Taber Law Group

P.O. BOX 60036 | IRVINE, CA 92602 | TEL 949.735-8217 | FAX 714.707.2428 | staber@taberlaw.com

VIA E-MAIL AND U.S. MAIL

August 14, 2013 

Office of the Chief Counsel, 

Attention: FAA Part 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, 

DSH Diplomat, LLC, Colony Camp Creek, LLC, and Crossings Townhomes, 

LLC v. The City of Atlanta, FAA Docket No. 16-12-09; Complainants’ 

Second Motion to Supplement Record.

Dear Sir/Madam: 

 Enclosed is an original and 3 copies of Complainants’ Second Motion to Supplement 

Record. 

 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
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, DSH DIPLOMAT, LLC ) 

d/b/a DIPLOMAT TOWNHOMES, ) 

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’ SECOND MOTION TO SUPPLEMENT RECORD

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

Steven M. Taber

TABER LAW GROUP

13 Atlanta 

Irvine, California 92620 

(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 Camp Creek, LLC and 

Crossings Townhomes, LLC. 

August 14, 2013 
2 

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, DSH DIPLOMAT, LLC ) 

d/b/a DIPLOMAT TOWNHOMES, ) 

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’ SECOND MOTION TO SUPPLEMENT RECORD

Complainants, VIRGINIA ONE DEVELOPMENT, LLC, AVERY PARK PARTNERS, 

LLC d/b/a AVERY PARK, DSH DIPLOMAT, LLC d/b/a DIPLOMAT TOWNHOMES, 

COLONY CAMP CREEK, LLC, and CROSSINGS TOWNHOMES, LLC, (collectively, 

“Landowners”) by and through their undersigned counsel and pursuant to 14 C.F.R. § 16.19, 

request leave to file and hereby files this second motion to supplement the record in this 

proceeding.

1. Landowners hereby move the Federal Aviation Administration, pursuant to 14 

C.F.R. § 16.19 to supplement the record in this matter with: 
3 

(1) The City of Atlanta’s proposed Amendment to its Part 150 Noise 

Compatibility Program (NCP), a copy of which is attached as Exhibit B. 

(2) The Comments the Landowners submitted to Atlanta’s in response to their 

proposed amendment to the NCP (“Comments”), a copy of which is 

attached as Exhibit C. 

(3) The City of Atlanta’s Declaratory Judgment Complaint against two of the 

Landowners in this matter asking the U.S. District Court for the Northern 

District of Georgia to make a determination regarding Atlanta’s rights and 

responsibilities under the NCP. A copy of the Declaratory Judgment 

Complaint is attached as Exhibit D.

2. One of the critical arguments for both the Complainants and the Respondent 

concerns a Consent Order that was reached between Atlanta and the City of College Park 

resolving City of College Park and Charles E. Philips, Sr. v. City of Atlanta, Shirley Franklin 

and State of Georgia, Case No. 08-1464 that is dated July 30, 2010 (“Consent Order”). 

3. As indicated in the pleadings for this matter, the Consent Order mentions the NCP 

and states that Atlanta will “modify its current Part 150 Program to eliminate authorization to 

acquire any apartment complex within College Park other than Clubhouse Apartments, located at 

3800 Hershel Road.” Until 2013, Atlanta had not made any effort to amend or modify its 

“current Part 150 Program,” as promised in the Consent Order. 

4. Sometime in early 2013, Atlanta posted on the website for the Hartsfield Jackson 

Atlanta International Airport (http://www.atlanta-airport.com/Airport/Environmental/Noise.aspx) 

that it was finally amending its NCP to include language from the Consent Order and that it 
4 

would be submitting the amendment to the FAA for approval. Upon information and belief, this 

is the only notice that Atlanta gave to the public indicating it was proposing to amend the NCP.

5. The website stated that the commenting period “closes April 10, 2013.” Because 

Atlanta (1) failed to comply with the express terms of the Administrative Procedure Act 

regarding publication of notices for public comments, (2) failed to directly notify parties that it 

knew or should have known would have an interest in commenting on the proposed amendment, 

and (3) published the notice on an obscure webpage that few in the public would check on a 

regular basis, the Landowners did not submit comments before April 10, 2013. 

6. However, once the Landowners were made aware both of the website and the 

proposed amendment, they drafted and filed comments on Atlanta’s proposed Amendment to its 

NCP as soon as possible. Those Comments to opposing Atlanta’s proposed Amendment to the 

NCP were filed with Atlanta on July 11, 2013, by e-mail to Walter Vinson and by U.S Post. 

7. Soon after the Landowners filed their Comments opposing the Amendment to the 

NCP, Atlanta filed its Complaint for Declaratory Judgment in the United States District Court for 

the Northern District of Georgia, Case No. 13-02480, styled as The City of Atlanta, Georgia v. 

Avery Park Partners, LLC d/b/a Avery Park, Colony Creek, LLC, and the City of College Park, 

Georgia (“Declaratory Judgment Action”) on July 26, 2013. 

8. In the Declaratory Judgment Action, Atlanta requests that the Court make several 

specific findings concerning (1) Atlanta’s rights, responsibilities and legal obligations under the 

NCP, (2) Atlanta’s compliance with its grant assurances relative to its compliance with the NCP, 

and (3) Atlanta’s duties under the Consent Order. 

9. Despite the fact that Atlanta asks for relief in the Declaratory Judgment Action 

that implicates policy decisions made by the FAA and that are contained in FAA orders, 
5 

regulations, rules and advisory circulars, it did not include the FAA as a party in the Declaratory 

Judgment Action. 

10. For the reasons stated above and because of the critical nature the Consent Order 

plays in the parties’ pleadings in this matter, Landowners respectively submit that Exhibits B, C 

and D should be added to the record in this matter. 

Dated: August 14, 2013 Respectfully Submitted,

Steven M. Taber

TABER LAW GROUP

13 Atlanta 

Irvine, California 92620 

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 Camp Creek, LLC and 

Crossings Townhomes, LLC.
6 

CERTIFICATE OF SERVICE

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

MOTION TO SUPPLEMENT RECORD 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. 

Thompson Hine 

Two Alliance Center

3560 Lenox Road, Suite 1600 

Atlanta, Georgia 30326-4266 

Fax: (404) 541-2905 

Dated this 14th day of August, 2013, 

 For: Virginia One Development, LLC, 

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

DSH Diplomat, LLC d/b/a Diplomat 

Townhomes, and Colony Camp Creek, LLC.
Exhibit B 


Exhibit C
TABER LAW GROUP PC

P.O. BOX 60036 | IRVINE, CA 92602 | TEL 949.735.8217 | FAX 714.707.4282 | staber@taberlaw.com 

July 11, 2013 

VIA E-MAIL AND U.S POST

Mr. Walter Vinson (walter.vinson@atlanta-airport.com) 

Manager of Intergovernmental Affairs

Department of Aviation

P.O. Box 20509 

Atlanta, Georgia 30320 

Re: Amendment to City of Atlanta’s Part 150 Noise Compatibility Program to 

Include Consent Order with City of College Park.

Dear Mr. Vinson: 

This comment letter is submitted on behalf of the owners of property (collectively, the 

“Property Owners”) slated by the City of Atlanta (“Atlanta”) to be acquired pursuant to its 

Federal Aviation Administration approved Part 150 Noise Compatibility Program (“Part 150 

NCP”), for which Atlanta has yet to take any action, despite the passage of over five years. This 

law firm represents the owners of the following properties:

1. 2609 Charlestown Drive, College Park, Georgia 30337, Parcel Identification Number 

13-0004-LL-045-5. 

2. 2800 Camp Creek Parkway, College Park, Georgia 30337, Parcel Identification 

Number 14-0224-LL-052-3. 

3. 2601 Roosevelt Highway, College Park, Georgia, 30337, Parcel Identification 

Number 13-0036-LL-130-7. 

4. 2700 Camp Creek Parkway, College Park, Georgia 30337, Parcel Identification 

Number 14-0224-LL-055-6. 

5. 3800 Herschel Road, College Park, Georgia 30337, Parcel Identification number 14-

0193-0002-036-0. 

6. 3001 Roosevelt Highway, College Park, Georgia 30337, Parcel Identification Number 

13-0062-LL-009-0. 

Atlanta has attempted to slip this amendment through without a proper public comment 

period and without notice to the stakeholders in violation of the Administrative Procedures Act. 

Atlanta’s actions with respect to this proposed amendment to the Part 150 NCP is even more 

egregious since it did not give any notice to the owners of property that it knew would be 
Mr. Walter Vinson

July 11, 2013 

Page 2

affected by this amendment. In light of Atlanta’s absolute failure to follow the law and 

regulations concerning public comments and hearings with respect to changes in the Part 150 

NCP, we would ask that Atlanta consider these comments as timely.

According to Atlanta, Atlanta and the City of College Park (“College Park”) entered into 

a consent order (Civil Action No. 1:08-CV-1464) dated May 25, 2010 in United States District 

Court for the Northern District of Georgia.1 Section 4 of that Consent Order stated that the City 

of Atlanta would: 

Modify its current Part 150 Program to eliminate authorization to acquire any apartment 

complex within College Park other than Clubhouse Apartments, located at 3800 Hershel 

[sic] Road. For purposes of this Consent Order, an apartment complex means any 

building with four (4) or more residential units. 

Now, over three years later, after the owners have shown that the Consent Order is not part of the 

Part 150 NCP, Atlanta has decided to comply with this consent order term.2 The notice on 

Atlanta’s website states that the following amendment will be inserted in the Part 150 NCP after 

Section 6.9: 

 Section 6.10 Compliance with Federal Consent Order 

The City of Atlanta and City of College Park entered into a United States District Court 

consent order dated May 25, 2010. The consent order prohibits Atlanta from certain land 

acquisition activities within the College Park city limits.

Other than the Clubhouse Apartments, located at 3800 Herschel Road, no apartment 

complexes located within the city limits of the City of College Park may be acquired 

without the consent of the City of College Park. For purposes of this prohibition, an 

apartment complex shall mean any building with four or more residential units. 

(the “Amendment”). Leaving aside the internal inconsistency of the proposed Amendment3 and 

the fact that the Amendment attempts to bar anyone from purchasing the property without 

College Park’s permission, the Property Owners contend that the foregoing amendment is not 

approvable by the Federal Aviation Administration and would violate Atlanta’s grant assurances. 

 

1

 A copy of the Consent Order is attached as Exhibit A. 2

 The fact that Atlanta has chosen to take this action only after the same property owners pointed out that 

Atlanta had been remiss in its duties under the Consent Order in a Part 16 Administrative Action before the Federal 

Aviation Administration (FAA Docket No. 16-12-09) has not been lost on the Property Owners. 3

 The Consent Order, as the Amendment points out, states prohibits the City of Atlanta from acquiring any 

apartment complexes with the boundaries of College Park. The Amendment, however, seems to allow Atlanta to 

acquire the property within the boundaries of College Park if College Park “consents.” Allowing the consent of 

College Park is contrary to the Consent Order.
Mr. Walter Vinson

July 11, 2013 

Page 3

I. THE AMENDMENT IS NOT APPROVABLE UNDER 49 U.S.C. § 47504(b).

In order for the Amendment to be approved by the FAA, it must comply with 49 U.S.C. § 

47504, Noise Compatibility Programs. Subsection (b), entitled “Approvals,” states that the FAA 

shall approve the program only if the program “is reasonably consistent with achieving the goal 

of reducing non-compatible uses and preventing the introduction of additional non-compatible 

uses.” 49 U.S.C. § 47504(b)(1)(B). It cannot be consistent with achieving the goal of reducing 

non-compatible uses to allow an amendment that limits the ability of Atlanta to acquire property 

that Atlanta has deemed to be severely impacted by aircraft noise. In addition, both the FAA and 

the Atlanta are aware that College Park’s desire is keep the property located in the 70 DNL 

contour as residential property, a use which is not compatible with the Part 150 NCP. 

In addition, the Amendment cannot be approved by the FAA because it is in violation of 

14 C.F.R. § 150.35 Determinations; publications; effectivity. That section states that the FAA

will only approve an NCP if the program measures “would not create an undue burden on 

interstate or foreign commerce (including any unjust discrimination) and are reasonably 

consistent with achieving the goals of reducing existing non-compatible land uses around the 

airport and of preventing the introduction of additional non-compatible land uses. 14 C.F.R. § 

135.35(b)(1). Since the Amendment will impact the salability of the property affected by the 

Amendment and it is specifically aimed at leaving multi-family residences in place that are 

within the 70 DNL contour, the Amendment does not meet this requirement as well. Moreover, 

since at least one of the Property Owners is an out-of-state entity, there has been a substantial 

burden on interstate commerce by Atlanta’s failure to act on the Part 150 NCP and its hiding 

behind its voluntary entry into a restrictive Consent Decree that will violate Atlanta’s duties 

under federal law.

II. THE AMENDMENT VIOLATES THE CITY OF ATLANTA’S GRANT 

ASSURANCES.

This amendment to Atlanta’s Part 150 Noise Compatibility Program violates its Grant 

Assurances and therefore must be rejected by Atlanta and by the FAA. Atlanta has a legal 

obligation to the FAA to comply with the Part 150 NCP and also a legal obligation to comply 

with its grant assurances, irrespective of what other contracts or agreements it might have 

entered into with another party. If Atlanta amends its Part 150 NCP to incorporate the Consent 

Order and bar Atlanta from acquiring any property within the boundaries of College Park, then 

Atlanta is in clear violation of Grant Assurances 5 and 21. 
Mr. Walter Vinson

July 11, 2013 

Page 4

A. The Amendment Will Violate Grant Assurance 5.

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. JetAway Aviation, Inc., v. Montrose County, FAA Docket No. 16-08-01, 

Director’s Determination (July 2, 2009). Grant Assurance 5, entitled Preserving Rights, requires 

that: 

[f]or all noise compatibility program projects which are to be carried out by another unit 

of local government [which this one would be if the Amendment is approved] or are on 

property owned by a unit of local government other than the sponsor, it will enter into an 

agreement with that government. Except as otherwise specified by the Secretary, that 

agreement shall obligate that government to the same terms, conditions, and assurances 

that would be applicable to it if it applied directly to the FAA for a grant to undertake the 

noise compatibility program project. That agreement and changes thereto must be 

satisfactory to the Secretary. It will take steps to enforce this agreement against the local 

government if there is substantial non-compliance with the terms of the agreement.

Grant Assurance 5(c). By seeking to amend its Part 150 NCP with the Consent Decree, Atlanta 

has voluntarily barred itself from acquiring property that it has identified as non-compatible with 

airport operations. Because of that limitation, the Amendment is in violation of Grant Assurance 

5. 

 Moreover, Grant Assurance 5(d) states that “[f]or noise compatibility program projects to 

be carried out on privately owned property, [the airport sponsor] will enter into an agreement 

with the owner of that property which includes provisions specified by the Secretary. It will take 

steps to enforce this agreement against the property owner whenever there is substantial noncompliance with the terms of the agreement.” Id. Since the Amendment concerns the 

acquisition of property that is privately-owned, the agreement must be between the private owner 

and the airport sponsor, not between the City of Atlanta and the City of College Park. Thus, 

once again the City of Atlanta will be violation of its Grant Assurances if the Amendment is 

made part of its Part 150 NCP. 

Grant Assurance 5 puts Atlanta between a rock and a hard place. Atlanta has an 

obligation to carry out its FAA-approved Part 150 NCP. But if the Amendment is approved then 

Atlanta would be bound to ensure that College Park complies with the Part 150 NCP program 

and makes the property within the 70 DNL compatible with airport operations. On the other 

hand, the Amendment would bar Atlanta from acquiring the property from the Property Owners 

and therefore gain control over the compatibility of the property with airport operations – as it 

promised it would do when it submitted the Part 150 NCP for approval. 
Mr. Walter Vinson

July 11, 2013 

Page 5

 In sum, including the Amendment into the Part 150 NCP 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 Amendment restricts Atlanta’s ability to 

acquire or make improvements on the Property Owners’ properties or ensure that the property 

identified by the Part NCP as being severely impacted by aircraft noise is made compatible. This 

restriction, in turn, prevents Atlanta from exercising its powers pursuant to its federal 

obligations. Thus, by including the Amendment in its Part 150 NCP indicating that Atlanta 

would not acquire property in accordance with Part 150, Atlanta will have taken affirmative 

steps to deny itself the ability to obtain airport development land or noise land and/or ensure that 

the development of the property is compatible with aircraft noise. Therefore, the Amendment 

would be in violation of Grant Assurance 5.4

B. The Amendment Will Violate Grant Assurance 21.

In addition to its obligation not to limit its powers regarding carrying out a federally 

funded program, airport sponsors also must take, pursuant to Grant Assurance 21, reasonable and 

appropriate action to ensure that property surrounding the airport are compatible with “normal 

airport operations.” Grant Assurance 21 requires that an airport sponsor 

take appropriate action, to the extent reasonable, including the adoption of zoning laws, 

to restrict the use of land adjacent to or in the immediate vicinity of the airport to 

activities and purposes compatible with normal airport operations, including landing and 

takeoff of aircraft. In addition, if the project is for noise compatibility program 

implementation, it will not cause or permit any change in land use, within its jurisdiction, 

that will reduce its compatibility, with respect to the airport, of the noise compatibility 

program measures upon which Federal funds have been expended. 

Grant Assurance 21. Neither the Consent Order nor the Amendment states that Atlanta agrees to 

make “reasonable attempts” to work with the community of College Park. Rather, both the 

Consent Order and the Amendment capitulates to College Park’s demands to stop acquisition 

efforts for properties located within the 70 DNL. Thus, in entering into the Consent Order and 

proposing the Amendment, Atlanta effectively has barred itself from taking “appropriate action” 

to restrict incompatible land use under Grant Assurance 21, giving College Park the power to 

veto any acquisition of incompatible land. Thus, the Amendment is in violation of the grant 

assurance. 

 

4

 Indeed, the Property Owners would argue and have argued that by agreeing to the Consent Decree with 

College Park, Atlanta in and of itself violated Grant Assurance 5. See Virginia One Development et al. v. City of 

Atlanta, FAA Docket No. 16-12-09.
Mr. Walter Vinson

July 11, 2013 

Page 6

 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, Director’s Determination (October 13, 2004). 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?

Id. at *58. Atlanta itself, in the Part 150 NCP, determined that properties located within the 

boundaries of College Park are not compatible with local airport operations due to the fact that 

they are residential properties located in the 70 DNL and/or 65 DNL contours. See, Figure 6-2 

of the Part 150 NCP. In addition, the Part 150 NCP commits Atlanta to take action to prevent 

the resident from being severely impacted by aircraft noise and remove them as incompatible 

land uses. Id., see also Exhibit B, memo on the effects of noise on human health. 

Atlanta, however, has not taken the action it said it would to prevent the impact, and this 

is not consistent with Atlanta’s obligation under Grant Assurance 21 to take reasonable steps to 

restrict the use of land next to the airport to uses that are compatible with airport operations. 

Instead, Atlanta is running away from its federal obligations and now wants the FAA to approve 

of it restriction of the use of land adjacent to or in immediate vicinity of the airport due to its 

voluntary entrance into the Consent Order, which, it vociferously claims, restricts it from 

acquiring property with the boundaries of College Park. Thus, if the City of Atlanta had not 

entered into the Consent Decree, it could have very easily complied with its federal obligations 

and acquired the property within the boundaries of College Park and changed the land use to one 

that is compatible with airport operations. Instead, Atlanta has chosen to tie its own hands and 

eliminate the possibility of it taking reasonable and appropriate action in response to its FAAapproved Part 150 NCP. This is a violation of Grant Assurance 21. 

III. THE CITY OF COLLEGE PARK’S CONCERNS HAVE BEEN ADDRESSED BY 

THE FAA.

The sad part of this is the fact there is no reason for Atlanta to jeopardize the validity of 

its Part 150 NCP and FAA funding for its airport projects in order to appease College Park. All 

of College Park’s issues with respect to the Part 150 NCP have been specifically addressed by 

the FAA in its Record of Approval. While a Part 150 NCP must be submitted by an airport 

operator, (49 U.S.C. § 47504(a); see also 14 C.F.R. § 150.23), once approved, entities other than 

the airport sponsor may receive federal funding for the mitigation measures approved under the 
Mr. Walter Vinson

July 11, 2013 

Page 7

Part 150 NCP. However, the airport sponsor retains responsibility for ensuring that the noise 

mitigation measures approved by the FAA in the Noise Compatibility Program are carried out, 

since it is the airport operator that receives the benefit of the Airport Safety and Noise Abatement 

Act of 1979. The Consent Order that Atlanta voluntarily entered into with College Park does not 

diminish Atlanta’s duties with respect to the Part 150 NCP, nor would the Amendment. 

College Park presented its concerns in comments to the FAA regarding Atlanta’s 

acquisition of property within the boundaries of the College Park. Specifically, College Park 

told the FAA that Atlanta “assured College Park that there would be no more acquisition and 

demolition of any property within College Park without the direct involvement of College Park.” 

To which the FAA replied: 

the City of Atlanta consulted College Park about the measures in the NCP that involve 

voluntary5

 acquisition of property within College Park. If College Park demonstrates that 

it is capable of carrying out the projects within its jurisdiction, then it may receive grants 

to implement those projects. 49 USC § 47504(c)(l), (3). The FAA has been advised that 

on December 10, 2004, at a meeting between College Park and City of Atlanta, when 

College Park voiced concerns regarding the ongoing acquisition of property in College 

Park by City of Atlanta, Mr. Ben DeCosta committed to coordinating with College Park 

for future land acquisition. Mr. DeCosta specifically stated that he would not purchase 

property within College Park without the city's concurrence. However, FAA is aware that 

Mr. DeCosta has also made a commitment to assist the residents of the communities 

surrounding the airport that are negatively impacted by airport noise. Approval of the Part 

150 NCP update does not foreclose direct involvement of College Park. The NCP update 

includes a measure to coordinate the re-development of land purchased under the 

residential acquisition program with affected local political jurisdictions using the 

NMAC. We expect the City of Atlanta to fulfill this measure. If property owners in 

College Park elect sound insulation and College Park demonstrates that it is eligible, then 

it can receive grants to carry out those projects.

FAA Record of Decision, attached as Exhibit C. It worth noting that the election of sound 

insulation over acquisition is left with the property owner, not the political jurisdiction within 

which the property sits. 

 The crux of College Park’s complaint however, lay in its comment that: 

The NCP does not include plans for re-use/re-development of the properties nor does it 

include plans for where tenants will be relocated. HJIA proposes to remove a land use 

without consulting with College Park on the appropriate land use for the re-use of the 

 

5

 The word “voluntary” here means voluntary on the part of the property owner – Atlanta, College Park and 

the FAA cannot force a property owner to sell their property, even if it is severely impacted by noise.
Mr. Walter Vinson

July 11, 2013 

Page 8

affected properties College Park believes that given the long term use of this property as 

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

multi-family use. This is a municipal planning responsibility that belongs to College Park 

and highlights why it is completely inappropriate and irresponsible for HJlA to undertake 

this profound community disruption – enabled by Federal dollars – without the active 

consent, participation and management of the City of College Park. The lack of re-use/redevelopment plans indicates that no consultation occurred. 

FAA Record of Decision. College Park is afraid that if Atlanta were to purchase the property 

severely impacted by aircraft noise, that Atlanta would change the property’s land use from 

residential to something else. Once again, the FAA pointed out that the choice to sell the 

property is the landowner’s, not College Park’s or Atlanta’s. And, once again, the FAA pointed 

out that College Park could play a role in the carrying out of the mitigation measures of the Part 

150 NCP, if it so desired. 

The NCP gives the owner of the affected properties the choice of whether to continue 

residential use of the property. This is consistent with the airport sponsor's grant 

obligation to take reasonable steps to assure to restrict the use of land next to the airport 

to uses that are compatible with airport operations. Compatibility with airport noise at 

these levels can be achieved by either acquisition or soundproofing. The NCP is also 

consistent with local land use planning authority of communities as recognized under Part 

150. 

Part 150 does not require the airport sponsor to include plans for reuse of the properties 

or plans for where tenants will be relocated in its NCP. However, the NCP update 

includes a measure to coordinate the re-development of land purchased under the 

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

sponsor implements the NCP measure and acquires residential property, the City of 

Atlanta must comply with the Uniform Relocation Assistance and Real Property 

Acquisition Policies Act of 1970, which requires the airport sponsor to assist displaced 

individuals in obtaining comparable replacement housing. 

FAA Record of Decision. Thus, the FAA, in its response, states how College Park’s objective 

can be achieved in legal manner. However, incorporating the Consent Decree in the Part 150 

NCP would not only not achieve that purpose, but would be illegal. 

IV. CONCLUSION

 There are two issues to keep in mind in considering the approval of the Amendment. 

First, Atlanta has to recognize that it has an obligation carry out the mitigation measures that 

were approved as part of the Part 150 NCP irrespective of the Consent Decree (or the 
Mr. Walter Vinson

July 11, 2013 

Page 9

Amendment). Second, College Park has to recognize that the initial decision as to whether the 

property should be acquired is the landowner’s, not College Park’s or Atlanta’s. If College Park 

wants to purchase the Property Owner’s properties with federal funding and keep them 

residential (but in compliance with the Part 150 NCP), the Property Owners would not complain. 

But Atlanta would retain its obligation as the airport sponsor to ensure that College Park 

complies with the Part 150 NCP. 

Until some resolution is reached between College Park and Atlanta as to who should 

purchase the Property Owners’ property, the Property Owners will insist that Atlanta keep to its 

federal obligations. Thus, for the foregoing reasons, the property owners identified above offer 

these comments strongly opposing the Amendment to the City of Atlanta’s Part 150 Noise 

Compatibility Program. The Amendment, as it currently is drafted, violates federal law, violates 

the grant assurances, and, in the end, serves no legitimate purpose but to deprive the Property 

Owners of their right to dispose of their property as they see fit. 

 TABER LAW GROUP, P.C.

 

 Steven M. Taber

cc: Mr. Scott L. Serritt, FAA Atlanta Airports District Office

 Mr. Derek L. Stotts, FAA Attorney – AIP, Southern Region
Exhibit A 



















Exhibit B 
TABER LAW GROUP PC

1

MEMORANDUM

To: File 

From: Steven M. Taber, Taber Law Group, P.C. 

Date: June 4, 2013 

Re: Human Health Effects of Aircraft Noise

______________________________________________________________________________ 

The FAA last reviewed the technical bases for its noise policies in 1992. For example, 65 

DNL as the “threshold of significant impact” under the National Environmental Policy Act and for 

establishing the level below which land uses are deemed compatible in Part 150 Noise 

Compatibility Programs has been used by the FAA without substantial change since 1978 (it was 

“re-affirmed” by FICAN in 1992). It is safe to say that the FAA’s policy no longer reflects the 

best scientific evidence of the effects of aircraft noise exposure. This failure on the part of the 

FAA to update its policy undermines the trust that the public places in the FAA in their pursuit to 

understand noise exposure and its effects.

 

 This is particularly true since substantial research done on the measurement and effect of 

aircraft noise on the communities surrounding airports has come from sources outside the United 

States. For example, the Hypertension & Exposure to Noise near Airports (HYENA) study 

evaluated the effects of aircraft noise on 4,861 persons residing near 7 European airports between 

2002 and 2006. The 2002 RANCH study from London studied the effect of aircraft and road 

traffic noise on 2,844 children’s cognition and health. Both of these studies came out with rather 

startling results concerning the effect aircraft noise has on the quality of human life. Finally, 

WHO Europe issued “Night Noise Guidelines,” which were based on research done by the 

European Union. This type of study has largely been absent in the United States. 

The emerging research suggests that current standards used by the FAA are outdated and 

underestimate the significant health risks posed by aircraft noise. The current understanding of 

the health effects of aircraft noise goes beyond mere annoyance and sleep disturbance, which the 

current DNL protocols were meant to address. The new research shows a strong correlation 

between aircraft noise and significant, serious health outcomes, such as hypertension and heart 

disease. Four studies from Europe have shown this connection: 
TABER LAW GROUP PC

2

1. Haralabidis AS, Dimakopoulou K, Velonaki V, Barbaglia G, Mussin M, 

Giampaolo M, Selander J, Pershagen G, Dudley ML, Babisch W, Swart W, Katsouyanni 

K, Järup L; for the HYENA Consortium. Can exposure to noise affect the 24 h blood 

pressure profile? Results from the HYENA study. J Epidemiol Community Health. 2010 

Jun 27. 

2. Haralabidis AS, Dimakopoulou K, Vigna-Taglianti F, Giampaolo M, Borgini A, 

Dudley ML, Pershagen G, Bluhm G, Houthuijs D, Babisch W, Velonakis M, Katsouyanni 

K, Jarup L; for the HYENA Consortium. Acute effects of night-time noise exposure on 

blood pressure in populations living near airports. Eur Heart J. 2008 Feb 12 

3. Jarup L, Babisch W, Houthuijs D, Pershagen G, Katsouyanni K, Cadum E, Dudley 

M-L, Savigny P, Seiffert I, Swart W, Breugelmans O, Bluhm G, Selander J, Haralabidis A, 

Dimakopoulou K, Sourtzi P, Velonakis M, VignaTaglianti F, on behalf of the HYENA 

study team. Hypertension and Exposure to Noise near Airports - the HYENA study. 

Environ Health Perspect 2008; 116:329-33 

4. Jarup L, Dudley ML, Babisch W, Houthuijs D, Swart W, Pershagen G, Bluhm G, 

Katsouyanni K, Velonakis M, Cadum E, Vigna-Taglianti F for the HYENA Consortium. 

Hypertension and exposure to noise near airports (HYENA) - Study design and noise 

exposure assessment. Environ Health Perspect 2005; 113:1473-8. 

This is not to say that there has not been any research done in the United States on this 

issue. In March 2007, for example, Lisa Goines and Louis Hagler published their article entitled 

“Noise Pollution: A Modern Plague” in the Southern Medical Journal. While it did not 

concentrate solely on aircraft noise, the article concluded that:

[n]oise produces direct and cumulative adverse effects that impair health and that degrade 

residential, social, working, and learning environments with corresponding real 

(economic) and intangible (well-being) losses. It interferes with sleep, concentration, 

communication, and recreation. The aim of enlightened governmental controls should be 

to protect citizens from the adverse effects of airborne pollution, including those produced 

by noise. People have the right to choose the nature of their acoustical environment; it 

should not be imposed by others. 
TABER LAW GROUP PC

3

The City of Atlanta, through its operation and ownership of Hartsfield-Jackson International 

Airport, imposes its “acoustical environment” on the citizens of the surrounding communities, 

rather than having the citizens choosing for themselves. 

In addition several “findings” have been issued by governmental or quasi-governmental 

sources. The Federal Interagency Committee on Aviation Noise (FICAN) has issued two 

findings: FICAN Recommendation for use of ANSI Standard to Predict Awakenings from 

Aircraft Noise (2008) and Findings of the FICAN Pilot Study on the Relationship between Aircraft 

Noise Reduction and Changes in Standardized Test Scores (2007). Partnership for AiR 

Transportation Noise and Emissions Reduction (PARTNER), a collaboration among the FAA, 

NASA and TransportCanada, issued in July 2010, its Review of the Literature Related to Potential 

Health Effects of Aircraft Noise, (prepared by Hales Swift). That review concluded that 

“[p]otentially serious health outcomes have been identified in studies involving transportation 

noise exposure in a population. These include heart disease and hypertension and the observed 

effects seem to be related especially to nighttime noise exposure although similar daytime 

exposure effects have also been identified.” PARTNER 2010, p.62. PARTNER has also issued 

several other reports: 

• Sonic Boom and Subsonic Aircraft Noise Outdoor Simulation Design Study. Victor W. 

Sparrow, Steven L. Garrett. A PARTNER Project 24 report. May 2010. Report No. 

PARTNER-COE-2010-002. 

• Passive Sound Insulation: PARTNER Project 1.5 Report. Daniel H. Robinson, Robert J. 

Bernhard, Luc G. Mongeau. January 2008. Report No. PARTNER-COE-2008-003. 

• Vibration and Rattle Mitigation: PARTNER Project 1.6 Report. Daniel H. Robinson, 

Robert J. Bernhard, Luc G. Mongeau. January 2008. Report No. 

PARTNER-COE-2008-004. 

• Low Frequency Noise Study. Kathleen Hodgdon, Anthony Atchley, Robert Bernhard. 

April 2007. (Report No. PARTNER-COE-2007-001) PARTNER Project 1, Low 

Frequency Noise Study, final report. 
TABER LAW GROUP PC

4

• Land Use Management and Airport Controls: A further study of trends and indicators of 

incompatible land use. Kai Ming Li, Gary Eiff. September 2008. Report No. 

PARTNER-COE-2008-006 

• En Route Traffic Optimization to Reduce Environmental Impact: PARTNER Project 5 

Report. John-Paul Clarke, Marcus Lowther, Liling Ren, William Singhose, Senay Solak, 

Adan Vela, Lawrence Wong. July 2008. Report no. PARTNER-COE-2008-005 

• Land Use Management and Airport Controls: Trends and indicators of incompatible land 

use. Kai Ming Li, Gary Eiff, John Laffitte, Dwayne McDaniel. December 2007. (Report 

No. PARTNER-COE-2008-001) PARTNER Project 6 final report. 

Thus, there is no shortage of relevant, topical information for the City of Atlanta to use in 

assessing the health risks and impacts of noise on the communities surrounding 

Hartsfield-Jackson. As a direct result of these studies, tt is readily apparent that the City’s 

foot-dragging with its commitment to the people and owners in the areas surrounding 

Hartsfield-Jackson is severely lacking. The City’s failure to timely address the commitments it 

made in its Part 150 NCP shows an utter lack of concern for the health and well-being of the people 

in the surrounding communities. 
Exhibit C
I 

U.S. Department ATLANTA AIRPORTS DISTRICT OFFICE 

of Transportation 170 1 Columbia Avenue 

Federal Aviation Campus Building, Suite 2-260 

Administr51t'on College Park, Georgia 30337 

Phone: 404-305-71 50 Fax: 404-305-71 55 

January 25,2008 

Dr. Thomas E. Nissalke, Ph.D. 


Director of Environmental and Technical Services 


City of Atl~~mtalDepartment 
 ofAviation 

P. 0.Box 20509 


Atlanta, Georgia 30320-2509 


Dear Dr. N:!ssalke: 

RE: 	Hartsfield-Jackson Atlanta Internatiolnal Airport, Atlanta, Georgia 

Noise Compatibility Program Record of Decision 

The Federal Aviation Administration (FAA) has evaluated the Noise Compatibility Program for 

Hartsfield-J ackson Atlanta International Airport contained in the "FAR Part 150 Study Noise 

Compatibility Program Report" and relaied documents submitted to this office under the 

provisions of 49 U.S.C., Section 47504. The recommended Noise Compatibility Program 

proposed by the City of Atlanta is identijied by action element number on page 9-3 of the "FAR 

Part 150 Study Noise Compatibility Program Report". I am pleased to inform you that the 

Regional Airports Division Manager has approved seven of the seven proposed action rneasures 

in the Noisc: Compatibility Program in full. The specific FAA action for each Noise 

Compatibility Program measure is set forth in the enclosed Record of Approval. The effective 

date of this approval is January 24, 2008. All of the approval actions are more fully explained in 

the enclosed Record of Approval. 

Each airport Noise Compatibility Program developed in accordance with 14 CFR Part 150 is a 

local program, not a Federal program. The FAA does not substitute its judgment for that of the 

airport operator with respect to which measures should be recommended for action. The FAA's 

approval or disapproval of 14 CFR Part 150 Program recommendations is measured according to 

the standards expressed in 14 CFR Part 11 50 and the Aviation Safety and Noise Abatemlent Act of 

1979, (49 [J.S.C. 47501-47507) and is limited to the following determinations: 

The Noise Compatibility Program was developed in accordance with the provisions 

and p:rocedures of 14 CFR Part 150; 
Program measures are reasoniibly consistent with achieving the goals of reducing 

existing noncompatible land uses around the airport and preventing the introduction 

of additional noncompatible land uses; 

Program measures would not crieate an undue burden on interstate or foreign 

comnierce, unjustly discriminate against types or classes of aeronautical uses, 

violate the terms of airport grant agreements, or intrude into areas preempted by the 

Federal Government; and 

Program measures relating to the use of flight procedures cim be implemented 

within the period covered by the Program without derogating safety, adversely 

affecting the efficient use and rr~anagement of the Navigable Airspace and ,4ir 

Traffic Control Systems, or adlversiely affecting other powers and responsibilities of 

the Administrator prescribed by law. 

Specific limitations with respect to FA14's approval of an airport Noise Compatibility Program 

are delineated in 14 CFR Part 150, Section 150.5. Approval is not a determination concerning 

the acceptability of land uses under Federal, state, or local law. A,pproval does not by itself 

constitute a commitment by FAA to i~nplement specific noise compatibility measures. FAA 

approval of some measures may requirle preparation of an environmental assessment. Further, 

approval of a plan does not comnnit FAA to financially assist in the implementation of the 

program nor are all measures covere:d by the program necessarily eligible for grant-in-aid funding 

from the F.4A under the Airport and Airway Improvement Act of 19132. Where Federal funding 

is sought, requests for project grants should be submitted to the FAA Airports District Office. 

Sincerely, 

Scott L. Seritt, Manager 

Atlanta Airports District Office 

1 Enclosure 

cc: 

Mayor Jack Longino, City of College Park, Georgia 

APP-400 

ASO-6 10 

ASO-7 
FEDERAL AVIATION ADMINISTRATION 


RECORD OF APPROVAL 


FAR PART 150 


NOISE COMPATIBILITY PROGIWM 


HARTSFIELD-JACKSON ATLANTA INTERNA'I'IONAL AIRPORT 


ATLANTA, GEORGIA 


'Y" 

Regional Counsel, ASO-7 CONCUR: NONCONCUR 

Date 

Airports Division Manager APPROVED DISAPPRCGED 

Southern Region 

-

Date 
1 

FEDERAL AVIATION ADMINISTIUTION 

RECORD OF APPROVAL 


FAR PART 150 


NOISE COMPATIBILITY PROGIRAM 


HARTSFIELD-JACKSON ATLANTA INTERNATIONAL AIIRPORT 

ATLANTA, GEORGIA 

-

Regional Counsel, ASO-7 CONCUR NONCONCUR 

Date 

I 

Airports Division Manager APPIEv~DDISAPPROVED 

Southern Region 

Date 
I 

RECORD OF APPROVAL 


IAARTSFIELD-JACKSON ATLANTA IN'TERA'TIONAL AIRPORT 


ATLANTA, GEORGIA 


The approvals listed herein include approval of actions that the airport recommends be 

taken by the Federal Aviation Administration (FAA). It should be noted that these 

approvals indicate only that the actions would, if implemented, be consistent with the 

purposes of 14 CFR Part 150. These approvals do not constitute decisions to 

implerrlent the actions. Later decisions concerning possiible implemen1:ation of the 

measures in this ROA will be subject to applicable environmental or other procedures or 

requirements, including Section 106 of the National Historic Preservation Act (NHPA). 

The measures below are summarized as closely as possible to the airport operator's 

recomrnendations in the Noise Compatibility Prograrn (NCF') and are cross-referenced 

to the program. The statements contained within the summarized measures and before 

the indicated FAA approval, disapproval, or other determination do not represent the 

opinions or decisions of the FAA. 

LAND USE MEASURlES 

1. Vol~~ntaryproperty acquisition program for eligible single-family residenc'es and 

multi-family complexes within the 70 DNL contour. Tliis vol~~ntary 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 rnarket value 

for their property and relocation assistance. Any residential tlevelopment 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 exposiure and 

would 110t be eligible for the acquisition program. (NC:P 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 NC:P, Figure 6-2. It is noted 

the Unform 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 

Uniforrn Act, it is termed a "buy out" program because the land use in the neighborhood 

is being changed (see Measure 2, directly below). Ac:quisitions 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). 

2. The Department of Aviation and political jurisdictions will coordinate regarding 

redevelopment of lands purchased under the residential acquisition program. The 

acquisition of residential properties within the 2007 NlEM 70 DNL contour would remove 

properties from the tax rolls. The benefit of this recornmendlation is to have local 
political jurisdictions involved in redevelopment of acquired properties not needed for 

aviatio~iuse. (NCP pages 7-1 thru 7-2; Table 9.2) 

FAA Action: Approved. Redevelopment plans must be cor~sistent with Federal grant 

assurances regarding property values and compatibility with normal airport operations. 

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 ir~cluded 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. 

4. Voluntary sound insulation program for eligible schools within the 65-70 DNL 

contours. This program will benefit the schools located between the 2007 NEM 65 and 

70 DNL noise contour by providing them the option to be included in the sound 

insulation program. The benefit would be in gaining a minim~umof 5 dB reduction in 

interior noise. It is estimated that four schools would be eligible. (NCP pages 6-4 thru 

6-7, 8-:3; Tables 6.2 and 9.2) 

FAA Action: Approved. 

5. Voluntary sound insulation program for other eligible noise sensitive uses within the 

65 DNL and greater contours. This program will benefit other noise sensitive sites 

located within the 2007 NEM 65 DNL and greater noise 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. It is estimated that approximately 20 

additional sites would be eligible. It is estimated that 3 day care facilities, 16 places of 

worship, and one health carelretirement center are eligible noise sensitive uses located 

within the 65-69 DNL limits. (NCP pages 6-4 thru 6-7, 8-3; Tables 6.2 and $1.2) 

FAA Action: Approved. 

6. Establish Overlay Zones within the 60 DNL and greater. It is recognized that the 

Department of Aviation has no control over land use and zoning decisions beyond the 

Airport's boundaries. Land use planning and zoning is the responsibility of local 

governments. Thus, the overlay zone plan is provided as a framework to local 

governments proximate to HJAlA that would enable them to provide an equitable and 

workable method of maintaining (or enhancing) land use compatibility. Local 

regulations associated with noise overlay zones coulcl limit the development noise 

sensitive uses; could require new development to incorporate sound insulation into the 
design of buildings; could require some form of publication (through avigation easement 

or notification, for example) advising future buyers as to the existence of aircraft 

overflights and noise; andlor other measures. The determination as to which of the 

control:? should apply for any given situation is based on the extent of the noise 

exposure at the proposed development site and would be styled and implernented by 

the loci21 governments without having to change the ~~nderlying structure of their current 

plannirg, zoning, and building permit processes. Overlay Zones will proteci: owners of 

future residential and other future noise sensitive site develolpment in high noise 

contour areas. It would provide the same protection afforded existing property owners 

in terms of sound insulation. It would also notify those acqui~ring new home:? within the 

moderate noise exposure limits (201 2 60-65 DNL) of the existence of overflight and 

noise exposure prior to the new property being acquired, if deemed appropriate by the 

local government. (NCP pages 7-1 thru 7-7, 8-4; Figures 7-1, 7-2, and 7-3, 'Tables 7.1 

and 9.;!) 

FAA Action: Approved. 

7. Corltinuation of the Noise Mitigation Advisory Council (NMAC) during the 

implerientation process. Members of the NMAC include aviation and politic:al 

jurisdiction interests. The members of the NMAC have been involved throu!ghout the 

FAR PiM 150 Study and it would be beneficial for them to continue to be in\/olved in the 

implerientation of the recommended noise mitigation measures. (NCP pages 8-4 thru 

8-5, 9-4; Table 9.2) 

FAA Action: Approved. 
I 

I
I
I

~ 


I 


Federal Aviation 


Administration 


Memorandum 

Date: January 24,2008 

From: ATL-ADO 

To: ASO-600 (through ASO-601 A) 

Prepared by: Scott Seritt 

Subject: ACTION: Recommendation for Approval 

Hartsfield-Jackson Atlanta lnternational Airport; Atlanta, Georgia 

Airport Noise Compatibility program (NCP) 

On April 10, 2007, the Hartsfield-Jackson Atlanta lnternational Airport (HJAIA) was 

notified of FAA's determination of compliance of the Noise Exposure Maps under 

Section 103.(c) of the Aviation Safety and Noise Abatement Act of 1979 ("th~e Act"), (49 

U.S.C.! Section 47503). Following the finding that the Noise Exposure Maps were in 

compliisnce, we began the formal 180-day review period for the Hartsfield-Jackson 

Atlanta. lnternational Airport's proposed Noise Compatibility Program Update under the 

provisions of 49 U.S.C., Section 47504. Notice was transmitted to AGC-200 on 

September 7, 2007, for publication in the Federal Register. 

The Sc~uthern Region has reviewed and evaluated the proposed Noise Compatibility 

Progra~n Update and has concluded that it is consistent with the intent of the Act and 

that it meets the standards set forth in 14 CFR Part 150 for such programs. The 

standard 14 CFR Part 150 Noise Compatibility Program Checklist was reviewed to 

ensure that all required items were included in the proposed program. The NCP 

document and checklist are attached. 

The prc~posed program has been reviewed by the Atlanta Airports District Olffice. It also 

was coordinated with Washington Headquarters to determine whether the NCP 

contained measures that were related to national policy issues. No national policy 

issues were identified. Notice was published in the Federal Register for the Noise 

Expos~~reMap, Receipt of Noise Compatibility Program, and Request for R~bview. 

During the public comment period, the City of College Park, Georgia presented a letter 

with several comments. Of those comments submitted, two were related to the 

proposci?d NCP Update: 1. The HJAIA has failed to consult in any meaningful manner 

with the neighboring jurisdiction of College Park; and 2. College Park objects to the 
proposed intention to acquire seven apartment complexes in College Park. Review of 

submitted documentation and conversations with HJAIA staff confirrr\ that many 

coordination meetings (dating back to February 12, 2003 with a scoping meeting 

attended by the Mayor, City Manager and an additional seven City official:;) have been 

held. .Representatives of College Park attended the Noise Mitigation Advisory Council 

meetings, the Land Use Advisory Committee Meetings, and the Operations Advisory 

Committee meetings. These committees have been active throughout the course of this 

study. A Public Information Workshop was held in College Park on December 15, 2003. 

A Public Hearing was held on October 9, 2006. The Hearing was held at the Airport 

Marriol:t and was open to the public during the whole day. All requirements of public 

particir:)ation have been met. Also, the FAA met three times (in March, May, and June 

of 200';7) with the City of Atlanta and the City of College Park, their consulta~nts and their 

attorneys to discuss their comments. See the attached FAA Response to C:omments. 

Through the analysis of existing and future noise conditions and direct input from the 

wide variety of interests involved during the development of the study, a series of 

operatiional and land use related measures were identified and evaluated. Of those 

measures, a voluntary property acquisition for eligible residential uses, including multifamily residences, is recommended within the 70 DNL. Sound insulation will be 

availat:lle to eligible non-compatible land uses within the 65 DNL contour. The 

Department of Aviation has clarified, and the ADO concurs, that non-compatible land 

uses that lie within both the 70 and 65 DNL contours will have the option of selecting 

acquisiition or sound insulation for their property. (See attached) This alternative was 

evaluated and recommended in accordance with 14 CFR Part 150. No other comments 

were received. 

Each ~:~roposed action in the Noise Compatibility Program Update was then reviewed 

and evaluated on the basis of effectiveness and potential conflict with Federal policy 

and prri?rogatives. These include safe and efficient use of the Nation's airspace, undue 

burden on interstate commerce, unjust discrimination and interference with a Federal 

reg~lat~orycompliance schedule (i.e., 14 CFR Part 91, Subpart E). 

Our relcommendation on each of the proposed actions is described in ithe attached 

Recorcli of Approval. Each approved action is described in detail in the HJAIA NCP. 

Scott L. Seritt, Manager 

Atlanta Airports District Office 

2 Attachments 

cc: 


APP-400 (with attachment) 


ASO-7 (with attachment) 


Dr. Thomas E. Nissalke, City of AtlantaIDepartment of Aviation 


Mayor Jack Longino, City of College Park, Georgia 

I 

Memorandum 


Subject: 

From: 

To: 

U.S. Clepartment 

of Tra~isportation 

Federal Aviation 

Administration 

Disposition of Comments regarding Hartsfield-Jackson International 

Airport Part 150 Noise Compatibility Program 

Date: January 24, 2008 

8dJ 

Scott Serritt, Atlanta Airport Disti-ict Office Manager Reply to 

Attn. of 

Rusq Chapman, Manager, Airpolzs Division, Southern Region, ASO-7 

Background 

On September 18, 2007, the Federi~l Aviation Administration (FAA) published notice in the Federal Register announcing 

FAA's receipt of the City of Atlar~ta's Part 150 Noise Compatibility Program (NCP) update for Hartsfield-Jackson 

International Airport (HJIA) and that FAA was accepting comments from the public through November 6, 2007. 72 

Fed.Reg. 53,277. 

After tlhe public comment period elided, FAA received two (2) letters on behalf of the City of College Park. The first 

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

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

letters ]raised concerns with Hartsfic:ld-Jackson International Airport's NCP update. 

Although the letters on behalf of College Park were received after the close of the comment period, FAA considered and 

respontled to the issues raised in reviewing the NCP for approval under Part 150. The comments are summarized and 

addressed below. 

City of College Park Comments: 

la). The airport sponsor. City of Atlanta, failed to meaningfully consult the City of Clollege Park about 

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

support of this position, the City of'college Park contends: b) the City of Atlanta can not rely on the Noise Mitigation 

Advisory Council (NMAC) and its subcommittees to fulfill the Part 150 consultation requirements; c) HJIA assured 

College Park that there would be nr, more acquisition and demolition of any property within College Park without the 

direct ilnvolvement of College Park d) HJIA proposes to remove a land use without consulting with College Park on the 

appropriate land use for the re-uselre-development of the affected properties which indicates no consultation occurred; 

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

consent, participation and management of the City of College Park. Each of these elements will be addressed separately 

as subparts to this comment. 
FAA R.esponse: 

la). The consultation requirements for a Noise Compatibility Program are contained in 14 C.F.R. 5 150.23(c). 

Specifically, "each noise compatibility program must be developed and prepared . . . in consultation with FAA regional 

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

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

The City of Atlanta, the owner ant1 operator of Hartsfield-Jackson International Airport (HJIA), began the process of 

updating the existing Part 150 NC P for HJIA in 2003. Volume I, Noise Exposure Maps Report, page 1-2, $ 1.3. 

According to the NCP update, in 2003 the City of Atlanta established the Noise Mitigation Advisory Council (NMAC) to 

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

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

(LUAC), provided technical input lbr preparation of the NCP update. Noise Exposure Maps Report, page 1-4, 5 1.4. The 

Charter of the NMAC states the m~ssion of the NMAC is to assist [the City of Atlanta] with the Part 150 study and to 

provide a forum for effective colnmunication and coordination with elected officials and local government 

planninglzoning departments. NCI' Update Volume 111, Appendix B, B-1. The objectives included providing input and 

guidanice into the development and implementation of Part 150 aircraft operational, land use compatibility alternatives, 

and mitigation priorities. Id. At B-2:. The NCP update indicates the City of College Park was represented on the NMAC, 

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

The representative of the City of Cdlege Park attended the October 27, 2005 NMAC meeting during which the Part 150 

consultant presented draft 2003 ard 2008 noise exposure maps and the draft recommendations regarding property 

acquisition and sound insulation were discussed. The maps depicted the apartment complexes as predominately in the 70 

DNL contours. See Appendix G, 10127105 NMC Meeting Minutes. The minutes indicate that the preliminary 

recommendation was to identify noise sensitive sites within the 70 DNL+ contour as eligible for voluntary property 

acquisition. Within the 65-70 DNI, contours, noise sensitive sites would be eligible for voluntary sound insulation. See 

Appendix G, 10127105 NMAC Mef ting Minutes. 

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

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

Of these, five were single family residences and 873 were multi-family unites in seven apartment complexes. The draft 

recornrnendations for the NCP update were reviewed during the meeting. Comments were requested from NMAC 

members by August 1 lth. The cost of the voluntary property acquisition was estimated at $43 million during this 

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

The Cily of Atlanta held a public hsaring on October 9, 2006. College Park Mayor Jack Longino and two College Park 

Councilmen attended. Attorney Stephen Fincher also attended although it is not clear in what capacity. The comment 

period closed on October 23, 2006. However the City of Atlanta agreed to accept comments from the City of College 

Park ur~til October 30, 2006. 

The Ci.ly of College Park submitted comments dated November 6, 2006 on the draft NCP. In these comments College 

Park expressed its' desire to participate as an NCP sponsor to facilitate implementation of these measures. College Park 

also indicated that 90 additional days would be needed to submit further comments. See, Appendix T, NCP Update. 

Approx.imately 120 days later the City of College Park submitted additional comments (dated March 22, 2007). In these 

comments College Park for the firsr time expressed strong objections to the draft NCP recommendations to acquire and 

demolish seven apartment complexes. The City asserted the right to actively consent to, participate in, and manage this 

measurle. See, Appendix T, NCP Update. 

As College Park submitted these comments after the close of the comment period, there was no obligation on the part of 

the sponsor to address them as part of the NCP update under 14 CFR $150.23(e)(7). 

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

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

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

The opportunities available for College Park to raise objections to multifamily acquisition and consult with the City of 

Atlanta is further evidenced by College Park's letter to the FAA dated November 6, 2007, and signed by the Mayor of 
College Park. In that letter, Mayor Longino states that there were "very high level discussions between the College Park 

Mayor and Council and the General Manager of HJAIA, Ben DeCosta, in which DeCosta clearly heard from our policy 

makers that we desired no more acquisition and demolition of ANY property within College Park without the direct 

involvement of College Park and received DeCosta's personla1 commitment that no more such acquisitions would occur 

without: the consent of College Park.." 

Based on these facts, the City of Atlanta hlfilled the consultation requirements of 14 CFR S;150.23(c). The City of 

College Park was afforded notice and many opportunities to discuss with Atlanta the recommended measure for voluntary 

acquisition of residences (including apartment complexes) in the 70 DNL contour and for voluntary acquisition or sound 

insulation of residences in the 65 to 70 DNL contour during the Part 150 NCP update process. (As reflected in the 

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

the 65/70 DNL contour have the option of voluntary land acquisition or sound insulation. Five of the seven multifamily 

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

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

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

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

FAA. 

I b). Reliance on the Noise Mitigation Advisory Council and the Land Use Advisory Committee meetings to 

fulfill the consultation requirement:; is inadequate. 

FAA R.esponse: 

I b).Thi: Part 150 regulations do not specify how the airport sponsor is to meet the consultation requirements under 14 

C.F.R. 5 150.23(c). However the FAA has guidance that it uses in this area. See FAA's 1990 "Community Involvement 

Manual" (http:l/www.faa.govlaboutloffice~orglheadquartersofficeslaeplplanning-toolkitlmedidVl.A.pd. The NCP 

indicates that the City of Atlanta used the NMAC, LUAC, and OAC as a means to fulfill the Part 150 consultation 

requirements. The City of College Park was represented on these committees. This approach is consistent with methods 

the FA.4 uses to conduct consultation. Based on minutes available from the various meetings this approach afforded all 

Council and Committee members the opportunity to raise and review their various concerns with Atlanta. The City of 

College Park was represented on the NMAC, the LUAC, as well as the Operations Advisory Committee. 

lc). HJIA assured College Park that there would be no more acquisition and demolition of any property within 

College Park without the direct involvement of College Park. 

FAA Response: 

I c), As discussed above in Respor~se to Comment la, the City of Atlanta consulted College Park about the measures in 

the NCP that involve voluntary acquisition of property with~in College Park. If College Park demonstrates that it is 

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

USC tj 47504(c)(l), (3). The FAA has been advised that on December 10, 2004, at a meeting between College Park and 

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

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

specifically stated that he would not purchase property within College Park without the city's concurrence. However, 

FAA is aware that Mr. DeCosta ha!; also made a commitmer~to assist the residents of the communities surrounding the 

airport that are negatively impacted by airport noise. Approval of the Part 150 NCP update does not foreclose direct 

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

under the residential acquisition program with affected local political jurisdictions using the NMAC. We expect the City 

of Atlanta to fulfill this measure. If property owners in College Park elect sound insulation and College Park 

demonstrates that it is eligible, then it can receive grants to carry out those projects. 

Id). The NCP does not inlzlude plans for re-uselre-development of the properties nor does it include plans for 

where tenants will be relocated. HJIA proposes to remove a land use without consulting with College Park on the 

appropriate land use for the re-use of the affected properties College Park believes that given the long term use of this 

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

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

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

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

that no consultation occurred. 
FAA Response: 

Id). See Response to Comment la regarding the City of Atlanta's consultation with College Park and Response to 

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

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

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

that are compatible with airport operations. Compatibility with airport noise at these levels can be achieved by either 

acquisil.ion or soundproofing. The NCP is also consistent with local land use planning authority of communities as 

recognized under Part 150. 

Part 1510 does not require the airport sponsor to include plans for reuse of the properties or plans for where tenants will be 

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

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

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

Assistance and Real Property Acquisition Policies Act of 1070, which requires the airport sponsor to assist displaced 

individuals in obtaining comparable replacement housing. 

I(e). College Park needs to participate as a NCP sponsor so as to facilitate further NCP land acquisition and 

sound insulation initiatives. HJIA is not the most efficient nor the most appropriate entity to be engaged in NCP property 

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

FAA Response: 

1e). If determined capable by the FAA, then College Park may receive grants to cany out projects in this approved NCP 

update, either from the FAA directly or from the City of Atlanta. 49 U.S.C. 5 47504(c)(l), (c)(3). If College Park applies 

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

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

U.S.C. 5 47501 et seq., as implemented by 14 C.F.R. Part 150 and the national priority system for funding. 

2. The NCP process was inadequate because FAA local officials have prejudged the approval of the NCP's 

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

purchases by City of Atlanta of multifamily structures; b) the City of Atlanta has engaged in negotiations to purchase the 

Wynterbrook Apartment Complex since 2002; and c) an April 2007 Federal Register notice was "misleading" and part of 

a secrelive process to circumvent known objections by College Park, with an approval by the FAA within five business 

days. 

FAA R~esponse: 

2). Local FAA officials have not prejudged the approval of the NCP's voluntary multifamily residential acquisition 

measurle. FAA considers the factors contained in 14 C.F.R. 5 150.35 in determining whether or not a specific NCP 

measurl: should be approved or disapproved. 

2a). The FAA has allowed purchase of multifamily !structures in the past, without NCP authority. 

FAA R~esponse: 

2a). The airport sponsor has authority to acquire multifamily residential properties using its powers as a municipal entity 

outside the Part 1 50 program. See, NCP Update, Vol. 11, Section 6.1, page 6- 1, and Figure 6-1. 

2b). Record reflects that HJIA has been in negotiations to purchase a multifamily apartment complex since 2002, 

before the measure was presented to the public. Failure of HJIA to consult with College Park on the multifamily element 

prior to negotiations has deprived C:ollege Park, to its great detriment, of an opportunity to address this issue in an orderly 

manner and in a setting that would not have exposed it to this "dangerous litigation," and resulted in the financial losses 

of all in~volved parties that could have been avoided. 

FAA R~esponse: 

2b). The airport sponsor has authority to acquire multifamily residential properties in noise impacted areas outside the 

Part 150 program. The fact that HJIA may have been in negotiations to purchase a multifamily apartment complex since 
2002 is irrelevant to whether HJIA complied with the Part 150 consultation requirements. The Part 150 process is but 

one method by which HJIA may seek to acquire property for noise mitigation purposes. Furthermore, the Part 150 

regulat~~onsonly require consultation, and do not require approval or concurrence of local jurisdictions. College Park has 

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

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

of the secretive process to circumvent known objections by College Park. This resulted in College Park spending 

significant time and resources commenting on the wrong document. Further, FAA summarily rejected College Parks 

comments and approved the multifamily residence element within five business days which was not enough time to 

review, research and reflect. 

FAA Response: 

2c). College Park had ample and rneaningful opportunities to raise and discuss its concerns regarding the voluntary 

acquisiiion of multifamily dwellings in the NCP update. The April 2007 Federal Register notice stemmed from the City 

of Atlanta's efforts to separate and move forward with two measures once it was required to revise the baseline NEM and 

comprehensive NCP update to include the 5th runway. Any public confusion caused by the notice was inadvertent and 

was remedied by republication of a revised notice. The events unfolded as follows: 

The City of Atlanta submitted to the FAA for review a baselinelcurrent condition NEM and an NCP that did not include 

the newly opened 5th runway. As required by the FAA, the City of Atlanta revised the NEM and NCP2. It took time to 

complete revision of the compreher~sive NCP update. In the interim, the FAA was informed that because the City of 

Atlanta was under contract to acquire the Wynterbrook apartment complex, while the revision of the comprehensive NCP 

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

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

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

The FAA announced its acceptance of the NEMs and a period for public review and comment on the NCP in the Federal 

Register on April 23, 2007. The notice did not specify the two measures involved but directed the public to contact 

FAA's representative Scott Seritt for copies of the NCP. College Park representatives reviewed and commented upon the 

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

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

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

withdrew the notice. 

As the City of Atlanta by this time had completed its revisions to the comprehensive NCP update, the City withdrew the 

abbreviated update and submitted instead the NCP now before the FAA for approval, with appropriate references to the 

5th runway. The FAA then issued a revised Federal Register notice, which solicited public review and comment on the 

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

concern to College Park. 

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

apartment complexes would have significant negative financial, demographic and political impacts on the community. b) 

The City of College Park then cites litigation from 1995 to support this position because in that litigation, the City of 

Atlanta took a similar position in support of excluding multifamily housing from the original 1985 Comprehensive NCP. 

FAA R~:sponse: 

3a). Thle Part 150 program is not intended to harm local communities. Undesirable negative financial and other impacts 

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

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

coordination of redevelopment by the City of Atlanta with College Park through the NMAC see the Response to 

Comment I c. 

3b). Cip ofAtlanta v. Warn, 267 Ga. 185 is a 1996 Georgia Supreme Court opinion where HJIA supports its 

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

greatest extent possible the loss of the tax base and utility services as well as the disruptions to the local community. 
FAA Response: 

3b). A close reading of Cih, ofAtlrrnta v. Watson (267 Ga. 185) reveals that the City of Atlanta determined not to include 

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

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

Atlanta did not state in the 1985 NCP that it would never seek to acquire multifamily residential housing. Rather, the 

City indicated that it would implement acquisition in phases to allow staged redevelopment in the impacted areas 

(eliminating secondary impacts that would result from too much property acquired and demolished at one time). This 

phased approach would also allow the City to use federal finds or income from the redevelopment of previously acqluired 

noise land to finance hture acquisition. 

In any event, the cited case has no bearing on FAA's determination whether HJIA's proposed 2007 NCP measure to 

acquire multifamily housing within the 65+ DNL contour is reasonably consistent with the goal of reducing existing 

andlor preventing future non-compatible land uses. 

4. The City of Atlanta has not demonstrated that it has the ability to comply with the lawful requirements to 

return property to productive use as required by law. The City of College Park points to the NCP's lack of consideration 

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

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

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

alternatives also fails to meet the requirements of the law and, in particular, 14 CFR $1 50.23. 

Specifically, the City of College Park states that the lack of consideration of alternatives fails to meet the requirements of 

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

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

4). Analysis of program alternatives is discussed in 14 CFR $B 150.7. It requires airport sponsors, to the extent the 

strategies are appropriate to the specific airport, to analyze specific measures. Section B 150.7(b) provides the alternatives 

that must be considered within the Part 150 Study, these include: acquisition of land and land interests, construction of 

barriers and soundproofing public buildings, preferential runway systems, flight procedures, airport restrictions, actions 

which would have a beneficial noise control or abatement impact on the public, and actions recommended for analysis by 

the FAA for the specific airport. Sound insulation, with the exception of public buildings, is not an alternative that must 

be considered. However, with respect to this specific airport, sound insulation has been considered to the extent 

appropriate because property owners for land that straddle the 65 DNL contour and the 70 DNI, contour can opt not to be 

acquired, and instead, request sound insulation. Six of the seven properties at issue straddle the contours, and the owners 

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

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

as applied to the impacted properties, are at the land owners' discretion. 

5. College Park needs to participate as a NCP sponsor so as to facilitate further NCP land acquisition and sound 

insulation. Specifically, this is due to the City of Atlanta's poor record of returning property to productive use once it has 

been acquired. College Park urges FAA to refrain from approving any aspect of HJIA's NCP that would involve land 

acquisitions outside the municipalily of Atlanta until the questions of compliance with AIP Grant Assurance 3 1 for extant 

unneeded noise lands. 

FAA Response: 

As to College Parks' ability to receive grants to cany out projects in the NCP, see Response to Comment l(e). As to 

consideration of compliance issues. the FAA administers its airport noise compatibility planning program separately from 

its airport grant compliance program. The FAA is required to approve or disapprove noise compatibility program 

measures submitted for approval under 14 CFR Part 150 if they meet statutory and regulatory criteria. 49 USC Q: 

47504(b). Neither the City of Atlanta's performance in returning property to productive use, or in disposing of noise lands 

are relevant in determining whether a NCP measure is approvable under Part 150 regulations. See 14 C.F.R. $ 150.35. 

The FAA will take any appropriate action to assure that the City of Atlanta is in compliance with its obligations under its 

federal grant assurances. 
1 Although this letter was dated November 6, 2007, it was not received by FAA until November 7, 2007. 


2 The revisions to the NCP were editorial in nature, not substantive. The recommended measures in the NCP were based 


upon the forecast 2010 NEM, which included the fifth runway. 


3 Over time the FAA has developed expertise in the evaluation of NCP measures. In this case, and over the span of five 


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


comprehensive NCP. 

I 

"Nissalke, Tom" To Kimberly Arnao/ASOIFAA@FAA 

eTorn.Nissalke@atlanta-airpo 

rt.corn> cc Bonnie Baskin/ASO/FAA@FAA, Scott 

SerittlASO/FAA@FAA, Dana Perkins/ASOIFAA@FAA, 

11/19/2007 03:38PM Rusty ChapmanlASOIFAA@FAA 

bcc 

Subject RE: Part 150 Study Request for Clarification 

Kim, 


Thank you for pointing out that inconsistency in the text. It is the 


City of Atlanta's intention to give residential land owners having 


property that straddles the 70 DNL contour the option of receiving 


either Mitigation Measure 1 or Mitigation Measure 3 as described in 


Table 9.2. 


Thanks, 


Tom 


- - - - -Original Message-----

From: Kimberly.Arnao@faa.gov [mailto:Kimberly.Arnao@faa.govl 

Sent: Friday, November 16, 2007 10:44 AM 

To: Nissalke, Tom 

Cc: Bonnie.Baskin@faa.gov; Scott.Seritt@faa.gov; Dana.Perkins@faa.gov; 

Rusty.Chapman@faa.gov 

Subject: Part 150 Study Request for Clarification 

Tom, 


I am conducting my legal review of the Part 150 Noise Compatibility 


Program 


and needed clarification on an issue. 


Specifically, I am requesting clarification from the City of Atlanta 


regarding the application of Measure 1 and Measure 3 in the September 5, 


2007 Noise Compatibility Study to residential properties that straddle 


the 


65 and 70 DNL contours. This request results from the FAA's review of 


comments received from the City of College Park interpreting the 


exclusive 


application of the acquisition measure (Measure 1) to these properties. 


College Park is concerned that this limitation will result in the 


unnecessary acquisition and demolition, and the consequent loss of low 


and 


moderate income housing, where an owner of one of these residential 


properties may not be interested or willing to be acquired. It appears 


that the NCP requires the acquisition of residential properties that 


touch 


the 70 DNL contour, although they may have a significant portion within 


the 


65 DNL contour, without the option of sound insulation as an 


alternative. 


Please clarify whether the application of the Noise Compatibility 


Program 


measures allow residential land owners of properties straddling the 65 


and 

the 70 DNL contours the discretion to request the application of either 

Measure 1 or Measure 3 to their property. 

Thank you for your assistance with this issue. 


Kimberly L. Arnao 


Attorney, Office of the Regional Counsel 


FAA Southern Region 


(404) 305-5206 

IMPORTANT: This message is intended solely for specific recipients. If 


YOU 


are not an intended recipient of this communication, please, delete the 


original message and notify the sender immediately. This message may be 


confidential-- an attorney-client communication, part of the agency's 


deliberative process, or attorney-work product and must not be forwarded 


or 


otherwise shared without express permission. 

Exhibit D


UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

THE CITY OF ATLANTA, GEORGIA 

 Plaintiff, 

 v. 

AVERY PARK PARTNERS, LLC d/b/a 

AVERY PARK, COLONY CREEK, 

LLC, AND THE CITY OF COLLEGE 

PARK, GEORGIA, 

 Defendants.

:

: 

: 

: 

: 

: 

: 

: 

Case No. 

Judge 

__________________________________________________________________ 

COMPLAINT FOR DECLARATORY JUDGMENT 

__________________________________________________________________ 

Plaintiff, the City of Atlanta (the “City”), files this Complaint for 

Declaratory Judgment against Defendants Avery Park Partners, LLC d/b/a Avery 

Park (“Avery”), Colony Creek, LLC (“Colony Creek”), and the City of College 

Park, Georgia (“College Park”). 

1. This is an action for declaratory relief pursuant to 28 U.S.C. § 2201 et 

seq. 

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

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

International Airport (the “Airport”). 

Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 1 of 12
2

3. Defendants Avery and Colony Creek are developers (collectively, the 

“Developers”) that own property in the City of College Park. 

4. Defendant Avery is the owner of Avery Park, 2609 Charlestown 

Drive, College Park, Georgia 30337, Parcel Identification Number 13-0004-LL045-5. Avery may be served with process at the office of its registered agent for 

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

Georgia 30115. 

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

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

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

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

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

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

Georgia 30115. 

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

municipal corporation, partially situated within Fulton County, and incorporated 

under the laws of the State of Georgia. College Park may be served with process 

by serving the City Manager, Terrence Moore, located at City Hall, 3667 Main 

Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 2 of 12
3

Street, College Park, Georgia 30337. College Park is named as a party because it 

has a potential interest in the outcome of this litigation. 

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

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

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

which involves in relevant part the City of Atlanta’s purchase of property located 

in College Park, is related to this action. On or about July 30, 2010, Hon. Julie 

Carnes entered a Consent Order, which, with one exception, prevents the City from 

acquiring multi-family residences within College Park (the “Consent Order”). A 

true and correct copy of the Consent Order is attached hereto as Exhibit “A.” 

JURISDICTION AND VENUE 

8. This Court has subject matter jurisdiction of this action pursuant to 28 

U.S.C. § 1331, and § 2201. Pursuant to 28 U.S.C. § 1331, the district courts have 

original jurisdiction of all civil actions asserting claims or protecting rights that 

arise under federal law. 

9. Venue is proper in this judicial district under 28 U.S.C. § 1391(b), as 

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

in this judicial district, the property that is the subject of the action is situated in 

Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 3 of 12
4

this judicial district, and because Defendants are subject to jurisdiction in this 

judicial district. 

10. This Court has personal jurisdiction over Defendants. 

BACKGROUND 

11. The Aircraft Safety and Noise Abatement Act of 1979, 49 U.S.C. 

47501 et seq. (“Noise Abatement Act”), establishes a voluntary and uniform 

national program for addressing aircraft noise, and authorizes the Federal Aviation 

Administration (“FAA”) to regulate “airport noise compatibility planning” and to 

make federal funds available to reduce incompatible land uses in the vicinity of 

airports caused by aircraft noise. 

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

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

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

13. Part 150 establishes uniform national methods for preparing noise 

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

NEM where computer-modeled average annual noise levels are indicated in a unit 

of measurement known as “DNL.” In essence, DNL is a measure of noise 

exposure in decibels over a 24-hour period, weighted more heavily toward the 

nighttime hours. 

Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 4 of 12
5

14. Part 150 also delineates procedures, standards, and methodologies for 

an airport’s creation and implementation of Noise Compatibility Programs 

(“NCPs”), which are voluntary programs used to reduce noise impact within the 

airport vicinity consistent with local interests. 

15. In 2007, the City submitted a properly prepared NEM (the “2007 

NEM”). The 2007 NEM was accepted by the FAA on April 10, 2007. A true and 

correct copy of the FAA’s letter accepting the 2007 NEM is attached hereto as 

Exhibit “B.” 

16. In 2007, the City proposed amendments to the Airport’s NCP, which 

were approved by the FAA on January 24, 2008 (the “Airport-NCP”) (attached 

hereto as Exhibit “C”). 

17. The FAA-approved Airport-NCP allows the Airport to undertake 

voluntary measures to provide: (a) possible sound insulation for qualifying 

properties located within the 65 DNL contour on the 2007 NEM; and (b) possible 

acquisition of qualifying properties located within the 70 DNL contour. 

18. As amended in 2007, multi-family properties became potentially 

eligible to participate in the Airport-NCP. Multi-family properties were not 

previously eligible. 

Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 5 of 12
6

19. In 2012, the City submitted the 2012 NEM to the FAA for approval. 

The 2012 NEM has been approved by the FAA. 

20. Developers recently acquired their properties. Developers’ properties 

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

on the 2012 NEM. 

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

airport sponsors, such as the City, must consult and work with local authorities. 

This is so because every locality is different. Although federal law establishes 

uniform standards for assessing noise and preparing NEMs, the law and 

regulations recognize that local considerations should be considered in 

implementing NCPs. 

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

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

23. In response to the possible acquisition of multi-family properties in 

College Park under the Airport-NCP, College Park filed the College Park Suit, in 

which it alleged, among other things, that the City’s acquisition of property in 

College Park violated the Voting Rights Act for various reasons. 

24. After the City substantially prevailed in the College Park Lawsuit in 

this Court, College Park appealed to the United States Court of Appeals for the 

Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 6 of 12
7

Eleventh Circuit. While College Park’s appeal was pending, the City and College 

Park reached a mediated settlement, which resulted in the entry of the Consent 

Order. 

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

regulations requiring consultation and cooperation with local jurisdictions in 

implementing noise compatibility programs. The Consent Order also is consistent 

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

of noise compatibility programs and providing airport sponsors with considerable 

discretion in implementing noise compatibility programs in a manner consistent 

with local interests. 

26. The Consent Order, with one exception, effectively prevents the City 

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

Consent Order, the City has abided by the substance of its terms by, among other 

things, not acquiring multi-family residences within College Park pursuant to the 

Airport-NCP. 

27. Pursuant to the requirements of the Consent Order, the City’s 

Department of Aviation has submitted an amendment to the Airport-NCP to the 

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

land acquisition within College Park. 

Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 7 of 12
8

28. Developers seek to force the City to acquire their properties under the 

Airport-NCP in violation of the Consent Order. Developers contend that, because 

their properties are located within the 70 DNL contour on the 2007 and 2012 

NEM, the City is obligated by federal law to acquire their properties without 

regard to the terms of the Consent Order. 

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

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

30. The City disputes Developers’ interpretation of their alleged rights 

and the City’s alleged obligations under federal law and regulation. Contrary to 

Developers’ assertions, the City, as an airport sponsor, is vested with considerable 

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

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

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

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

provisions such as are contained in the Consent Order. 

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

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

Court. 

Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 8 of 12
9

33. Developers have repeatedly attempted to bring pressure on the City to 

violate the Consent Order through regulatory proceedings and through federal and 

state political pressure based on incomplete or misleading statements of fact. At 

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

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

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

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

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

Order constitutes a valid and outstanding order and judgment of this Court, and 

opposes any action by the City to acquire Developers’ properties under the 

Airport-NCP. 

35. A ripe, justiciable controversy exists between the City, on the one 

hand, and Developers, on the other. College Park has an interest in the outcome of 

the controversy. 

RELIEF REQUESTED

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

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

adequate remedy that will resolve the current controversies. 

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37. Specifically, the City requests the Court enter an Order declaring the 

rights, duties and obligations of the parties as follows: 

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

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

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

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

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

operations; 

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

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

otherwise eligible for acquisition under the Airport-NCP; 

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

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

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

Airport-NCP; and 

 (e) The City, as an airport sponsor, has discretion in implementing 

the Airport-NCP and may exercise that discretion in deciding whether or not to 

acquire potentially eligible properties or to provide sound insulation to potentially 

eligible properties, so long as it has a rational basis for its action. 

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38. The City also requests that this Court enter an Order requiring the 

Developers to pay the City’s attorney’s fees and litigation expenses pursuant to 

O.C.G.A. § 13-6-11. 

WHEREFORE, the City requests that: 

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

obligations of the parties, as set forth above; 

(b) the Court enter an Order awarding the City its reasonable 

attorney’s fees and litigation expenses to be paid by Defendant Developers, in an 

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

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

Developers; and 

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

and proper. 

Respectfully submitted this 26th day of July 2013. 

/s/ John L. Watkins 

John L. Watkins, Esq. 

john.watkins@thompsonhine.com 

Georgia Bar No. 740515 

Roy E. Hadley, Jr., Esq. 

roy.hadley@thompsonhine.com 

Georgia Bar No. 003730 

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THOMPSON HINE LLP 

Two Alliance Center 

3560 Lenox Road, Suite 1600 

Atlanta, Georgia 30326-4266 

(404) 541-2900 – Main 

(404) 541-4266 – Facsimile 

Leslie J. Suson 

leslie.suson@thompsonhine.com 

Georgia Bar No. 142162 

Attorneys for The City of Atlanta 

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EXHIBIT A 

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EXHIBIT B 

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EXHIBIT C 

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