T H 0 MP soN 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 

FAA Part 16 Airport Proceedings Docket 

AGC-610 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Re: Virginia One Development, LLC, eta!. v. The City of Atlanta, Georgia 

U.S. Dept of Transportation-FAA Docket No. 16-12-09 

Dear Sir/Madam: 

Please find enclosed for filing an original and three (3) copies of Respondent The City of 

Atlanta's Motion to Supplement the Record in the above-referenced matter. 

If you have any questions or concerns, please do not hesitate to contact me. 

JLW/ksw 

Enclosnres 

cc: Steven M. 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 ONE DEVELOPMENT, INC, 

AVERY PARK 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 of Atlanta should be served with documents in 

this proceeding: 

Roy E. Hadley, Jr., Esq 

Georgia Bar No. 003 730 

Roy.Hadley@thompsonhine.com 

John L. Watkins, Esq. 

Georgia Bar No. 740515 

J olm. 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 of Atlanta 
Respondent the City of Atlanta (the "City") has previously explained how certain of the 

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") established pursuant to 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 of College 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 of this letter is attached hereto as Exhibit "1." This 

letter is a de facto admission that this proceeding is not a proper forum to decide issues regarding 

(1) any alleged obligation of the City to acquire Complainants' property or (2) the validity of the 

federal court Consent Order; and, 

(2) On July 26,2013, the City filed a declaratory judgment action in the United States 

District Court for the Northern District of Georgia against certain Developers asking the Court to 

rule on the validity and enforceability of the Consent Order in relation to the Aircraft Safety and 

Noise Abatement Act of 1979,49 U.S.C. 47501 et seq. and Part 150 of Title 14 of the Code of 

2 
Federal Regulations, 14 C.F.R. Part 150, promulgated thereunder. A true and correct copy of the 

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, 20 13). 

Since the City's last filing, the City has obtained a journal article written by Mr. Fidel!. A 

copy of this 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 of 3-5 dB in the accuracy 

of measuring 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 of the record with Exhibits 1-3 attached hereto. 

3 
This 16th day of August, 20 13. 

THOMPSON HINE LLP 

Two Alliance Center 

3560 Lenox Road, Suite 1600 

Atlanta, Georgia 30326 

(404) 541-2900- Main 

(404) 541-2905- Facsimile 

4 

John. . 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 of Atlanta 
CERTIFICATE OF SERVICE 

I hereby certify that I have this day served the foregoing Respondent the City of Atlanta's 

Motion to Supplement the Record on the following persons by U.S. Mail and Federal Express: 

Steven M. Taber, Esq. 

Taber Law Group 

P.O. Box 60036 (92602) 

13 Atlanta 

Irvine, California 92620 

Federal Aviation Administration 

FAA Part 16 Airport Proceedings Docket 

AGC·610 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

This 16th day of August, 2013. 

c1;wi/!JP 

Jo n t· Watkins 

l.J 

5 
EXHIBIT 1 
April9, 2013 

BY REGISTERED MAIL 

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 of Atlanta, 

55 Trinity Avenue SW 

Atlanta, Georgia 30303 

H-JAIA 

Re: 60-Day Notice oflntent to Sue for Violation of Regulation Which Became 

Effective Pursuant to the Noise Control Act. 

Dear Hon. Perciasepe, Hon. Huerta, and Hon. Reed: 

This Jetter is written on behalf of Avery Park Partners, LLC d/b/a Avery Park, Colony 

Creek, LLC, Harrington Town Homes and Crossings, LLC dibla! Park Roosevelt Park, and 

Virginia One Development, LLC (collectively, "Owners") to provide notice, pursuant to 42 

U.S.C. § 4911(a)(1), of their intent to file a civil action against the City of Atlanta for its 

violations of noise control requirements which became effective pursuant to 40 U.S.C. § 44715. 

Specifically, Owners allege that the City of Atlanta violated the Noise Control Act by failing to 

comply with provisions of 14 C.F.R., Part 150. 

I. FACTS 

In 2007, the City of Atlanta 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 of the Part !50 NCP, the City promised that it would 

provide sound insulation to landowners within the 65 DNL and acquire property within the 70 

DNL to those landowners who so desired. The FAA issued a Record of Decision on January 25, 

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 of Atlanta complied with the obligations 

under the Part 150 NCP, including the sound insulation and property acquisition program. 

All of Owners' properties are identified in figure 6.2 of the Part 150 NCP as being severely 

affected by noise created by the Airport. For your convenience, the Owners are the landowners 

of the 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, Georgia 30337. 

4. Harrington Park, 2800 Camp Creek Parkway, College Park, Georgia 30337. 

5. Camp Creek Apartments, 3222 Kenilworth Drive, East Point, Georgia 30344. 

6. Clubhouse Apartments, 3800 Herschel Road, College Park, Georgia 30337 

Therefore, pursuant to the FAA's approval, the City of Atlanta is obligated under 14 C.F.R., Part 

!50 to (a) offer Owners sound insulation for their properties that are located within the 65 DNL; 

and (b) offer acquisition of their properties that are located within the 70 DNL contour. The City 

of Atlanta has already determined that Owners' claims are valid by submitting the Part 150 NCP 

to the FAA for approval. Further, the FAA's Record of Decision indicates that the City of 

Atlanta now has the obligation pursuant to 14 C.F .R., Part 150 of following through on the 

promises that it made in its Part 150 NCP. 

n. LEGALBACKGROUND 

Section 491l(a) of Title 42 ofthe United States Code, states that: 

Except as provided in subsection (b) of this section, any person (other than the United 

States) may commence a civil action on his own behalf.-

( 1) against any person (including 

(A) the United States, and 

(B) any other governmental instrumentality or agency to the extent permitted 

by the eleventh amendment to the Constitution) who is alleged to be in 

violation of any noise control requirement (as defined in subsection ([f]) 

of this section) ... 

Subsection (f) of 42 U.S.C. § 4911 states that "[f]or purposes of this section, the term 

"noise control requirement" means paragraph (1), (2), (3), (4), or (5) of section 4909(a) of this 
Hon. Perciasepe, Hon. Huerta, Hon. Reed 

April 8, 20 13 

Page 3 

title, or a standard, rule, or regulation issued under section 4916 or 4917 of this title or under 

section 44715 of title 49." Since 14 C.F.R., Part 150 was promulgated pursuant, inter alia, to the 

authority given to the Federal Aviation Administration under 49 U.S.C. § 44715, this lawsuit 

falls within the scope of 42 U.S.C. § 4911 provisions for citizen suits. 

IH. CONCLUSION 

The City of Atlanta is in violation of the Noise Control Act by failing to comply with its 

obligations under 14 C.F.R., Part 150. This letter provides the required parties with notice 

pursuant to 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 of Atlanta's violation of 14 C.F.R., Part 150. 

If you have any questions or comments, please feel free to call me at (949) 735-8217 or 

send me an e-mail at staber@taberlaw.com. 

Yours very truly, 

TABER LAW 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 STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

THE CITY OF ATLANTA, GEORGIA 

Plaintiff, 

v. 

A VERY PARK PARTNERS, LLC d/b/a : 

A VERY PARK, COLONY CREEK, 

LLC, AND THE CITY OF COLLEGE 

PARK, GEORGIA, 

Defendants. 

Case No. 

Judge 

COMPLAINT FOR DECLARATORY JUDGMENT 

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 relief pursuant to 28 U.S.C. § 2201 et 

2. The City is a municipal corporation incorporated under the laws of the 

State of Georgia. The City is the owner and operator of Hartsfield-Jackson Atlanta 

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") that own property in the City of College Park. 

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 of its registered agent for 

service of process, David Scott Henderson, located at 105 Hendrix Drive, Canton, 

Georgia 30115. 

5. Defendant Colony Creek is the owner of Harrington Park, 2800 Camp 

Creek Parkway, College Park, Georgia 30337, Parcel Identification Number 14-

0224-LL-052-3, and Colony at Camp Creek Apartments, 3222 Kennelworth Drive, 

East Point, Georgia 30344, Parcel Identification Number 14-0225-LL-092-8. 

Colony Creek may be served with process at the office of its registered agent for 

service of process, David Scott Henderson, located at 105 Hendrix Drive, Canton, 

Georgia 3 0 115. 

6. Defendant City of College Park ("College Park") is a Georgia 

municipal corporation, partially situated within Fulton County, and incorporated 

under the laws of the State of Georgia. 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 a potential interest in the outcome of this litigation. 

7. The City and the City of College Park were parties to a prior case in 

this Court styled City of College Park, et al. v. The City of Atlanta, Civil Action 

File No. 1:08-cv-1464-JEC (the "College Park Suit"). The College Park Suit, 

which involves in relevant part the City of Atlanta's purchase of property 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 correct copy of the Consent Order is attached hereto as Exhibit "A." 

JURISDICTION AND VENUE 

8. This Court has subject matter jurisdiction of this action pursuant to 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 this judicial district under 28 U.S.C. § 1391(b), as 

a substantial part of the events giving rise to the claims in this Complaint occurred 

in this judicial district, the property that is the subject of the 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 Court has personal jurisdiction over Defendants. 

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 caused by aircraft noise. 

12. To implement the Noise Abatement Act, the FAA established the 

Noise Compatibility Planning Process as part of the Federal Aviation Regulations, 

listed as Part 150 of Title 14 of the Code of Federal Regulations ("Part 150"). 

13. Part 150 establishes uniform national methods for preparing noise 

exposure maps ("NEM"). NEM establish "noise contours," which are areas on the 

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 

airport vicinity consistent with 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 of qualifYing properties located within the 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 NEM has been approved by the FAA. 

20. Developers recently acquired their properties. Developers' properties 

are located wholly or partially within the 70 DNL contour on the 2007 NEM and 

on the 2012 NEM. 

21. As one of the general requirements in establishing NCPs, 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 

implementing NCPs. 

22. College Park is located adjacent to and generally west of some of the 

Airport, and the Airport is partially located in College Park's boundaries. 

23. In response to the possible acquisition of multi-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 Park violated the Voting Rights 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 of the Consent 

Order. 

25. The Consent Order is consistent with the directives of federal law and 

regulations requiring consultation and cooperation with local jurisdictions in 

implementing noise compatibility programs. The Consent Order also is consistent 

with the directives of federal law and regulations providing for local administration 

of noise 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 acquiring multi-family residences within College Park. Since the entry of the 

Consent Order, the City has abided by the substance of its 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 of Aviation has submitted an amendment to the Airport-NCP to the 

FAA, which includes language referencing the Consent Order's terms pertaining to 

land acquisition within College Park. 

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 of the 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 

regard to the terms of the Consent Order. 

29. Developers have refused the City's suggestion for Developers to seek 

College Park's consent to the acquisition of their properties. 

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 

discretion under the Airport-NCP in deciding whether to acquire any property. 

31. The City, as an airport sponsor, is also vested with considerable 

discretion in cooperating with local political jurisdictions such as College Park in 

implementing the Airport-NCP, including, but not limited to, agreeing to 

provisions such as are contained in the Consent Order. 

32. In any event, Developers' position would require the City to violate 

the Consent Order, which is a valid and outstanding order and judgment of this 

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 of fact. At 

the same time, Developers have refused the City's suggestion to contact College 

Park to secure a waiver or consent regarding the Consent Order. Developers have 

therefore acted in bad faith and have caused the City urmecessary trouble and 

expense, entitling the City to an award of attorney's fees under O.C.G.A. § 13-6-11. 

34. On information and belief, College Park contends that the Consent 

Order constitutes a valid and outstanding order and judgment of this 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, on the other. College Park has an interest in the outcome of 

the controversy. 

RELIEF REQUESTED 

36. The City seeks and is entitled to a judicial declaration of the rights, 

obligations and responsibilities of the parties because the City has no other 

adequate remedy that will 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 of the parties as follows: 

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

(b) The City, as the Airport sponsor, has considerable discretion 

under applicable federal law and regulation, in implementing and administering the 

Airport-NCP, including, but not limited to, taking into consideration the stated 

wishes of College Park and other municipalities that may be affected by Airport 

operations; 

(c) Developers have no right under the Consent Order to require 

the City to acquire their properties, regardless of whether the properties are 

otherwise eligible for acquisition under the Airport-NCP; 

(d) Developers have no right under federal law to require the City, 

as an airport sponsor, to acquire their properties regardless of whether the 

properties are potentially otherwise eligible for acquisition or other relief under the 

Airport-NCP; and 

(e) The 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 it has a rational basis 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 requests that: 

(a) the Court enter an Order declaring the rights, duties and 

obligations of the 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 

amount to be proven at trial or upon disposition of this action; 

(c) the Court assess the costs of this action on Defendant 

Developers; and 

(d) the Court award the City such other and further relief as is just 

and proper. 

Respectfully submitted this 26th day of July 2013. 

Is/ John L. Watkins 

John L. Watkins, Esq. 

john.watkins@thompsonhine.com 

Georgia Bar No. 740515 

11 

Roy E. Hadley, Jr., Esq. 

roy .hadley@thompsonhine.com 

Georgia Bar No. 003730 
Case 1 :13-cv-02480-SCJ Document 1 Filed 07/26/13 Paoe 12 of 12 

THOMPSON HINE LLP 

Two Alliance Center 

3560 Lenox Road, Suite 1600 

Atlanta, Georgia 30326-4266 

(404) 541-2900- Main 

( 404) 541-4266- Facsimile 

12 

Leslie J. Suson 

leslie.suson@thompsonhine.com 

Georgia Bar No. 142162 

Attorneys for The City of Atlanta 
Case 1 ·13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 1 of 21 

EXHIBIT A 
·.:.;,, 

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

Case 1:08-cv-01464-JEC Document 64 r=ned 08/02110 Page 1 of 8 

CITY OF COLLEGE PARK and 

CHARLES -E; PHILLIPS, SR., 

Plaintiffs 

v. 

CITY OF ATLANTA and SHlRt,EY 

FRANKLIN, in her official capacity as 

M:1yor oftiui City of Atlanta, 

Defendants. 

CONSENT ORDER .:"": 

· This mauer having come bGfore the 'Court on. plai~tiffs' and deieridants' . 

Joint Motion for Relief under Federal Rule of Civil Procedure 6(l(b), and the Court, 

having reviewed the record and the arguments of the partios, issues the following 

Consent Order: 

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's Order and Opinion and Judgment are part of the record and. incorporated 

into this Consent Qpderby reference. 
Case 1 :13-cv-82480-SCJ Docttment+1-Filed 07/26/13 p,.ge 3 of 21 

Case 1:08-cv-01464-JEC Document 64 Filed 08/02/10 Page 2 of 8 

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

. Judgment to the United States Cguf!of Appeals_forthe Eleventh Circuit.. Plaintiffs 

tiled their Brief of Appellants with the United States Court of. Appeals tor the 

Eleventh Circuit on July . J 5, 2009. To date, through a series of extensions, 

detcndants' have not filed their Brief of Appellees. 

Ort September JO, 2009, pursuant to a directive from the United States Court 

of Appeals for the Eleventh Circuit, plaintiffl) and defendants mediated this ca:;e, 

reached a temative settlement agre\!ment and. since the initial mediation date, haw 

refined the tenns of the 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 of pursuing the appeal, allowing 

the appeal's remand to.this Court and its ultimate dismissal. 

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 of this 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 of the parties, the Court reaffirms its 

issua11ce of the Order and Opinion and Judgment and further enters the following 

Consent Order: 

I. 

CONSENT ORDER 

MEETINGS AND 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 of Atlanm, mate.ria!ly affects or ., ·- -·--,.,.·.'. ' ... ' . , .. 

could materia11y <~t'f:ectth~iigt~rest£ of(Jollege Park or a significant number 

of its Citizcn_s. 

I ;2.College Park will parti<;ipateiis ~partner in each planning meeting and will 

not use inforll)ation obtai nee! by it during any such meeting lor any purpos~ 

other than to facilitate discussions with Department of A dation sta!T about 

tl1e subjects of such meeting, unless College Park can show that such 

information obtained by it during the applicable planning meeting: 

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 planning meeting; or 
Case 1 '13-cv-82480·SCJ- Documentl-1 · Filed 07/26/13 -P'lge 5 of 21 

Case1:08-cv-01464-JEC Document 64 Filed 08/02/10 Page 4 of 8 

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-of College Park; or 

1.2.3. waS acquired by College Park from a third-party, 

2. . tllDVANCE.NOTlCE ' 

Atlanta agree's to provide College Park at least thirty (30) days earlier notice, 

than is otherwise required by FAA or Federal Rules, of any proposed action by 

Atlanta that, in the good faith determination of Atlanta, materially affects or could 

materially affect the interests of College Park or a signiticimt number of it~ 

€itizens. ., ' ' <1.'·. ·:;-. <: 

3. REPURCHAsE OF WYNTERBROOK APARTMENTS 

3.1.Co!lege Park will, cpntemporaneously with the date of its execution of this 

Order {"'Order Date"), issue all permits necessary to authorize Atlanta to 

erect fences, demolish and remove existing structures and remedh1te 

environmental ha?..ards on the Wynterbrook site. 

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 of 21 · 

Case 1 :08-cv-01464-JEC Document 64 Filed 08/02/10 Page 5 of 8 

3.3.Atlantn will notity College Park in writing of the Wynterbrook Demolition 

Completion Date wiihin ten ( 10) days of that 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 purchase at fai;· market value the Wynterbrook site. · 

3.4."Fair market value" for the Wynterbrook site shaH be determined as of the 

Wynterbrook Demolition Completion Date anc;i by the process detailed on 

Exhibit "B". 

3.5.1f purchased by College Park, the Wynterbrook site shall be ~ubject to the 

restri<>tivc covenants contained on Exhibit" A". 

3.6.lf College Park docs not exercise its option to purchase the Wynlerbrook 

site within one hundred eighty (180) days of the Wynterbrook Demolition 

Completion Date, Atlanta, at its expense and subject to any applicable laws, 

including laws governing the procurement of services, will promptly engage 

the services of an economic development specialist/land planner to assist it 

in returning the Wynterbrook site 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 of 8 

Apartments, located at 3800 Hershel Road. for purposes of this Consent Order, an 

apartment complex means any building with f0ur (4) or more residential units. 

5. NCP PROGRAM 

S.l.Subjeet tO the Section entitled "PART 150 PROGRAM", Atlanta agrees to 

consult with College Park, within the confines of the Federal guidelines and 

other applicable law, on what properties, identified iq the existing and 

future Part !50 documents as eligible for receipt of noise mitigation funds •. 

are mitigated and the timing of the mitigations. 

5.2.Thi.s consultation shall tak.e place prior to mitigation ofeach property and 

'· Atlanta shall notify Collo::ge Park when miti~ation of each property has been 

completed. If Atlanta groups properties into packages for mitigation .. 

consultation may take place prior to mitigation of each package (as oppo5cd 

to each property) and Atlanta may notify College Park when mitigation of 

each package (as opposed to each property) has been completed. "11le patties 

may modify this consultation and notification process at any time as long U$ 

the modification is agreed lo in writing by all parties ptior w being 

implemented. 

6. OPERATIONAL ACQUISITIONS 

Atlanta agrees to discuss with College Park, within one hundred twenty ( 120 l 

days of the 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 7 of 8 

acquisitions for operations of the airport and for which Atlanta is tax exempt. the 

City of Atlanta will pay a Payment in Lieu of Taxes. 

7. WYNTERBROOK SITE; MISCELLANEOUS 

1.l.College Park agrees 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 for the bene tit of College Park or its Citizens. 

7.2. The" parties have disposed- of this case through ·1hc execution of this ' 

'·>:-

Consent Order and the remand/dismissal ofthe appeal. Additionally. within 

three {3) days ofthe Order Date, College Park will dismiss ··with prejudice" 

the following litigation, each in its entirety: 

7.2.1. City of College Park v. 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 Superior Court, Case No. 2005-CV-1 Ol6l2; 1

and 

1

The parties acknowledge that on November 9, 2009,, College Park 

'·dismissed this lawsuit without 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 order to 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 8 of8 

7.2.2. City of College Park v. City of Atlanta, Fulton 

County Superior Court, Case No 2008-CV-t 48980. 

7.3.All parties will bear their own costs; and no pany will seek an order lor 

attorney's fees or Qther litigation costs. 

8. EFFECTIVE DATE OF AGREEMENT 

·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, 

whichever shall 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!-UEF UNiTED STATES DISTRICT JUDGE 

R bert B. Caput, Senior Asgistant 

City Attorney, on behalf of 

Defendants, City of Atlanta and 

Mayor Shirley franklin 

Executed: ~- '(" , 2010 

Greg Michell, on behalf of 

··Plaintiffs, City of College Park and 

Charles E. Phillips. Sr. 

l:xecutcd: _ ...... --' 20 I 0 
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 

ExHIBIT A 
- -- -.. case J ·1.3-cv-02480-SCJ Document 1-1 Filed fJ7 /26/13 P">ge 11 of 21 

Case 1 :08-cv-01464-JEC Document 64-1 Filed 08/02/10 Page 2 of 3 

Exhibit A 

Restrictive Cove.~ants 

This transfer .and any subsequent trarJ.Sfer of any interest 

in the property tninsferred herein shall be expressly made 

subject and subordinate . .to ·• and contain the following 

covemints to assure future uses will be compatiqle with 

. the operation of Hartsfield Jackson Atlanta. International 

·Airport: · · · 

Grantee agrees on behalf of itself, 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 !") 

arid witil FAAguidan(;e on certain land uses as identified 

in.F'AAA<ivlsoryCifcular 150/5200-:)3B ("AG")and any " 

anien.dlllentsto Tablel and.theAC. In the event Table l 

or: ~e AC shall be s\lge:rseded, the "FAA promulgation 

which shall be the successor instrument setting forth 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 of use 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, or Successor Instruments shall affect the 

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 

CitY of Atlanta, or its successors and assigns, through its 

Aviation General Manager. 

9 
-·« 

.~<:-

<"-

/ 

Case J·13-cv-0248El-SCJ ·Document 1-1 Filed 07/26/l'J pq_ge 12 of 21 

Case 1 :08-cv-01464-JEC Document 64-1 Filed 08102/10 Page 3 of 3 

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' offered by an operator to support a use 

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 that this restrictive 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 International Airport · 

·~,:: ~ .:;. 

<'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 0810211 0 Page 1 of 3 

/ EXHIBIT B --~-
Case 1 '13-cv-02480-SCJ Document 1-1 Filed 07/26113 P'\ge 14 of 21 

Case 1:08-cv-01464-JEC Document 64-2 Filed 08/02/10 Page 2 of 3 

Exhibit B 

Fair Market Value Purchase Price 

.·.The fair market value, purchase price shall ~determined as follow~: 

Appraisal Process 

Within thirty (30) days of College 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 MAl membership 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. If the appraisers report opinions of Fair Market 

Value within five percent ( 5%) of each other, the average of the two appraisals will 

constitute the Purchase Price. If not, 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. If the lwo 

appraisers selected by Atlanta and College Park fail to select a third 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 of any third appraiser will be 

split fifty/fifty (50/50) between the parties. Arty closing ofthe sale 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 professional judgment: 

a. The appraisers shall utilize the Survey provided by the Parties hereto, and 

shall, using their professional discretion and judgment, pla(!e a value on the 

property by a collective valuation of likeor similar properties by applying a 

standard price variable to like properties of varying sizes; 
"><;• 

Case 1· .~-cv-02480-SGJ Document 1-1 Filed 07/26/13 P<~ge 15 of 21 

Case 1 :08-cv-01464-JEC Document 64-2 Fifed 08/02/10 Page 3 of 3 

b. The appraisals shall take into account the flood plain maps applicable to the 

property as evidenced by National Flood Insurance Program (FlRM) flood 

Insurance Rate Map Fulton County, Georgia and 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's use by the Seller, the FAA or applicable. state and Federal law due 

to. its proximity ·to• HartsfieldcJackson International Airport, specifically 

'· including, but . not limited . to, aepliCable noise reduction construction . 

requirements, and height restrictions and avigation easements attached 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/her appraisal 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 1 of 3 

/ 

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 2 of 3 

Exhibit C 

Avigation and Height Easemenr 

The Grantor (City of Atlanta) hereby reserves an interest in the Property described 

in this deed that will create a servitude on particular areas that will restrict the use 

of the surface and that will assure the City of Atlanta of the right and privilege of a · 

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 of entering the land. The restrictions in this easement shall include but not 

be limited to: 

( 1) The right to restrict or prohibit radio or electromagnetic interference 

to aircraft flying overhead. 

(2) The right to restrict orprohlbit lights, lighted signs, and other lighted 

objects that unreasonably interfere with aircraft flying 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 of flight 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 of the parcel rising to 

an elevation of 1,175-feet above mean sea level at the western most 

edge of the parcel. Any point between the east and west elevations can I 

be interpolated using a sloping plane between the two elevations. 

(5) The right to restrict or prohibit specific agricultural or horticultural 

uses such as growth and harvesting of timber, establishment of 

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 

attached to the Limited Warranty Deed transferring title 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 Document 64-3 Filed 08102110 Page 3 of 3 

orchards or other plant growth that may eventually po;netrate the 

imaginary surfaces depicted on the Exhibit "D" Drawing. 

(6) The right to restrict or prohibit specific agricultural uses, construction 

of ponds, 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 

storm water retention or storm water detention ponds. 

(7) The right to require the removal by the owner of any trees or portions 

of trees, now or hereafter existing, that penetrate imaginary surfaces 

as stated in Section (4), and the right to enter upon said properties and 

remove such trees or portions of trees if the owner fails to do so 

within thirty (30) days after receipt of written 22 notice from the City 

of Atlanta of the requirement to do so and, in such event, to collect the 

cost of such removal from the owner. 
Case-J •1.3-cv-02480"SCJ Document 1c1· FiledD?/26/13 P"\ge 19 of 21 

Case 1 :08-cv-01464-JEC Document 64-4 Filed 08/02/10 Page 1 of 2 

·~· 

"<): 

_; 
Case .1·1.3-cv~2480-SCJ ···Document 1-1 Filed 07/26/13- r>qge 20 of 21 
Case 1 :13-cv-02480-SCJ Document 1-2 Filed 07/26/13 '?age 1 of 3 

EXHIBITB 
Case 1 ·.13-cv-02480-SCJ Document 1-2 Filed 07/26/13 °age 2 of 3 

U.S. Department 

of Transportation 

Federal Aviation 

Administration 

April1 o, 2007 

Mr. Thomas E. Nlssalke, Ph.D. 

Director of Environmental and Technical Services 

City of Atlanta!Department of Aviation 

P. 0. Box20509 · 

Atlanta; Georgia 30320-2509 

Dear Mr. Nlssalke: 

ATlANTA AIRPORTS 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 locations of specific properties with 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 

of ASNA, (49 U.S.C., Section 47506). These functions 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 under 49 U.S.C. 47503 of ASNA, (49 U.s. c •. Section 47503). The FAA reiies on the 

certification by you, under 150.21 of f'AR Part 150, that the 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 of such 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 to the 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 of the 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 1 03.(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 under the 

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 throughout the c:ourse of this 

study. A Public Information Workshop 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 C FR 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 of Approval. 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, Georgia 
Subject: 

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

Memorandum 

U.S. Department 

of Transportation 

Federal Aviation 

Administration 

Disposition of Comments regardi11g Hartsfield-Jackson International 

Airport Part 150 Noise Compatibility Program 

JiJ 

Date: January 24, 2008 

From: Scott Serritt, Atlanta Airport Distdct Office 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 of the City of Atlanta'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 behalf of the City of College Park. The first 

letter, dated November 6, 20071, v.as from the Mayor of the City of College Park, Jack Longino. The second letter, dated 

December 4, 2007, was received from the City Attorney for the City of College Park, Mr. Steven M. Fincher. Both of the 

letters raised concerns with Hartsfield-Jackson International Airport's NCP update. 

Although the letters on behalf of Ct)!lege Park were received after the close of the comment period, 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 of College Park Comments: 

1 a). The airport sponsor. City of Atlanta, failed to meaningfully consult the City of College Park about 

acquisition of apartment complexe~ located within the City of College Park as required by the Part 150 regulations. In 

support of this position, the City of College Park contends: b) the City of Atlanta 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 of any property within College Park withouf the 

direct involvement of College 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 of the affected properties which indicates no consultation occurred; 

and e) it is inappropriate for the City of Atlanta to undertake land acquisition within the City of College Park without the 

consent, participation and management of the City of College Park. Each of these 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 compatibility program must be developed and prepared . . in consultation with FAA regional 

officials, the officials of the state and of any public agencies and planning agencies whose area, or any portion or whose 

area, of jurisdiction within the Ldn 65 dB noise contours is depicted on the noise exposure map." 14 C.F.R. § 150.23(c). 

The City of Atlanta, the owner and operator of Hartsfield-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 of Atlanta established the Noise Mitigation Advisory Council (NMAC) to 

serve as the principal forum for coordinating the NCP update with College Park and other local pohtical jurisdictions. 

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

(LUAC), provided technical input for preparation of the NCP update. Noise Exposure Maps Report, page 1-4, §1.4. The 

Charter of the NMAC states the miSsion of the NMAC is to assist [the City of Atlanta] 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 of Part 150 aircraft operational, land use compatibility alternatives, 

and mitigation priorities.Id. At B-;~. The NCP update indicates the City of College Park was represented on the NMAC, 

the OAC, and LUAC and attended almost every committee meeting. See generally Appendix G. 

The representative of the City of College 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, I 0127/05 NMAC Meeting Minutes. 

Before the NMAC met on August 3, 2006, the City of College Park and others were provided with copies of the dralt 

NCP update. The draft NCP indicated that approximately 878 residential structures are located in the 70 DNL contour. 

Of these, 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 of the voluntary property acquisition was estimated at $43 million during this 

meeting. See, Appendix G, 813106 NMAC Meeting Minutes. 

The City of Atlanta 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 of Atlanta agreed to accept comments from the City of College 

Park until October 30, 2006. 

The City of College 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 of these 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 of College 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 of the comment period, there was no obligation on the part of 

the sponsor to address them as part of the NCP update under 14 CFR §I 50.23( e )(7). 

In an effort to facilitate resolution of the issues regarding the property acquisition recommendations in the draft NCP, the 

FAA had three additional meetings with representatives from the City of Atlanta and the City of College Park, March 22, 

2007. May 23, 2007, and June 6, 2007. 

The opportunities available for College Park to 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 that there 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 of ANY property within College Park without the direct 

involvement of College Park and received DeCosta's personal comrniunent that no more such acquisitions would occur 

without the consent of College Park." 

Based on these facts, the City of Atlanta 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 of residences (including apartment complexes) in the 70 DNL contour and for voluntary acquisition or sound 

insulation of residences in the 65 to 70 DNL contour during the Part I 50 NCP update process. (As reflected in the 

Record of Approval, the sponsor has clarified its intent that the owners of the multifamily residential properties straddling 

the 65170 DNL contour have the option of voluntary land acquisition or sound insulation. Five of the seven multifamily 

apartment complexes fall into this category.) The City of Atlanta consulted with College Park as a member of the 

NMAC, OAC, and LUAC. The NCP update indicates that College Park had specific notice that the recommendation for 

voluntary acquisition included apartment complexes as early as October 2005. Since that time the City of College Park 

has had numerous opportunities to discuss its concerns about this measure in depth with both the City of Atlanta 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: 

I b ).The Part I 50 regulations do not specifY how the airport sponsor is to meet the consultation requirements under I 4 

C.P.R.§ I 50.23(c). However the FAA has guidance that it uses in this area. See FAA's 1990 "Community Involvement 

Manual" (http:/ lwww. faa.gov/about!office _ org!headquarters _ officeslaeplplann ing-toolkit!med ia!VJ .A.pdf). The N CP 

indicates that the City of Atlanta used the NMAC, LUAC, and OAC as a means to fulfill the Part ISO consultation 

requirements, The City of College Park was 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 Park that there would be no more acquisition and demolition of any property within 

College Park without the direct involvement of College Park. 

FAA Response: 

lc). As discussed above in Response to Comment la, the City of Atlanta consulted College Park about the measures in 

the NCP that involve voluntary acquisition of property within College Park. If College Park demonstrates that it is 

capable of carrying out the projects within its jurisdiction, then it may receive grants to implement those projects. 49 

USC § 47504(c)( I), (3 ). The FAA has been advised that on December I 0, 2004, at a meeting between College Park and 

City of Atlanta, when College Park voiced concerns regarding the ongoing acquisition of property in College Park by 

City of Atlanta, Mr. Ben DeCosta committed to coordinating with College Park for future land acquisition. Mr. DeCosta 

specifically stated that he would not purchase 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 of the Part ISO NCP update does not foreclose direct 

involvement of College Park. The NCP update includes a measure to coordinate the re-development of land purchased 

under the residential acquisition program with affected local political jurisdictions 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. 

I d). The NCP does not include plans for re-use/re-development of the 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 of the affected properties. College Park believes that given the long term use of this 

property as multi-family residential, the most appropriate continuing use of this property remains multi-family use. This 

is a municipal planning responsibility that belongs to College Park and highlights why it is completely inappropriate and 

irresponsible for HJIA to undertake this profound community disruption- enabled by Federal dollars- without the active 

consent, participation and management of the City of College Park." The lack of re-use/re-development plans indicates 

that no consultation occurred. 
Case 1·13-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 7 of 12 

FAA Response: 

1 d). See Response to Comment Ia regarding the City of Atlanta's consultation with College Park and Response to 

Comment lc regarding coordination of redevelopment of land purchased within College Park. The NCP gives the owner 

of the affected properties the choice of whether to continue residential use of the property. This is consistent with the 

airport sponsor's grant obligation to take reasonable steps to assure to restrict the use of land 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 of communities as 

recognized under Part 150. 

Part J 50 does not require the airport sponsor to include plans for reuse of the properties or plans for where tenants will be 

relocated in its NCP. However, the NCP update includes a measure to coordinate the re-development of land purchased 

under the residential acquisition program with local political jurisdictions. In addition, if the airport sponsor implements 

the NCP measure and acquires residential property, the City of Atlanta must comply with the Uniform Relocation 

Assistance and Real Property Acquisition Policies Act of 1970, which requires the airport sponsor to assist displaced 

individuals in obtaining comparable replacement housing. 

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 nor the most appropriate entity to be engaged in NCP property 

acquisition within the jurisdictional boundaries oF College Park consistent with federal grant obligations. 

FAA Response: 

I e). If detennined capable by the FAA, then College Park may receive grants to carry out projects in this approved NCP 

update, either from the FAA directly or from the City of Atlanta. 49 U.S.C. § 47504(c)(l), (c)(3). If College Park applies 

for a grant then FAA must determine, among other things, whether the issuance of grants directly to College Park would 

be reasonably consistent with the program and achieving the goals of airport noise compatibility planning under 49 

U.S.C. § 47501 et seq., as implemented by 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 of the NCP's 

multifamily residential acquisition. In support ofthis position, the City of College Park contends: a) there have been past 

purchases by City of Atlanta of multifamily structures; b) the City of Atlanta 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 of the 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 of mult,ifamily structures in the past, without NCP 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 of HJIA 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 setting that would not have exposed it to this "dangerous litigation," and resulted in the financial losses 

of all 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 that HJIA 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 only require consultation, and do not require approval or concurrence of local jurisdictions. College Park has 

had ample opportunities to address the issue relating to purchase of other apartment complexes. 

2c). April 2007 NCP Update Federal Register notice was misleading and lacked public involvement. It was part 

of the 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 of multifamily dwellings in the NCP update. The April2007 Federal Register notice stemmed from the City 

of Atlanta'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 of a revised notice. The events unfolded as follows: 

The City of Atlanta 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 of Atlanta revised the NEM and NCP2. It took time to 

complete revision of the comprehensive NCP 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 of the comprehensive NCP 

update was in progress the City would submit the revised NEM s to the FAA for acceptance along with an abbreviated 

NCP update. On March 29,2007, the City submitted a limited update consisting of the measures for voluntary 

acquisition of multifamily dwellings in the 70 DNL contour and for sound insulation within the 65 DNL contour. 

The FAA announced its acceptance of the NEMs and a period for public review 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's representative Scott Seritt for copies of the NCP. College Park representatives reviewed and commented upon the 

draft comprehensive NCP update that it obtained from the HJIA website. The FAA drafted a response to the comment 

and prepared to issue a Record of Approval.3 However, College Park discovered the misunderstanding and contacted the 

FAA. Although the two measures in the abbreviated NCP were a subset of the draft comprehensive NCP, the FAA 

withdrew the notice. 

As the City of Atlanta by this time had completed its revisions to the 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 a revised Federal Register notice, which solicited public review and comment on the 

comprehensive NCP update. This ensured that the FAA and City of Atlanta were able to fully consider the issues of 

concern to College Park. 

3a). College Park argues that it has a scarce supply of low to moderate housing in College Park and loss of these 

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 support this position because in that litigation, the City of 

Atlanta took a similar position in support of excluding 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 

of voluntary acquisition of apartment complexes in College Park can be addressed by various means, including efforts by 

the City of Atlanta to properly coordinate redevelopment of the acquired property with College Park. As to future 

cot5rdrnaticm of redevelopment by the City of Atlanta with College Park through the NMAC see·the~Response to 

Comment I c. 

3b). Citv o(Atlanta v. Watson, 267 Ga. 185 is a 1996 Georgia Supreme Court opinion where HJIA supports its 

1985 NCP position not to include multifamily housing in the "residential~' acquisition- citing an intent to minimize to the 

greatest extent possible the Joss of the 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 of City o(Atlanta v. Warson (267 Ga. 185) reveals that the City of Atlanta determined not to include 

multifamily housing in the initial phase of the 1985 NCP voluntary residential acquisition measure, ''but expressly leaves 

open the possibility that such residences will be purchased during a later phase of the Program." (at 189). The City of 

Atlanta did not state in the 1985 NCP that it would 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 of previously acquired 

noise land to finance 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 of reducing existing 

and/or preventing future non-compatible land uses. 

4. The City of Atlanta 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 of College Park points to the NCP's lack of consideration 

of alternatives to acquisition and demolition. There is no discussion of the feasibility of soundproofing the affected 

properties as an alternative, particularly with respect to properties at the edge of the 70 DNL contour or straddling the 65 

and 70 DNL contours. The lack of description and analysis of the impact of this measure or the consideration of 

alternatives also fails to meet the requirements of the law and, in particular, 14 CFR § 150.23. 

Specifically, the City of Co !lege Park states that the Jack of consideration of alternatives fails to meet the requirements of 

14 CFR § 150.23 and requests consideration of sound attenuation for properties within the 70 DNL "for some, but not all, 

of the multifamily residences listed in the airport's NCP." FAA Response: 

4). Analysis of program 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 I 50 Study, these include: acquisition of land and land interests, construction of 

barriers and soundproofing public buildings, preferential runway systems, flight procedures, airport restrictions, 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 of public 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 of the seven properties at issue straddle the contours, and the owners 

would therefore be able to opt for either measure. It is our understanding that the seventh property is not a property that 

is currently at issue, and that the owner of the Wynterbrook apartment complex will select acquisition. These measures, 

as applied to the impacted properties, are at 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 of Atlanta's poor record of returning 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 of Atlanta until the questions-of compliance 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 of compliance 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 if they meet statutory and regulatory criteria. 49 USC § 

... ~~".4.7504(b). Neither the City of Atlanta's performance in-retuming.property to productive use, ordn"disposing of noise 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 of Atlanta 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 November 7, 2007. 

2 The revisions to the NCP 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 Over time the FAA has developed expertise in the evaluation ofNCP measures. In this case, and over the span of five 

days, that expertise was sufficient to enable the FAA to respond to College Park's comments regarding the draft 

comprehensive NCP. 
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/ ASOIF AA@F AA 

cc Bonnie Baskin/ASO/FAA@FAA, Scott 

SeritVASOIFAA@FAA, Dana Perkins/ASO/FAA@FAA, 

Rusty Chapman/ASOIFAA@FAA 

bee 

Subject RE: Part 150 Study Request for 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) CIVIL COVER SHEET 

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(b) C01JNT\' OF RESIDENCE OF FIRST USTE!l 

PLAINTlFF~F_-:U::tton:::_ _________ _ 

(EW:C:l"r IJ'; ~L'\, I'L.U:"<"nVF CA:iES) 

DEFENDANT(S) 

Avery Park Partners, LLC, d/b/a Avery Park, 

Colony Creek, LLC and The City of College 

Park, Georgia 

COUNTY OF RF:SIDENCE OF FIRST LISTED 

D£fiEJ'I,'DANT~!.:_~.::_ ___________ _ 

fl.'li 1!.~. I'L\l~rJFFCA.>,;ES-c'l~LY) 

i\'OTI·:: l!'o t~-I.NJ)(;O:xm::q"'",\THl~('A~l':S, l.'S•: Tl~l': LOC\1"10/'.. OF 'I"HE T~ACT PF 

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(C) ATTORNEYS rFIR.\-1 "A;\11::. .\OJ)Rt:ss. TELk:rno"E :-<U\!ntR, A:>ll) .A TTORN'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. 

13 Atlanta 

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. BASIS OF JURISDICTION 

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EXHIBIT 3 
Uncertainties in measuring aircraft noise and predicting community 

response to it 

Sanford Fidell"1 and Paul Schomerb) 

(Received 2006 April 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 overinterpreting the accuracy and precision of community noise impact assessments 

would be reduced. © 2007 Institute of Noise Control Engineering. 

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 and judicial action. The 

societal costs of these noise effects must be predicted 

and evaluated as part of the planning of large-scale, 

publicly-funded civil engineering projects. Regrettably, 

however, the accuracy and reliability of expedient 

methods routinely adopted to predict transportation 

noise exposure and expected community reaction leave 

much to be desired. 

The fundamental planning concern when evaluating 

alternatives for airport expansion and other transportation 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 of day, 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 of transportation noise, questions about the 

precision and accuracy of transportation noise 

measurement usually concern the adequacy of predictions of population-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 

1l As observed by a reviewer, a better goal for plmming purposes might be to 

assess "Which project alternatives are better, and which arc worse?" 

82 Noise Control Eng. J 55 (1), 2007 Jan"Feb 

criteria. The ultimate questions about interpretations of 

field measurements, and about the meaningfulness of 

regulatory policy, require answers to these questions. 

It is therefore of more than passing interest to review 

the many sources of uncertainty of environn1ental 

acoustic measurement: from the theoretical and practical limits of laboratory 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 

greater than tenths of a decibel are unattainable; 

Field measurements of acoustical 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 exposure per se; and 

Regulatory criteria may nevertheless be interpreted as though they were simple engineering 

calculations of unlimited precision. 

Some of these beliefs are inconsistent with each another, with realities oflong-range outdoor sound propagation, and with the capabilities of noise 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 impact predictions. 

The present review focuses on (I) the inherent 

imprecision and limited replicability of field measurements of aircraft noise; (2) errors of misclassification in 

attributing sources to unattended measurements of 

noise events; (3) noise modeling errors; (4) errors in 

direct measurement of community response; and (5) 

consequences of the combinations of these errors. 

2 DISCUSSION 

2.1 Inherent Imprecision of Acoustic Field 

Measurements 

The first two of the listed beliefs about uncertainties 

of acoustic measurement are incontrovertible. All who 

have attempted to measure sound levels outside an 

anechoic chamber are aware of the 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 of decibels 

are worth millions of dollars, as in the case of aircraft 

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 of motorized 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 morning is 

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 of transportation noise sources may be regarded 

as gratifyingly small. However, standard deviations on 

Noise Control Eng. J. 55 (I), 2007 Jan-Feb 

Ol 

"0 

Q 

"0 

•t; 

~ 

:::! 

_J 

w 

z 

80 

75 

70 

65 

60 

55 

u 50 

;;::;. 

., 

0 45 

\!:\1 

b'l 

~ 

' 

m 

. ' " 

• 

40 40 ~·----------------------------------~ 45 50 55 60 65 70 75 80 

Daily CNEL Attributed to Community Sources, dB 

Fig. 1-II/ustration of daily misattribution of aircraft noise ~?Vents to non-aircraft sources 

at a single site by an airport's noise monitoring system. 

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 of 3 to 5 dB imply 95% prediction intervals (a range of values encompassing 95% of 

empirical observations) on the order of 10 dB, reports 

of field measurements of transportation noise should 

not be viewed as precise estimates unless accompanied 

by a detailed rationale for according them such deference. 

2.2 Errors of Misclassification in Unattended 

Aircraft Noise Measurements 

Although the first two of the listed beliefs about 

environmental noise measurement are reasonable, 

much of the remaining conventional wisdom about the 

objectivity and reliability of noise modeling, assessment of community response, and the utility of interpretive criteria is questionable. For example, misclassification of noise sources can be a non-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 

83 
120,------- ----------....,., 

110 

iiJ100 

~ 

rn go VJ 

~ 80 

70 

80 90 100 110 

ANOMS SEL (dB) 

Fig. 2-Predicted versus measured SELs for 

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 of supposed daily community noise exposure 

values. Neither vendors nor purchasers of airport 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 and worthy of careful 

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 of errors of 

measurement and estimation. The U.S. Federal Aviation 

Administration has never published a definitive analysis of the accuracy and precision of its Integrated Noise 

Model. Partial analyses, such as those of Miller 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 of a few thousand meters. 

Their accuracy at longer ranges and orthogonal to flight 

tracks can be much poorer, however6 

Figure 2, adapted from Miller et al., 3 plots predictions made by INM of sound exposure levels for 21,166 

84 Noise Control Eng, J. 55 (1), 2007 Jan-Feb 

departures of eight commun aircraft types against 

actual measurements of those 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 of noise exposure values are still likely, especially 

at long ranges and small angles of incidence. 

Grievous though they may be, such errors of predictions can be minor in comparison with errors of prediction associated with inadequate representation of flight 

tracks and profiles and other operational information, 

including fleet mix, time of day 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 of an 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 of an airport's runways at 8 knots while the 

average numbers of each aircraft type in the airport's 

fleet take off and land on each of an 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 

on the many other days of the year when 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, and flight schedules may be busiest, 
Table 1-Two years o;dijjerences (in dB) between measured and predicted DNL vaiues at a major airport's 

noise monitoring sites. 

1999 1999 1999 1998 1998 1998 

Monitor Measurement INM Prediction Difference Measurement INM Prediction 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 of DNL 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 of flight track and flight path assumptions 

based on intensive analyses of radar returns, and 

repeated calcnlations of predicted DNL values for 

comparison with measured values. Despite these 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 appreciably better at most airports, particularly for monitoring systems with multiple sideline 

and/or distant noise monitoring sites. 

2.4 Errors of Direct Measurement of 

Community Response 

Direct measurement of the prevalence of a consequential degree of aircraft 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) 

-- ~ 60. 

.!: 

01 50 ... . -

' "'' ... 

0 40. 

w 

g 30 w 

~ 20 

" ~ 

0. 10 

0 

40 45 50 55 60 65 70 75 80 85 90 

Day-Night Average Sound Level, dB 

Fig. 3-Empirical mean annoyance prevalence rates (triangles) in relation to FICON (1992) dosageeffect relationship and actual 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 of I 00 

- 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 opinions 7 

2.5 Consequences of the Combinations of 

these Errors 

Dosage-effect analyses of the sort pioneered by 

Schultz' attempt to predict prevalence rates of adverse 

effects of transportation 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 of the application 

of dosage-effect analysis in environmental noise 

regulation.) 

Dosage-effect analyses are susceptible to all of the 

errors of objective and subjective measurement 

discussed above, since errors of estimate afflict both 

axes of these relationships. As described by Fidell and 

Silvati, 10 the resulting imprecision is compounded by 

the variety of statistical assumptions that analysts adopt 

to create fitting functions. Figure 3, in which the data 

points are a superset of the 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 of greatest regulatory interest (~55 to 

65 dB). 

2.6 Consequences of Unjustifiable Reliance 

on Imprecise Measurements and 

Predictions 

FICON's 11 relationship accounts for less than 20% 

of the variance in a comprehensive set of observations 

of the prevalence of annoyance associated with aircraft 

noise exposure in communities worldwide 10 Similarly, 

the dosage-effect function identified by ANSI12 for 

prediction of sleep interference fails to explain 80% of 

the variance in the relationship between indoor SEL 

values and the prevalence of awakening. Uncritical 

reliance on a dosage-effect relationship that attempts to 

predict community reaction to aircraft noise exclusively from estimated noise exposure levels can lead to 

substantial errors of prediction. 

At Vancouver International Airport, for example, the 

start of operations 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-effect relationship, the increase in 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-Summary o; estimated net uncertainty ofpredictions of community reactwn to aircraji noise in the 

vicinity ofLc~n=65 dB. 

Basis for Estimate of 

Aircraft Noise-induced 

Anno ance 

Approximate 95% 

Prediction Interval for 

Percent Highly 

Anno ed 

Basis Notes 

Direct measurement of 

DNL -3,+2% 

Error only on abscissa 

of Fig. 3. Percents are 

-::----::---.,----,---------------- estimated from the line 

Software-based tangent to the FICON 

Direct measurement 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 of DNL curve at 65 DNL. 

Prediction of aircraft 

noise-induced 

annoyance from 

measurement of DNL 

-9,+38% 

Error on abscissa and 

ordinate of Figure 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. --------------------Figure 3 at 65 DNL is 

Prediction of aircraft estimated to be 3 to 50 

noise-induced %. With respect to the 

The ±5% confidence interval 

for prediction ofDNL combines 

with the·-9, + 3 8% confidence 

interval for annoyance to yield 

-10, +38%. 

annoyance from - 10, +38% FICON curve, this is 

prediction of DNL -9, +38 %. 

Direct measurement of 

high annoyance through 

interviewing 

±5% Interview sampling 

error 

Assumes binomial variance; 

greater uncertainty possible 

under alternate assumptions 

aFar each 1imit, the combined error, assuming independence, is the square root of the sum of the two squares. 

increased nearly fivefold, from II% (15 months prior 

to the opening of the runway) to 52% (21 months after 

the start of operations 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 of Overall Uncertainty 

Table 2 summarizes the net uncertainty of predictions of community reaction to aircraft noise as they are 

produced in common practice. "Common practices" 

Noise Control Eng. J. 55 (1), 2007 Jan~Feb 

include I 0-15 contiguous days of monitoring to 

estimate DNL values from field measurements made 

other than by multi-million dollar permanent monitoring systems; software-based modeling of aircraft noise 

exposure based on a few hundred assertedly representative nominal flight tracks; and simple random selection of samples of I 00-200 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 of DNL measurements based on information in ANSI SI2.9/Part 2; 1 

on 

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 contour values; and on the 

assumption of independence of errors of physical and 

subjective measurement. 

Table 2 indicates that although many factors contribute to overall uncertainty of predictions of community 

reaction to aircraft noise, uncertainty and bias in the 

transfer function are among the more prominent 

sources of uncertainty. It is also interesting to note that 

even though opinion surveys measure non-physical 

("subjective") quantities, uncertainty about their results 

may he minor compared with the errors of estimate of 

acoustic ("objective") quantities. Compared with 95% 

prediction intervals for estimates of physical exposure 

87 
more than an order of magnitnde wide, survey 

sampling errors may be the Jesser part of the 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. It would aid in 

the interpretation of these predictions if they were 

accompanied by an indication of their uncertainty, and 

of the 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 of community response. To avoid misleading readers of environmental impact disclosure 

documents, the degree of precision of estimates of both 

acoustic quantities and predictions of conununity 

response based on them should be reported. For 

example, one might state that the estimated 65 dB 

DNL contour predicts that 12% of a community will be 

highly annoyed by aircraft noise, with a 95% prediction 

interval that ranges from Jess than 2% to 50%. 

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quantities and procedures for description and measurement of 

environmental sound, Part 2: Measurement of long-term wide88 Noise Control Eng. J. 55 (1), 2007 Jan-Feb 

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(1992) 

2. P. D. Schomer, "A Statistical Description of Ground-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-2000-21 0113 (2000). 

4. K. Plotkin, C. Hobbs, and K. Bradley, "Examination of the lateral attenuation of aircraft noise," NASA/CR-2000-21 0111, 

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aircraft noise prediction models at low levels of exposure," 

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(1998). 

8. T. J. Schultz, "Synthesis of Social Surveys on Noise Annoyance," J. Acoust. Soc. Am. 64, 377405 (1978). 

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Noise Annoyance," Noise Control Eng. J. 52(2), 56·-68 (2004). 

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agency review of selected airport noise analysis issues," Report 

for the Department of Defense, Washington DC (1992). 

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