TABER LAW GROUP PC

VIA E-MAIL AND U.S. MAIL

February 25, 2015

Office of the Chief Counsel,

Attention: FAA Part 16 Proceedings Docket

AGC-610

Federal Aviation Administration

800 Independence Ave. SW

Washington, D.C. 20591

Re: Virginia 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. 16-12-09; Complainants’ Appeal from the 

Director’s Determination Dated January 26, 2015.

Dear Sir/Madam:

Enclosed is an original and 3 copies of Complainants’ Appeal 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.com 
BEFORE 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. 16-12-09

)

THE CITY OF ATLANTA, GEORGIA, )

)

Respondent. )

___________________________________ )

COMPLAINANTS’ APPEAL FROM THE DIRECTOR’S 

DETERMINATION DATED JANUARY 26, 2015

Communications with respect to this document should be sent to Complainants’ Representative:

Steven M. Taber

TABER LAW GROUP, P.C.

1 League, #60036

Irvine, California 92602

(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 25, 2015
BEFORE 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. 16-12-09

)

THE CITY OF ATLANTA, GEORGIA, )

)

Respondent. )

___________________________________ )

COMPLAINANTS’ APPEAL FROM THE DIRECTOR’S 

DETERMINATION DATED JANUARY 26, 20151

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. Its conclusions are wholly 

1 Complainants state 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 Complainants by certified mail, 

Complainants reserve the right to amend this appeal until 30 days after such receipt of the 

official Director’s Determination. 

2

 
unsupported by law and by fact. In the end, the 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.

The Federal Aviation 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). 

Moreover, in at least two other statutes, federal law puts the onus of assuring that aircraft noise 

does not jeopardize the public’s health, 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 regulations 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 Columbia 

Circuit to apply to restricting aircraft noise over sensitive receptors and protecting 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 . . . regulations 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 promulgated 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 

3
part of the FAA to carry out its statutory duty.2 Once again, the FAA will ignore the public 

severely impacted by aircraft noise when a solution to the issue is so readily available.3

II. FACTS

A. The September 27, 2001, Record of Decision is noticeably absent from the 

Director’s Determination recitation of facts.

Noticeably absent from 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 that 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 out a 

revised NCP. In return for the billions 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 

argument 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 HartsfieldJackson 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.

4

 
inchoate, and therefore Grant Assurance 16 does not apply. However, the grant agreement in 

question refers not only to the NCP, but also the ROD for the Fifth Runway, which requires 

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 Runway, 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 situation 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 ignored 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 brief 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 mitigation 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 measures 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 commitments 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.

5
2001 ROD, pp.12-13. Thus, the 2001 ROD indicates 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 levels 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 specifically 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-section 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 the 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 was 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.

6
B. 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 capricious. 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 part 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. § 47503). 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 Airport'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 on July 11, 2007.

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 

7
communities surrounding the Airport from the deleterious effects of noise. Although 14 C.F.R. § 

150.23(e)(8) requires that all Noise Compatibility Programs 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 approved 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 located 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 distinguish 

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 within 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 longer 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 each 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 sound 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 well as the cost for acquisition.

On January 25, 2008, the FAA approved the NCP 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 acquisition program for eligible single-family residences and 

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

9
provide 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 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 

9-4; 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 land 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 DNL 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 forum, 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 parts of neighboring communities get acquisition when landowners in 

10
College 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 

NCP? 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 method 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 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 

11
be 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 opt 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 bad faith.

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 audacity 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 the 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.

12

 
Atlanta’s position from the very beginning of this matter 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 insulation 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 make 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 mitigation 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' compatibility 

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 the airport decide to acquire this property” refers to Hartsfield Landing only.

13

 
* The FAA funding source would be from the noise 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 sound insulation 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 despite 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, no notice 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. Interested 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.

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

requested 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 Complainants’ property had 

been determined to be severely impacted by noise from the airport in the NCP, the Complainants

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

The Complainants have repeatedly 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 Consent 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 Consent 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.

In conclusion, the 2001 ROD mandates that Atlanta mitigate the noise created by the 

Fifth Runway and that Atlanta revise its Part 150 study. These mandated actions were 

6 Complainants 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 egregious 

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 cooperate in any reasonable manner to achieve the goals of the NCP as approved 

by the FAA in 2008 or entertain any method whereby the implementation of the NCP can be 

achieved as well as the Consent Order.

15

 
appropriate 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 construction 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 75+ 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 requirements 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 Fifth Runway. This is unreasonable and a 

violation of Grant Assurance 21.

III. 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 Director’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. The FAA must recuse itself from deciding this matter 

because it cannot be an unbiased and unprejudiced adjudicator due to the fact that the same 

issues of law and fact 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 Director’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. 14-1066, which is 

currently pending in the United States Court of Appeals 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 able to take a position that is contrary to the litigation position that the FAA has 

taken in the D.C. Circuit Litigation. In addition, it is the Complainants’ understanding 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 scattered 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 successfully 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 

Director 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-1464 on August 2, 2010 (the “Consent 

Order”). Both the Director and the Respondent assume that the Consent Order allows the City of 

17
Atlanta 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. The 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 upon a document the effect of which is in dispute.

Moreover, this 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 the 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 dereliction of its duty is to blame for the 

untenable position the FAA now finds itself in. 

8Even 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.

18

 
In 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 Complainants 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 the 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 example, this matter could be submitted to an Administrative Law Judge for hearing. 

In any case, the FAA must address this gross appearance of impropriety, bias and prejudice that 

that it has created. Complainants are entitled to fairness, equity and due process 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 Code of Federal Regulations 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 Administrator 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 for 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.

19
As Justice Sandra Day O’Connor pointed out in her concurring 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 Act, 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 determined this to mean that, unless the 

regulations specify otherwise, the agency must take a de novo review of the matter upon intraagency appeal and make its own finding of facts. See, e.g., Ahne & Svoboda, Inc. v. Chao, 508

F.3d 1052, 1056 (D.C. Cir. 2007); Exxon Chemicals America v. Chao, 298 F.3d 464, 467 (5th

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

1147, 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.

20
Thus, 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 public 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 Director’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 reviews 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 on 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 reference 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.

21
1. FAA’s conclusion that implementation 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 policy 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.’” Director’s Determination, 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, the 

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 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). 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 History, 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 possible 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 government to ensure that the overarching policy is 

22
carried 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 approved Atlanta’s Noise Compatibility Program 

(NCP) it became 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 health 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 The Director’s Determination impermissibly 

relieves 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.

23

 
to Atlanta’s commitments to mitigate noise that 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 2008. 

The NCP identified specific properties that are being significantly impacted by aircraft 

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 within the 70-74 DNL of the 2007 

NEM] as being noise sensitive and as a mitigation measure proposes to acquire eligible multifamily structures and complexes located between the 70-74 DNL contours.” NCP, p.6-2. The 

2007 NCP was approved by the FAA in its January 25, 2008, Record of Approval (ROA): 

Voluntary property acquisition program for eligible single-family residences and multifamily complexes within the 70 DNL contour. This voluntary measure would provide 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 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 

24
complied 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 implement 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 jurisdiction, 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 protect 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 statutes 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, enforceable 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 

11This 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.

25

 
project 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, 

pronouncements 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 environmental 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 others 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 contained 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 promised 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 statement 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 program 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, if 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 

27
sidestep 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 the 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 different 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 Atlanta 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, 

the statute offers many different ways to ensure 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 Complainants understanding that Atlanta was holding on to property purchased 

through Part 150 program for over 15 years, Atlanta collects rents on the property purchased 

with federal funds and not paying 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 no 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 

28
the land is no longer needed for such purposes, at fair market value, at 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 and 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 seek 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 abated. 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, federal law requires that an airport sponsor take 

“appropriate action, including the adoption 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, Compatible Land Use, expands on 

the statutory 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 

29
in the immediate vicinity of the airport to activities and purposes compatible 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 sponsor to take appropriate actions to zone and control existing and 

planned land uses to make them compatible with aircraft operations at the airport.” 

The FAA laid out the standard for determining whether a sponsor is out of compliance 

with Grant Assurance 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 typically 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 facility 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 constructing 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 compatible. 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.

30

 
2. 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 control13 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 

boundaries.” 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, Director’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 steps 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 Atlanta’s reliance on the Consent Order to weasel out of 

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

13Even if self-inflicted, as is the case in this matter.

31

 
There are other actions that the City of Atlanta could have taken in order to fulfill its FAAapproved 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 Atlanta 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 

diminishes 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 findings in the Director’s Determination are unconstitutional.

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 instead 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 eligible 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 managed 

by an airport sponsor or a unit of local government. See 49 U.S.C. § 47521(7).

32

 
stroke 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 be 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, 14th 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 discriminate 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 restrictions 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 process.” 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 municipalities, 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.

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2. The Director’s Determination violates the dormant Commerce Clause 

of the United States Constitution.

If the grant assurances can be read the way that the Director’s Determination says they 

can be read – that is, allowing Atlanta the right to discriminate against the residents and 

landowners of College Park – then the Director’s Determination is in violation 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 municipal 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 protectionism 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 illegally modified NCP 

discriminates against similarly situated residents and landowners.

On 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, it is a violation of Grant Assurance 5 when similarly situated residents and landowners 

are treated differently by the airport sponsor. This makes any grant given to Atlanta to support 

its NCP, revised 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 Programs, 

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 FAA34
approved NCP is nothing but a restraint on Atlanta’s ability to carry out its NCP in a nondiscriminatory fashion.

2. Director’s Determination allows Atlanta to violate Grant Assurance 5.

Whether 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 where 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 acquisition 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 

violation 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 Assurance 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 to the NCP as approved by the FAA. That is, it cannot make any changes to the NCP 

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and 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 means ensuring that 

College Park complies with FAA requirements.15

The 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 regarding 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 land use, that is, College Park is not demanding that the property always 

be used as residences. Instead, the Consent Order states that College Park does not want Atlanta 

acquiring 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, the NCP is an offer that has been relied 

upon 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.

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IV. CONCLUSION

Aside from the fact 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, the 

Director’s Determination consistently mischaracterizes the 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 read 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 FAAapproved NCP to ensure that the FAA-approved mitigation measures 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 people’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 City 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 grant assurances. The 

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Director’s Determination is unsupported by facts and by the law and therefore must be overruled 

and Atlanta must be found to be in violation of its grant assurances.

Dated: February 25, 2015 Respectfully Submitted,

Steven M. Taber

TABER LAW GROUP, P.C.

1 League, #60036

Irvine, California 92602

Telephone: (949) 735-8217

Facsimile: (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.

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CERTIFICATE OF SERVICE

I hereby certify that I have this day served the foregoing COMPLAINANTS’ APPEAL 

FROM THE DIRECTOR’S DETERMINATION 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 30326-4266

Fax: (404) 541-2905

Dated this 25th day of February, 2015, By:

Steven M. Taber

TABER LAW GROUP, 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