# 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 T ABER 

### LAW 

### G ROUP 

### 13 Atlanta Ir vine, 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 motionto 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 th is 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 A tlanta ’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 Club house 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 i t was proposing t o amen d the NCP. 5. The website stated that the commenting period “closes April 10, 2013.” B ecause Atlanta (1) failed to comply with the express t erms 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
NCPas 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. AveryPark 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. F or the reasons statedabove andb ecause of the critical nature the Consent Order plays in the parties’ pleadings in this matter , Landowners respectively submit that Exhibit s 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 hav e this day served the foregoing COMPLAINANTS’ SECOND MOTION TO SUPPLEMENT RECORD on the following persons at the f ollowing 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 14 th

### 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

# E xhibit C

# T **ABER** 

# L **AW** 

# G **ROUP** 

# PC

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

### July 1 1, 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 comme nt 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 co mments 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 res idential units. (the “Amendment”). Leaving aside the internal inconsistency of the proposed Amendment 3 

### 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, h owever, 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 commerc e 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 t o 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- comp liance 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

- comp atible with airport operations . Be cause 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 a greement with the owner of that property which includes provisions specified by the Secretary. It will takesteps to enforce this agreement against the property owner whenever there is substantial noncompliance with the terms of the agreement.” Id. Sinc e 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 “wi thout 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, b y including the Amendment in its Part 150 NCP indicating that Atlanta would not acquire property in accordance with Part 150, Atlanta will have t aken 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 propert y 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 causeor 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 O rder 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 l ocated 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 residen t from being severely impacted by aircraft noise and remove them as incompatible land uses. Id

. , see also Exhibit B, mem o 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 airportoperations. Instead, Atlanta has chosen to tie its own hands andeliminate 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 v alidity 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 Colleg e 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 C ity of Atlanta consulted College Park about the measures in the NCP that involve voluntary 5 

### 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 rece ive 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 propertyowners 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 pro perty 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/re

development 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 point ed 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 Assistanceand 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 objectiv e 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 

# G ROUP 

# PC

1 

## M EMORANDUM 

### 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 N ational Environmental P olicy A ctand 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 th e 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 n ear 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 curre nt 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 h ealth outcomes, such as hypertension and heart disease. Four studies from Europe have shown this connection:

# TABER 

# LAW 

# G ROUP 

# 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 Con sortium. 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, Breug elmans 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. Jaru p 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. E nviron 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 e ffects 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 

# G ROUP 

# 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
so urces. 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 A ircraft 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 

# G ROUP 

# 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 healthrisks 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

- Jacks on 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.

# E xhibit C

# I U.S. Department 

### ATLANTA AIRPORTS DISTRICT OFFICE of Transportation 170 1 Columbia Avenue 

### Federal Aviation Campus Building, Suite 2-260 

### Administr 51 

### t' 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 of Aviation 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 1 50;

### 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~anagementof 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 1 0 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~D DISAPPROVED 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~~ntary property 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~i use. (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~um of 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 (2012 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~~re Map, 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~ory compliance 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 ofCollege 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~t o 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:
1 e). 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 since2002 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~~ons only 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 03:38 PM 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 andthe 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.

# E xhibit DCase 1:13-cv-02480-SCJ Document 1-4 Filed 07/26/13 Page 1 of 2Case 1:13-cv-02480-SCJ Document 1-4 Filed 07/26/13 Page 2 of 2

## UNITED STATES DISTRICT COURT FOR THE NORTHERN DIST RICT OF GEORGIA ATLANTA DIVISION
THE CITY OF AT LANTA, 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 DECLARA TORY 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 (“Colo ny Creek”), and the City of College Park, Georgia (“College Park”).
1. This is an action for declaratory re lief 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 owne r and operator of Hart sfield-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 inthe 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 situatedwithin 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. Colleg e Park is named as a party because it has a potential interest in th e 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, etal. 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, w ith one exception, prev ents the City from acquiring multi-family residences within Co llege Park (the “C onsent Order”). A true and correct copy of the Consent Orde r 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 riseto 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 Defend ants are subject to jurisdiction in this judicial district.
10. This Court has personal ju risdiction 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 inco mpatible land uses in the vicinity of airports caused by aircraft noise.
12. To implement the Noise Abatemen t Act, the FAA established the Noise Compatibility Planning Process as partof the Federal Aviation Regulations,
listed as Part 150 of Title 14 of the Code of Federal Regulati ons (“Part 150”).
13. Part 150 establishes uniform nati onal 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 us ed 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 ac cepted 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 amendmen ts 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 th e 65 DNL contour on the 2007 NEM; and (b) possible acquisition of qualifying properties lo cated 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. Devel opers’ properties are located wholly or partially withinthe 70 DNL contour on the 2007 NEM and
on the 2012 NEM.
21. As one of the general requirements inestablishing NCPs, participating airport sponsors, such as the City, must consult and work with local authorities. This is so because every locality is diff erent. Although federal law establishes
uniform standards for a ssessing noise and preparing NEMs, the law and regulations recognize that local consid erations 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 acquisi tion 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, thatthe City’s acquisition of property in College Park violated the Voting Rights Act for various reasons.
24. After the City substantially prevaile d in the College Park Lawsuit in this Court, College Park appealed to th e 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, th e City and College Park reached a mediated settlement, which resulted in the en try of the Consent
Order.
25. The Consent Order is consistent withthe directives of federal law and regulations requiring consultation and c ooperation with local jurisdictions in implementing noise compatibility programs. The Consent Order also is consistent
with the directives of federal law and re gulations providing for local administration of noise compatibility programs and providi ng airport sponsors with considerable discretion in implementing noise compatib ility programs in a manner consistent
with local interests.
26. The Consent Order, with one excepti on, effectively prevents the City from acquiring multi-family residences withinCollege 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 residen ces 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 Or der’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 Or der. Developers contend that, because their properties are locatedwithin the 70 DNL cont our 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 fe deral law and regulati on. Contrary to Developers’ assertions, the City, as an airport sponsor, is vested with considerable discretion under the Airport-NCP in decidi ng 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 contai ned in the Consent Order.
32. In any event, Developers’ position w ould 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 incompleteor misleading statements of fact. At the same time, Developers have refused the City’s s uggestion 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 belie f, College Park conte nds that the Consent Order constitutes a valid and outstanding order and judgment of this Court, and opposes any action by the City to acqui re Developers’ properties under the Airport-NCP.
35. A ripe, justiciable controversy ex ists 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 j udicial declaration of the rights, obligations and responsibilities of the parties because the City has no other adequate remedy that will resolv e the current controversies. Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 9 of 12

### 10 

## 37. Specifically, the City requests the C ourt enter an Order declaring the rights, duties and obligations of the parties as follows: (a) The Consent Order is a validand binding order of this Court; (b) The City, as the Airport sp onsor, 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 munici palities 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 thei r properties regardless of whether the properties are potentially otherwise eligib le for acquisition or other relief under the Airport-NCP; and (e) The City, as an airport spons or, has discretion in implementing the Airport-NCP and may exercise that di scretion 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. Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 10 of 12

### 11 

## 38. The City also requests that this Court enter an Order requiring the Developers to pay the City’s attorney’s fees and litigation e xpenses 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 cost s 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 Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 11 of 12

### 12 

## T HOMPSON 

## H INE 

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

# EXHIBIT A

Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 1 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 2 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 3 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 4 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 5 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 6 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 7 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 8 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 9 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 10 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 11 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 12 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 13 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 14 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 15 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 16 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 17 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 18 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 19 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 20 of 21Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 21 of 21

# EXHIBIT B

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

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

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

# EXHIBIT C

Case 1:13-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 1 of 12Case 1:13-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 2 of 12Case 1:13-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 3 of 12Case 1:13-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 4 of 12Case 1:13-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 5 of 12Case 1:13-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 6 of 12Case 1:13-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 7 of 12Case 1:13-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 8 of 12Case 1:13-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 9 of 12Case 1:13-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 10 of 12Case 1:13-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 11 of 12Case 1:13-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 12 of 12