a multifamily apartment complex since 2002, before the measure was presented to the public. Failure ofHJIA to consult with College Park on the multifamily element p-rior.to -negotiations has deprived College Park, to its great detriment, of-an opportunity to address this-issue -in.an .orderly manner and in a settingthat would not have exposed it to this "dangerous litigation," and resulted in the financial losses ofall involved parties that could have been avoided. FAA Response: 2b

). The airport sponsor has authority to acquire multifamily residential properties in noise impacted areas outside the Part 150 program. The fact thatHJIA may have been in negotiations to purchase a multifamily apartment complex since

### Case 1 

### ·13-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 8 of 12

2002 i> irrelevant to whether HJIA complied with the Part !50 consultation requirement>. The Part !50 process is but one method by which HJIA may seek to acquire property for noise mitigation purposes. Furthermore, the Part !50 regulations onlyrequire consultation, and do not require approval or concurrence oflocaljurisdictions. College Park has had ample opportunities to address the issue relating to purchase ofotherapartment complexes. 2c). April 2007 NCP Update Federal Register notice was misleading and lacked public involvement. It was part ofthe secretive process to circumvent known objections by College Park. This resulted in College Park spending significant time and resources commenting on the wrong document. Further, FAA summarily rejected Col_lege Parks comments and approved the multifamily residence element within five business days which was not enough time to review, research and reflect. FAA Response: 2c). College Park had ample and meaningful opportunities to raise and discuss its concerns regarding the voluntary acquisition ofmultifamily dwellings in the NCP update. The April2007 Federal Register notice stemmed from the City ofAtlanta's efforts to separate and move forward with two measures once it was required to revise the basellne NEM and comprehensive NCP update to include the sth runway. Any public confusion caused by the notice was inadvertent and was remedied by republication ofarevised notice. The events unfolded as follows: The City ofAtlanta submitted to the FAA for review a baseline/current condition NEM and an NCP that did not include the newly opened 5th runway. As required by the FAA, the City ofAtlantarevised the NEM and NCP2. It took time to complete revision ofthe comprehensiveNCP update. In the interim, the FAA was informed that because the City of Atlanta was under contract to acquire the Wynterbrook apartment complex, while the revision ofthe comprehensive NCP update was in progress the City would submit the revised NEMsto the FAA for acceptance along with an abbreviated NCP update. On March 29,2007, the City submitted a limited update consisting ofthe measures for voluntary acquisition ofmultifamily dwellings in the 70 DNL contour and for sound insulation within the 65 DNL contour. The FAA announced its acceptance ofthe NEMs and a period for publicreview and comment on the NCP in the Federal Register on April23, 2007. The notice did not specifY the two measures involved but directed the public to contact FAA'srepresentative Scott Seritt for copies ofthe NCP. College Park representativesreviewed and commented upon the draft comprehensive NCP update that it obtained from the HJIA website. The FAA drafted aresponse to the comment and preparedto issue a Record ofApproval.3 However, College Park discovered the misunderstanding and contacted the FAA. Although the two measures in the abbreviated NCP were a subset ofthe draft comprehensive NCP, the FAA withdrew the notice. As the City ofAtlanta by this time had completed its revisions tothe comprehensive NCP update, the City withdrew the abbreviated update and submitted instead the NCP now before the FAA for approval, with appropriate references to the 5th runway. The FAA then issued arevised Federal Register notice, which solicited public review and comment on the comprehensive NCP update. This ensured that the FAA and City ofAtlanta were able to fully consider the issues of concern to College Park. 3a). College Park argues thatit has a scarce supply oflow to moderate housing in College Park and loss ofthese apartment complexes would have significant negative financial, demographic and political impacts on the community. b) IhS!.Ci!Y.ofl:;.oiJe,geJ'.arkJb.mc;iteui!igation from 1995 to supportthis position because in that litigation, the City of Atlanta took asimilar position in support ofexcluding multifamily housing from the original 1985 Comprehensive NCP. FAA Response: 3a). The Part 150 program is not intended to harm local communities. Undesirable negative financial and other impacts ofvoluntary acquisition ofapartment complexes in College Park can be addressed by various means, including efforts by the City of Atlanta to properly coordinate redevelopment ofthe acquired property with College Park. As to future cot5rdrnaticm ofredevelopment by the City ofAtlanta with College Park through the NMAC**see·the~Response** to Comment Ic. 3b). Citv o(Atlantav. Watson, 267 Ga. 185 is a 1996 Georgia Supreme Court opinion where HJIA supports its 1985 NCP position notto include multifamily housing in the**"residential~'** acquisition- citing an intent to minimize to the greatest extent possible the Joss ofthe tax base and utility services as well as the disruptions to the local community.

### Case 1**~.13-cv-02480-SCJ** 

### Document 1-3 Filed 07/26/13. oage 9 of 12

FAA Response: 3b). A close reading ofCity o(Atlantav. Warson (267 Ga. 185)reveals thatthe City ofAtlanta determined not to include multifamily housing in the initial phase ofthe 1985 NCP voluntary residential acquisition measure, ''but expressly leaves open the possibility that such residences will be purchased during a later phase ofthe Program." (at 189). The City of Atlanta did not state in the 1985 NCP that itwould never seek to acquire multifamily residential housing. Rather, the City indicated that it would implement acquisition in phases to allow staged redevelopment in the impacted areas (eliminating secondary impacts that would result from too much property acquired and demolished at one time). This phased approach would also allow the City to use federal funds or income from the redevelopment ofpreviously acquired noise land tofinance future acquisition. In any event, the cited case has no bearing on FAA's determination whether HJIA's proposed 2007 NCP measure to acquire multifamily housing within the 65+ DNL contour is reasonably consistent with the goal ofreducing existing and/or preventing future non-compatible land uses. 4. The City ofAtlanta has not demonstrated that it has the ability to comply with the lawful requirements to return property to productive use as required by law. The City ofCollege Park points to the NCP's lack ofconsideration ofalternatives to acquisition and demolition. There is no discussion ofthe feasibility ofsoundproofing the affected properties as an alternative, particularly with respect to properties at the edge ofthe 70 DNL contour or straddling the 65 and 70 DNL contours. The lack ofdescription and analysis ofthe impact ofthis measure or the consideration of alternatives also fails to meet the requirements ofthe law and, in particular, 14 CFR §150.23. Specifically, the City ofCo!lege Park states thatthe Jack ofconsideration ofalternatives fails to meet the requirements of 14 CFR §150.23 and requests consideration ofsound attenuation for properties within the 70 DNL "forsome, but not all, ofthe multifamily residences listed in the airport'sNCP." FAA Response: 4). Analysis ofprogram alternatives is discussed in 14 CFR §8150.7. It requires airport sponsors, to the extent the strategies are appropriate to the specific airport, to analyze specific measures. Section Bl50.7(b)provides the alternatives that must be considered within the Part I50 Study, these include: acquisition ofland and land interests, construction of barriers and soundproofing public buildings, preferential runway systems, flight procedures, airportrestrictions, actions which would have a beneficial noise control or abatement impact on the public, and actions recommended for analysis by the FAA for the specific airport. Sound insulation, with the exception ofpublic buildings, is not an alternative that must be considered. However, 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. Six ofthe seven properties at issue straddle the contours, and the owners would therefore be able to optfor either measure. It is ourunderstanding that the seventh property is not a property that is currently at issue, and that the owner ofthe Wynterbrook apartment complex will select acquisition. These measures, as applied to the impacted properties, areat the land owners' discretion. 5. College Park needs to participate as a NCP sponsor so as to facilitate further NCP land acquisition and sound insulation. Specifica1ly, this is due to the City ofAtlanta's poorrecord ofreturning property to productive use once it has been acquired. College Park urges FAA to refrain from approving any aspect ofHJIA's NCP that would involve land acquisitions outside the municipality ofAtlanta until the questions-ofcompliance with AlP Grant Assurance 31 for extant unneeded noise lands. FAA Response: As to College Parks' ability to receive grants to carry out projects in the NCP, see Response to Comment !(e). As to consideration ofcompliance issues, the FAA administers its airport noise compatibility planning program separately from its airport grant compliance program. The FAA is required to approve or disapprove noise compatibility program measures submitted for approval under 14 CFR Part !50 ifthey meet statutory and regulatory criteria. 49 USC §

...**~~".4.7504(b).** Neitherthe City ofAtlanta's performancein-retuming.propertyto productive use, ordn"disposing ofnoise lands are relevant in detenmining whether a NCP measure is approvab1e under Part 150 regulations. See 14 C.F.R. § 150.35. The FAA will take any appropriate action to assure that the City ofAtlanta is in compliance with its obligations under its federal grant assurances.

### case 1·13-cv-02480-SCJ Document 1-3 Filed 07/26/13 P'tge 10 of 12

I Although this letter was dated November 6, 2007, it was not received by FAA until November7, 2007. 2 The revisions to theNCP were e.ditorial in nature, not substantive. The recommended measures in the NCP were based upon the forecast 2010 NEM, which included the fifth runway. 3 Overtime the FAA has developed expertise in the evaluation ofNCP measures. In this case, and overthe span offive days, that expertise was sufficientto enable the FAA to respond to College Park's comments regarding the draft comprehensiveNCP.

### Case 1 

### ·1_3-cv-02480-SCJ Document 1-3 Filed 07/26/13 P1.ge 11 of 12

Kim, "Nissalke, Tom" <Tom.Nissalke@atlanta-airpo rt.com> 1111912007 03:38PM To Kimberly Arnao/ ASOIFAA@FAA cc Bonnie Baskin/ASO/FAA@FAA, Scott SeritVASOIFAA@FAA, Dana Perkins/ASO/FAA@FAA, Rusty Chapman/ASOIFAA@FAA bee Subject RE: Part 150 Study Requestfor Clarification

Thank you for pointing out that inconsistency in the text. It is the City of Atlanta 1 s intention to give residential land owners having property that straddles the 70 DNL contour the option of receiving either Mitigation Measure 1 or Mitigation Measure 3 as described in Table 9.2. Thanks, Tom -----Original Message----- From: Kimberly.Arnao@faa.gov [mailto:Kimberly.Arnao®faa.gov] Sent: Friday, November 16, 2007 10:44 AM To: Nissalke, Tom Cc: Bonnie.Baskin®faa.gov; Scott.Seritt®faa.gov; Dana.Perkins@faa.gov; Rusty.Chapman@faa.gov Subject: Part 150 Study Request for Clarification

I am conducting my legal review of the Part 150 Noise Compatibility Program and needed clarification on an issue. Specifically, I am requesting clarification from the City of Atlanta regarding the application of Measure 1 and Measure 3 in the September 5, 2007 Noise Compatibility Study to residential properties that straddle the 65 and 70 DNL contours. This request results from the FAA's review of comments received from the City of College Park interpreting the exclusive application of the acquisition measure (Measure l) to these properties. College Park is concerned that this limitation will result in the unnecessary acquisition and demolition, and the consequent loss of low 

### and moderate income housing, where an owner of one of these residential properties may not be interested or willing to be acquired. It appears that the NCP requires the acquisition of residential properties that touch the 70 DNL contour, although they may have a significant portion within the 65 DNL contour, without the option of sound insulation as an alternative. Please clarify whether the application of the Noise Compatibility Program measures allow residential land owners of properties straddling the 65 and

### Case 1 

### "13-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 12 of 12

the 70 DNL contours the discretion to request the application of either Measure 1 or Measure 3 to their property. Thank you for your assistance with this issue. Kimberly L. Arnao Attorney, Office of the Regional Counsel FAA Southern Region (404) 305-5206 IMPORTANT: This message is intended solely for specific recipients. If you are not an intended recipient of this communication, please, delete the original message and notify the sender immediately. This message may be confidential-- an attorney-client communication, part of the agency's deliberative process, or attorney-work product and must not be forwarded or otherwise shared without express permission.

### Casp 1.:13-cv-02480-SCJ Document 1-4 Filed 07/26/13 Page 1 of 2 JS44 (Ri!v, 1/IJ NDGA) 

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### .ATTORN'EYS (If 1(1\0WNl Steven N, Taber, Esq. E-\1.\tl.Anrnu:s:s, John L Watktnsj Esq ·, John.Watkln.s@thompsonhlne.com Roy E. Hadley, Jr_ Esq_, Roy.Hadley@thompsonhine.com Leslie J. Suson, Es-q., Les!le.Suson@thompsonhine.com Thompson Hine LLP Taber Law Group, P.C. 13Atlanta Irvine, California 92620 staber@taberlaw.com (949) 735-8217 3560 Lenox Road, Surte 1600 Atlanta, Georgia 30326; 404-541-2900 (ph); 404-541-2905 (fax) fl. 

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# EXHIBIT 3

## Uncertainties in measuring aircraftnoise andpredictingcommunity response to it SanfordFidell"1andPaul Schomerb) (Received 2006April 12; revised 2006 September 18; accepted 2006 September 19) 

### Evaluations of the adverse consequences of community exposure to transportation noise often place more credence in measurements,**~rediction~** 

### of noise effects, and interpretive criteria than is warranted by their**underlyi~g** 

### precision. If 

### reports and assessments of such noise measurements and their effects were accompanied by estimated prediction intervals, the risks of overinterpretingthe accuracy and precision ofcommunity noise impactassessments would be reduced. © 

### 2007Institute of Noise ControlEngineering. Primary subject classification: 66; Secondary subject classification: 69 

### I INTRODUCTION Transportation noise interferes with speech, disturbs sleep and otherwise annoys people sufficiently 

### to warrant legislative, regulatory andjudicial action. The societal costs ofthese noise effects must be predicted and evaluated as part of the planning of large-scale, publicly-funded civil engineeringprojects. Regrettably, however, the accuracy and reliability of expedient methods routinely adopted to predict transportation noise exposure and expected communityreactionleave much 

### to be desired. The fundamental planning concern when evaluating alternatives for airport expansion and othertransportation infrastructure projects is often some variant of "How much environmental noise is too much noise?"-for whom, of what kind, for how long, at which times ofday, from which sources, at what costs, and so forth 1 l. Answers to questions starting with "How much
..." imply the need for measurement and estimation, which inevitably imply uncertainty and error. Given the underlying purposes for measurements and estimates oftransportation noise, questions about the precision and accuracy of transportation noise measurement usually concern the adequacy ofpredictions ofpopulation-level noise effects. Questions about the precision and accuracy of quantification of transportation noise effects lead directly 

### to questions about the meaningfulness of measurements, predictive methods, and interpretive
,J Fidell Associates, 23139 Erwin Street, Woodland Hills, CA 91367 USA; email: fidell@pacbell.net b) Schomer and Associates, Inc., 2117 Robert Drive, Champaign, IL 61821 USA; email: Schomer@schomerandassociates.com 1lAs observedby areviewer, a bettergoal for plmming purposes mightbe to

assess "Which project alternatives are better, and which arc worse?"
82 Noise Control Eng. J 55 (1), 2007 Jan"Feb criteria. Theultimate questions about interpretations of field measurements, and about the meaningfulness of regulatory policy, require answers to these questions. Itis therefore ofmore than passing interestto review the many sources of uncertainty of environn1ental acoustic measurement: from the theoretical and practical limits oflaboratory and field measurements, to the tolerances specified in basic standards, through the errors of estimate commonly encountered in routine measurement and modeling of cumulative exposure and community response data, to the biases and imprecision of interpretive criteria. A convenient way 

### to organize such a review is with respect to some oftenheard beliefs about uncertainties of aircraft noise measurement, modeling, and assessment: Other than in a standards laboratory, measurements of sound pressure levels to a precision greaterthantenths ofadecibel areunattainable; Field measurements ofacoustical quantities to a precision greater than the nearest decibel are prohibitively costly and generally impractical; Source classification errors are negligible in routine, unattended monitoring of aircraft noise; Software-based estimates of aircraft noise exposure are of comparable accuracy and precision to field measurements; Measures of community response to aircraft noise are more "subjective" and hence, inherently less precise than estimates of aircraft noise exposureperse; and Regulatory criteria may nevertheless be interpreted as though they were simple engineering calculations ofunlimited precision. Some of these beliefs are inconsistent with each another, withrealities oflong-rangeoutdoor soundpropagation, and with the capabilitiesofnoise modeling soft-ware. While some are reasonable, others are based on little more than wishful thinking, and can lead to technically indefensible and misleading policy positions and noise impactpredictions. The present review focuses on 

### (I) the inherent imprecision and limited replicability offield measurements ofaircraftnoise; (2) errors ofmisclassificationin attributing sources to unattended measurements of noise events; 

### (3) noise modeling errors; 

### (4) errors in direct measurement of community response; and 

### (5) consequences ofthe combinations ofthese errors. 

### 2 DISCUSSION 2.1 Inherent Imprecision ofAcoustic Field Measurements The first two ofthe listed beliefs about uncertainties ofacoustic measurement are incontrovertible. All who have attempted to measure sound levels outside an anechoic chamber are aware ofthe great variability of both source and propagation conditions, and of the empty precision of values (whether resulting from direct measurements, modeling predictions, or arithmetic manipulations of them) reported to the nearest hundredth of a decibel. Even when tenths ofdecibels are worth millions ofdollars, as in the case ofaircraft noise certification measurements made under highly constrained field conditions, little confidence can be placed in even the first decimal place. The inherently limited precision of transportation noise measurement has little to do with the design and calibration of measurement instruments. Modern microphones, field calibrators, signal conditioning, recording, and data reduction equipment have evolved into admirably stable and accurate instruments. The atmosphere, on the other hand, remains a temporally unstable and inhomogeneous propagation medium. Likewise, terrain and foliage conditions stubbornly continue to change from place to place and season to season. Further, the noise emissions ofmotorized noise sources central to transportation noise analyses, whether stationary or mobile, remain directional and dependent on operating conditions. Thus, the likelihood of replicating to the nearest tenth of a decibel outdoor environmental noise measurements that were made on a Monday morningis vanishingly small on Monday afternoon, and a great deal of luck is required to replicate Monday's field measurements within a decibel or two on Tuesday. Thus, for purely physical, situational and operational reasons, standard deviations on the order of 3 dB of many sorts of repeated, short-duration field measurements oftransportation noise sources may be regarded as gratifyingly small. However, standard deviations on
Noise Control Eng. J. 55 (I), 2007 Jan-Feb Ol "0

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Daily CNEL Attributed to Community Sources, dB 

### Fig. 1-II/ustration of daily misattribution ofaircraft noise**~?Vents** 

### to non-aircraftsources at a single site by an airport's noise monitoringsystem. the order of 5 dB of such measurements are not uncommon, particularly over appreciable distances, in different locations, or during different seasons of the year (cf ANSI 1 and Schmner2). Given that standard deviations on the order of3 to 5 dB imply 95% prediction intervals (a range ofvalues encompassing 95% of empirical observations) on the order of 10 dB, reports of field measurements of transportation noise should notbe viewed as precise estimates unless accompanied by a detailed rationale for according them such deference. 

### 2.2 Errors ofMisclassification in Unattended Aircraft Noise Measurements Although the first two of the listed beliefs about environmental noise measurement are reasonable, much ofthe remaining conventional wisdom about the objectivity and reliability of noise modeling, assessment ofcommunity response, and the utility ofinterpretive criteria is questionable. For example, misclassification ofnoise sources can be anon-trivial source of error in unattended monitoring of aircraft noise exposure. Figure 1, which plots cumulative noise levels attributed by an airport noise monitoring system (aided by flight track matching algorithms) on the same days to aircraft and non-aircraft sources, clearly demonstrates the misattribution of aircraft noise events to community sources. Although aircraft noise exposure in airport neighborhoods may vary greatly with daily
83120,------- ----------....,., 110 iiJ100**~** 

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80 90 100 110 ANOMS SEL (dB) 

### Fig. 2-Predictedversus measuredSELsfor 

### 20,000+ individual aircraft departures. 120

ftuch1ations in runway use, it is highly implausible for exposure levels due to road traffic noise in residential areas to vary by 30 dB from day to day. Instead of attributing noise to aircraft operations, the noise monitoring system responsible for the data plotted in Fig. 1 mistakenly attributed the acoustic energy of son1e aircraft noise events to community sources, truncating the distribution of supposed daily aircraft noise exposure values, while unreasonably expanding the range ofsupposed daily communitynoise exposure values. Neithervendors norpurchasers ofairport noise monitoring systems typically have strong incentives to conduct costly or rigorous examinations of the classification performance of such systems, especially for the purpose of estimating the community noise component. Their performance is therefore poorly documented in the open literature andworthy ofcareful scrutiny, especially at high ambient noise monitoring sites, at sites distant from flight tracks, and along runway sidelines. 

### 2.3 Noise Modeling Errors The noise-power-distance relationships and the long-range acoustic propagation algorithms contained in aircraft noise exposure prediction models such as INM and NOISEMAP are heir to a variety oferrors of measurement and estimation. The U.S. FederalAviation Administration has never published a definitive analysis ofthe accuracy and precision ofits IntegratedNoise Model. Partial analyses, such as those ofMiller et al}, Plotkin et al.,' and Page et al.,5 are not particularly reassuring. Nonetheless, it is widely believed that after decades of development, aircraft noise exposure models are accurate to perhaps ±I dB directly underneath overflights at altitudes ofa few thousand meters. Theiraccuracy at longerranges and orthogonal to flight tracks can be much poorer, however6 Figure 2, adapted from Miller et al.,3 plots predictions madeby INMofsoundexposure levels for 21,166
84 Noise ControlEng, J. 55 (1), 2007 Jan-Feb departures of eight commun aircraft types against actual measurements ofthose same operations made by the noise monitoring system at the Minneapolis Airport. Differences on the order of ±15 dB between predicted and observed SELs are common. The law of large numbers and the central limit theorem help to reduce the magnitude and bias of these differences when they are combined to estimate long-term integrated exposure levels. Nonetheless, as shown by Miller et al} errors on the order of 

### 3-4 dB (95% bound on the data) or more in software-based predictions ofnoise exposure values are still likely, especially at long ranges and small angles ofincidence. Grievous though they may be, such errors ofpredictions can be minor in comparison with errors ofprediction associated with inadequate representation offlight tracks and profiles and other operational information, including fleet mix, time ofday of operation, runway assignments, and so forth. The substantive issues in any aircraft noise modeling exercise are the assumptions on which the predictions are based, not the resultant contours, since the contours are merely the product of processing a set of assumptions through deterministic algorithms. For example, the assumptions made to describe "typical" noise exposure conditions are not always reasonable ones. In many cases, an "annual average day" (that is, a day on which 

### all ofan airport's many operational parameters simultaneously assume their annual average values) may be little more than a convenient fiction that is atypical of any actual day's operations, much less of seasonal conditions. In reality, there may be no single day of the year during which the wind simultaneously blows directly down each ofan airport's runways at 8knots while the average numbers ofeach aircraft type in the airport's fleet take offand land on each ofan airport's runways at average times of day while flying annual average stage lengths on annual average flight paths. Even if such a day could exist, aircraft noise exposure on that day could well differ appreciably from actual exposure onthe many other days ofthe yearwhen seasonal variations in flight schedules, meteorological conditions, and runway use lead to very different noise exposures in airport neighborhoods. For example, an aircraft's performance at high latitude/high altitude airports can vary widely from summer to winter. Thus, "annual average day" conditions may by atypical of conditions at times of year when aircraft noise exposure creates the greatest adverse effects on airport communities. In warm seasons, when aircraft performance is poorest, windows are open, andflight schedules may be busiest,

### Table 1-Twoyearso;dijjerences (in dB) betweenmeasuredandpredictedDNLvaiuesatamajorairport's noise monitoringsites. 1999 1999 1999 1998 1998 1998 Monitor Measurement INM Prediction Difference Measurement INMPrediction Difference 61.8 58.4 3.4 2 66.0 66.4 -0.4 3 65.3 64.4 0.9 4 77.3 78.9 -1.6 5 69.4 70.4 -1.0 6 69.6 67.7 1.9 7 73.3 75.8 -2.5 8 66.5 67.0 -0.5 9 74.5 72.4 2.1 10 68.1 66.0 2.1 11 64.5 62.4 2.1 12 71.5 73.8 -2.3 13 65.0 64.3 0.7 14 63.8 64.3 -0.5 15 64.1 61.4 2.7 16 71.1 69.7 1.4 17 61.9 58.9 3.0 18 55.2 49.0 6.2 19 48.4 45.4 3.0 20 54.3 50.5 3.8 21 55.4 55.1 0.3 22 54.7 49.2 5.5 23 57.4 51.7 5.7 24 54.5 51.3 3.2 25 49.5 50.7 -1.2 26 58.9 58.3 0.6 27 60.0 58.4 1.6 28 55.6 53.8 1.8 29 59.5 61.6 -2.1
"annual average" day conditions may notably underestimate the noise exposure to which the community responds most strongly. Table I compares two years of Day-Night Average Sound Levels as measured at 29 locations of a major airport's aircraft noise monitoring system with spot predictions made by INM ofDNL values at the same locations. The predictions are the end product of considerable effort to minimize differences between predicted and empirically measured estimates of aircraft noise exposure levels. These include multiple refinements offlight track and flight path assumptions based on intensive analyses of radar returns, and repeated calcnlations of predicted DNL values for comparison with measuredvalues. Despitethese costly efforts to reconcile predictions with measurements by adopting variant modeling assumptions, the standard deviation of the differences between monitored and
Noise Control Eng, J. 55 (1), 2007

**Jan~Feb** 61.8 58.7 3.1 66.1 66.7 -·0.6 65.1 64.5 0.6 79.8 79.4 0.4 70.6 71.4 -0.8 69.9 68.2 1.7 73.3 76.1 -2.8 67 67.5 -0.5 75.3 72.4 2.9 69.4 66.3 3.1 64.8 62.2 2.6 71.1 74.0 -2.9 65.6 64.2 14 64.6 64.9 -0.3 63.3 61.1 2.2 70.8 69.0 1.8 62.3 58.3 4.0 55.2 49.8 5.4 49.2 45.7 3.5 53.6 49.5 4.1 54.8 53.8 1.0 52.6 49.4 3.2 57.7 52.0 5.7 55.5 51.9 3.6 51 51.2 -0.2 59.2 58.1 1.1 60.4 58.8 1.6 55.1 54.0 1.1 59.9 62.2 -2.3 predicted levels is about 2.3 dB, implying a range for 95% of the differences between measured and predicted values of about ±4 dB. It is unlikely that agreement between measured and modeled noise exposure is appreciablybetter at most airports, particularly for monitoring systems with multiple sideline and/or distant noise monitoring sites. 

### 2.4 Errors ofDirect Measurement of Community Response Direct measurement ofthe prevalence of a consequential degree ofaircraft noise-induced annoyance in a community is accomplished by attitudinal survey. Unless a residential population of interest is exhaustively interviewed, the possibility of error of estimate due to non-representative sampling is ever-present. Even if a perfectly representative sample of opinion could be obtained, however, 95% confidence intervals

85

### .oo 

# "" 0 90 

# s 80 c 

### 9!. 70 0 c FICON (1992)



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# ... .

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## "''

... 0 40. w 

### g 30 w**~** 20 

## "**~** 0. 10 040 45 50 55 60 65 70 75 80 85 90 Day-Night Average Sound Level, dB 

### Fig. 3-Empiricalmean annoyanceprevalence rates (triangles) in relation to FICON(1992) dosageeffect relationship andactual observations of the annoyance of aircraft noise exposure. for the prevalence of annoyance on the order of±5% are commonplace for sample sizes on the order ofI00

- 200 respondents. (Confidence intervals appreciably larger are also possible under some conditions.) Questionnaire bias is a potentially greater source of error of estimate in social survey data than sampling error, however. Poor or leading wording of questionnaire items, or simply inappropriate sequences of questions, can systematically distort opinions7 

### 2.5 Consequences ofthe Combinations of these Errors Dosage-effect analyses of the sort pioneered by Schultz' attempt to predict prevalence rates ofadverse effects oftransportation noise from acoustic variables. When dispassionately interpreted by unbiased technocrats, a major attraction of such analyses is that functional relationships between noise exposure and community response may improve the credibility of regulatory policy decisions by distracting attention from the inherently non-technical nature of such policies. (See Fidell9 for a discussion ofthe application of dosage-effect analysis in environmental noise regulation.) Dosage-effect analyses are susceptible to all ofthe errors of objective and subjective measurement discussed above, since errors of estimate afflict both axes ofthese relationships. As described by Fidell and Silvati,10 the resulting imprecision is compounded by the variety ofstatistical assumptions that analysts adopt to create fitting functions. Figure 3, in which the data points are a superset ofthe FICON11 data, illustrates the error of underestimation of the prevalence of annoyance due to aircraft noise by the functional relationship endorsed by FICON. The triangular
86 Noise Control Eng. J. 55 (I), 2007 Jan-Feb plotting symbols represent weighted mean annoyance prevalence rates, while the other points are site-by-site observations of annoyance prevalence rates. The bias error is particularly pronounced in the range of exposure values ofgreatest regulatory interest**(~55** to 65 dB). 

### 2.6 Consequences ofUnjustifiable Reliance on Imprecise Measurements and Predictions FICON's 11 relationship accounts for less than 20% ofthe variance in a comprehensive set ofobservations ofthe prevalence ofannoyance associated with aircraft noise exposure in communities worldwide 10 Similarly, the dosage-effect function identified by ANSI12 for prediction ofsleep interference fails to explain 80% of the variance in the relationship between indoor SEL values and the prevalence of awakening. Uncritical reliance on adosage-effectrelationship that attempts to predict community reaction to aircraft noise exclusively from estimated noise exposure levels can lead to substantial errors ofprediction. AtVancouver InternationalAirport, for example, the start ofoperations on a new runway exposed a residential population in a neighborhood approximately 5 km from the runway threshold along the extended centerline to an increase in approach noise of 7 dB, from Ld,=54 dB to Ldn=61 dB. According to PICON's dosage-effectrelationship, the increasein prevalence of aircraft noise-induced annoyance in the affected population should have been 4.5%: from 2.9% highly annoyed at Ld,=54 dB, to 7.4% highly annoyed at Ld,=6J dB. By empirical measurement, 13 however, the actual annoyance prevalence rate in the neighborhood

### Table 2-Summaryo;estimatednetuncertaintyofpredictionsof communityreactwn to aircrajinoise in the vicinity**ofLc~n=65** dB.
Basis for Estimate of AircraftNoise-induced Anno ance Approximate 95% Prediction Interval for Percent Highly Anno ed Basis Notes
Direct measurement of DNL -3,+2% Error only on abscissa ofFig. 3. Percents are -::----::---.,----,---------------- estimated from the line Software-based tangent to the FICON Directmeasurement 95%, confidence interval is -3, + 2 dB (ANSI Sl2.9 Part 2). The prediction 95% confidence interval is estimated to be ±5 dB. ±5% prediction ofDNL curve at 65 DNL. Prediction ofaircraft noise-induced annoyance from measurement ofDNL -9,+38% Error on abscissa and ordinate ofFigure 3.a The 95% confidence interval for the data in The -3, +2% confidence interval for direct measurement does not materially add to the 95 %confidence interval for annoyance. --------------------Figure3at 65 DNL is Prediction ofaircraft estimated to be 3to 50 noise-induced %. With respect to the The ±5% confidence interval for prediction ofDNL combines with the·-9, + 38% confidence interval for annoyance to yield -10, +38%. annoyance from

- 10, +38% FICON curve, this is prediction ofDNL -9, +38 %. Directmeasurement of high annoyance through interviewing ±5% Interview sampling error Assumesbinomial variance; greater uncertainty possible under alternate assumptions aFar each 1imit, the combined error, assuming independence, is the square root ofthe sum ofthe two squares. increased nearly fivefold, from II% (15 months prior to the opening ofthe runway) to 52% (21 months after the start ofoperations on the runway). Such a change in noise exposure at an American airport would have been characterized by FAA's standard interpretive criteria as insignificant because the cumulative noise exposure in this instance did not exceed Ld,= 65 dB. The change in noise exposure would thus have escaped prospective analysis under FAA's implementing regulations for the U.S. National Environmental Policy Act (NEPA). Functional relationships between other forms of community response to noise and acoustic predictor variables also are susceptible to over-interpretations that ignore their underlying imprecisions. It is not uncommon, for example, to encounter analyses of absolute numbers of individual awakenings and minutes of speech interference associated with hypothetical, prospective aircraft operations. Given the limited precision of the data from which such noise effects criteria have been generated, overly literalminded interpretations of noise effects criteria are generally indefensible, even for comparative purposes. 

### 2.7 Estimates ofOverallUncertainty Table 2 summarizes the net uncertainty of predictions ofcommunityreaction to aircraft noise as they are produced in common practice. "Common practices"
Noise Control Eng. J. 55 (1), 2007**Jan~Feb** include I0-15 contiguous days of monitoring to estimate DNL values from field measurements made other than by multi-million dollar permanent monitoring systems; software-based modeling ofaircraft noise exposure based on a few hundred assertedly representative nominal flight tracks; and simple random selection of samples of I00-200 respondents in social surveys. The prediction interval bounds estimated in Table 2 are derived from the data in Fig. 3 in the DNL range of 55 to 75 dB; on standard deviations ofDNL measurements based on information in ANSI SI2.9/Part 2; 1on differences as great as ±5 dB that are frequently encountered m reconciling aircraft noise event measurements made by airport noise monitoring systems with predicted DNL contourvalues; and on the assumption ofindependence oferrors ofphysical and subjective measurement. Table 2 indicatesthat although many factors contribute to overall uncertainty ofpredictions ofcommunity reaction to aircraft noise, uncertainty and bias in the transfer function are among the more prominent sources ofuncertainty. It is also interesting to note that even though opinion surveys measure non-physical ("subjective") quantities,uncertainty about theirresults may he minor compared with the errors ofestimate of acoustic ("objective") quantities. Compared with 95% prediction intervals for estimates ofphysical exposure 87more than an order of magnitnde wide, survey sampling errors may be the Jesser part ofthe problem by far. 

### 3 CONCLUSIONSAND RECOMMENDATIONS Airports and other transportation planning agencies routinely predict quantities such as the percent of a community expected to be consequentially annoyed by estimated or measured noise exposure. Itwould aid in the interpretation of these predictions if they were accompanied by an indication oftheir uncertainty, and ofthe confidence that they merit. As a general practice, reported values of both acoustic and social measurements should be accompanied by a statement of 95% prediction intervals not only for direct acoustical measurements or predictions, but also for subsequent predictions ofcommunity response. To avoid misleading readers of environmental impact disclosure documents, the degree ofprecision ofestimates ofboth acoustic quantities and predictions of conununity response based on them should be reported. For example, one might state that the estimated 65 dB DNL contourpredicts that 12% ofacommunitywill be highly annoyedbyaircraft noise, with a95% prediction interval that ranges from Jess than 2% to 50%. 

### 4 REFERENCES 1. ANSI S12.9-992/Part2 (R2003), "AmericanNationalStandard quantities andproceduresfor description and measurement of environmental sound, Part 2: Measurement of long-term wide88 Noise Control Eng. J. 55 (1), 2007 Jan-Feb area sound," Acoustical So-L,,;·c)r of America, Melville, NY (1992) 2. P. D. Schomer, "A Statistical Description ofGround-to-Ground Sound Propagation," Noise Control Eng. J 51(2), 69-80 (2003). 3. N. Miller, G. Anderson, R. Horonjeff, S. Kimura, J. Miller, D. Senzig, and R. Thompson, "Examining INM accuracy using empirical sound monitoring and radar data," NASA Contractor Report CR-2000-210113 (2000). 4. K. Plotkin, C. Hobbs, and K. Bradley, "Examination ofthe lateral attenuation of aircraft noise," NASA/CR-2000-210111, National Aeronautics and Space Administration, Langley Research Center, Langley, Virginia 23681 (2000). 5. J. Page, C. Hobbs, K. Plotkin, and E. Stusnick, "Validation of aircraft noise prediction models at low levels of exposure," NASNCR-2000-210112, National Aeronautics and Space Administration, LangleyResearch Center, Langley, Virginia 23681 (2000). 6. SAE Aerospace Recommended Practice 4721-1, "Monitoring Aircraft Noise and Operations in the Vicinity ofAirports: System Description, Acquisition and Operation" (2006). 7, J. M. Fields, "Reporting Guidelines for Community Noise Reaction Surveys," Noise/News International 6(3), 139-144, (1998). 8. T. J. Schultz, "Synthesis of Social Surveys on Noise Annoyance,"J. Acoust. Soc. Am. 64, 377405 (1978). 9. S. Fidell, "The Schultz Curve 25 Years Later: A Research Perspective,"J. Acoust. Soc. Am. 114(6), 3007-3015 (2003). 10. S. Fidell and L. Silvati, "Parsimonious Alternatives to Regression Analysis for Charactetizing Prevalence Rates ofAircraft NoiseAnnoyance," Noise Control Eng. J. 52(2), 56·-68 (2004). 11. Federal Interagency Committee on Noise (FICON), "Federal agencyreview ofselected airportnoise analysis issues," Report for the Department ofDefense, Washington DC (1992). 12. ANSI Sl2.9-2000/Part 6, "AmericanNationalStandardquantities andproceduresfor description and measurement ofenvironmentalsound, Part 6: Methods fOr estimation of awakenings associatedwith aircrafi noise events heard in homes", Acoustical Society ofAmerica, Melville, NY (2000). 13. S. Fidell, L. Silvati, and E. Haboly, "Social Survey ofCommunity Response to a Step Change in AircraftNoise Exposure," J Acoust. Soc. Am. 111(1), 200-209 (2002).