BEFORE THEU.S. DEPARTMENT OF TRANSPORTATIO FEDERALAVIATION ADMINISTRATION WASHINGTON, D.C. VIRGINIA ONEDEVELOPMENT, LLC, ) AVERYPARKPARTNERS,LLC d/b/a ) AVERYPARK,DSHDIPLOMAT,LLC ) d/b/a DIPLOMAT TOWNHOMES, ) COLONY CREEK, LLC, and CROSSINGS ) TOWNHOMES, LLC, ) ) Complainants, ) ) 

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### v. ) ) Case No.: FAADocketNo.16-12-09 THE CITY OF ATLANTA, GEORGIA, ) ) Respondent. )



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COMPLAINANTS' CONSOLIDATED REPLY TO RESPONDENT'S ANSWER AND MOTION TO DISMISS PURSUANT TO 14 C.F.R. PART 16 Communications with respect to this document shouldbe sent to Complainants' Representative:

StevenM. Taber TABERLAWGROUP,P.C. P.O. Box 60036 Irvine, California 92602 (949) 735-8217 (phone)

(714) 707-4282 (fax) staber@taberlaw.com Counselfor Complainants Virginia One Development, LLC, AveryParkPartners, LLC d/b/aAvery Park, DSHDiplomat, LLCd/b/a Diplomat Townhomes, Colony Creek, LLC and Crossings Townhomes, LLC. October 9, 2012

- 1-BEFORE THE

### U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATIONADMINISTRATION WASHINGTON, D.C. VIRGINIA ONEDEVELOPMENT, LLC, ) AVERYPARKPARTNERS,LLC, d/b/a ) AVERYPARK,DSHDIPLOMAT,LLC ) d/b/a DIPLOMAT TOWNHOMES, ) COLONY CREEK, LLC, and CROSSINGS ) TOWNHOMES, LLC, ) ) Complainants, ) ) 

### v. ) ) THE CITY OF ATLANTA, GEORGIA, ) ) Respondent. )



# ____________ ) Case No.: FAA Docket No. 16-12-09

COMPLAINANTS' CONSOLIDATED REPLY TO RESPONDENT'S ANSWER AND MOTION TO DISMISS PURSUANT TO 14 C.F.R. PART 16. Complainants, VIRGINIA ONEDEVELOPMENT, LLC, AVERY PARK PARTNERS, LLC d/b/a AVERY PARK, DSHDIPLOMAT, LLC d/b/a DIPLOMAT TOWNHOMES, COLONY CREEK, LLC, and CROSSINGS TOWNHOMES, LLC, (collectively, "Landowners") by and through their undersigned counsel andpursuantto 14 C.P.R. Part 16 ("Part 16"), file this ConsolidatedReply in response to the Answer and Motion to Dismiss filed by Respondent, THE CITY OF ATLANTA, GEORGIA ("Atlanta"), owner and operator ofthe Hartsfield-Jackson International Airport (ATL or the "Airport"). Atlantais not acting in goodfaith to implementits Part 150 Noise CompatibilityProgram (ComplaintExs. 11-14, "ATL NCP"), and is using a Consent Order (ComplaintEx. 30) it voluntarily entered into, without the consent oftheFAA or the Landowners, to avoid acquiring and/or providing soundmitigation to the Landowners' affectedproperties. Because ofthese facts Atlantais in violation ofits

- 2-obligations both underits ATL NCP, as well as its grant assurances as an airport sponsor under the AirportImprovementProgram.
I. ATLANTA HAS FAILED TO SHOW THAT IT IS NOT IN VIOLATION OF ITS GRANT ASSURANCES. Atlanta, in its bloviated Answer andMotion to Dismiss, shows a fundamental misunderstanding ofthe Airpmt Improvement Program, its associated grant assurances and the Part 16 process. Atlantafails to understand that Atlantamust comply with the grant assurances at all times in orderto continue to receive the considerable amount of federal funding it is granted by the FAA each year. 

### A. At the Core ofAtlanta's Violations ofIts Grant Assurances Is Its Consent Order with the City ofCollege Park. Throughout its Answer and Motion to Dismiss, Atlantaclaims that a Consent Orderit entered into as aresult oflitigation brought by the City ofCollege Park, Georgia, forbids it from acquiring property within the boundaries ofthe City ofCollege Park and requires the City ofCollege Park's consentbefore Atlanta offers noise mitigation to landowners underthe ATL NCP. The Consent Order does no such thing. As pointed out in the Landowners' Complaint, that ConsentDecree has two relevant provisions: 4. PART 150 PROGRAM Atlanta agrees to modify its cunentPart 150 Program to eliminate authorization to acquire any apartment complex within College Park other than Clubhouse Apartments, located at 3800 Hershel Road. Forpurposes ofthis Consent Order, an apartment complex means any building with four ( 4) or more residential units. 5. NCP PROGRAM 5.1 Subject to the Section entitled "PART 150 PROGRAM", Atlanta agrees to consult with College Park, within the confines ofthe Federal guidelines and other applicable law, on what prope1ties, identified in the existing and future Part 150 documents as eligible for receipt ofnoise mitigation funds, are mitigated and the - 3 -timing ofthe mitigation. Complaint Ex. 30, pp.S-6. Aside from the fact that neitherthe FAA northe Landowners have any agreement with the City ofCollege Park or any obligation to comply with the Consent Order, the Consent Order does not stop Atlantafrom acquiring apartment complexes in College Parkuntil it modifies the ATL NCP, which it has not done. Yet Atlantadoes have a legal obligation to the FAA to comply with the ATL NCP and its grant assurances irrespective ofwhat other contracts or agreements it might have entered into with anotherparty. As a result ofits eagerness to placate College Parkby entering into the Consent Order, Atlanta now finds itselfimpaled on Morton's Fork: there are two lines of reasoning that leadto the same inescapable conclusion thatAtlanta has violated its grant
assurances. Ifthe Consent Order says what Atlanta says it says, i.e., that Atlantacannot acquire any property within the boundaries ofthe City ofCollege Park, then Atlanta is in clear violation ofGrant Assurance 5. 1 Atlantahas voluntarily limited itselffrom acquiring property that it has identified as non-compatible with airport operations for which it has an approved Noise Compatibility Program (NCP), which is a violation of Grant Assurance 5. On the other hand, ifthe Consent Order says what the Landowners thinkit says, i.e., that Atlantamust modify its Part 150 to state that it will not acquire any property within the City ofCollege Park- which it has not done, Atlanta is in clear violation of Grant Assurance 5 and 35. In this case, despite Atlanta's assurances to College Park, it is

Landowners would still contend that even ifAtlanta is correct in its analysis ofthe Consent Order, it is still in violation ofGrant Assurance 35, since the burden is still onAtlanta to move the process forward on a timely basis.

- 4-still obligated by its assurances to the FAA to acquire and/or provide noise mitigation pursuant to the ATLNCP. Atlanta failure to do so in timely, expeditious manneris a violation ofGrant Assurances 5 and 35. 

### B. Grant Assurance 5 Includes All Property To Be Acquired Through Federal Funds. Atlanta begins its astounding trip through the grant assurances (beginning on p.26 ofits Response) by claiming that Grant Assurance 5 only applies to the airpmt sponsor's preserving its rights and powers to control the property upon which the airport actually operates. Because the Propetties (as that term is defined in the Complaint) are located off the airport,Atlanta argues, this Grant Assurance does not apply to them. This novel argument is not supported by any point oflaw or guidance. Atlanta only makes semantic argument to supportits position. Atlantabelieves that it cannot violate this grant
assurance by failing to acquire properties orprovide sound mitigation because the lands in question are not within the airportboundaries, and are not contemplatedfor operational

use. This is not legally correct. TheFAAhas held that Grant Assurance 5 prohibits the airport sponsorfrom giving away rights andpowers the sponsorneeds to control and manage the noise createdby aircraft in the surrounding area. letA wayAviation, Inc., v. Montrose County, FAADocketNo. 16-08-01, Director's Determination (July 2, 2009)2 Grant Assurance 5 covers not only airport property but all "airport development land," which can include "noise land," both ofwhich can be offthe airport andnot needed for, but impacted by, airport operations. According to Program Guidance Letter

Atlanta claims thatJetAway is inapposite simply because it does not concern a Noise CompatibilityProgram. While thatmaybe true, JetAway does stand for the propositionthat Landowners have cited it for: itis a violation ofGrant Assurance 5 for an airport sponsor to give away rights and powers neededto control and manage airport development land.

- 5

-08-02 Manager, Airports Financial Assistance Division, AYP-500 Feb 1, 2008, (Reply Exhibit 1) "Airport development land (DevelopmentLand) is defined in 49 U.S.C. § 47102(3)(C) as landthat is needed to carry out airport development orto remove or mitigate an existing airport hazard orprevent or limit the creation of a new airport hazard. Noise Land is land that is acquired as aPart 150 Noise Compatibility Program (NCP)

measure or as a mitigation measure as described in this section." Airport development land is not necessarily land acquired by the airport for the creation ofrunways or passenger/cargo terminals, as Atlanta seems to believe. Grant Assurance 5 is much broader than Atlanta assumes, incorporating not only the airport, but all property over which the airport has control. Moreover, Atlantafails to understand that its entry into the Consent Order with College Park violates one ofthe central holdings ofthe Administratorin Town of Fairview v. City of McKinney, FAA Docket No. 16-99-04 andby doing so, violates Grant Assurance 5. In Fairview, the FAA held that "without some showing ofa mechanism or agreement that acts to prevent McKinney from exercising powers to adhere to FAA's interpretation ofthe sponsor's Federal obligations, there can be no violation ofthis assurance." Id., at 35-36. In the instant case, the Consent Order, according to Atlanta's reading ofit, restricts Atlanta's ability to acquire ormake improvements on the Landowners' properties. This, in turn, prevents Atlantafrom exercising its powers pursuant to its federal obligations. Thus, by entering into the Consent Order with College Parkindicating that it wouldnot acquire property in accordance with Part 150, Atlanta took affirmative steps to deny itselfthe ability to obtain airport development land ornoise land, as defined above, and therefore is in violation ofGrant Assurance 5.

- 6-Moreover, it seems that Atlanta is aware that the Consent Orderis in violation its grant assurances, since it has made no effort to modify its Part 150 program since it signed the Consent Order. Should such an amendmentbeproposed to the FAA, itno doubt would not be approved, since it diminishes Atlanta's ability to control noncompatible land uses that surroundthe Airport. Atlanta has effectively tied its own hands: it cannot carry out the ATL NCP because itpromised the City ofCollege Parkit would not acquire property within College Park's boundaries, and therefore it is in violation ofGrant Assurance 5. The fact that Atlanta cannot comply with Grant Assurance 5 without violating its Consent Orderis ofno importance to the FAA or the Landowners. TheFAA's responsibility is to ensure that an airport sponsor carries outits duties under the grant assurances, and, in this case, Atlanta has not and cannot. Atlanta voluntarily entered into both agreements which had conflicting duties. It cannot now use
one ofthose agreements as a shieldto protectitselffrom the consequences ofits actions with respect to the other agreement. 

### C. Grant Assurance 16 Applies Equally to the Performance ofProjects Other Than Construction Pmjects. Atlantanext argues that Grant Assurance 16 "has no applicability" to the ATL NCP because Grant Assurance 16 only applies to construction projects. Again, Atlantarelies primarily on semantics and not on any legal orfactual basis in quickly dismissing the Landowners' claim that itviolated Grant Assurance 16. Its argument hinges on one word in the language ofthe grant assurance, while ignoringthe assurance as a whole. The language ofthe assurance- which Atlantaquotes- specifically mentions "construction or otherperfonnance." (Emphasis added.) Therefore, it is clear on its face that the assurance contemplates more than construction projects. Further, there is no case law, regulations

- 7-orguidance documents restricting the application ofGrant Assurance 16 to construction projects, and thus Atlanta's argument must fail. While there is no case law dealing in depth with Grant Assurance 16, there is guidance available on the subject ofconformity to airport plans that also makes clearthat the assurance does notjustcovertraditional construction projects. TheAirport Cooperative Research Program's Report 56, "Handbookfor Considering Practical Greenhouse Gas Emission Reduction Strategies for Airports," sponsored by the FAA (Reply Exhibit 2), addresses this issue on page 61. "Once an airport has receivedfederal funding, itsfacilities must then continue to conform to the currently approved Airport LayoutPlan (ALP) per grant assurance 16. Planning at airports can take many forms, including a MasterPlan, ALP Updates, Sustainability Plans, documentation under the NationalEnvironmental Policy Act (NEPA), and/or general mitigationplanning." Additionally, theFAA's guidance on Airport MasterPlans, AC 150/5070-6B, (Reply Exhibit 3) does not limitconformance to plans strictly to constructionprojects, but discusses, at length, other projects including environmental assessments and noise mitigation projects as being coveredby Grant Assurance 16. Thus, since the ATL NCP has been approved by the FAA, Atlanta is boundby its grant assurances to comply with the ATL NCP as it was approvedbythe FAA. Grant Assurance 16 allows for modifications, but those modifications mustbe approvedby the FAA. Thus, Atlanta must carry out the ATLNCP as approved by theFAA, unless it obtains approval from theFAAfor any modifications. Since Atlanta is refusing to comply with the provisions ofthe ATLNCP and has had added additional criteria to the eligibility requirements that have notbeen approvedby theFAA, Atlantais in violation

- 8 -ofGrant Assurance 16. Even then, Landowners have sought onnumerous occasions (as evidenced in the letters from Landowners' counsel to Atlanta's counsel) to try figure out what qualifications the Properties must meet in orderto be "eligible" for acquisition and/or soundmitigation. Atlantahas yet to give Landowners a straight answerespecially sinceLandowners comply with all ofthe provisions contained in both the ATL NCP and the Handbook, yet Atlantahas refused to acquire the noise impactedproperty and/or provide soundmitigation because they do not feel like doing it right now. One of the purposes ofthe NCP is provide certainty for those affectedby the decisions ofthe Airport. The Landowners have been deeply affectedby the high levels ofnoise emanating from the Airport and aircraft overhead, and yet Atlantahas refused to take responsibility for following the program that the FAAhas approved. Atlanta has cited no case law, and no guidance to bolster its position, and ignores the important language in the grant assurance itself. By refusing to adhere to its FAAapproved plan under the ATLNCP to begin noise mitigation projects, it has violated Grant Assurance 16. 

### D. Instead ofPromotingLandUse Compatibility, Atlanta'sEntry into the ConsentDecree with the City ofCollege Park Effectively Barred Atlanta from TakingAppropriateAction to Restrict Non-CompatibleLandUse TherebyViolating GrantAssurance 21. Atlanta claims in its Answer andMotion to Dismiss that it has complied with Grant Assurance 21 because ithas "informed and educated" the surrounding municipalities as to noise issues with the Airport. However, the airport sponsor's responsibilities under Grant Assurance 21 go beyond simple education programs, particularly withrespect to Part 150 NCPprograms. Atlantahas violated this assuranceby its utter and abject failure to take the steps

- 9-necessary to provide noise mitigation measures to orto acquire theLandowners' properties. Atlantahides behind work done priorto the ATL NCP, as well as advances in aircraft technology, to claim that it has substantially increased the compatibility oflocal land with airport noise. However true these assertions may be, they are completelybeside the issues in this case. This action concerns Atlanta's failure to follow through on its promise to make the Properties compatible with the Airport. Atlanta also relies on its dissemination ofthe NCP as its "reasonable attempt" to inform and educate local communities about land use compatibility zoning. Itpoints to negotiations and meetings with CollegePark officials as referenced in a memo from early 2008. However, it is important to note that these meetings occurredpriorto the implementation ofthe ATL NCP, and well in advance ofthe Consent Orderthat Atlanta is now using as ablockto implementing the Part 150 in regards to theLandowners' properties. The Consent Orderdoes not state that Atlanta agrees to make "reasonable attempts" to work with the community ofCollege Park, rather, the Consent Order capitulates to College Park's demands to stop acquisition efforts for properties located within the 70 DNL. Thus, in entering into the Consent Order, Atlanta effectively barred itselffrom taking "appropriate action" to restrict incompatible land use under Grant Assurance 21, andthus is in violation ofthe grant assurance. As Landowners statedin their Complaint, the standard for determining whether a sponsoris out ofcompliance with Grant Assurance 21 can be found in Keathly v. City of McKinney, Texas andthe Collin County RegionalAirport, Docket No. 16-03-14,

- 10-Director's Determination (October 13, 2004), a fact that Atlanta does not refute? In Keathly, the Director determinedthat: With regard to compatible land use issues, FAA typically addresses two questions in order to determine ifa sponsor has violated its obligations. 1. Are the facility's operations compatible with local airport operations? 2. Ifnot, could the sponsor have preventedthe facility from operating nearthe airport? !d. at *58. In this case, Atlantaitselfin the ATL NCP has determinedthat all ofthe Properties are not compatible with local airport operations due to the fact that they are residential properties4 located in the 70 DNL and/or 65 DNL contours. See, Figure 6-2, ComplaintExhibit 13, see also ComplaintExhibit 28. In addition, the ATL NCP commits Atlanta to take action to prevent the residences from being severely impactedby aircraft noise andremove them as incompatible landuses. !d. Atlanta, however, has not taken the action it said it would to preventthe impact, and this is not consistent with Atlanta's obligation to take reasonable steps to restrict the use oflandnext to the airport to uses that are compatible with airport operations. Indeed, Atlanta argues that it cannot follow through with its commitment to the FAA to restrict the use ofland adjacent to or inimmediate vicinity ofthe airport due to voluntary entrance into the Consent Order, which, it vociferously claims, restricts it from acquiring property with the boundaries of CollegePark.

Atlanta offuandedly dismisses Keath/y because the facts do not match, which is beside the point. Keathly does state a standard for detennining compliance with Grant Assurance 21. 4 They will continue to be non-compatible residential properties, even ifthey are not currently occupied. Incompatibility is based on whatis allowed, not necessarily on what actually exists.

- 11-Thus, the argument returns what is the purpose ofGrant Assurance 35 and how is

a violation ofGrantAssurance 35 established. According to the FAA, one method of establishing a violation ofGrant Assurance 35 is for the Complainants to demonstrate thatthe Respondent has the intention ofdisplacing them as aresult ofacquiring real property with federal funds. Pacific Coast Flyers et al. v. County of San Diego, FAA Docket No. 16-04-08, Director's Determination (July 25, 2005). Atlanta cannot argue andhas not arguedthat it has failed to comply with its duties under Grant Assurance 35 in this regard. The ATLNCP specifically states that Atlanta intends to acquire certain properties held bythe Landowners andprovide sound mitigation for others. See, ComplaintEx. 13. Thus, there canbe no doubt thatAtlantahas the intention of displacing the Landowners. Moreover, the ATL NCP documents thatAtlanta intends to

use federal assistance for the acquisition ofreal property. Complaint Ex. 13, pp.6-1- 6-2. Thus, Atlanta, according to the ATL NCP, has every intention ofdisplacing the Landowners as a result ofacquiring real property with federal funds. As a result, Atlanta has violated GrantAssurance 35. 

### II. ATLANTA'S CONCEPT OF THE FACTS OF THIS MATTER IS SKEWED AND MUST BE CORRECTED. Most ofthe facts raised by Atlanta have no bearing on the outcome ofthis matter

as to whether Atlanta has violatedits grant assurances. However, some ofthe half-truths and misstatements need to be addressed so thatthe FAA has abetter understanding ofthe facts ofthis matter.

-13-

### A. The Intent ofthe Landowners in Filing this Part 16 Is Irrelevant and Atlanta's "Preliminary Statement" Is Misleading. Atbest, the City's preliminary statement is misleading, and, at worst, an outright lie. The City completely mischaracterizes the intent ofthe Landowners in filing this action, distorting statements made by arepresentative ofone ofthe parties. Based on these out-of-context statements, Atlanta makes sweeping andunsubstantiated aiiegations regarding the characterboth ofthe Complaint and the principal ofone ofthe Landowners. The statements Atlanta cites were made during depositions in a related civil

case. The otherLandowners in this matter are not parties to the civil suit from which the statements are gleaned, and, regardless oftheir content, Atlantais disingenuous in utilizing them as such. The exchange Atlantarefers to as damning for the Landowners refers, in part, to a property, Clubhouse Apartments, which is not at issue in this action, andin fact was exempted from the terms ofthe Consent Order upon which Atlantarelies so heavily later in its argument. To wit, Atlantautilizes statements made by Mr. Flannagan in his deposition ofJune 15, 2012, indicating thathe recently partnered with another developer in order to seek a buy-out from the city. In using these statements without supplying any context, Atlantaimplies that Mr. Flannagan purchased the properties knowing that they

were within the noise contours delineated in the Part 150 noise maps, in orderto force a sale to Atlanta. This is simply not the case, as is evidencedby testimony laterin the same deposition, which, ofcourse, is conveniently ignored by Atlanta in its Answer. The only property inthe instant case which is seeking to be acquired is the Hartsfield Landing property, which VOD acquired several years ago. As is later explained at length in Mr. Flannagan's deposition, on pages 160-162, the HartsfieldProperty had already been

- 14-acquired, and consultants retained, and othernoise mitigation measures studied at length prior to any contact with theFAAin regards to funds available underthe ATL NCP. Roosevelt Park, to which Mr. Flannagan refers in his statements, shouldbe eligible for acquisition as well, however, noise mitigation, cannot be denied cannotbe denied. 6 Thus the "damning" evidence citedbyAtlantais inapplicable to its argument. Regardless, the intentions ofthe developer are irrelevant. There is no legal basis, andcertainly none cited, to keep the properties from acquisitionbased on the intent ofthe developer. Mr: FlannaganpurchasedHartsfieldLanding for the purpose ofdeveloping workforcehousing for employees who work at the Airport. When he purchaseditin 2009, he was not aware ofthe ATL NCP and when he was informed ofit, it sought to incorporate noise mitigation into his redevelopment plans. However, that plan was blocked when HUD would not approvehis financing request due to the fact thatnoise createdby the Airport cannotbemitigatedto level below 65 DNL outside. Thus, the ATL NCP blockedMr. Flannagan from proceeding with the redevelopment plan that he hadnegotiated with Atlanta and HUD. A consequential result ofthe ATL NCP and Atlanta's failure to move forward with its ATLNCP is a disproportionate harm on Mr. Flannagan and the otherLandowners trying to provide affordable housing for the Airport's own employees. Since the primary purpose ofthe Part 150 NCP is reduce the amount ofproperty exposed to airport noise and put in the control ofthe airport sponsor, it shouldbe an easy call for Atlanta to purchase the property and eliminate the property as residential andthen redevelop the property in mannerthatis compatible with airport

Landowners would prefer acquisition ofRoosevelt Parkinstead ofnoise mitigation due to its proximity to 70 DNL and that would take itpermanently out ofresidential area and make the property compatible with llirport operations.

- 15-operations. Further, Atlanta claims that the properties at issue in this suit are not eligible for acquisition, thus nullifying the purpose ofthe suit, yet provides no legal basis for this statement, and no guidance from the FAA, which approved the plan, to establish this claim. In fact, the landowners believed, based upon representations made to them by employees ofthe FAA, as explained in the complaint, that theirproperties were eligible for acquisition, thus the time and expense spent on this action andLandowner VOD's associated civil suit. 

### B. Atlanta's Claim that All Aspects 

### ofIts Part 150 NCP Are Voluntary Is Wrong. Atlanta claims throughout its Answer and Motion to Dismiss that every aspect of the ATL NCP is voluntary andit does nothave to comply with any provisions ofthe ATLNCP ifit does not suit its purpose. This is an incorrect assessment ofthe ATL NCP. Although the City did act voluntarily in submitting a plan to theFAAunder Part 150, its further participation, once the program is approved andfunded, itis no longer voluntary. See Town of Fairview, Texas, Appellantv. City of McKinney, Texas, Appellee, FAA Docket No. 16-04-07. The ATL NCP provides a framework for the implementation ofnoise mitigation measures to be applied once funding is receivedfrom the FAA. The choice to participate in establishing the Plan is the only voluntary act involved. Atlanta's contention that it implements the plan, once funded, out ofits own generosity isjustplain wrong. Atlanta's contention that the FAAhas no say in which properties qualify for mitigation measures is also misguided. Though the FAAmay not participate in post-Plan analysis ofeach individual property, it approves the criteria by which the property is judged for federal funding and compliance with Part 150 NCP.

- 16-Atlanta points out, correctly, that insulation or acquisition ofeligible properties is subject to the availability offederal funds. Landowners understand this point, but do not understand why, given that funds have been disbursed, they have not been usedin furtherance ofthe NCP. InFY 2010, $10 million was received by Atlantafor Noise Mitigation projects, as is delineated inExhibit 10 ofthe Complaint. Atlantaprovides no explanation for its failure to utilize these funds to provide the reliefrequested by the landowners, and no explanation ofhow the funds were spent. Atlanta also correctly points out the Part 150 requires an airport to work with neighboring communities and local authorities to effect the best noise mitigation solutions. This is not disputed. However, as was pointed outin the complaint, College Park was given the opportunity to comment on the proposedPart 150, and failed to do so within the applicable time limits. Despite this fact, the FAA still considered College Park's comments and took them into consideration when approving the plan. Inits answer, Atlantaimplies that the FAA ignored College Park with respect to the NCP. This is simply not the case. In any event, it wouldbe the responsibility ofthe airport sponsor itselfto consult with local communities to develop the Plan, andAtlantacannot now hide behind the Consent Order with College Park when it was its responsibility to consult College Parkin the first place prior to the submission ofthe ATL NCP to the FAA for approval. Further, in litigation prior to the consent order, College Parkwas unsuccessful in stopping Atlanta's implementation ofthe Part 150 measures. That Atlantais now adopting College Park's unsuccessful position in a previous suit in an effort to avoid its

own responsibilities is curious.

- 17-C. 

### Atlanta's Litigation with the City ofCollege Park Has No Bearing on This Matter. The Atlanta spends several pages ofits lengthy answer addressing the issue ofthe College Parklawsuit, and the effect ofpotential acquisition ofproperty on the City of College Park. Most ofAtlanta's contentions are reiterated throughout the document, and thus have already been addressed in this Reply; however, one ofits troubling assertions will be addressedherein. Atlanta claims that, pursuant to the terms ofthe Consent Order, it "has consulted and will continue to consult with College Park with respect [to] the sound mitigation of propertieslocatedin College Park." It does not provide evidence of any such consultations. However, by its own admission, it has repeatedly asked the landowners to consult with College Park themselves with respect to the sound mitigation. Itclaims, as discussed above, the somehow the landowners owe Atlanta a "reasonable accommodation" ofbeginning negotiations with College Park for noise insulation, yet it claims to be consulting with College Park on the very same issue. 

### D. The Status oftheLandowners' Properties Is Irrelevant to Issues Before the FAA. The status ofthe Landowners' prope1ties is irrelevant to the issue at hand as to whether Atlanta has violatedits Grant Assurances by failing to properly caiTy out its duties and responsibilities under its ATLNCP. Nor does it affect the standing ofthe Landowners, since, as indicated in the Complaint, all have been identified by Atlanta as holding, at least potentially eligible properties. Atlanta seems to insist that, in some of the Landowners' cases, the properties are not eligible for rehabilitation because, in purchasing these properties, Landowners were aware oftheirproximity to the Airpmt

.

. 18- 

### .IAside from being inelevantto this matter, this argument is cynical, and factually incorrect. While 49 U.S.C. § 47506 does contemplate the barring ofrecovery on properties purchased after February I, 1980, it also requires knowledge (actual or constructive) of the NEMs, notjust awareness ofaircraft noise. Atlantahas failed to show that landowners had this knowledge. Further, as is noted on its Wikipediapage (Complaint Exhibit 9), the Airporthas grown substantially in size since 1980, adding two runways, several terminals, and modernizing its existing structures to accommodate newer and larger aircraft. Atlanta conveniently glosses over these facts inits clumsy attempt to blame the landowners for purchasing the property. Atlanta is well aware that its reliance

on 49 USC § 47506 is doomed to fail due to the radical changes at the Airport since 1980, otherwise, it would have relied on this statute more heavily, and in the beginning of their lengthy Answer. Moreover, the limitation onrecovering damages for noise under 49 U.S.C. § 47506 only applies after the airport sponsor has implemented its NCP, which Atlanta is not doing. Finally, the "damages" mentioned in 49 U.S.C. § 47506 referto
common law damages, such as trespass and nuisance, not for acquisition ornoise mitigation as part ofan FAA-approvedPart 150 NCP. Atlanta admits that it has indicated that itplans to examine or has examined some ofthe Landowners' properties for potential sound mitigation measures. However, it has deemed some properties ineligible for mitigation without citing any valid legal basis, or any clitelia that was contemplatedin the approved Part 150, while stonewalling on its commitment to those it has deemed eligible. Atlanta goes on to dismiss the important fact thatrepresentatives ofthe FAAhave

- 19-deemed one ofthe subject properties (HartsfieldLanding) eligible for acquisition. Atlanta blames the Landowners for its own failure to participate in a conference call with the FAA, as iftbe Landowners had control overthe inclement weather that supposed prevented any City ofAtlantarepresentatives from picking up a telephone. TheFAA

was well aware that HartsfieldLanding was in the 65 DNL as dete1mined by ATL NCP and within the 70 DNL when ambient noise was included into the calculation. Atlanta and the FAA also knew that the ATLNCP was blocking HartsfieldLanding from getting approval from the Depattment ofHousing and Urban Development for assistance in developing;low income housing in Fulton County due to the fact that the ATL NCP determined itto be "incompatible with residential use."7 Based on these findings, the FAA told Atlanta that HartsfieldLanding would approve HartsfieldLanding's eligibility for acquisition with federal funds. ComplaintEx. 31. Atlanta claims it has actedreasonably and responsibly in regards to its obligations to the Landowners. Atlanta did inspect the properties located in CollegePat·k, and acknowledged the Landowners' claims that their properties are eligible for acquisition and/or insulation, but claims it has no fmther responsibility to provide such due to the Consent Order. As to HartsfieldLanding, whichis not within College Park's limits, the city claims it is not eligible for sound insulation or acquisition, even though it had engaged, by its own admission, in negotiations to provide funding for soundinsulation in 2010. The fact that VOD, as owners ofHartsfield, failed in an effort to obtain state monies for otherrenovations oftbe complex has no bearing on the matter at hand. Atlanta cannot escape its own obligations by piggybacking on the decisions ofother agencies. It should be noted that a residence that has been sound mitigated is still an incompatible land use under Part 150. See Table I, 14 C.F.R., Part !50, Appendix A.

- 20-

### IV. LANDOWNERS HAVE COMPLIED WITH 14 CFR 16.21. Atlanta claims that the landowners have not made the requisite efforts to resolve this matter without a formal proceeding. However, as is demonstrated within the exhibits to the complaint, and specifically in the Declaration ofSteven M. Taber (Complaint Exhibit 25), Atlanta has been unwilling to move forward with respect to its obligations under Part 150, and has yet to provide any legitimate legal basis for its refusal to do so. 14 CFR Part 16.21 "states that it will be necessary for apotential complainant to certify that good faith efforts have been made to achieve informal resolution. However, the final rule does not require any pa1ticularinformal resolution method. The final rule does state that the local FAA Airports District Office (ADO) may be askedby the parties to assist them in resolving the dispute informally. Additionally, Part 16, Subpart C, Special Rules Applicable to Complaints, does not state that efforts to resolve an issue must begin or conclude at any given point." Boca Raton Jet Center, Inc. v. Boca RatonAirport Authority, FAA Docket No. 16-97-06, at 22. Through counsel's declaration, the complainants have shown that they have engaged in a good faith effort to negotiate with the City. As is demonstratedin the correspondence also annexed to the complaint as ComplaintExhibits 16-24, over a period ofseveral months, no less than 9letterspassed between the parties to this matter, along with numerous phone calls. Itcan hardly be claimed, as Atlanta does, thatLandowners have not made an effort to resolve this matter informally. Ifanything, the Landowners have made significant effort, which was met by resistance on the pmt ofAtlanta to effect an informal solution. Further, though Atlanta acknowledges the letter andphone calls madeby counsel in an effort to resolve this matterinformally, it provides no legal basis for its statement

- 21-that those calls and letters do not constitute enough ofan effmi on the complainants' part. Additionally, there is no requirement, as Atlanta suggests, that a third party need be involved prior to the filing ofa Part 16 complaint, only the opportunity for the local ADO to assist, ifrequested. Finally, there is no requirement that the landowners make a "reasonable accommodation" to the City by engaging innegotiations with College Park, when it has no legal obligation to do so. As has already been discussed, it is not the landowners' responsibility to contact College Park with regards to the Part 150, but Atlanta's, as the airport sponsor and party to the Part 150. 

### V. CONCLUSION In its Answer, the City ofAtlanta has shown both a fundamental misunderstanding ofthe Part 150 program and ofthe grant assurances that ensure the Airport's funding under the Airport Improvement Program. Itcites, inits Answer, irrelevant statistics, statements, and case law, as well as distorts statements made by the Landowners. Atlantathen wrongly relies on a consent ordermade subsequent to its voluntaryparticipation in the Part 150 programin order to escape responsibilities that it created under the program. Itcannot be disputed that Atlanta wrongly places the onus on the Landowners to, in effect, solve their own noise mitigation problems by negotiating with College Park, when, in fact, the Grant Assurances require the Airport Sponsorto

- 22-conduct these negotiations. By stonewalling, obfuscating, and in general refusing to take appropriate action to address the Landowners' claims, Atlanta should be found in violation ofits obligations underPart 150, and ofGrant Assurances 5, 16, 21, and 35.

Dated: October 9, 2012 TABERLAW GROUP, P.C.

StevenM. Taber P.O. Box 60036 Irvine, California 92602-0036 (949) 735-8217 (phone) (714) 707-4282 (fax) staber@taberlaw.com Counsel for Complainants Virginia One Development, LLC. AveryParkPartners, LLC d/b/aAveryPark, DSHDiplomat, LLCd/b/a Diplomat Townhomes, and Colony Creek, LLC.

- 23-CERTIFICATE OF SERVICE

I hereby certify that I have this day served the foregoing COMPLAINTAND REQUEST FORINVESTIGATION PURSUANT TO 14 C.F.R. PART 16 onthe following persons at the following addresses and facsimile numbers (ifalso served by facsimile) by U.S. Mail:

John 

### L. Watkins Roy E. Hadley, Jr. Barnes & Thornburg, LLP Prominence in Buckhead. Suite 1700 3475 PiedmontRoad N.E. Atlanta, Georgia 30305-2954 Fax: (404) 264-4033
Datedthis 9th day ofOctober, 2012,

-24- For: Virginia One Development, LLC, AveryParkPartners, LLC d/b/aAveryPark, DSHDiplomat, LLCd/b/a Diplomat Townhomes, and Colony Creek, LLC.