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VIA E
- MAIL AND U.S. MAIL February 2 5, 201 5 Office of the Chief Counsel , Attention: FAA Part 1 6 Proceedings Docket AGC

- 610 Federal Aviation Administration 800 Independence Ave. SW Washington , D.C. 20591
Re: V irginia One Development, LLC, R.W. Parsons, Inc., D. Scott Henderson, Colony Camp Creek, LLC, and Crossings Townhomes, LLC v. The City of Atlanta , FAA Docket No. 16
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- 09 ; Complainants ’ A ppeal from the Director ’s Determination Dated January 26, 2015.
Dear Sir/Madam : Enclosed is a n original and 3 cop ies of Complainants’ A ppeal from the Director ’s Determination Dated January 26, 2015. 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

Steven M. Taber

cc: John Watkins Roy Hadley

1 LEAGUE, # 60036 | IRVINE, CA 92602 | TEL 949.735.8217 | FAX 714.707.4282 | staber@taberlaw.comBEFORE THE U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. VIRGINIA ONE DEVELOPMENT, LLC, ) R.W. PARSONS, INC. d/b/a CLUBHOUSE ) D. SCOTT HENDERSON d/b/a ) AVERY PARK, COLONY CAMP CREEK,) LLC, and CROSSINGS TOWNHOMES, ) LLC, ) ) Complainants, ) ) v. ) Case No.: FAA Docket No. 16

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- 09 ) THE CITY OF ATLANTA, GEORGIA, ) ) Respondent. )

___________________________________ )

COMPLAINANTS’ APPEAL FROM THE DIRECTOR’S DETE RMINATION DATED JANUARY 26, 2015 Communications with respect to this documen t should be sent to Complainant s ’ Representative:

Steven M. Taber T ABER L AW G ROUP , P.C. 1 League, #60036 Irvine, California 9260 2 (949) 735

- 8217 (phone)

(714) 707

- 4282 (fax) staber@taberlaw.com Counsel for Complainants Virginia One Development, LLC, Avery Park Partners, LLC d/b/a Avery Park, Colony Camp Creek, LLC and Crossings Townhomes, LLC. February 2 5 , 201 5BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. VIRGINIA ONE DEVELOPMENT, LLC, ) R.W. PARSONS, INC. d/b/a CLUBHOUSE ) D. SCOTT HENDERSON d/b/a ) AVERY PARK, C OLONY CAMP CREEK, ) L LC, and CROSSINGS TOWNHOMES, ) LLC , ) ) Complainants, ) ) v. ) Case No.: FAA Docket No. 16

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- 09 ) THE CITY OF ATLANTA, GEORGIA, ) ) Respondent. )

___________________________________ )

COMPLAINANTS’ APPEAL FROM TH E DIRECTOR’S DETERMINATION DATED JANUARY 26, 2015 1
I. INTRODUCTION The Federal Aviation Administration’s Director’s Determination (“Determination”) in this matter is unconscionable. It is contrary to federal law, contrary to the FAA’s own regulations and policies, contrary to the intent of Congress and represents a reprehensible assault on public health and welfare, as well as private property rights. I ts conclusions are wholly

1 Complainants st ate that they have yet to receive the Director’s Determination by certified mail as required by 14 C.F.R. § 16.31(d). As such, the time for the Complainants to file their appeal has not yet started to run pursuant to 14 C.F.R. § 16.33(b). In an abundance of caution, Complainants file this appeal within thirty days of the receipt of an unofficial copy of the Director’s Determination via electronic mail to Complainants’ counsel. Since the FAA has yet to serve the Director’s Determination on the Complainant s by certified mail, Complainants reserve the right to amend this appeal until 30 days after such receipt of the official Director’s Determination. 2unsupported by law and by fact. In the end, t he Director’s Determination is indicative of the
FAA’s preference for the expansion of airports at the expense of the public health and welfare. It is representative of the FAA’s for disdain property rights and how aircraft noise destroys communities and neighborhoods.
T he Federal A viation Administration (FAA) has a statutory duty to protect residents and property owners from the deleterious effects of aircraft noise. Federal law clearly establishes the absolute duty of the federal government to protect both people and property from aircraft noise.

“ [T] he Congress declares that it is the policy of the United States to promote an environment for all Americans free from noise that jeopardizes their health or welfare.” 42 USC § 4901(b)

. Moreove r , in at least two o ther statutes, federal law puts the onus of assuring that aircraft noise does not jeopardize the public’s hea l th, welfare or property on the FAA. 49 U.S.C. § 40103(b)(2) states that the “Administrator shall prescribe air traffic regulations on the flight of aircraft (including regu lations on safe altitudes) for . . . protecting individuals and property on the ground.” This has been construed by the U.S. Court of Appeals for the District of C olumbia Circuit to apply to restricting aircraft noise over sensitive receptors and protecti ng the property over which aircraft fly. Helicopter Association International Inc. v. Federal Aviation Administration , 722 F.3d 430, 433

– 435 (D.C. Cir. 2013) . Likewise, the FAA has a duty under 49 U.S.C. § 44715(a)(1)(A) to “prescribe . . . regulation s to control and abate aircraft noise and sonic boom” in order “[t]o relieve and protect the public health and welfare from aircraft noise and sonic boom.” 49 U.S.C. § 44715(a)(1)(A). It is under the authority of this statute that the FAA developed and p romulgated Part 150 of Title 14 of the Code of Federal Regulations (“Part 150”). If the Director’s Determination is allowed to stand, it represents an utter failure on the

3part of the FAA to carry out its statutory duty. 2 Once again , the FAA will ignore t he public severely impacted by aircraft noise when a solution to the issue is so readily available. 3
I I. FACTS A. The September 27, 2001, Record of Decision is noticeably absent from the Director’s Determination recitation of facts. Noticeably absent fr om the Director’s Determination is any mention of the FAA mandated noise mitigation measures contained in the FAA’s September 27, 2001, Record of Decision (“2001 ROD”). The 2001 ROD requires the City of Atlanta to mitigate the increase in aircraft noise t hat would be caused by the construction of the Airport’s “Fifth Runway.” Moreover, the FAA in the 2001 ROD specifically ordered Atlanta to mitigate the noise created by the Fifth Runway separate and apart from its duty under the ROD to update and carry ou t a revised NCP. In return for the b illions of federal dollars that Atlanta used to construct the Fifth Runway, Atlanta agreed to the terms set out in the 2001 ROD, including the requirement that Atlanta mitigate the substantial aircraft noise created by the addition of the Fifth Runway. The failure to mention these federally mandated requirements undermines the factual support for the Director’s Determination. The absence of a discussion of the requirements of the 2001 ROD negates the Director’s
argumen t concerning Grant Assurance 16. In that section the FAA states that the NCP is

2 It also opens the FAA to a citizen’s suit under 42 U.S.C. § 4911(a)(2)(B).
3 The Complainants have taken over the City of Atlanta’s statutory role of attempting to bring about completion of the Noise Compatibility Program (NCP) for Atlanta’s Hartsfield

Jackson Atlanta International Airport (the “Airport”), since Atlanta has abdicated any responsibility it has in seeing the NCP to its proper end. The Complainants submit that there are multiple ways in which the NCP as approved by the FAA can be carried out that are also in line with the Consent Order. Atlanta, however, has been unwilling to consider any them

. 4inchoate, and therefore Grant Assurance 16 does not apply. However, t he grant agreement in question refers not only to the NCP, but also the ROD for the Fifth Runway, which r equires noise mitigation in addition to revision of the NCP. Moreover , because the ROD required the revision of the NCP, it was no longer voluntary and by accepting the federal funds for the Fifth Runway and signing the grant agreement for the Fifth Runwa y , Atlanta was required to carry out both the mandated noise mitigation specifically mentioned in the ROD , revise its NCP, and carry out the mitigation projects identified in the revised NCP. Thus, the Director’s Determination that “this is not a situatio n where an actual noise mitigation grant has been issued” (DD, p.34) is wholly unsupported by the facts. The 2001 ROD requires noise mitigation and Atlanta has failed to deliver thereby violating Grant Assurance 16. Because the Director’s Determination ig nored the requirements of the 2001 ROD, it would be helpful to review what those requirements are. In the FAA’s September 27, 2001, Record of Decision regarding Hartsfield

- Jackson Atlanta International Airport’s Fifth Runway (“2001 ROD”), the FAA gave a b rief summary of the principal findings of the Environmental Impact Statement and the mitigation measures “to which the Sponsor [i.e., Atlanta] has committed.” 2001 ROD, p.12. Included in the findings were sections regarding noise and land

use , and the mi tigation measures that Atlanta committed to undertake. The 2001 ROD states that Atlanta has committed to providing noise mitigation measures to residents and property affected by aircraft noise. Specifically, it states that: The noise mitigation measure s include both actions that will occur to provide noise abatement at the eligible structures and a commitment to further evaluate other measures in cooperation with surrounding jurisdictions as part of a new FAA Part 150 study update. The specific commitm ents for abatement include acoustical treatment of residences and community facilities within the 65

- 74 DNL exposure. Relocations will be provided to willing sellers of residences within the 75+ DNL contour.

52001 ROD, pp.12

- 13. Thus, the 2001 ROD indica tes that the FAA established as a precondition to accepting federal funds for the Fifth Runway, Atlanta committed to do two things regarding noise abatement: (1) provide acoustical treatment for residences within the 65

– 74 DNL exposure; and (2) develop a new FAA Part 150 study update. The FAA reiterated the City of Atlanta’s commitments in the next section, entitled “Land Use,” of the 2001 ROD, stating: Mitigation measures will be provided for these impacts. [The City of Atlanta] will evaluate noise lev els and acoustical treatment methods at the noise sensitive sites, applying appropriate treatment where practicable to reduce the interior sound levels to meet the FAA’s noise compatibility guidelines. 2001 ROD, p.13. While this provision does not spec ifically indicate that abatement will take place, it does presage the findings of the NCP where Atlanta made conclusions about the “appropriate treatments” to noise affected properties. “The FAA’s noise compatibility guidelines” mentioned in the above

- sec tion refer to the guidelines set out in Appendix A of Part 150 of Title 14 of the Code of Federal Regulations. Thus, far being a “voluntary” program, the update to Atlanta’s NCP was mandated by the FAA in the 2001 ROD. Moreover, the FAA specified that th e mitigation measures “will be provided” for these impacts. Thus, the FAA mandated the implementation of noise mitigation as part of preconditions for federal funding of the Airport’s Fifth Runway. Moreover, by entering into the Consent Order, Atlanta wa s not relieved of its obligations to carry out its NCP or its obligations under the 2001 ROD, it just made it harder on itself to ensure that its obligations under the NCP, the 2001 ROD and the grant assurances would be met.

6B . The 2008 Noise Compatibility Program was insufficient and in violation of Part 150 standards. The Director’s Determination also failed to note that the Noise Compatibility Program that the FAA submitted was deficient and therefore the Director’s Determination was arbitrary and capr icious. On March 21, 2007, began its update of its Part 150 Program by submitting Volume One of Federal Aviation Regulations Part 150 Study for approval by the FAA. This volume consisted of the new Noise Exposure Maps that Atlanta had commissioned as par t of the Part 150 process. The FAA reviewed NEMS Volume and on April 10, 2007, FAA notified Atlanta of its determination that the Noise Exposure Maps were in compliance under § 103(c) of the Aviation Safety and Noise Abatement Act of 1979, (49 U.S.C. § 475 03). On April 30, 2007, Atlanta submitted Volume Three of the NCP , FAR Part 150 Study Public Participation Program for FAA approval. Following the finding that the Noise Exposure Maps were in compliance, the FAA began its 180

- day review period for the Air port's proposed Noise Compatibility Program Update under the provisions of 49 U.S.C. § 47504. However, on June 27, 2007, Atlanta requested that FAA suspend its review and processing of the Noise Compatibility Program. This request was granted by the FAA o n July 11, 20 07. On September 7, 2007, the FAA received Volume Two of the ATL NCP, FAR Part 150 Noise Compatibility Program Report and notice of the receipt was published in the Federal Register. Atlanta requested that the FAA review the NCP and that the noise mitigation measures, to be implemented jointly by the airport and surrounding communities, be approved as a Noise Compatibility Program under 49 U.S.C. § 47504. Id. The major portion of the Noise Compatibility Program focused on the Sound Insulation and Property Acquisition program that Atlanta promised to institute to protect the citizens in the

7communities surrounding the Airport from the deleterious effects of noise. Although 14 C.F.R. § 150.23(e)(8 ) requires that all Noise Compatibility P rogram s include “the schedule for implementation of the program,” no such schedule is contained in the NCP . Table 9.2 of Volume II of the NCP , however, does imply that the sound mitigation and acquisition program would get underway soon after the NCP is approve d by the FAA: “the timing for actual acquisition of property would be based on the approval of the NEMs and NCP, as well as the availability of federal and HJAIA funds” and “the timing for actual insulation of properties would be based on the approval of the NEMs and NCP, as well as the availability of federal and HJAIA funds.” Despite the fact that 14 C.F.R. § 150.23(e)(8) requires that the NCP include “a schedule for implementation of the program,” the City of Atlanta failed to submit any such schedule. The failure to submit a schedule rendered the NCP out of compliance with Part 150 and required that the FAA disapprove the NCP. Section 6 of Volume II, “Sound Insulation and Property Acquisition,” identifies “residences and other noise sensitive uses l ocated within the 65 DNL contour” and recommends that Atlanta “acquir[e] residential properties within the 70 DNL contour and provid[e] sound insulation to residences and other noise sensitive structures located between the 65 and 69 DNL

contours. To be eligible for acquisition, the NCP states that the residence must be within the 70 DNL contour or straddle the 70 DNL contour line and it must have been constructed prior to April 10, 1985. According to the NCP , the intent of the date restriction was to d istinguish between residences that had already received funding for sound mitigation and those that had not. In addition, the NCP states that residences are candidates for sound mitigation provided they meet the following criteria:

8• The structures are with in the 65 or greater DNL at the time of implementation.

• They are of a construction capable of being sound insulated.

• They were constructed prior to April 10, 1985 (See Section 6.4)

• They were not sound insulated through any previous offering by the DOA.

• The property owner provides a right

- of flight (avigation easement) in return for the sound insulation. The NCP does not contain any restrictions on the extent of rehabilitation of the residences that the Landowner may undertake such that the property is no lo nger eligible for sound mitigation. The NCP does not list any other criteria or factors that impact the City’s decision as to whether a residence or group of residences is eligible for sound mitigation or acquisition. Figure 6

- 2 of the NCP identifies e ach of the properties that Atlanta believed to be eligible for sound mitigation and acquisition. Each of the Properties owned by the Landowners and identified more specifically above is identified by Atlanta as being eligible for either acquisition

or sou nd mitigation in Figure 6

- 2. In addition, Atlanta drew up at a tentative budget for both the acquisition and sound mitigation. It estimated that it would cost approximately $78 million including all administrative costs to complete the sound mitigation. It also estimated that the total cost for the acquisition phase of the NCP would $42 million, which included administrative costs, payouts for displaced owners and tenants, as wel l as the cost for acquisition. On January 25, 2008, the FAA approved the NC P and issued its Record of Decision (ROD). With respect to Land Use Measures, the FAA approved the acquisition of the residences identified in Figure 6

- 2 and providing sound mitigation to the residences identified in Figure 6

- 2: 1. Voluntary property acq uisition program for eligible single

- family residences and multi

- family complexes within the 70 DNL contour. This voluntary measure would

9provide the opportunity for owners and residents of residentially developed property within the high noise areas (2007 NEM 70 DNL and greater) to receive fair market value for their property and relocation assistance. Any residential development that occurred after April 10, 1985 that was within the limits of the 1985 70 and greater DNL contour was constructed with the kn owledge of the extent of significant noise exposure and would not be eligible for the acquisition program. (NCP pages 6

- 1 thru 6

- 4, 8

- 2, 9

- 1, and 9

- 4; Figures 6

- 1 and 6

- 2; Tables 6.1 and 9.2) FAA Action: Approved for the properties identified in the NCP, Figure 6

- 2. It is noted the Uniform Act does not consider this type of transaction a "'voluntary" program, even though the residents will voluntarily participate under 14 CFR Part 150. Under the Uniform Act, it is termed a "buy out" program because the l and use in the neighborhood is being changed (see Measure 2, directly below). Acquisitions are limited to existing non

- compatible land uses located within the 70 DNL noise contour of the official NEM ("Noise Exposure Map: 2007"), and consistent with FAA's 1998 remedial mitigation policy (63 FR 16409).

.... 3. Voluntary sound insulation program for eligible residential buildings in the 65

- 70 DNL contours. This voluntary measure will benefit those eligible residences located between the 2007 NEM 65 and 70 DN L contour by providing them the option to be included in the sound insulation program. The benefit would be in gaining a minimum of 5 dB reduction in interior noise. In return for the sound insulation, property owners would be required to sign a "right of flight" easement. To be eligible for sound insulation the structure must be capable of being sound insulated, constructed prior to April 19, 1985 (see Measure 1, above) and was not sound insulated through any previous offering by the Department of Aviation . (NCP pages 6

- 4 thru 6

- 7, 8

- 3; Tables 6.2 and 9.2) FAA Action: Approved. FAA Record of Approval, pp.1

- 2 (emphasis added)

. Along this line, the Director Determination states on p.35 that “ [t] he Director does not take a position on whether a particular mitigation measure is adequate.” Since the FAA has long stated that the only sway it has with the airports to protect the public health from the severe effects of aircraft noise is through the enforcement of grant assurances, if this is not the proper fo rum, then what is? The Director and the FAA must take a position as to whether a particular measure is adequate. In fact, the FAA did take a position as to whether a mitigation measure was adequate when it approved the NCP. Why do landowners in other pa rts of neighboring communities get acquisition when landowners in

10College Park cannot get acquisition? Moreover, if the airport sponsor is allowed to change the parameters of its NCP without any input from the public or the FAA, why even bother with the
N CP? Any airport sponsor can do exactly what Atlanta has done, make promises it has absolutely no intention of keeping. This issue is ripe because Atlanta has emphatically stated that it will not acquire property within College Park or allow any other met hod of acquisition (such as acquisition by College Park with assistance from Atlanta), even if it is within the law. C . FAA’s response to College Park is legally inadequate, since it implies that College Park could undertake the NCP on the same footing as Atlanta. As a significant part of its ROD, the FAA addressed the concerns of the City of College Park regarding the NCP . Despite the fact that the City of College Park failed to submit its comments within the mandated time period, the FAA responded at length to each of College Park’s concerns in a January 24, 2008, Memorandum from Scott Serritt, the FAA’s Atlanta Airport District Office Manager. In essence, College Park believed that Atlanta had not followed the procedures with respect to consultation on the drafting and implementing of the NCP . In particular, College Park believed that 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.” In response, the FAA stated that 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.” In addition, the FAA responded that: However, with respect to this specific airport, sound insulation has been considered to the extent a ppropriate 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 therefo re

11be able to opt for either measure.... These measures, as applied to the impacted properties, are at the landowners’ discretion

. ( Emphasis added). Thus, according to the FAA’s ROD, it is the landowner who has the discretion to opt into the program or o pt out. The implication being that once the property met the requirements listed in the NCP , it was within the landowners’ discretion to accept the acquisition of the property or sound mitigation. For Fiscal Year 2010 (October 1, 2009, through September 30, 2010), Atlanta received $10,000,000.00 in AIP grants and $10,000,000.00 in discretionary funds for “Noise Mitigation Measures for Public Buildings, Noise Mitigation Measures for Residences within 65

– 69 DNL. It is not known if Atlanta has attempted to acquire additional funding from the FAA for its sound insulation and acquisition program either before FY 2010 or since then. C . The Director’s Determination with regard to Grant Assurances 5, 21, and 35 is unsupported in law and in fact due Atlanta’s b ad f aith . The Director’s Determination also confirms the City of Atlanta’s actions with respect to the Consent Order are in bad faith, since the City of Atlanta has withdrawn specific properties from the NCP simply because the property owners had the aud acity to challenge the City of Atlanta in court over the extent of their responsibility to protect the residents’ health welfare from the severe impact of aircraft noise. 4 The landowners relied upon promises made by the City of Atlanta and confirmed by th e FAA. Then the City of Atlanta changed its mind. The FAA is complicit with the City of Atlanta in this breach of implied contract if it does not take action to enforce the City of Atlanta’s NCP.

4 It should be noted that Atlanta did not begin to comply with the Consent Order until well after this Part 16 Complaint was filed. It is reasonable to speculate that Atlanta had no intention of complying with the Consent Order until it realized it could use it as a shield to defend against this Part 16 Complaint. 12Atlanta’s position from the very beginning of this matte r has been to bully the landowners, residents and College Park into submission. And it is doing with the full support of the FAA. Illustrative of Atlanta’s nefarious intent is its handling of Hartsfield Landing. Atlanta had promised to provide sound ins ul ation for Hartsfield Landing, a townhouse complex within earshot of the 70 DNL contour line. Relying on Atlanta’s promise to provide sound insulation, the owner prepared the complex for installation of the sound insulation by moving the tenants

out to m ake installation of sound insulation and other repairs easier. After that had been completed, Atlanta reneged on its promise to provide sound insulation

. The owner then asked about acquisition, Atlanta told the owner that it would acquire the property if the FAA agreed that it would provide federal funds

. In a discussion between Complainant Virginia One Development LLC and the FAA, Lisa Favors, an Environmental Specialist at the FAA, stated her belief that Hartsfield Landing, although slated for sound mi tigation in Figure 6

- 2 of the NCP , is eligible for acquisition under the NCP and that if Atlanta applies for federal funding for the acquisition of Hartsfield Landing, it would be granted. 5 In that e

- mail to Dr. Thomas Nissalke, Director of Environmental and Technical Services for the City of Atlanta Department of Aviation, she stated that at the conference call she told Mr. Flannagan that as far as the FAA was concerned: * The property [Hartsfield Landing] is eligible for inclusion in the airports' comp atibility program * .... should the airport decide to acquire this property, the offer would be based on current fair market value and would be in compliance with the appropriate FAA Orders (i.e. Order 5100.37)

5 The Director’s Determination mischaracterizes this email as applying to all properties in the NCP. Determination, p.26. In fact, though, it applies only to Hartsfield Landing. The “should t he airport decide to acquire this property” refers to Hartsfield Landing only. 13* The FAA funding source would be from the n oise set aside, which is a part of the AIP program * Once the funding is awarded to the airport, it is their responsibility to manage the program. We encouraged the owner to continue to work with you on how the acquisition of their property would best fit in your established schedule

. p.1

. After receiving that email, Atlanta reneged on its promise to acquire the property too. But that was not the end of Atlanta’s shenanigans. At his deposition, Nissalke said Atlanta was “still” willing to provide soun d insulat ion for Hartsfield Landing. Then Atlanta reneged on that promise as well , stating that it could not provide sound insulation or acquisition for a property that was uninhabited, which Atlanta knows to be patently false when there is the potential for renewed residential use of the property

. Likewise, Atlanta has a history of sidestepping public comment and review , which was unaddressed by the Director’s Determination. For example, the Complainants submitted comments on the Noise Exposure Maps

. But d espite having submitted comments through the mail and a non - working email address and after making multiple attempts to contact the airport for a working email address, they were ignored by the airport and not submitted to the FAA for review in violation of the law. See 14 C.F.R. § 150.31(e) ( “ [e] ach map, or revised map, and description of consultation and opportunity for public comment, submitted to the FAA, must be certified as true and complete under penalty of 18 U.S .C. 1001 ” )

. Moreover, n o no tice was provided to the Complainants that the Noise Exposure Maps were being revised, despite the fact that by that time Atlanta knew that the Complainants were interested parties . I nterested parties should have specifically notified instead of requiring them to read the Legal Notices section in a newspaper and look at the web page every day to ensure that the airport does not take some illegal action against their property interests.

14Since the FAA approved the NCP in January, 2008, the r esidents and landowners have

r equested that Atlanta follow through with the commitments it made to the FAA in the NCP and acquire and/or provide sound mitigation to their property. Once the C omplainants ’ property had been determined to be severely impacted by noise from the airport in t he NCP , the C omplainants were damaged economically and have found it impossible to sell to other potential purchasers because it had been identified by the NCP as property that Atlanta will acquire or sound mitigate. 6
T he Complainants have re peatedly requested that Atlanta follow through with the commitments it made pursuant to the NCP and acquire the property it has identified as being impacted by aircraft noise arising from the Airport. Atlanta has refused to cooperate and has used the Cons ent Order to block the Landowners’ requests, stating that the Landowners must obtain permission from the City of College Park before Atlanta will even consider acquiring the identified properties. 7 The Complainants are not parties to the C o nsent Order nor are they legally bound by it . The two cities do not have the right to settle their difference over land that neither one of them owns.
I n conclusion, the 2001 ROD mandates that Atlanta mitigate the noise created by the Fifth Runway and that Atlanta revise its Part 1 50 study . These mandated actions were

6 C omplainants recognize and understand that a Part 16 Complaint and Request for Investigation is not the proper forum for requesting economic damages as a result of Atlanta’s eg regious failure to take action. This statement should not be interpreted as a request that the FAA should levy damages against Atlanta in favor the Landowners.
7 The Complainants have , in the interim, obtained College Park’s cooperation, but Atlanta now refuses to coopera te in any reasonable manner to achieve the goals of the NCP as approved by th e FAA in 2008 or entertain any method whereby the implementation of the NCP can be achieved as well as the Consent Order. 15appropriate and feasible to ensure compatibility of a major international airport located in close proximity to residential areas. Critically, in the 2001 ROD, the FAA required, as a component of its approval for the constru ction of the Fifth Runway, that the City of Atlanta abate aircraft noise pollution through the acoustical treatment of residences and community facilities within the 65

– 74 DNL exposure and through relocations of willing sellers of residences within the 7 5+ DNL contour. These provisions are enumerated in mandatory language and not hortatory language or policy statements. By signing the grant agreement for federal funds for the construction of the Fifth Runway, the City of Atlanta agreed to the FAA’s requ irements regarding noise abatement. It is now 14 years since the FAA issued the ROD for the Fifth Runway and Atlanta has not even started to sound insulate or acquire properties that have been damaged by the severe impact of aircraft noise created by the construction of the Fi f th Runway. This is unreasonable and a violation of Grant Assurance 21.
I II . ARGUMENT A. The Director’s Determination must be vacated due to the FAA’s inherent bias and prejudice against the Complainants. The FAA must vacate the Directo r’s Determination and, at the very least, submit this matter for a hearing held by an Administrative Law Judge due to the FAA’s unmitigated bias and prejudice against the Complainants. T he FAA must recuse itself from deciding this matter because it cannot be an un biased and un prejudiced adjudicator due to the fact that the same issues of law and f act are being litigated in the United States Court of Appeals for District of Columbia Circuit . It is readily apparent from even a cursory reading of the Directo r’s Determination that the FAA is unable to separate itself from the litigation position it has taken in Avery Park Partners et al. v. Federal Aviation Administration et al. , Case No. 1 4

- 1066 , which is currently pending in the United States Court of Appeal s for the District of Columbia Circuit

16(“ D.C. Circuit Litigation”). The Director, in arriving at his determination assumes certain facts that are part and parcel of the FAA’s litigation position in D.C. Circuit Litigation. As such, the Director is not ab le to take a position that is contrary to the litigation position that the FAA has taken in the D.C. Circuit Litigation. In addition, i t is the Complainants ’ un derstanding that the Director, his staff , as well as FAA attorneys that are involved in the D.C . Circuit Litigation were also involved in the drafting and review of the Director’s Determination. This has caused the Director to reach a decision that is unduly biased and prejudiced against the Complainants. There are numerous examples of this bias sc attered throughout the Director’s Determination. For example, whether the FAA acted appropriately in determining that the NCP is “voluntary” is a critical element of both the Complainants’ Part 16 Complaint and the D.C. Circuit Litigation. In order to su ccessfully defend its position that the April 14, 2014 letter was not arbitrary and capricious in the D.C. Circuit Litigation, the FAA must necessarily decide the actions approved by the FAA in a NCP are voluntary on the part of the airport sponsor . The
D irector in his determination makes the same arguments that the actions approved by the FAA in an NCP are voluntary that the FAA makes in the D.C. Circuit Litigation. Those arguments are no more legitimate here than they are in D.C. Circuit Litigation and most likely will be the subject of the D.C. Circuit decision in that case. Thus, it is impossible for the FAA in this matter to be impartial and to entertain the idea that its litigation position in the D.C. Circuit Litigation is incorrect and contrary to the law

. A second critical area of controversy showing the FAA’s lack of impartiality in this matter is the issue surrounding the effect of the Consent Order entered in City of College Park et al. v. City of Atlanta et al., Civil Action File No. 1:08

- cv - 1 464 on August 2, 2010 (the “ Consent Order ”). Both the Director and the Respondent assume that the Consent Order allows the City of

17Atlanta to renege on Atlanta’s and the FAA’s responsibility to protect the residents and property owners in area surrounding the airport by deeming residential property within College Park ineligible to receive acquisition, despite the fact that the property is with the 70 DNL contour. Indeed, the Director ’s Determination specifically rules that the City of Atlanta may use the Consent Order to default on its promise to provide relief for the residents and landowners of College Park, despite being severely harmed by aircraft noise

. T he effect of the Consent Order is also an issue that disputed in the D.C. Circuit Litigation. In that case, Complainants will argue that the City of Atlanta may not use the Consent Order to get around its federal duty to provide relief to residents and landowners burdened by severe aircraft noise. 8 As such, the Director should not be able to rely up on a document the effect of which is in dispute. Moreover, t his bias and prejudice is the result of the FAA’s own negligence and dereliction of its duty under the law. The Part 16 regulations clearly state that the Director must render his determination “ within 120 days of the date the last pleading specified in [14 C.F.R.] § 16.23.” 14 C.F.R. § 16.31. The “last pleading specified in § 16.23” was due on October 19, 2012, giving the FAA until February 16, 2013, to render its initial determination. Had th e FAA complied with its own regulations and issued its initial decision within 120 days of the last filed pleading in this matter, this matter would have been decided long before the April 14, 2014 letter
was even issued. 9 Thus, the FAA’s negligence and d ereliction of its duty is to blame for the untenable position the FAA now finds itself in.

8 Even if that means seeking another buyer or providing assistance to the City of College Park in acquiring the property severely affected by aircraft noise maintain its obligations under the Consent Order and its obligations under the FAA

- approved NCP.
9 This matter would have been over even before Atlanta had submitted its request to amend its Noise Compatibility Program. 18In conclusion, then, because of the FAA’s negligence and dereliction of its federally mandated duty, it has allowed a deep bias and prejudice against the Complaina nts to enter into these proceedings such that the Director’s Determination must be vacated. FAA must recuse itself from deciding this matter because it has allowed protecting its litigation position in D.C. Circuit Litigation to influence the outcome of t he Director’s Determination

. At the very least , this matter should be submitted to an agency or adjudicating body that does not carry the bias and prejudice that the FAA has displayed in attempting to carry out its statutorily

- mandated duties. For exampl e, t his matter could be submitted to an Administrative Law Judge for hearing

. In any case, t he FAA must address th is gross appearance of impropriety , bias and prejudice that that it has created . Complainants are entitled to fairness , equity and due proce ss in the Part 16 process and do not believe that that is possible from the FAA at this point in time due to the FAA’s protection of its litigation position in the D.C. Circuit Litigation

. B . Standard of Review

. Part 16 of Title 14 of the C ode of F ederal R egulations does not contain a standard of review for the Associate Administrator to rely upon when a party appeals the Director’s Determination. See, 14 C.F.R. § 16.33. The Associate Admi nistrator has relied on Ricks v. Millington Municipal Airport , FAA Docket No. 16

- 98

- 19, Final Decision and Order, p.21 (Dec. 20, 1999) for support for the “supported by a preponderance of reliable, probative, and substantial evidence” standard of review. However, Ricks does not cite any statutory or regulatory support fo r its use of that standard of review. Instead, it cites to the “standard of proof” upon which a “hearing officer shall issue an initial decision or shall rule in a party’s favor.” 14 C.F.R. § 16.227.

19As Justice Sandra Day O’Connor pointed out in her conc urring opinion in Concrete Pipe and Products of California, Inc. v. Construction Laborers , 508 U.S. 602, 650

- 651 (1993), “[s]tandards of proof and standards of review are entirely unrelated concepts.” Black’s Law Dictionary defines “standard of proof” as “[t]he degree or level of proof demanded in a specific case . . .” and “standard of review” as “[t]he criterion by which an appellate court exercising appellate jurisdiction measures the constitutionality of a statute or the propriety of an order, finding, or judgment entered by a lower court.” Black’s Law Dictionary (8th ed. 2004). Thus, what is needed here is a standard of review, not a standard of proof. Because no standard of review is stated in the Part 16 regulations, the Administrative Procedures A ct, 5 U.S.C. § 550 et seq. controls. See , 5 U.S.C. § 559, and, e.g., DiMaren v. INS , 398 F.Supp. 556, 559 (S.D. N.Y. 1974)(“[t]he A.P.A. governs all administrative proceedings except to the extent that another statute exempts the agency from coverage”). APA § 557(b) states that “[o]n appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule.” 5 U.S.C. § 557(b). The courts have det ermined this to mean that, unless the

r egulations specify otherwise, the agency must take a de novo review of the matter upon intra

agency appeal and make its own finding of facts. See, e.g., Ahne & Svoboda, Inc. v. Chao , 508 F.3d 1052, 1056 (D.C. Cir. 2 007); Exxon Chemicals America v. Chao , 298 F.3d 464, 467 (5 th Cir. 2004); Elliott v. CFTC , 202 F.3d 926, 934 fn.9 (7th Cir. 2000); see also, Seaquist v. Blakey , 210 Fed. Appx. 423, 425 (5th Cir. 2006); and Janka v. Department of Transportation , 925 F.2d
11 47, 1149 (9th Cir. 1991). Since Part 16 does not specify a standard of review for the Associate Administrator to make his review, the APA standard of a de novo review must be used.

20Thus, upon an appeal of a Part 16 Director’s Determination, the Associate Administrator must (a) review all of the pleadings and the record; (b) make his own findings of fact that are supported by a preponderance of reliable, probative, and substantial evidence; and (c) make, in accordance with applicable law, precedent, and pub lic policy, his own conclusions of law. In arriving at his Final Decision and Order, the Associate Administrator must follow the Administrative Procedures Act and not give any deference to the findings of fact and conclusions of law contained in the Direc tor’s Determination. This is particularly true in this matter, since the Director’s Determination is tainted with prejudice and bias in order to protect the FAA’s litigation position in the D.C. Circuit litigation. Because the Associate Administrator rev iews the Director’s Determination de novo , the Complainants raise by reference all of its arguments presented in its Complaint and its Reply in this Appeal. C . Compliance with the NCP as approved by the FAA is not voluntary, but is a federally enforceable requirement , thereby offering no support for the Director’s position . The critical issue that flows throughout the Director’s Determination is the issue of whether Atlanta must implement its federally

- approved Noise Compatibility Program. The decision o n this matter provides the basis for the Director’s decision with respect to all of Atlanta’s violations of its grant assurances. However, the Director’s Determination asserts Atlanta may, on a whim, change the implementation of the NCP without any refere nce to any law, regulation, FAA order or guidance to support that conclusion. The reason why the Director cannot point to any law to support his position is because there is none. In fact, were the Director’s position to be the case, the FAA would be in violation of its statutory duty to protect the people and property from the severe effects of aircraft noise. Thus, the Director’s Determination that Atlanta did not violate its grant assurances is unsupported by law and by fact.

211. FAA’s c onclusion that i mplementation of the NCP is voluntary has no basis in law or fact. The Director’s Determination states several places that implementation of the NCP is “voluntary.” However, at no point does the Director point to any statute, regulation, FAA order
or po licy document that indicates that that is, in fact, the case. It cannot do so because if it were in fact the case, it would fly in face of the FAA’s statutory duties under federal law. The FAA recognized this fact in 2008 when it approved the NCP: “the FAA stated the ‘NCP gives the owner of the affected properties the choice of whether to continue residential use of the property .’” D i rector ’ s D etermination , p.8. The choice of acquisition or sound insulation is the owner’s to make, not Atlanta or College Park. But instead of staying true to the law, t he Director’s Determination fabricates a new policy out of whole cloth, one that has no basis in law or even in FAA’s orders, guidance or regulations. As mentioned above, federal law states that “the Congress declares that it i s the policy of the United States to promote an environment for all Americans free from noise that jeopardizes their health or welfare.” 42 USC § 4901(b). The legislative history states that the purpose of the law is to protect residents in the vicinity of airports from the damaging impacts of noise: “both the Senate and the House were most concerned with the need to protect public health and welfare in the vicinity of airports from the impact of noise from aircraft and aircraft operations.” Legislative His tory, p.37

. Equally clear is the fact that Congress expected the FAA to lead the way: “The F.A.A. . . . will be required to promulgate regulations which shall assure protection of public health and welfare in airport environments even where it is not pos sible to achieve necessary noise reductions through the application of specific emission controls on engines and aircraft.” Legislative History, p.38. Although Congress ended up broadening the focus, it remained within the authority of the federal govern ment to ensure that the overarching policy is

22carried out: “The Congress authorizes and directs that Federal agencies shall, to the fullest extent consistent with their authority under Federal laws administered by them, carry out the programs within their control in such a manner as to further the policy declared in section 4901(b) of this title.” 42 U.S.C. § 4903(a). This statute applies to the FAA and its Part 150
program. However, Congress recognized that the control of noise from aircraft, especially in the vicinity of airports, is an effort shared between local government and the federal government. “While primary responsibility for control of noise rests with State and local governments, Federal action is essential to deal with major noise sources in commerce control of which require national uniformity of treatment.” 42 U.S.C. § 4901(a). To that end, the Administrator promulgated regulations contained in Part 150 of Title 14 of the Code of Federal Regulations, entitled Airport Noise Compatibility Planning (Part 150). These regulations establish the standards to which the airport owner/operator must adhere. Thus, as a matter of law, when the FAA approv ed Atlanta’s Noise Compatibility Program (NCP) it bec a me an enforceable federal standard. See 42 U.S.C. § 4911(f); and 49 U.S.C. § 44715. By approving the NCP, the FAA has instituted the required “national uniformity of treatment,” and set an enforceable standard for the state and local government to carry out its program to “protect the public healt h and welfare from aircraft noise and sonic boom.” 49 U.S.C. § 44715(a)(1)(A). In return for its commitment to carry it out the NCP, Atlanta receives certain statutory benefits, such as protection from lawsuits that seek damages incurred from being close to an airport. See 49 U.S.C. § 47506. 10 T he Director’s Determination impermissibly relieve s the FAA of its statutory obligations under federal law. This reasoning applies a fortiori

10 Indeed, the City of Atlanta has sought protection under this statute several times. 23to Atlanta’s commitments to mitigate noise th at it made by accepting federal funding for the Fifth Runway, although the commitments in the 2001 ROD differ slightly from the NCP that was approved by the FAA in 200 8

. The NCP identified specific properties that are being significantly impacted by airc raft noise. This was shown in Figure 6

- 2 of the NCP. Specifically, the NCP offers acquisition to owners of properties within the 70 DNL contour. The 2007 NCP states that “[t]he current DOA administration recognizes [876 residential structures located wi thin the 70

- 74 DNL of the 2007 NEM] as being noise sensitive and as a mitigation measure proposes to acquire eligible multi

family structures and complexes located between the 70

- 74 DNL contours.” NCP, p.6

- 2. The 2007 NCP was approved by the FAA in its J anuary 25, 2008, Record of Approval ( ROA): Voluntary property acquisition program for eligible single

- family residences and multi

family complexes within the 70 DNL contour. This voluntary measure would provide the opportunity for owners and residents o f residentially developed property within the high noise areas (2007 NEM 70 DNL and greater) to receive fair market value for their property and relocation assistance. Any residential development that occurred after April 10, 1985 that was within the limit s of the 1985 70 and greater DNL contour was constructed with the knowledge of the extent of significant noise exposure and would not be eligible for the acquisition program. (NCP pages 6

- 1 thru 6

- 4, 8

- 2, 9

- 1, and 9

- 11; Figures 6

- 1 and 6

- 2; Tables 6.1 and 9.2) FAA Action : Approved for the properties identified in the NCP, Figure 6

- 2. ROA, p.1. In addition, in an e

- mail, the FAA indicated that properties that straddle the 65

– 70 DNL contour would also be eligible for acquisition. See , November 16, 2007 e - mail from Kimberly Arnao to Thomas Nissalke, included as an exhibit to the ROA. In addition, the ROA included a lengthy response to College Park’s comments on the NCP. College Park raised several concerns about Atlanta acquiring property within College Park’s jurisdiction and objected to the NCP process in general. In response, the FAA outlined College Park’s options with respect to the NCP while stating that Atlanta’s NCP process

24complied with FAA procedures and that ultimately Atlanta was responsible for the implementation of the NCP. For example, on p.3 of the Memorandum attached to the 2008 ROA, the FAA states that “[i]f College Park demonstrates that it is capable of carrying out the projects within its jurisdiction, then it may receive grants to i mplement those projects. 49 USC § 47504(c)(1), (3).” Yet, this provision is simply a ploy to make it seem that the FAA and Atlanta are being fair. Since it is the FAA’s position that if College Park were to acquire the property located within its jurisdi ction, it could only receive 80% of the cost as federal funding. College Park would be responsible for a 20% “ local share ” with no hope of reimbursement. 11 The FAA continues that Atlanta, on the other hand, would be eligible to receive 100% of the funding from federal government programs: 80% from AIP, and the 20% local share from PFC. This puts a substantial hardship on local entities other than the airport proprietor. But, that should be expected, since the FAA’s mission is protect airports, not to pr otect the public health. The ROD and the NCP reflect the existence of and the City of Atlanta’s commitment to the feasible and prudent noise abatement through the noise insulation and acquisition of affected in the 65

– 75+ DNL noise contours. The statute s examined above identify the general, yet binding and substantive, standards for the minimization of harm that bind the City of Atlanta. The ROD and the NCP provide specific standards and limitations to implement these provisions and are, thus, enforceab le under federal law

. To conclude otherwise, as the Director’s Determination does , would allow the City of Atlanta to avoid its substantive obligations under federal law by simply making promises and commitments when trying to secure approval for a

11 This position flies in the face of federal law since 49 U.S.C. § 47521(7) clearly states that

“ revenues derived from a passenger facility fee may be applied to noise management . . .” without limiting the recipient to the airport sponsor. But the FAA’s interest is only in appearing fair, not actually being fair. 25projec t and then reneging years later . This is exactly what the City of Atlanta is seeking to do

now. Federal law was designed to avoid just this type of situation and the FAA must interpret the law to effectuate Congress’ clear intent. As a matter of public policy, liberal construction should be given to the idea that an enforceable standard was established deserving of protection and enforcement under the conditions of this case. Local residents, governments, and landowners have relied on the actions,
pron ouncements and decrees of the City of Atlanta with respect to the aircraft noise that the City of Atlanta has created and for which it is legally responsible. The sequence of events orchestrated by the City of Atlanta create, in and of themselves, an envi ronmental quality standard, limitation, rule or order worthy of protection under federal law and by the City of Atlanta’s grant assurances

.
(1) The City of Atlanta agrees to the terms set in the FAA’s Record of Decision for the Fifth Runway, which include providing sound insulation and updating the NCP by entering into a grant agreement with the FAA for the funding of the Fifth Runway. (2) The City of Atlanta then, on the basis of the FAA’s approval of the Fifth Runway, seeks and enters into contracts with ot hers to forgo legitimate legal challenges to the proposed Fifth Runway. (3) The City of Atlanta accepts federal funds and completes the Fifth Runway all the while assuring the FAA that the City will continue to commit to carrying out the mitigation measures c ontained in the 2001 ROD and update the City’s NCP. (4) The City of Atlanta, having secured funding and free of legal challenges from all sources, proceeds with the construction of the Fifth Runway. (5) The City of Atlanta was instructed by the FAA, as part of the 2001 ROD, to determine the extent of environmental impairment created by its actions ( i.e. , the construction of the Fifth Runway) and what action it would take (beyond that required by the FAA) to mitigate that impairment. (6) The City of Atlanta gathered representatives from all of the affected areas to ponder the question and provide input.

26(7) The City of Atlanta then issues a recommendation for a program based on that input that it purports to identify and mitigate the environmental impairment found. (8) The City of Atlanta’s NCP is then submitted and subsequently approved by the FAA (the governing federal agency). (9) The City of Atlanta induces reliance on the NCP, which it can be safely argued, causes the affected public to forgo legitimate legal challenges. (10) The City of Atlanta assures the FAA that it will carry out mitigation measures for noise abatement, but, since the Fifth Runway has been completed with federal funding free of legal challenges, the City is no rush carry out the mitigation measures it prom ised the FAA to complete in 2001. (11) The City of Atlanta, long after the Fifth Runway has been completed seeks to disavow its previously stated mitigation program and funding commitments for the program. The Director’s Determination’s s tatement of what the Part 150 program is far too narrow. The FAA’s duty under the law is much, much broader. The FAA must, by law, “protect and relieve the public health and welfare” from the deleterious effects of aircraft noise. The FAA has claimed that the Part 150 prog ram carries out this statutory duty. However, if the airport sponsor is allowed to change its FAA

- approved NCP without consulting the public

– not just surrounding municipalities

- or approval from the FAA, the FAA has failed to protect the public health and welfare. Moreover, the NCP creates an implied contract between the airport sponsor and the affected residents and landowners. The NCP, as approved by the FAA, makes promises to the residents and the landowners that they have a right to rely upon. By claiming that the NCP can be changed on a whim by Atlanta is a breach of that implied contract and in derogation of the public/private partnership that the Part 150 program is intended to foster. In the end, i f the NCP is not a mandate for implementation , then the FAA has not fulfilled its statutory duty under § 44715 and renders the Part 150 program meaningless. Moreover, it allows the airport sponsor to

27sidestep troublesome neighboring communities, residents and landowners by simply writing them out of coverage of the NCP. That is exactly what happened here. 2. It is possible for Atlanta to comply with both the Consent Order and the NCP, just not under the interpretation of the NCP given in the Director’s Determination. Atlanta’s interpretation of th e Consent Order conflicts with the FAA

- approved NCP. However, as explained above , Atlanta can comply with Grant Assurance 5, the Consent Order and the FAA

- approved NCP . In order to do that, however, the interpretation of the NCP would have to be differen t than the one expressed by the Director in his determination. The Consent Order does not relieve Atlanta of its responsibility to ensure that the landowners identified are provided with the choice of sound insulation or acquisition, it only means that At lanta cannot acquire properties within College Park

. Atlanta and the FAA are being short

- sighted in an effort to avoid the responsibility of protecting the public from the effects of aircraft noise. However,

t he statute offers many different ways to ensu re that the FAA

- approved NCP is carried out that would also comply with Consent Order. It should be noted that the whole reason the Consent Order was entered into in the first place is because of Atlanta ’s violation of the Part 150 program. It is Complai nants understanding that Atlanta was holding on to property purchased through Part 150 program for over 15 years , Atlanta collects rents on th e property purchased with federal funds and not pay ing taxes to College Park. This is a violation of federal law, since Atlanta is required to dispose of property acquired under Part 150 as soon as reasonably possible

. 49 U.S.C. §47107(c)((2)(A)(i) (“ the owner or operator will dispose of the land at fair market value at the earliest practicable time after the land n o longer is needed for a noise compatibility
purpose ”); see also Grant Assurance 31 (“ For land purchased under a grant for airport noise compatibility purposes, including land serving as a noise buffer, it will dispose of the land, when

28the land is no long er needed for such purposes, at fair market value, a t the earliest practicable time”). The fact that Atlanta has held on to property long after it was needed for noise compatibility purposes served to exacerbate the tension and distrust between Atlanta an d College Park. The City of Atlanta’s behavior in its failure to protect residents and landowners in the vicinity of the airport from the grave harm of noise pollution is tantamount to fraud. Atlanta took away the residents and landowners ability to see k damages created by the airport’s operations when it submitted Noise Exposure Maps. 49 U.S.C. § 47506. The residents and landowners gave up their ability to challenge the construction of the Fifth Runway on the City’s promise that the noise would be abat ed. The residents gave up their right to challenge the NCP, because the City of Atlanta promised that they would be taken care of through the NCP. Now the City of Atlanta has the gall to suggest that the NCP is not binding on it and cannot be enforced. The residents and the landowners are without recourse left high and dry by the federal agency that was supposed to protect them. C . The Director’s Determination’s findings with respect to Grant Assurance 21 are unsubstantiated and without support legal or factual support. 1. The Director’s Determination application of the Keathly test to this matter was unsupported by law and fact. As mentioned in the Complaint, f ederal law requires that an airport sponsor take “appropriate action, including the adopt ion of zoning laws . . . to the extent reasonable to restrict the use of land next to or near the airport to uses that are compatible with normal airport operations .” 49 U.S.C. § 47107(a)(10). Grant Assurance 21, Compatib le Land Use, expands on the statu tory requirement and requires the airport sponsor to “take appropriate action, to the extent reasonable, including the adoption of zoning laws, to restrict the use of land adjacent to or

29in the immediate vicinity of the airport to activities and purposes c ompatible with normal airport operations, including landing and takeoff of aircraft.” The Handbook elaborates on the airport sponsor’s duties with respect to the statute Grant Assurance 21 , explaining that it “relates to the obligation of the airport spon sor to take appropriate actions to zone and control existing and planned land uses to make them compatible with aircraft operations at the airport.” The FAA laid out the standard for determining whether a sponsor is out of compliance with Grant Assuranc e 21 in the matter of Keathly v. City of McKinney, Texas and the Collin County Regional Airport , Docket No. 16

- 03

- 14, Director’s Determination (October 13, 2004). In that case, the Director determined that: With regard to compatible land use issues, FAA t ypically addresses two questions in order to determine if a sponsor has violated its obligations.
1. Are the facility's [ i.e., the off

- site land use] operations compatible with local airport operations?
2. If not, could the sponsor have prevented the fac ility from operating near the airport? Id. at *58. The Director’s Determination failed to comprehend that the approach in this matter is reversed. Instead of the an off

- site land use being constructed that is incompatible with airport operations, by co nstructing the Fifth Runway, Atlanta created new incompatible land uses. 12 Thus, Keathly still applies and it requires the airport sponsor to take all reasonable actions to ensure that the land uses that it made incompatible are addressed and made compatib le . In this case, that means offering acquisition to the owners of property located in 70 DNL contour or straddling the 70 DNL contour.

12 A sound insulated residence is still an incompatible land use under Part 150. 302 . Despite its claims to the contrary, Atlanta has not taken “appropriate action” to comply with Grant Assurance 21 . Contrary to the FAA’s position in the Director’s Determination , a sponsor’s lack of jurisdictional control 13 over the incompatible land use does not excuse the sponsor from “declin[ing] to take any action at all to achieve land use compatibility outside the airport boundar ies.” FAA Order 5190.6B, ¶ 20.1. In all cases, the FAA expects sponsors to “take appropriate actions to the extent reasonably possible to minimize incompatible land.” Id. If the airport sponsor does not have zoning authority, it must attempt to prevent a new airport hazard or incompatible land use

. See, FAA Order 5190.6B, ¶ 20.2(d). As the FAA pointed out in M. Daniel Carey and Cliff Davenport v. Afton

- Lincoln County Municipal Airport Joint Powers Board , Docket No. 16

- 06

- 06, Directo r’s Determination (January 19, 2007), “ for the purpose of evaluating airport owner or sponsor compliance with compatible land use, the FAA does not per

se accept an owner or sponsor declining any action on the simple grounds that it does not possess zoning authority outside the airport boundaries.” Id. at *28. The FAA goes on to recommend various actions that sponsors can take in order to fulfill their obligations under Grant Assurance
21: Depending upon the owner or sponsor's capabilities and authority, " appropriate action" could include actions such as exercising zoning authority as granted under state law or active representation and defense of the airport's interests before the pertinent zoning authorities. Appropriate action may also include taking ste ps with respect to implementing sound insulation, land acquisition, purchase of easements, and real estate disclosure programs or initiatives to establish that areas are compatible with airport operations. Id. at *29

- *30. In this case, the City of Atl anta’s reliance on the Consent Order to weasel out of its FAA

- approved commitment to acquire property within the 70 DNL is not “appropriate.”

13 Even if self

- inflicted, as is the case in this matter. 31There are other actions that the City of Atlanta could have taken in order to fulfill its FAA

approved commitment to the residents and landowners severely impacted by aircraft noise. For example, since the FAA has taken the position that PFCs are not available to cover the local share for projects undertaken pursuant to 49 U.S.C. § 47504(c)(1)(B), 14 the City of Atlan ta could offer to pay the City of College Park’s local share through use of PFCs that have been set aside for use on noise mitigation projects

. The burden is on the City of Atlanta to manage its NCP , not the residents and the landowners. Atlanta created the problem

. The noise from the airport diminish es the health and well

- being of the residents surrounding the airport . And Atlanta has failed to address the situation in timely , reasonable and appropriate fashion.
D . The f indings in the Director’s Determination are uncon stitutional. 1. The Director’s Determination violates either the Equal Protection clause of the Fourteenth Amendment or the Due Process clause of the Fifth Amendment of the United States Constitution. There is no doubt that the Director’s Determination allows Atlanta to treat similarly situated individuals differently based not on the effect or volume of aircraft noise they experience, but i ns tead based on the jurisdiction within which they reside. This is illegal discrimination. Properties outside of College Park that are within the 70 DNL or straddle the 65

– 70 DNL contour will still be eligible for acquisition under the FAA

- approved NCP. But properties within College Park that fall within the same noise contours are discriminated against

– they are not el igible for acquisition, the residents are not eligible for relocation away from the thunder of aircraft overhead and away from the increased risk of cardiovascular disease and

14 The FAA’s position is stark contrast to the statute which clearly states that PFCs are available for noise compatibility projects without distinguishing whether the project is being manag ed by an airport sponsor or a unit of local government. See 49 U.S.C. § 47521(7). 32stroke simply because they reside in College Park. This type of discrimination based solely on where a property is located is unconstitutional. Either way one looks at the matter

– as a local action or an action by the federal government

– the Director’s Determination is unconstitutional. If the FAA considers the implementation of the NCP to b e a state or local action and the Director’s Determination upholds the ability of Atlanta to discriminate against the landowners or residents based on their location, it is a violation of the Equal Protection clause of the Fourteenth Amendment. The Equal Protection Clause states that “ No State shall

. . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

. ” U.S Constitution, 14 th Amendment, Sec. 1. The residents and landowners of College Park deserve the right to be protected from the severe effects of aircraft noise in the same manner that residents outside of College Park. The Director’s Determination ratifies Atlanta’s blatant attempt to discrimi nate against the residents and landowners of College Park. That is unconstitutional. If the FAA takes the position that it is the federal government’s action, then that, too, is unconstitutional. The United States Supreme Court held in Bolling v. Sharpe, 347 U.S. 497 (1954) that the Fifth Amendment's due process guarantee imposes the same restric tions on the federal government. That is, the actions of the federal government can be held to be

“ discrimination

... so unjustifiable as to be violative of due p rocess.” 347 U.S. at 499. Since there is no legitimate or reasonable basis for the FAA to allow the City of Atlanta to discriminate against the residents and landowners of College Park in favor of landowners and residents of other cities and municipaliti es, Atlanta’s plan not to allow the acquisition of property within College Park is an unconstitutional violation of the Fifth Amendment’s due process guarantee

.

332. The Director’s Determination violates the dormant Commerce Clause of the United States Const itution. If the grant assurances can be read the way that the Director’s Determination says they can be read

– t hat is, allow ing Atlanta the right to discriminate against the residents and landowners of College Park

– then the Director’s Determination is in viola tion of the Commerce Clause of Article of the United States Constitution. As the U.S. Supreme Court stated in C & A Carbone v. Town of Clarkstown , 511 U.S. 383 (1994) “[t] he central rationale for the rule against discrimination is to prohibit state or mun icipal laws whose object is local economic protectionism, laws that would excite those jealousies and retaliatory measures the Constitution was designed to prevent. ” 511 U.S. at 390. The FAA cannot permit Atlanta to carry out such local economic protectio nism against the landowners which has had the effect of chilling the market for the property and leaves the residents in harm ’ s way . E . The Director’s Determination finding with respect to Grant Assurance 5 is unsupported by law and by fact. 1. Violation of Grant Assurance 5 because the illeg ally modified NCP discriminates against similarly situated residents and landowners.
O n p.31 of the Director ’ s Determination, the Director states that “ [t] here is no evidence that the Airport gave away its rights and powers concerning an AIP

- funded and acquired property for noise mitigation purposes, which would be a violation of Grant Assurance 5.” However, i t is a violation of Grant Assurance 5 when similarly situated residents and lan downers are treated differently by the airport sponsor

. This makes any grant given to Atlanta to support its NCP, revis ed or otherwise, a violation of Grant Assurance 5. It is the function of the federal government to ensure that the programs it oversees, including the Noise Compatibility Pro gra ms, are implemented without discrimination. Atlanta ’ s and the Director ’ s contention that the Consent Order bars the Complainants ’ property from being purchased pursuant to the FAA

34approved NCP is nothing but a restraint on Atlanta ’ s ability to carry out its NCP in a non discr iminatory fashion. 2. Director’s Determination allows Atlanta to violate Grant Assurance 5.
W hether the Consent Order bars Atlanta itself from purchasing property within College Park, Atlanta is still responsible for carrying out its NCP as approved by the FAA. That is what is required by the statute and that is what the FAA requires non

- airport sponsors to do. The Consent Order, as read by Atlanta, restricts Atlanta’s ability to carry out the NCP as approved by the FAA by discriminating between residents and landowners based on wh ere they live or own property. Because of the inherent discrimination involved, Atlanta is in violation of Grant Assurance 5, among other grant assurances. This discrimination is only alleviated if the Consent Order is read as merely eliminating Atlanta as a potential purchaser of the properties identified for ac quisition in College Park. If you read the Consent Order along with Atlanta’s continuing responsibility to carry out the NCP as approved by the FAA, then the Grant Assurance 5 violation disappears. In fact, that is the only way that the Consent Order is anything but a viol ation of Grant Assurance 5. That is, by signing the Consent Order with College Park, Atlanta committed itself to finding a way to ensure that the residents and landowners in College Park are protected from the severe impact of aircraft noise the same way other residents and landowners in other cities are. 49 U.S.C. § 47504 (c) offers a myriad of methods available to Atlanta that do not involve Atlanta acquiring the properties in College Park and do not violate
Grant Assur ance 5. Yet Atlanta has refused to consider any of them. P.29 The Director’s statement on p.29 is ludicrous: the statute specifically states the obligations of a non

- airport sponsor duties and the FAA itself has said that a non

- airport sponsor is restricted t o the NCP as approved by the FAA . That is, it cannot make any changes to the NCP

35and still get federal funds. The point is, it is Atlanta’s responsibility, as airport sponsor, to ensure that the NCP is carried out as approved by the FAA, even if that mea ns ensuring that College Park complies with FAA requirements. 15
T he Director ’ s statement on p.29 of his determination that “ FAA ’ s approval of an NCP is not a mandate for implementation, and the local land use authority, not the FAA, makes determinations re garding specific land uses ” is erroneous in law and fact. As shown above, the
FAA ’ s approval of an NCP is a mandate for implementation under the law. Moreover, at issue here is not the land use, that does not change, but the airport sponsor ’ s and the FAA ’ s obligation to protect the residents and landowners from aircraft noise. The Consent Order makes no determination regarding la nd use, that is, College Park is not demanding that the property always be used as residences. Instead, the Consent Order state s that College Park does not want Atlanta
acq uiring the property in College Park presumably because of Atlanta ’ s past record with other property located in College Park. No mention of land use is included in the Consent Order. There is no bar regarding how the property in College Park would be used. Thus, the Director ’ s statement that the NCP “ is not a dictate that a particular offer by the airport sponsor be made ” rings hollow. Under the law and the facts in this matter, t he NCP is an offer that has been relied
up on by residents and landowners and Atlanta has failed to deliver on its promises and therefore it is in violation of its grant assurances.

15 This position is in concert with the ROA, since the ROA does not specify that the airport sponsor acquire the property affected by severe levels of aircraft noise, only that the landowners be offered the opportunity to have their property acquired. 36I V. C ONCLUSION Aside from the f act that the Director ’ s Determination must be vacated and remanded to an agency or other adjudicatory body that is not in current litigation with the Complainants, t he Director ’s Determination consistently mischaracterizes t he facts and Complainants’ argument. There is no doubt that the Consent Order is legally enforceable against Atlanta . The question is whether Atlanta has gotten itself into a dilemma with conflicting legal demands through its own stupidity and incompetence of its attorneys. The way that Atlanta characterizes the Consent Order as a “Get Out of Jail Free” card for its grant assurance violations runs counter to Atlanta ’ s grant assurances and the decision in Keathly . The only way the two obligations can be re ad to include both its obligations under the NCP and its obligations under the Consent Order such that it does not violate grant assurances is if Atlanta has a continuing obligation under the FAA

approved NCP to ensure that the FAA

- approved mitigation meas ures are carried out, even if the acquisition is not by the airport sponsor itself. See 49 U.S.C. § 47504 (c)

. Once the City of Atlanta has made such a public commitment to reduce the impact of the noise it creates through its operation of the Airport in such close proximity to peo ple’s residences, it should not be easy or offhand for the City to break those commitments on which so many private and public entities have relied. The NCP creates a legally enforceable standard to which the City of Atlanta must adhere. Since the C ity of Atlanta has not complied with the NCP, and consistently stated that it will not entertain any scenario in which property identified by the NCP and located in College Park is acquired , it is in violation of its g rant assurances

. The

37Director ’ s Determination is unsupported by facts and by the law and therefore must be o verruled and Atlanta must be found to be in violat ion of its grant assurances.

Dated: February 2 5, 201 5 Respectfully Submitted,

Steven M. Taber T ABER L AW G ROUP , P.C. 1 League, #60036 Irvine, California 9260 2 Telephone: (949) 735

- 8217 Fa csimile: (714) 707

- 4282 staber@taberlaw.com Counsel for Complainants Virginia One Development, LLC, Avery Park Partners, LLC d/b/a Avery Park, DSH Diplomat, LLC d/b/a Diplomat Townhomes, Colony Creek, LLC and Crossings Townhomes, LLC.

38CERTIFICATE OF SERVICE
I hereby certify that I hav e this day served the foregoing COMPLAINANTS’ APPEAL FROM THE DIRECTOR’S DETE RMINATION DATED JANUARY 26, 2015 on the following persons at the following addresses by U.S. Mail and by facsimile at the facsimile numbers indicated :

John L. Watkins Roy E. Hadley, Jr.

Thompson Hine Two Alliance Center 3560 Lenox Road, Suite 1600 Atlanta, Georgia 303 26

- 4266 Fax: (404) 541

- 2905

Dated this 2 5 th day of February , 201 5 , By:

Steven M. Taber T ABER L AW G ROUP , P.C. staber@taberlaw.com 13 Atlanta Irvine, California Telephone: (949) 735

- 8217 Facsimile: (714) 707

- 4282 Counsel for Complainants Virginia One Development, LLC, Avery Park Partners, LLC d/b/a Avery Park, Colony Camp Creek, LLC and Crossings Townhomes, LLC.

39