BEFORE THE U.S. DEPARTMENT OF TRANSPORTATIO 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

VIRGINIA ONE DEVELOPMENT, LLC, ) 

AVERYPARKPARTNERS,LLC d/b/a ) 

AVERYPARK,DSHDIPLOMAT,LLC ) 

d/b/a DIPLOMAT TOWNHOMES, ) 

COLONY CREEK, LLC, and CROSSINGS ) 

TOWNHOMES, LLC, ) 

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Complainants, ) 

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Case No.: FAADocketNo.16-12-09 

THE CITY OF ATLANTA, GEORGIA, ) 

) 

Respondent. ) ____________ ) 

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 should be sent to Complainants' 

Representative: 

Steven M. Taber 

TABERLAWGROUP,P.C. 

P.O. Box 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, DSH Diplomat, LLC d/b/a Diplomat Townhomes, Colony Creek, LLC 

and Crossings Townhomes, LLC. 

October 9, 2012 

- 1-
BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

VIRGINIA ONE DEVELOPMENT, 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 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, 

(collectively, "Landowners") by and through their undersigned counsel and pursuant to 

14 C.P.R. Part 16 ("Part 16"), file this Consolidated Reply in response to the Answer and 

Motion to Dismiss filed by Respondent, THE CITY OF ATLANTA, GEORGIA 

("Atlanta"), owner and operator of the Hartsfield-Jackson International Airport (ATL or 

the "Airport"). Atlanta is not acting in good faith to implement its Part 150 Noise 

Compatibility Program (Complaint Exs. 11-14, "ATL NCP"), and is using a Consent 

Order (Complaint Ex. 30) it voluntarily entered into, without the consent of the FAA or 

the Landowners, to avoid acquiring and/or providing sound mitigation to the 

Landowners' affected properties. Because of these facts Atlanta is in violation of its 

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obligations both under its ATL NCP, as well as its grant assurances as an airport sponsor 

under the Airport Improvement Program. 

I. ATLANTA HAS FAILED TO SHOW THAT IT IS NOT IN VIOLATION 

OF ITS GRANT ASSURANCES. 

Atlanta, in its bloviated Answer and Motion to Dismiss, shows a fundamental 

misunderstanding of the Airpmt Improvement Program, its associated grant assurances 

and the Part 16 process. Atlanta fails to understand that Atlanta must comply with the 

grant assurances at all times in order to continue to receive the considerable amount of 

federal funding it is granted by the FAA each year. 

A. At the Core of Atlanta's Violations of Its Grant Assurances Is Its 

Consent Order with the City of College Park. 

Throughout its Answer and Motion to Dismiss, Atlanta claims that a Consent 

Order it entered into as a result of litigation brought by the City of College Park, Georgia, 

forbids it from acquiring property within the boundaries of the City of College Park and 

requires the City of College Park's consent before Atlanta offers noise mitigation to 

landowners under the ATL NCP. The Consent Order does no such thing. As pointed out 

in the Landowners' Complaint, that Consent Decree has two relevant provisions: 

4. PART 150 PROGRAM 

Atlanta agrees to modify its cunent Part 150 Program to eliminate authorization 

to acquire any apartment complex within College Park other than Clubhouse 

Apartments, located at 3800 Hershel Road. For purposes of this 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 of the Federal guidelines and other 

applicable law, on what prope1ties, identified in the existing and future Part 150 

documents as eligible for receipt of noise mitigation funds, are mitigated and the 

- 3 -
timing of the mitigation. 

Complaint Ex. 30, pp.S-6. Aside from the fact that neither the FAA nor the Landowners 

have any agreement with the City of College Park or any obligation to comply with the 

Consent Order, the Consent Order does not stop Atlanta from acquiring apartment 

complexes in College Park until it modifies the ATL NCP, which it has not done. Yet 

Atlanta does have a legal obligation to the FAA to comply with the ATL NCP and its 

grant assurances irrespective of what other contracts or agreements it might have entered 

into with another party. 

As a result of its eagerness to placate College Park by entering into the Consent 

Order, Atlanta now finds itself impaled on Morton's Fork: there are two lines of 

reasoning that lead to the same inescapable conclusion that Atlanta has violated its grant 

assurances. If the Consent Order says what Atlanta says it says, i.e., that Atlanta cannot 

acquire any property within the boundaries of the City of College Park, then Atlanta is in 

clear violation of Grant Assurance 5. 1 Atlanta has voluntarily limited itself from 

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, if the Consent Order says what the Landowners think it says, 

i.e., that Atlanta must modify its Part 150 to state that it will not acquire any property 

within the City of College 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 if Atlanta is correct in its analysis of the Consent Order, 

it is still in violation of Grant Assurance 35, since the burden is still on Atlanta 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 ATL NCP. Atlanta failure to do so in timely, expeditious manner is a 

violation of Grant 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 

of its 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 of law or guidance. Atlanta only makes semantic 

argument to support its position. Atlanta believes that it cannot violate this grant 

assurance by failing to acquire properties or provide sound mitigation because the lands 

in question are not within the airport boundaries, and are not contemplated for operational 

use. This is not legally correct. The FAA has held that Grant Assurance 5 prohibits the 

airport sponsor from giving away rights and powers the sponsor needs to control and 

manage the noise created by aircraft in the surrounding area. letA way Aviation, Inc., v. 

Montrose County, FAA Docket No. 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 of which can be off the airport and not 

needed for, but impacted by, airport operations. According to Program Guidance Letter 

Atlanta claims that JetAway is inapposite simply because it does not concern a Noise 

Compatibility Program. While that may be true, JetAway does stand for the proposition that Landowners 

have cited it for: it is a violation of Grant Assurance 5 for an airport sponsor to give away rights and 

powers needed to control and manage airport development land. 

- 5 -
08-02 Manager, Airports Financial Assistance Division, A YP-500 Feb 1, 2008, (Reply 

Exhibit 1) "Airport development land (Development Land) is defined in 49 U.S.C. § 

47102(3)(C) as land that is needed to carry out airport development or to remove or 

mitigate an existing airport hazard or prevent or limit the creation of a new airport hazard. 

Noise Land is land that is acquired as a Part 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 of runways 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, Atlanta fails to understand that its entry into the Consent Order with 

College Park violates one of the central holdings of the Administrator in Town of 

Fairview v. City of McKinney, FAA Docket No. 16-99-04 and by doing so, violates Grant 

Assurance 5. In Fairview, the FAA held that "without some showing of a mechanism or 

agreement that acts to prevent McKinney from exercising powers to adhere to FAA's 

interpretation of the sponsor's Federal obligations, there can be no violation of this 

assurance." Id., at 35-36. In the instant case, the Consent Order, according to Atlanta's 

reading of it, restricts Atlanta's ability to acquire or make improvements on the 

Landowners' properties. This, in turn, prevents Atlanta from exercising its powers 

pursuant to its federal obligations. Thus, by entering into the Consent Order with College 

Park indicating that it would not acquire property in accordance with Part 150, Atlanta 

took affirmative steps to deny itself the ability to obtain airport development land or noise 

land, as defined above, and therefore is in violation of Grant Assurance 5. 

- 6-
Moreover, it seems that Atlanta is aware that the Consent Order is 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 amendment be proposed to the FAA, it no 

doubt would not be approved, since it diminishes Atlanta's ability to control noncompatible land uses that surround the Airport. Atlanta has effectively tied its own 

hands: it cannot carry out the ATL NCP because it promised the City of College Park it 

would not acquire property within College Park's boundaries, and therefore it is in 

violation of Grant Assurance 5. The fact that Atlanta cannot comply with Grant 

Assurance 5 without violating its Consent Order is of no importance to the FAA or the 

Landowners. The FAA's responsibility is to ensure that an airport sponsor carries out its 

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 of those agreements as a shield to protect itself from the consequences of its actions 

with respect to the other agreement. 

C. Grant Assurance 16 Applies Equally to the Performance of Projects 

Other Than Construction Pmjects. 

Atlanta next argues that Grant Assurance 16 "has no applicability" to the ATL NCP 

because Grant Assurance 16 only applies to construction projects. Again, Atlanta relies 

primarily on semantics and not on any legal or factual basis in quickly dismissing the 

Landowners' claim that it violated Grant Assurance 16. Its argument hinges on one word 

in the language of the grant assurance, while ignoring the assurance as a whole. The 

language of the assurance- which Atlanta quotes- specifically mentions "construction or 

other perfonnance." (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-
or guidance documents restricting the application of Grant 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 of conformity to airport plans that also makes clear that 

the assurance does not just cover traditional construction projects. The Airport 

Cooperative Research Program's Report 56, "Handbook for 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 received federal 

funding, its facilities must then continue to conform to the currently approved Airport 

Layout Plan (ALP) per grant assurance 16. Planning at airports can take many forms, 

including a Master Plan, ALP Updates, Sustainability Plans, documentation under the 

National Environmental Policy Act (NEPA), and/or general mitigation planning." 

Additionally, the FAA's guidance on Airport Master Plans, AC 150/5070-6B, (Reply 

Exhibit 3) does not limit conformance to plans strictly to construction projects, but 

discusses, at length, other projects including environmental assessments and noise 

mitigation projects as being covered by Grant Assurance 16. 

Thus, since the ATL NCP has been approved by the FAA, Atlanta is bound by its 

grant assurances to comply with the ATL NCP as it was approved by the FAA. Grant 

Assurance 16 allows for modifications, but those modifications must be approved by the 

FAA. Thus, Atlanta must carry out the ATL NCP as approved by the FAA, unless it 

obtains approval from the FAA for any modifications. Since Atlanta is refusing to 

comply with the provisions of the ATL NCP and has had added additional criteria to the 

eligibility requirements that have not been approved by the FAA, Atlanta is in violation 

- 8 -
of Grant Assurance 16. Even then, Landowners have sought on numerous occasions (as 

evidenced in the letters from Landowners' counsel to Atlanta's counsel) to try figure out 

what qualifications the Properties must meet in order to be "eligible" for acquisition 

and/or sound mitigation. Atlanta has yet to give Landowners a straight answerespecially since Landowners comply with all of the provisions contained in both the ATL 

NCP and the Handbook, yet Atlanta has refused to acquire the noise impacted property 

and/or provide sound mitigation because they do not feel like doing it right now. One of 

the purposes of the NCP is provide certainty for those affected by the decisions of the 

Airport. The Landowners have been deeply affected by the high levels of noise 

emanating from the Airport and aircraft overhead, and yet Atlanta has refused to take 

responsibility for following the program that the FAA has 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 A TL NCP to begin noise mitigation projects, it has violated 

Grant Assurance 16. 

D. Instead of Promoting Land Use Compatibility, Atlanta's Entry into the 

Consent Decree with the City of College Park Effectively Barred Atlanta 

from Taking Appropriate Action to Restrict Non-Compatible Land Use 

Thereby Violating Grant Assurance 21. 

Atlanta claims in its Answer and Motion to Dismiss that it has complied with Grant 

Assurance 21 because it has "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 with respect to 

Part 150 NCP programs. 

Atlanta has violated this assurance by its utter and abject failure to take the steps 

- 9-
necessary to provide noise mitigation measures to or to acquire the Landowners' 

properties. Atlanta hides behind work done prior to the ATL NCP, as well as advances in 

aircraft technology, to claim that it has substantially increased the compatibility of local 

land with airport noise. However true these assertions may be, they are completely beside 

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 of the NCP as its "reasonable attempt" to 

inform and educate local communities about land use compatibility zoning. It points to 

negotiations and meetings with College Park officials as referenced in a memo from early 

2008. However, it is important to note that these meetings occurred prior to the 

implementation of the ATL NCP, and well in advance of the Consent Order that Atlanta 

is now using as a block to implementing the Part 150 in regards to the Landowners' 

properties. The Consent Order does not state that Atlanta agrees to make "reasonable 

attempts" to work with the community of College 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 

itself from taking "appropriate action" to restrict incompatible land use under Grant 

Assurance 21, and thus is in violation of the grant assurance. 

As Landowners stated in their Complaint, the standard for determining whether a 

sponsor is out of compliance with Grant Assurance 21 can be found in Keathly v. City of 

McKinney, Texas and the Collin County Regional Airport, Docket No. 16-03-14, 

- 10-
Director's Determination (October 13, 2004), a fact that Atlanta does not refute? In 

Keathly, 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 operations compatible with local airport 

operations? 

2. If not, could the sponsor have prevented the facility from operating 

near the airport? 

!d. at *58. In this case, Atlanta itself in the ATL NCP has determined that all of the 

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, 

Complaint Exhibit 13, see also Complaint Exhibit 28. In addition, the ATL NCP 

commits Atlanta to take action to prevent the residences from being severely impacted by 

aircraft noise and remove them as incompatible land uses. !d. Atlanta, however, has not 

taken the action it said it would to prevent the impact, and this is not consistent with 

Atlanta's obligation to take reasonable steps to restrict the use of land next 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 of land adjacent to or 

in immediate vicinity of the airport due to voluntary entrance into the Consent Order, 

which, it vociferously claims, restricts it from acquiring property with the boundaries of 

College Park. 

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 if they are not currently 

occupied. Incompatibility is based on what is allowed, not necessarily on what actually exists. 

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

a violation of Grant Assurance 35 established. According to the FAA, one method of 

establishing a violation of Grant Assurance 35 is for the Complainants to demonstrate 

that the Respondent has the intention of displacing them as a result of acquiring 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 

and has not argued that it has failed to comply with its duties under Grant Assurance 35 

in this regard. The ATL NCP specifically states that Atlanta intends to acquire certain 

properties held by the Landowners and provide sound mitigation for others. See, 

Complaint Ex. 13. Thus, there can be no doubt that Atlanta has the intention of 

displacing the Landowners. Moreover, the ATL NCP documents that Atlanta intends to 

use federal assistance for the acquisition of real property. Complaint Ex. 13, pp.6-1- 6-2. 

Thus, Atlanta, according to the ATL NCP, has every intention of displacing the 

Landowners as a result of acquiring real property with federal funds. As a result, Atlanta 

has violated Grant Assurance 35. 

II. ATLANTA'S CONCEPT OF THE FACTS OF THIS MATTER IS 

SKEWED AND MUST BE CORRECTED. 

Most of the facts raised by Atlanta have no bearing on the outcome of this matter 

as to whether Atlanta has violated its grant assurances. However, some of the half-truths 

and misstatements need to be addressed so that the FAA has a better understanding of the 

facts of this matter. 

-13-
A. The Intent of the Landowners in Filing this Part 16 Is Irrelevant and 

Atlanta's "Preliminary Statement" Is Misleading. 

At best, the City's preliminary statement is misleading, and, at worst, an outright 

lie. The City completely mischaracterizes the intent of the Landowners in filing this 

action, distorting statements made by a representative of one of the parties. Based on 

these out-of-context statements, Atlanta makes sweeping and unsubstantiated aiiegations 

regarding the character both of the Complaint and the principal of one of the 

Landowners. The statements Atlanta cites were made during depositions in a related civil 

case. The other Landowners in this matter are not parties to the civil suit from which the 

statements are gleaned, and, regardless of their content, Atlanta is disingenuous in 

utilizing them as such. 

The exchange Atlanta refers to as damning for the Landowners refers, in part, to a 

property, Clubhouse Apartments, which is not at issue in this action, and in fact was 

exempted from the terms of the Consent Order upon which Atlanta relies so heavily later 

in its argument. To wit, Atlanta utilizes statements made by Mr. Flannagan in his 

deposition of June 15, 2012, indicating that he recently partnered with another developer 

in order to seek a buy-out from the city. In using these statements without supplying any 

context, Atlanta implies that Mr. Flannagan purchased the properties knowing that they 

were within the noise contours delineated in the Part 150 noise maps, in order to force a 

sale to Atlanta. This is simply not the case, as is evidenced by testimony later in the same 

deposition, which, of course, is conveniently ignored by Atlanta in its Answer. The only 

property in the 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 Hartsfield Property had already been 

- 14-
acquired, and consultants retained, and other noise mitigation measures studied at length 

prior to any contact with the FAA in regards to funds available under the A TL NCP. 

Roosevelt Park, to which Mr. Flannagan refers in his statements, should be eligible for 

acquisition as well, however, noise mitigation, cannot be denied cannot be denied.6 Thus 

the "damning" evidence cited by Atlanta is inapplicable to its argument. Regardless, the 

intentions of the developer are irrelevant. There is no legal basis, and certainly none 

cited, to keep the properties from acquisition based on the intent of the developer. 

Mr: Flannagan purchased Hartsfield Landing for the purpose of developing 

workforce housing for employees who work at the Airport. When he purchased it in 

2009, he was not aware of the ATL NCP and when he was informed of it, it sought to 

incorporate noise mitigation into his redevelopment plans. However, that plan was 

blocked when HUD would not approve his financing request due to the fact that noise 

created by the Airport cannot be mitigated to level below 65 DNL outside. Thus, the 

ATL NCP blocked Mr. Flannagan from proceeding with the redevelopment plan that he 

had negotiated with Atlanta and HUD. A consequential result of the ATL NCP and 

Atlanta's failure to move forward with its ATL NCP is a disproportionate harm on Mr. 

Flannagan and the other Landowners trying to provide affordable housing for the 

Airport's own employees. Since the primary purpose of the Part 150 NCP is reduce the 

amount of property exposed to airport noise and put in the control of the airport sponsor, 

it should be an easy call for Atlanta to purchase the property and eliminate the property as 

residential and then redevelop the property in manner that is compatible with airport 

Landowners would prefer acquisition of Roosevelt Park instead of noise mitigation due to its 

proximity to 70 DNL and that would take it permanently out of residential 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 of the 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 of the FAA, as explained in the complaint, that their properties were eligible 

for acquisition, thus the time and expense spent on this action and Landowner VOD's 

associated civil suit. 

B. Atlanta's Claim that All Aspects of Its 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 and it does not have to comply with any provisions of the 

ATL NCP if it does not suit its purpose. This is an incorrect assessment of the ATL 

NCP. Although the City did act voluntarily in submitting a plan to the FAA under Part 

150, its further participation, once the program is approved and funded, it is no longer 

voluntary. See Town of Fairview, Texas, Appellant v. City of McKinney, Texas, Appellee, 

FAA Docket No. 16-04-07. The ATL NCP provides a framework for the implementation 

of noise mitigation measures to be applied once funding is received from 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 of its own generosity is just plain 

wrong. Atlanta's contention that the FAA has no say in which properties qualify for 

mitigation measures is also misguided. Though the FAA may not participate in post-Plan 

analysis of each 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 of eligible properties is 

subject to the availability of federal funds. Landowners understand this point, but do not 

understand why, given that funds have been disbursed, they have not been used in 

furtherance of the NCP. In FY 2010, $10 million was received by Atlanta for Noise 

Mitigation projects, as is delineated in Exhibit 10 of the Complaint. Atlanta provides no 

explanation for its failure to utilize these funds to provide the relief requested by the 

landowners, and no explanation of how 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 out in the complaint, College 

Park was given the opportunity to comment on the proposed Part 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. In its 

answer, Atlanta implies that the FAA ignored College Park with respect to the NCP. This 

is simply not the case. In any event, it would be the responsibility of the airport sponsor 

itself to consult with local communities to develop the Plan, and Atlanta cannot now hide 

behind the Consent Order with College Park when it was its responsibility to consult 

College Park in the first place prior to the submission of the ATL NCP to the FAA for 

approval. Further, in litigation prior to the consent order, College Park was unsuccessful 

in stopping Atlanta's implementation of the Part 150 measures. That Atlanta is 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 of College Park Has No Bearing on 

This Matter. 

The Atlanta spends several pages of its lengthy answer addressing the issue of the 

College Park lawsuit, and the effect of potential acquisition of property on the City of 

College Park. Most of Atlanta's contentions are reiterated throughout the document, and 

thus have already been addressed in this Reply; however, one of its troubling assertions 

will be addressed herein. 

Atlanta claims that, pursuant to the terms of the Consent Order, it "has consulted 

and will continue to consult with College Park with respect [to] the sound mitigation of 

properties located in 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. It claims, as 

discussed above, the somehow the landowners owe Atlanta a "reasonable 

accommodation" of beginning negotiations with College Park for noise insulation, yet it 

claims to be consulting with College Park on the very same issue. 

D. The Status ofthe Landowners' Properties Is Irrelevant to Issues 

Before the FAA. 

The status of the Landowners' prope1ties is irrelevant to the issue at hand as to 

whether Atlanta has violated its Grant Assurances by failing to properly caiTy out its 

duties and responsibilities under its ATL NCP. Nor does it affect the standing of the 

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 of their proximity to the Airpmt . 

. 18-

.I 
Aside from being inelevant to this matter, this argument is cynical, and factually 

incorrect. 

While 49 U.S.C. § 47506 does contemplate the barring of recovery on properties 

purchased after February I, 1980, it also requires knowledge (actual or constructive) of 

the NEMs, not just awareness of aircraft noise. Atlanta has failed to show that 

landowners had this knowledge. Further, as is noted on its Wikipedia page (Complaint 

Exhibit 9), the Airport has 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 in its 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 on recovering 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 refer to 

common law damages, such as trespass and nuisance, not for acquisition or noise 

mitigation as part of an FAA-approved Part 150 NCP. 

Atlanta admits that it has indicated that it plans to examine or has examined some 

of the 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 contemplated in the approved Part 150, while stonewalling on its 

commitment to those it has deemed eligible. 

Atlanta goes on to dismiss the important fact that representatives of the FAA have 

- 19-
deemed one of the subject properties (Hartsfield Landing) eligible for acquisition. Atlanta 

blames the Landowners for its own failure to participate in a conference call with the 

FAA, as if tbe Landowners had control over the inclement weather that supposed 

prevented any City of Atlanta representatives from picking up a telephone. The FAA 

was well aware that Hartsfield Landing 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 ATL NCP was blocking Hartsfield Landing from getting 

approval from the Depattment of Housing and Urban Development for assistance in 

developing; low income housing in Fulton County due to the fact that the ATL NCP 

determined it to be "incompatible with residential use."7 Based on these findings, the 

FAA told Atlanta that Hartsfield Landing would approve Hartsfield Landing's eligibility 

for acquisition with federal funds. Complaint Ex. 31. 

Atlanta claims it has acted reasonably and responsibly in regards to its obligations 

to the Landowners. Atlanta did inspect the properties located in College Pat·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 Hartsfield Landing, which is 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 sound insulation in 

2010. The fact that VOD, as owners of Hartsfield, failed in an effort to obtain state 

monies for other renovations of tbe complex has no bearing on the matter at hand. Atlanta 

cannot escape its own obligations by piggybacking on the decisions of other 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. 

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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 of Steven 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 a potential complainant to certify 

that good faith efforts have been made to achieve informal resolution. However, the final 

rule does not require any pa1ticular informal resolution method. The final rule does state 

that the local FAA Airports District Office (ADO) may be asked by 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 Raton Airport 

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 demonstrated in the correspondence also annexed to the complaint as 

Complaint Exhibits 16-24, over a period of several months, no less than 9letters passed 

between the parties to this matter, along with numerous phone calls. It can hardly be 

claimed, as Atlanta does, that Landowners have not made an effort to resolve this matter 

informally. If anything, the Landowners have made significant effort, which was met by 

resistance on the pmt of Atlanta to effect an informal solution. 

Further, though Atlanta acknowledges the letter and phone calls made by counsel 

in an effort to resolve this matter informally, it provides no legal basis for its statement 

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that those calls and letters do not constitute enough of an effmi on the complainants' part. 

Additionally, there is no requirement, as Atlanta suggests, that a third party need be 

involved prior to the filing of a Part 16 complaint, only the opportunity for the local ADO 

to assist, if requested. Finally, there is no requirement that the landowners make a 

"reasonable accommodation" to the City by engaging in negotiations 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 of Atlanta has shown both a fundamental 

misunderstanding of the Part 150 program and of the grant assurances that ensure the 

Airport's funding under the Airport Improvement Program. It cites, in its Answer, 

irrelevant statistics, statements, and case law, as well as distorts statements made by the 

Landowners. Atlanta then wrongly relies on a consent order made subsequent to its 

voluntary participation in the Part 150 program in order to escape responsibilities that it 

created under the program. It cannot 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 Sponsor to 

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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 of its obligations under Part 150, and of Grant Assurances 5, 16, 21, and 35. 

Dated: October 9, 2012 TABER LAW GROUP, P.C. 

Steven M. 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. Avery Park Partners, LLC 

d/b/a Avery Park, DSH Diplomat, LLC d/b/a 

Diplomat Townhomes, and Colony Creek, LLC. 

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CERTIFICATE OF SERVICE 

I hereby certify that I have this day served the foregoing COMPLAINT AND 

REQUEST FOR INVESTIGATION PURSUANT TO 14 C.F.R. PART 16 on the 

following persons at the following addresses and facsimile numbers (if also served by 

facsimile) by U.S. Mail: 

John L. Watkins 

Roy E. Hadley, Jr. 

Barnes & Thornburg, LLP 

Prominence in Buckhead. Suite 1700 

3475 Piedmont Road N.E. 

Atlanta, Georgia 30305-2954 

Fax: (404) 264-4033 

Dated this 9th day of October, 2012, 

-24-

For: Virginia One Development, 

LLC, Avery Park Partners, LLC 

d/b/a Avery Park, DSH Diplomat, 

LLC d/b/a Diplomat Townhomes, 

and Colony Creek, LLC.