# Taber lawGroup

VIA E-MAILAND U.S. MAIL August 14, 2013 Office ofthe ChiefCounsel, Attention: FAAPart ProceedingsDocket AGC-610 Federal AviationAdministration 800 Independence Ave. SW Washington, D.C. 20591 

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# J PART '16 DOCKETS

Re: Virginia One Development, LLC, R.W. Parsons, Inc., D. ScottHenderson, DSHDiplomat, LLC, Colony Camp Creek,LLC, and Crossings Townhomes, LLC v. The City ofAtlanta, FAA DocketNo.16-12-09; Complainants' Second Motion to SupplementRecord. Dear Sir/Madam: Enclosed is an original and 3 copies ofComplainants' SecondMotionto Supplement Record. Ifyouhave 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 verytruly, TABERLAW GROUP

StevenM. Taber

P.O. BOX 60036 !IRVINE, CA 92602 

### I TEL 949.735-8217 

### I FAX 714.707.2428 

### I staber@taberlaw.com

### BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. VIRGINIA ONE DEVELOPMENT, LLC, ) R.W. PARSONS, INC. d/b/a CLUBHOUSE) D. SCOTT HENDERSON d/b/a ) AVERYPARK,DSHDIPLOMAT,LLC ·) d/b/aDIPLOMATTOWNHOMES, ) COLONY CAMP CREEK, LLC, and ) CROSSINGS TOWNHOMES, LLC, ) ) 

### Complainants, ) ) 

### v. ) ) 

### THE CITY OF ATLANTA, GEORGIA, ) ) 

### Respondent. )



# _______________________ ) CaseNo.: FAA DocketNo. 16-12-09

COMPLAINANTS' SECOND MOTION TO SUPPLEMENT RECORD Communications with respectto this document should be sentto Complainant's Representative:
Steven M. Taber TABERLAW GROUP 

### 13 Atlanta Irvine, California 92620 (949) 735-8217 (phone)

(714) 707-4282 (fax) staber(altaberlaw.com Counsel for Complainants Virginia One Development, LLC, AveryParkPartners, LLCd/b/a AveryPark, DSHDiplomat, LLCd/b/a Diplomat Townhomes, Colony Camp Creek, LLCand Crossings Townhomes, LLC. August 14,2013

### BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C.
VIRGINIA ONEDEVELOPMENT, LLC, ) R.W. PARSONS, INC. d/b/a CLUBHOUSE) D. 

### SCOTTHENDERSON d/b/a ) AVERY PARK, DSH DIPLOMAT, LLC ) d/b/a DIPLOMAT TOWNHOMES, ) COLONY CAMP CREEK, LLC, and ) CROSSINGS TOWNHOMES, LLC, ) ) 

### Complainants, ) ) 

### v. ) ) 

### THE CITY OF ATLANTA, GEORGIA, ) ) 

### Respondent. )



# ______________________ ) CaseNo.: FAADocketNo. 16-12-09

COMPLAINANTS' SECOND MOTION TO SUPPLEMENT RECORD Complainants, VIRGINIA ONEDEVELOPMENT, LLC, AVERYPARKPARTNERS, LLC d/b/a AVERY PARK, DSH DIPLOMAT, LLC d/b/aDIPLOMATTOWNHOMES, COLONY CAMP CREEK, LLC, and CROSSINGS TOWNHOMES, LLC, (collectively, "Landowners") byand throughtheirundersigned counsel and pursuantto 14 C.P.R.§ 16.19, request leaveto file and hereby files this second motionto supplementthe record 

### inthis proceeding. I. Landowners herebymove the Federal Aviation Administration, pursuantto 14 C.P.R.§ 16.19 to supplementthe record in this matterwith:

2(1) 

### The CityofAtlanta's proposedAmendmentto its Part 150 Noise CompatibilityProgram (NCP), acopy ofwhich is attached as ExhibitB. (2) The Comments the Landowners submittedto Atlanta's in response to their proposedamendmentto the NCP ("Comments"), a copy ofwhich is attached as Exhibit C. (3) The City ofAtlanta's DeclaratoryJudgmentComplaintagainsttwo ofthe Landowners in this matter asking the U.S. District Court for the Northern District ofGeorgiato make adetermination regarding Atlanta'srights and responsibilities underthe NCP. A copy ofthe DeclaratoryJudgment Complaint is attached as ExhibitD. 2. One ofthe critical arguments for boththe Complainants andthe Respondent
concerns a Consent Orderthatwas reachedbetween Atlanta and the CityofCollege Park resolving City of College ParkandCharles E. 

### Philips, Sr. v. 

### Cityof Atlanta, Shirley Franklin andState of Georgia, 

### CaseNo. 08-1464that is dated July 30,2010 ("Consent Order"). 3. As indicated in the pleadings for this matter, the Consent Ordermentionsthe NCP and states that Atlantawill "modify its currentPart 150 Program to eliminate authorizationto acquire any apartment complexwithin College Park otherthan Clubhouse Apartments, located at 3800 Hershel Road." Until2013, Atlantahadnot made any effortto amend or modify its "currentPart 150 Program," as promised in the Consent Order. 4. Sometime in early 2013, Atlantapostedon the website forthe Hartsfield Jackson Atlanta InternationalAirport (http://www.atlanta-airport.com/Airport/Environmental/Noise.aspx) that itwas finally amending its NCP to include language from the Consent Order andthat it

3wouldbe submittingthe amendmentto the FAAfor approval. Upon information andbelief, this is the only noticethatAtlanta gave to the public indicating itwas proposing to amendtheNCP. 5. The website statedthatthe commentingperiod "closesAprillO, 2013." Because Atlanta (1) failed to complywith the express terms oftheAdministrative ProcedureAct regardingpublication ofnotices forpublic comments, (2) failed to directlynotifypartiesthat it knew or shouldhave known would have an interestin commenting ontheproposed amendment, and (3) publishedthe notice on an obscure webpage that few in thepublic would checkon a regularbasis, the Landowners did not submitcommentsbefore April!O, 2013. 6. However, once the Landowners were made aware both ofthe website and the proposed amendment, they drafted and filed comments onAtlanta's proposed Amendmentto its NCP as soon aspossible. Those Comments to opposingAtlanta's proposedAmendmentto the NCP were filed with Atlantaon July 11, 2013, by e-mail to WalterVinson andby U.S Post. 7. Soon afterthe Landowners filed theirComments opposingthe Amendmentto the NCP, Atlanta filed its Complaintfor Declaratory Judgment in the United States District Courtfor the Northern District ofGeorgia, Case No. 13-02480, styled as 

### The City of Atlanta, Georgiav. AveryParkPartners, LLCd/b/aAveryPark, Colony Creek, LLC, andthe Cityof College Park, Georgia ("DeclaratoryJudgmentAction") on July 26, 2013. 8. Inthe DeclaratoryJudgmentAction, Atlantarequests thatthe Courtmake several specific fmdings concerning (I) Atlanta'srights, responsibilities and legal obligations underthe NCP, (2) Atlanta's compliancewith its grant assurances relativeto its compliance withtheNCP, and (3) Atlanta'sduties underthe Consent Order. 9. Despite the fact thatAtlantaasks for reliefin the DeclaratoryJudgmentAction that implicates policy decisions made bythe FAA and that are contained in FAAorders,

4regulations, rules and advisory circulars, it didnot include the FAA as a partyin the Declaratory JudgmentAction. 10. Forthe reasons stated above and because ofthe critical nature the Consent Order plays intheparties' pleadings inthis matter, Landowners respectively submitthat Exhibits B, C andD shouldbe addedto the record inthis matter.

Dated: August 14, 2013 Respectfully Submitted,

Steven 

### M. Taber TABERLAW GROUP 13 Atlanta Irvine, California 92620 Telephone: (949) 735-8217 Facsimile: (714) 707-4282 staber(iiltaberlaw.com 

### Counsel for Complainants Virginia One Development, LLC,AveryParkPartners, LLCd/b/a AveryPark, DSHDiplomat, LLCd/b/a Diplomat Townhomes, Colony Camp Creek, LLCand Crossings Townhomes, LLC.

5

### CERTIFICATE OF SERVICE
I herebycertifythat I have this day servedthe foregoing 

### COMPLAINANTS' SECOND MOTION TO SUPPLEMENT RECORD onthe followingpersons atthe following addresses and facsimile numbers (ifalso servedby facsimile) byU.S. Mail:
John L. Watkins RoyE. Hadley, Jr.

ThompsonHine Two Alliance Center 3560 Lenox Road, Suite 1600 Atlanta, Georgia 30326-4266 Fax: (404) 541-2905
Datedthis 14th day ofAugust, 2013,



### 6 For: 

### Virginia One Development, LLC, AveryParkPartners, LLCd/b/aAveryPark, DSHDiplomat, LLCd/b/a Diplomat Townhomes, andColony Camp Creek, LLC.

# ExhibitB8114113 

# ..JLHartsfield-Jackson**~** 

### Atlanta International Airport.

l;\r"IIIW.atlanta-airport.com/AirporVEnvironmentai/Noise.aspx Environment- Noise
Wed, 14 Aug 2013 4:20:46pm EDT Atlanta, GA USA Fair, 78'F Low/High:68182"F

1/38/14113

Pubitc Information Meeting Presentation

NEP.<\ Actions Noise**Em-ironment~** Noise Home >Airport Infonnation >Environmental > Noise The Department of Aviation and the Federal Aviation Administration, or FAA, have evaluated aircraft noise in the Airport vicinity for more than 30 years. The FAA approved the Department's first Noise Compatibility Program (NCP) in 1984. Since then, the Department has maintained a comprehensive noise mitigation program that has consisted of both property acquisition and sound insulation for homes and other**noise~**sensitive sites. The Department utilizes a Noise and Operations Monitoring System (NOMS) as part of its overall noise program. Due to the efforts of DOA's Noise Mitigation Program and because NOMS staff emphasize education to those calling with noise complaints, the annual number of complaints has steadily declined. Aircraft Noise Related Concerns The City of Atlanta/Department of Aviation (Department) continues to implement an airport noise mitigation program (ANMP) in jurisdictions proxirrnte to the Hartsfield-Jackson Atlanta International Airport to enhance land use compatibility with aircraft noise. The policies describing how the Department implements the ANMP are contained in the Department's Noise Compatibility Program (NCP). The Federol Aviation Administration (FAA) approved the Department's NCP on January 24, 2008. The NCP can be found at http://www.atlantaairport.com/Airport/Environmentai/Farpart150.aspx. The City of Atlanta and City of College Park entered into a consent order (Civil Action No. 1:08-CV1464) dated May 25, 2010 in United States District Court to settle a number of rrntters. One of the consent order terms pertains to ANMP-related land acquisition within the city limits of College Park. To comply with this consent order term, the Department has submitted an NCP amendment to the FAA. The amendment (language contained below) is to be inserted in the NCP after Section 6.9: Section 6.10 Compliance with Federal Consent Order The City of Atlanta and City of College Park entered into a United States District Court consent order dated May 25, 2010. The consent order prohibits Atlanta from certain land acquisition activities within the College Park city limits. other than the Clubhouse Apartments, located at 3800 Herschel Road, no apartment complexes located within the city limits of the City of College Park may be acquired without the consent of the City of College Park. For purposes of this prohibition, an apartment complex shall mean any building with four or more residential units, The public is invited to comment on this NCP amendment. Please submit your comments to Walter Vinson, the Department's Manager of Intergovernmental Affairs, at walter.vinson®atlantaairport.com or at: Mr. Walter Vinson Manager of Intergovernmental Affairs Department of Aviation P.O. Box 20509 Atlanta, Georgia 30320 The commenting period closes April 10, 2013. Register Aircraft-Noise Related Concerns Here 2010 Complaint Count 2009 CalendarYear Summary of Registered Noise Concerns Aircraft FlightTracks Aircraft Engine Run-Ups Airport Noise Mitigation Program 2012 and 2017 Noise Exposure Maps and Open House FederalAviation Regulation Part 150 Program • Active Noise Insulation Program • Active Property Acquisition Program History ofAirport Noise Abatement Noise Land Reuse Plan Current Noise Land Reuse Plan Inquiries about purchasing available noise land

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,,., '·"! ,.;j WNW.atlanta-airport.com/Airport/Environmentai/Noise.aspx 213

# ExhibitC

# TABER LAW GROUP 

# PC
July II, 2013 

### VIAE-MAILAND U.S POST Mr, Walter Vinson (walter,vinson@atlanta-airportcom) Manager ofIntergovernmental Affairs DepartmentofAviation P.O. Box20509 Atlanta, Georgia 30320 

### Re: Amendmentto City ofAtlanta's Part 150 Noise CompatibilityProgram to Include Consent Order with City ofCollege Park.
DearMr, Vinson: This comment letter is submitted on behalfofthe owners ofproperty (collectively, the "Property Owners") slated by the City ofAtlanta ("Atlanta")to be acquired pursuantto its Federal AviationAdministration approved Part !50Noise Compatibility Program ("Part !50 NCP"), for which Atlantahas yet to take any action, despite the passage ofover five years. This law firm represents the owners ofthe following properties: I. 2609 Charlestown Drive, College Park, Georgia 30337, Parcel Identification Number 13-0004-LL-045-5. 2. 2800 Camp CreekParkway, College Park, Georgia 30337, Parcel Identification Number 14-0224-LL-052-3. 3. 2601 RooseveltHighway, 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, CollegePark, Georgia 30337, Parcel Identification number 14- 0193-0002-036-0. 6. 3001 RooseveltHighway, College Park, Georgia 30337, Parcel IdentificationNumber 13-0062-LL-009-0. Atlantahas attempted to slip this amendmentthrough without a proper public comment period and withoutnotice to the stakeholders in violation oftheAdministrative Procedures Act. Atlanta's actions with respectto this proposed amendmentto the Part !50NCP is even more egregious since it did not give anynotice to the owners ofpropertythat itknew would be

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### I IRVINE, CA 92602 

### I TEL 949.735.8217 

### I FAX 714.707.4282 

### I staber@taberlaw.comMr. Walter Vinson July 11, 2013 Page2

# ·::i"~Taber 

# Law Group
affected bythis amendment. In light ofAtlanta's absolute failure to follow the law and regulations concerningpublic comments and hearings with respect to changes in the Part 150 NCP, we would askthat Atlantaconsiderthese comments as timely. Accordingto Atlanta, Atlanta and the City ofCollege Park ("College Park") entered into a consent order (Civil Action No. l:08-CV-1464) dated May25,2010 in United States District Court for the Northern District ofGeorgia. 1 Section4 ofthat Consent Order stated that the City ofAtlanta would: ModifY its current Part 150 Programto eliminate authorization to acquire any apartment complex within College Park otherthan Clubhouse Apartments, located at 3800 Hershel [sic] Road. For purposes ofthis Consent Order, an apartment complex means any building with four (4) or moreresidential units. Now, overthree years later, after the owners have shownthat the Consent Order is notpart ofthe Part 150 NCP, Atlanta has decided to complywith this consent order term. 2 The notice on Atlanta'swebsite states thatthe following amendment will be inserted in thePart 150 NCP after Section 6.9: Section 6.10 CompliancewithFederal Consent Order The City ofAtlanta and City ofCollege Park entered into a United States District Court consent order dated May25, 2010. The consent orderprohibits Atlanta from certain land acquisition activities withinthe College Park city limits. Otherthan the Clubhouse Apartments, located at 3800 Herschel Road, no apartment complexes locatedwithin the city limits ofthe City ofCollege Park may be acquired withoutthe consent ofthe City ofCollegePark. For purposes ofthis prohibition, an apartment complex shall mean any building with four or more residential units. (the "Amendment"). Leaving asidethe internal inconsistency ofthe proposedAmendmene and the fact that the Amendment attempts to bar anyone from purchasingthe propertywithout College Park'spermission, thePropertyOwners contend that the foregoing amendment is not approvablebythe Federal Aviation Administration and would violate Atlanta's grant assurances.

A copy ofthe 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 aPart 16 Administrative Action before the Federal Aviation Administration (FAA DocketNo. 16-12-09) has not been lost on the Property Owners. 3 The Consent Order, as the Amendment points out, statesprohibitsthe City ofAtlanta from acquiring any apartment complexes with the boundaries ofCollege Park. The Amendment, however, seems to allow Atlanta to acquire the property within the boundaries ofCollege Park ifCollege Park "consents." Allowing the consent of College Park is contrary to the Consent Order.Mr. Walter Vinson July 11, 2013 Page 3 

# ~Taber Law Group

I. THE AMENDMENT IS NOT APPROVABLE UNDER 49 U.S.C. § 

### 47504(b). In order for the Amendmentto be approved bythe FAA, it must complywith 49 U.S.C. § 47504, Noise CompatibilityPrograms. Subsection (b), entitled "Approvals," states that theFAA shall approvethe program only ifthe program "is reasonably consistentwith achievingthe goal ofreducing non-compatible uses and preventingthe introduction ofadditional non-compatible uses." 49 U.S.C. §47504(b)(l)(B). Itcannotbe consistentwith achieving the goal ofreducing non-compatible uses to allow an amendment that limitsthe ability ofAtlantato acquire property thatAtlantahas deemedto be severely impacted by aircraft noise. In addition, boththe FAA and the Atlanta are awarethat 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 approvedbythe FAAbecause it is in violation of 14 C.P.R.§ 150.35 Determinations;publications; effectivity. That section states that the FAA will only approve an NCP ifthe program measures "would not create an undue burden on interstate or foreign commerce (including anyunjust discrimination) and are reasonably consistentwith achievingthe goals ofreducing existing non-compatible land uses around the airport and ofpreventingthe introduction ofadditional non-compatible land uses. 14 C.P.R. § 135.35(b)(1). Sincethe Amendmentwill impactthe salability ofthe property affectedbythe Amendment and it is specificallyaimed at leavingmulti-family residences in placethat are within the 70 DNL contour, the Amendment does not meetthis requirement as well. Moreover, since at least one ofthe Property Owners is an out-of-state entity, there has been a substantial burden on interstate commerce byAtlanta's failure to act on the Part 150 NCP and its hiding behind its voluntary entry into a restrictive ConsentDecreethatwill violate Atlanta's duties under federal law. 

### II. THE AMENDMENT VIOLATES THE CITY OFATLANTA'S GRANT ASSURANCES. This amendmentto Atlanta's Part 150 Noise CompatibilityProgram violates its Grant Assurances and therefore must be rejectedby Atlanta and bythe FAA. Atlantahas a legal obligation to theFAA to complywith the Part 150 NCP and also a legal obligationto comply with its grant assurances, irrespective ofwhat other contracts or agreements it might have entered into with another party. IfAtlanta amends its Part 150 NCP to incorporatethe Consent Order and bar Atlanta from acquiring anyproperty within the boundaries ofCollege Park, then Atlanta is in clearviolation ofGrantAssurances 5 and 21.Mr. Walter Vinson July II, 2013 Page 4 

### A. TheAmendment Will Violate Grant Assnrance 5. The FAA has heldthat GrantAssurance 5prohibits the airport sponsor from giving away rights and powers the sponsorneedsto control and managethe noise createdby aircraft in the surrounding area. JetAwayAviation, Inc., v. Montrose County, FAADocket No. 16-08-01, Director's Determination (July 2, 2009). GrantAssurance 5, entitledPreservingRights, requires that: [fJor all noise compatibilityprogram projects which are to be carried out by another unit oflocal government [which this one would be ifthe Amendment is approved] or are on property owned by a unit oflocal government otherthanthe sponsor, it will enter into an agreement with that government. Except as otherwise specifiedbythe Secretary, that agreement shall obligate that governmentto the same terms, conditions, and assurances that would be applicable to it ifit applied directly to the FAAfor a grantto undertake the noise compatibilityprogram project. Thatagreement and changes thereto must be satisfactoryto the Secretary. Itwilltake steps to enforcethis agreement againstthe local government ifthere is substantial non-compliance with theterms ofthe agreement. Grant Assurance 5(c). By seeking to amend its Part 150 NCP withthe ConsentDecree, Atlanta has voluntarily barred itselffrom acquiringpropertythat it has identified as non-compatiblewith airport operations. Because ofthat limitation, the Amendment is in violation ofGrant Assurance 5. Moreover, Grant Assurance 5(d) statesthat "[fJornoise compatibilityprogram projects to be carried out on privately owned property, [the airport sponsor] will enter into an agreement with the owner ofthatpropertywhich includes provisions specified bythe Secretary. Itwill take steps to enforcethis agreement againstthe property ownerwheneverthere is substantial noncompliance with theterms ofthe agreement." Id SincetheAmendment concerns the acquisition ofpropertythat is privately-owned, the agreementmust be between the private owner and the airport sponsor, not betweenthe City ofAtlanta and the City ofCollege Park. Thus, once again the City ofAtlantawill be violation ofits GrantAssurances ifthe Amendment is made part ofits Part !50 NCP. Grant Assurance 5putsAtlantabetween a rock and a hard place. Atlanta has an obligation to carry out its FAA-approved Part 150 NCP. But iftheAmendment is approved then Atlantawould be bound to ensure that College Park complies withthe Part !50NCP program and makesthe propertywithin the 70 DNL compatiblewith airport operations. On the other hand, theAmendment wouldbarAtlantafrom acquiringthe property from the Property Owners and therefore gain control overthe compatibility ofthe propertywith airport operations- as it promised it would do when it submittedthe Part !50NCP for approval.Mr. Walter Vinson July 11, 2013 

# _,,Taber Law Group Page 5 In sum, includingthe Amendment into the Part 150 NCP violates one ofthe central holdings ofthe Administrator in Town of Fairview v. City of McKinney, FAA DocketNo. 16-99- 04 and by doing so, violates GrantAssurance 5. In Fairview, theFAAheld that "without some showing ofamechanism or agreement that acts to preventMcKinney from exercisingpowers to adhereto FAA's interpretation ofthe sponsor's Federal obligations, there canbeno violation of this assurance."Id., at 35-36. Inthe instant case, the Amendmentrestricts Atlanta's ability to acquire ormake improvements on the PropertyOwners' properties or ensure that the property identified by the PartNCP as being severely impacted byaircraft noise is made compatible. This restriction, in turn, prevents Atlanta from exercising its powers pursuantto its federal obligations. Thus, by includingthe Amendment in its Part 150 NCP indicatingthat Atlanta would not acquire property in accordance with Part 150, Atlanta will havetaken affirmative stepsto deny itselfthe abilityto obtain airport development land ornoise land and/or ensure that the development ofthe propertyis compatible with aircraft noise. Therefore, the Amendment wouldbe in violation ofGrantAssurance 5. 4 B. TheAmendmentWill Violate GrantAssurance 21. Inadditionto its obligation not to limit its powers regarding carrying out a federally funded program, airport sponsors also musttake, pursuantto Grant Assurance 21, reasonable and appropriate actionto ensurethatproperty surroundingthe 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 ofzoning laws, to restrict the use ofland adjacentto or in the immediate vicinity ofthe airportto activities and purposes compatible with normal airport operations, including landing and takeoffofaircraft. In addition, ifthe project is for noise compatibilityprogram implementation, it will not cause or permit any change in land use, within itsjurisdiction, thatwill reduce its compatibility, with respecttothe airport, ofthe noise compatibility program measures upon which Federal funds have been expended. GrantAssurance 21. Neitherthe Consent Ordernorthe Amendment states thatAtlanta agrees to make "reasonable attempts" to workwiththe community ofCollege Park. Rather, both the Consent Order and the Amendment capitulates to College Park's demands to stop acquisition efforts for properties locatedwithin the 70 DNL. Thus, in entering into the Consent Order and proposingthe Amendment, Atlanta effectivelyhas barred itselffrom taking "appropriate action" to restrict incompatible land use under GrantAssurance 21, giving College Parkthe powerto veto any acquisition ofincompatible land. Thus, the Amendment is in violation ofthe grant assurance.
4 Indeed, the Property Ownerswould argue and have argued that by agreeing to the Consent Decree with College Park, Atlanta in and ofitselfviolated Grant Assurance 5. See Virginia One Development eta!. v. City of Atlanta, FAADocketNo. 16-12-09.

### Mr. WalterVinson July II, 2013

# ~~~Taber Law Group Page 6 The standard for determining whether a sponsor is out ofcompliance with Grant Assurance 21 can be found in Keathlyv. Cityof McKinney, Texas andthe Collin County RegionalAirport, DocketNo. 16-03-14, Director's Determination (October 13, 2004). In Keathly, the Director determined that: With regard to compatible land use issues, FAAtypically addresses two questions in orderto determine ifa sponsorhas violated its obligations. I. Are the facility's operations compatiblewith local airport operations? 2. Ifnot, could the sponsor havepreventedthe facility from operating nearthe airport? Id at *58. Atlanta itself, in the Part !50NCP, determined that properties located withinthe boundaries ofCollege Park are not compatiblewith 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 ofthe Part !50NCP. In addition, the Part 150 NCP commits Atlantato take action to prevent the resident from being severely impactedby aircraft noise and remove them as incompatible land uses. Id., see also ExhibitB, memo onthe effects ofnoise on human health. Atlanta, however, has not taken the action it said it wouldto preventthe impact, and this is not consistentwithAtlanta's obligation under Grant Assurance 21 to take reasonable steps to restrict the use ofland next to the airport to uses that are compatible with airport operations. Instead, Atlanta is running away from its federal obligations and now wants theFAA to approve ofitrestriction ofthe use ofland adjacent to or in immediate vicinity ofthe airport due to its voluntary entrance into the Consent Order, which, it vociferously claims, restricts it from acquiringproperty withthe boundaries ofCollege Park. Thus, ifthe CityofAtlantahad not entered into the ConsentDecree, it could have very easily complied with its federal obligations and acquiredthe property within the boundaries ofCollegePark and changed the land use to one that is compatiblewith airport operations. Instead, Atlantahas chosen to tie its own hands and eliminatethe possibility ofittakingreasonable and appropriate action in response to its FAAapproved Part 150 NCP. This is a violation ofGrant Assurance 21. 

### III. THE CITY OF COLLEGE PARK'S CONCERNS HAVE BEENADDRESSED BY THE FAA. The sad part ofthis is the fact there is no reason for Atlantatojeopardizethe validity of its Part 150 NCP and FAA funding for its airport projects in orderto appease College Park. All ofCollege Park's issues withrespect to the Part 150NCP have been specifically addressed by the FAA in its Record ofApproval. 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 otherthan the airport sponsormayreceive federal funding for the mitigation measures approved under theMr. Walter Vinson July 

### II, 2013 Page 7 Part 

### ISO NCP. However, the airport sponsor retains responsibility for ensuringthatthe noise mitigation measures approved bythe FAA in theNoise Compatibility Program are carried out, since it is the airport operator thatreceives the benefit ofthe Airport Safety and Noise Abatement Act of 1979. The Consent OrderthatAtlantavoluntarily entered into with College Park does not diminish Atlanta's duties withrespectto the Part 150 NCP, nor wouldtheAmendment. College Parkpresented its concerns in commentsto the FAA regardingAtlanta's acquisition ofpropertywithin the boundaries ofthe College Park. Specifically, College Park told the FAAthat Atlanta "assured CollegeParkthatthere would beno more acquisition and demolition ofanyproperty within CollegeParkwithoutthe direct involvement ofCollege Park." To which the FAAreplied: the CityofAtlantaconsulted College Park aboutthe measures in theNCP that involve voluntary5 acquisition ofproperty within College Park. IfCollege Park demonstratesthat it is capable ofcarrying outthe projects within itsjurisdiction, then it mayreceive grants to implementthose projects. 49 USC§ 47504(c)(l), (3). The FAA has been advised that on December I0, 2004, at ameeting between CollegePark and City ofAtlanta, when College Parkvoiced concerns regarding the ongoing acquisition ofproperty in College Park by CityofAtlanta, Mr. Ben DeCosta committed to coordinating with College Park for future land acquisition. Mr. DeCosta specifically stated that he wouldnot purchase propertywithin College Park withoutthe city's concurrence. However, FAAis aware that Mr. DeCostahas also made a commitmentto assistthe residents ofthe communities surroundingthe airportthat are negatively impacted by airport noise. Approval ofthe Part 150 NCP update does notforeclose direct involvement ofCollege Park. The NCP update includes a measureto coordinatethe re-development ofland purchased under the residential acquisition program with affected local politicaljurisdictions usingthe NMAC. We expectthe City ofAtlantato fulfill this measure. Ifpropertyowners in College Park elect sound insulation and College Park demonstrates that it is eligible, then it can receive grantsto carry outthose projects. FAARecord ofDecision, attached as ExhibitC. Itworth noting thatthe election ofsound insulation over acquisition is left with the property owner, not thepoliticaljurisdictionwithin whichthe property sits. The crux ofCollege Park's complaint however, lay in its commentthat: The NCP does not include plans for re-use/re-development ofthe properties nor does it include plans for where tenants will be relocated. HJIAproposes to remove a land use without consulting with CollegeParkonthe appropriate land use for the re-use ofthe The word "voluntary" here means voluntary on the part ofthe property o\VTler- Atlanta, College Park and the FAA cannot force aproperty owner to sell their property, even ifit is severely impacted by noise.

### Mr. Walter Vinson July 11,2013



# !'~~Taber Law Group Page 8 affected properties College Park believesthat given the longterm use ofthis property as multi-familyresidential, the most appropriate continuinguse ofthis property remains multi-familyuse. This is a municipal planningresponsibilitythat belongs to College Park and highlights why it is completely inappropriate and irresponsible for HJlAto undertake this profound community disruption- enabled byFederal dollars- withoutthe active consent, participation and management ofthe City ofCollege Park. The lack ofre-use/redevelopmentplans indicates thatno consultation occurred. FAARecord ofDecision. College Park is afraid that ifAtlantawere to purchase the property severely impacted by aircraft noise, thatAtlantawould changethe property's land use from residential to something else. Once again, the FAA pointed outthatthe choice to sell the property is the landowner's, not CollegePark's or Atlanta's. And, once again, the FAA pointed out that College Park could play a role in the carrying outofthe mitigation measures ofthe Part 150 NCP, ifit so desired. The NCP gives the owner ofthe affected properties the choice ofwhetherto continue residential use ofthe property. This is consistent with the airport sponsor's grant obligationto take reasonable steps to assure to restrictthe use ofland next to the airport to uses that are compatible with airport operations. Compatibilitywith airportnoise at these levels can be achieved by either acquisition or soundproofing. TheNCP is also consistentwith local land use planning authority ofcommunities as recognizedunder Part 150. Part 150 does not require the airport sponsorto include plans for reuse ofthe properties or plans for wheretenants will be relocated in its NCP. However, theNCP update includes a measureto coordinatethe re-development ofland purchased underthe residential acquisition program with local politicaljurisdictions. In addition, ifthe airport sponsor implements the NCP measure and acquires residential property, the City of Atlantamust complywiththe Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, which requires the airport sponsorto assist displaced individuals in obtaining comparable replacementhousing. FAA Record ofDecision. Thus, the FAA, in its response, states how CollegePark'sobjective can be achieved in legal manner. However, incorporatingthe ConsentDecree in the Part 150 NCP would not onlynot achievethatpurpose, butwould be illegal. 

### IV. CONCLUSION There are two issues to keep in mind in consideringthe approval ofthe Amendment. First, Atlantahas to recognizethat it has an obligation carry out the mitigation measures that were approved as part ofthe Part 150 NCP irrespective ofthe ConsentDecree (or theMr. Walter Vinson July 11, 2013 Page 9 Amendment). Second, College Park has to recognize that the initial decision as to whetherthe property should be acquired is the landowner's, not College Park's or Atlanta's. IfCollege Park wants to purchase the Property Owner'sproperties with federal funding andkeep them residential (but in compliance with the Part 150 NCP), the Property Owners wouldnotcomplain. ButAtlantawould retain its obligation as the airport sponsorto ensure that College Park complies with the Part 150 NCP. Until some resolution is reachedbetween College Park and Atlantaas to who should purchasethe PropertyOwners' property, the Property Owners will insistthatAtlantakeep to its federal obligations. Thus, for the foregoing reasons, the property owners identified above offer these comments strongly opposingthe Amendmentto the CityofAtlanta's Part 150 Noise CompatibilityProgram. TheAmendment, as it currently is drafted, violates federal law, violates the grant assurances, and, in the end, serves no legitimatepurpose butto deprive the Property Owners oftheirrightto dispose oftheir property as they see fit.

TABERLAWGROUP, P.C.

Steven M. Taber

cc: 

### Mr. Scott L. Serritt, FAA AtlantaAirports District Office Mr. Derek L. Stotts, FAAAttorney- AlP, SouthernRegion

# ExhibitACase 1:08-cv-01464-JEC Document 64 Filed 08102/10 Page 1 of 8



### IN THE UNITEDSTATESDISTRICT COURT FOR THE NORTHERN DISTRICTOFGEORGIA ATLANTA DIVISION CITY OFCOLLEGE PARK and CHARLES E. PHILLIPS, SR., Plaintiffs


## v. CITY OFATLANTA and 

### SHIRLEY FRANKLIN, in her official capacity as Mayor

### ofthe City ofAtlanta, Defendants.
CONSENTORDER This 

### matter having come before the ,Court on 

### plaintiffs' and 

### defendants' Joint Motion for 

### Reliefunder 

### Federal Rule 

### ofCivil Procedure 60(b), and 

### the Court. having reviewed the record and the arguments ofthe parties, issues 

### the following 

### Consent Order: 

### BACKGROUND On March 31, 2009, 

### this Court issued an: [i) Order and 

### Opinion; and [ii] Judgment, ruling 

### on plaintiffs' Request tor Three-Judge Cout·t and Motion tor Leave to File First Amended Complaint, denying such Motions. dismissing the


### case inits entirety and 

### vacating a previous 

### injunction issued by 

### the 

### Court. This Court's Order and Opinion and Judgment 

### are part of the record and incorporated into this Consent 

### Orderby reference.Case 1:08-cv-01464-JEC Document 64 Filed 08/02/10 Page 2 of 8 On April 30, 2009, plaintiffs appealed this Court's Order and Opinion and . Judgment to the United States Court of Appeals tor the Eleventh Circuit. Plainti t'fs tiled their Brief of Appellants with the United States Court of' Appeals for lht! Eleventh Circuit on July 15, 2009. To date, through a series of extensions, defendants' have not filed their Brief of Appellees. On September J 0, 2009, pursuant to a directive from the United States Court of Appeals for the Eleventh Circuit, plaintiffs and defendants mediated this case, r<;:ached a tentative settlement agreement and, since the initial mediation date, haw ret! ned the terms of the settlement, reduced it to writing and obtained appropriate governmental approvals of such settlement from tfleir t·espective municipalities. **~'** On May 24, 2010, plaintiffs and defendants filed a Joint Motion for Relief from Order and Opinion and Judgment under Federal Rule of Civil Procedure 60(b)(6), seeking relief from this Court's Order and Opinion and Judgment through this Court's acknowledging that the parties have settled the case on app<!al, entering an enforceable Consent Order outlining the terms of the settlement, relieving the parties from the necessity and cost of pursuing the appeal, allowing the appeal's remand to this Court and its ultimate dismissal. This Court has considered the Joint Motion for Relief from Order and Opinion and is willing to enter tne Consent Order retlecting the terms of the

pa1'ties' settlement of this case on appeal. **~ .~**  **~!;** 1Case 1:08-cv-01464-JEC Document 64 Filed 08/02/10 Page 3

### of8


### CONCLUSION Based upon the above, and the consent ofthe parties, the Court rca!Tirms its issuance ofthe Ordc1· and Opinion and Judgment and further enters the to!

### lowing Consent Order: 

### CONSENT ORDER !. 

### MEF.TINGS AND BRIEFINGS 1.!.

### The City of Atlanta, Department of Aviation (''Atlanta"), agrees to invite and allow one (1) 

### representative designated by the City of College Park (''College Park'') to attend any planning meeting held at any location by Atlan6a that, in the good faith-detem1ination ofAtlankl., materially affects or could materially a!Tect tbe interests ofCollege Park or a significant number ofits Citizens. l.2.College Park will participate as a partner in each planning meeting and will not use information obtained by it during any such meeting for any purpose

**oth~r** 

### than to facilitate discussions with Department ofAviation staffabout tbe subjects of such meeting, unless College Park can show that such intonnation obtained 

### by 

### itduring the applicable planning meeting: 1.2.1. 

### was in its possession or was known to the public or published to the public prior to itS disclosure during the· applicable planningmeeting; or

3Case 1:08-cv-01464-JEC Document 64 Filed 08/02/10 Page 4 

### of8



### I.2.2. subsequent to the time ofdisclosure during the applicable planning meeting, becomes known to the public 

### or appears in published literature through no fault ofCollege Park; or 1.2.3. wasacquired by College·Park from 

### athird-party. 

### 2.

**~DVANCE** 

### NOTICE · Atlanta agrees to provide CollegePark at leastthirty 

### (30) days earlier notice, than is otherwise required by FAA 

### or Federal Rules, of any proposed action 

### hy Atlanta that, in the good faith determination ofAtlanta, materially affects orcould materially aifect the interests of College Park or a significant number 

### of its €itizens. 3. 

### REPURCHASE OF WYNTERBROOKAPARTMENTS 3.1.College Park 

### will, contemporaneously with tht: date of its execution

# orthis Order ("Order Date"), issue all permits necessary to authorize Atlanta to erect fences, demolish and remove existing structures and

**remediat~** 

### environmental hazards on the Wynterbrook site. 3.2.Atlanra wiH demolish, remove all dchris and remediate any environmental hazards on the Wynterbrook site promptly upon receipt from

**Collcg~** 

### Park and any other governmental entities with jurisdiction of the nt:!ccssary permits and diligently pursue such activities until completion ("Wynterbrook Demolition Completion Date").

4Case 1:08-cv-01464-JEC Document 64 Filed 08/02/10 Page 5 of 8



### 3.3.Atlan4l 

### will notify College Park in 

### wriling ofthe Wynterbrook Demolition Completion Date within ten (I0) days of that date, at which time College Park will have an option, exercisable by written notice to Atlanta within

**on~** 

### hundred eighty (180) days of the Wynterbrook Demolition Completion Date, to pi1rchase at iair market value the Wynterbrook site. · 3.4."Fair market value" for the Wynterbrook site shall be determined as ofthe Wynterbrook Demolition Completion Date and by the process detailed on 

### Exhibit "B". 3.5.lfpurchased by College Park, the Wynterbrook site shall be subject to the restriGtivc covenants contained on 

### Exhibit"A". 3.6.1f College Park does not exercise 

### its option to purchase the Wynterbrook site within one hundred eighty (180) days ofthe Wynterbrook Demolition Completion Date, Atlanta, at its expense and subject to any applicable laws, including laws governing the procurement ofservices, will promptly

**engag~** 

### the se1·vices ofan economic development specialist/land planner to assist it in returning the Wynterbrook site to productive use. 

### 4. PART 150 PROGRAM Atlanta agrees to modify its currentPart ISO Program to eliminate aLithorization ·to acquire any aparurtenl complex within College Park other than Clubhouse

5Case 1:08-cv-01464-JEC Document 64 Filed 08/02/10 Page 6 of8


### Apartments, located at 3800 Hershel Road. For purposes ofthis Consent Order, an apartment complex means any building with tbur (4) or more residential units. 5. 

### NCP PROGRAM 5.l.Subjeet to the Section entitled "PART 150 PROGRAM", Atlanta agrees to consult with College Park, within the confines ofthe federal guidelines and other applicable law, on what properties, identified in the existing and future Part 150 documents as eligible for receipt ofnoise mitigation funds,
are mitigated and the timing ofthe mitigations. 5.2.This consultation shall take place prior to mitigation ofeach property and Atlanta shall notii)> College Park when mitigation ofeach property has b.:cn completed. If Atlanta groups properties into packages for mitigation. consultation may take place prior to mitigation ofeach package**(a~** 

### opposed to each property) and Atlanta may notity College Park when mitigation of each package (as opposed to each property) hasbeen completed. The 

### pa1ties may modify this consultation and notification process at any time**a~** 

### long as the modification is agreed to in writing by 

### all parties prior to 

### being implemented. 

### 6. OPERATIONAL ACOUISITIONS Atlanta agrees to discuss with College Park, within one hundred twenty ( 120) days ofthe Order Date, a potential arrangement whereby, for luture real property

',-:**~~,_::_<**

# '
Case 1:08-cv-01464-JEC Document 64 Filed 08/02/10 Page 7of8
acquisitions for operations ofthe airport and for which Atlanta is tax exempt. the 

### City ofAtlanta will pay a Payment in Lieu ofTaxes. 7. 

## WYNTERBROOK SITE; MISCELLANEOUS 7.1.College Parkagrees that the portion 

### ofFrontage Road owned 

### by the 

### City of Atlanta abutting the Wynterbro6k Site may be and remain permanently closed to vehicular traffic of any kind during the term of Atlanta's ownership and that the closure of Frontage Road docs not and shall not constitute a violation of any law, ordinance or other code provision enforceable byor existing for the benefit ofCollege Parkor 

### its

**Citi~.ens.** 

### 7.2. 

### The' parties have disposed' of this case through 'the execution 

### oC this ' ConsentOrder andthe remand/dismissal ofthe appeal. Additionally. within three {3) days ofthe Order Date, College Park will dismiss "with prejudice" the following litigation, each in its entirety: 7.2.1. City ofCollege Park v. 2600 Camp Creek, LLC v. The Citv of College Park, Jack P. Longino (as an individual), 

### Joe Carn (as an individual), Russell Slider (as an individual), Tracey Wyatt (as an individual), Charles E. Phillips, Sr (as an individual), William E. Johnson (as an individual) and Oscar Hudson (as an individual), Fulton County Superior Court, Case No. 2005-CV-101612; 1

### and



## ---- 

# ------- 1

### '!'he pm1ies acknowledge that on November 9, 2009, College Park dismissed this lawsuit without prejudice. College Park agrees to tile an amended Dismissal with Prejudice and to take any further actions, including tiling a motion or obtaining a Consent Order in this case in order to dismiss it in its entirety with prejudice.
7Case 1:08-cv-01464-JEC Document 64 Filed 08102110 Page 8 of8


### 7.2.2. City of College Park v. City of Atlanta, Fulton 

### County Superior

### CoUJt, Case No 2008-CV-148980. 

### i.3.AII parties 

### will bear their own costs, and no party will st:ek un 

### order lor attorney's fees or otherlitigation costs. 

### 8. 

### EFFECTIVE DATE OFAGREt:MENT

·Tne parties agree thatlhis 

### Order shall be effective 

### on the 

### Order Date and shall remain effective until further order ol' the Court. or for 

### fifty (50) yeurs. whichever shall first occur. The parties agree that compliance with these requirements 1s 

### subject 

### to applicable law. SO ORDERED anlil AGREED this30



# ,.~ay**o~** 2010. ,

By:



## By: 

# i}JJ



# ~11-0 @1LIE E. CARNES 

### CHIEF UNITED STATES 

### DISTRICT JUDGE

R bert B. Caput, Senior Assistant City Attorney, on behalfof Defendants, City ofAtlanta and Mayor Shirley 

### t,:_ranklin Executed: '6- "'- , 

### 20I0 Greg Michell, on behalfof Plaintitls, City ofCollege Park and Charles E. Phillips. Sr. l:xecutcd:
____, 20

### I0Case 1:08-cv-01464-JEC Document 64-1 Filed 08/02/10 Page 1of3



# EXHIBITACase 1:08-cv-01464-JEC Document64-1 Filed 08/02/10 Page2of3


### ExhibitA Restrictive Covenants 

### This transfer.and any subsequent transfer ofany interest in the property transferred herein shall be expressly made subject and subordinate to and contain the t'qllowing covenants to assure**futur~:** 

### uses will be**compati~le** 

### with the operation of Hartsfield Jackson Atlanta. International Airport: Grantee agrees on behalfof itself, its heirs, successors, transferees, and assigns that the land herein conveyed shall be used only for land uses compatible with those designated in Table I, 'Land Use Compatibility with Yearly Day-Night Average Sound Levels', Section Al50.101, Appendix A to 14 CFR Part 150 ("Table I") and with FAA guidance on certain land uses as identified in FAA Advisory Circular 150/5200-:)38 ("AC") and any amendments to Table 1and the AC. In the event Table 1 or the AC shall be superseded, the ·FAA promulgation which shall be the successor instrument setting forth the land use compatibilities shall be substituted in lieu of Table 1 or the AC, as appropriate (hereinafter, "Successor Instruments"). Compatibility of use shall be determined at the time a building permit for an improvement on the land herein conveyed is issued and no subsequent amendment to Table I, the AC, or Successor Instruments shall affect the determination of compatibility as to the improvement constructed. Except as otherwise provided herein, all land uses allowed pursuant to local zoning and land use regulations are permissible uses under these covenants. However,

.the land herein conveyed shall not be used for Airport

Parking unless such use is approved, in writing, by the City ofAtlanta, or its successors and assigns, through its Aviation General Manager.
9Case 1:08-cv-01464-JEC Document 64-1 Filed 08/02/10 Page 3 of3



### As used herein, "Airport Parking" shall mean a parking facility or facilities, including but not limitled to, any surface parking lot or deck, or any portion or section ti}ereof, designed or operated to provide park,ing for persons travelling to or from, or otherwise accessing, Hartsfield-Jackson Atlanta International Airport. Incidental parking offered by an operator to support a use specitlcally allowed under 

### the local zoning and land- use regulations and not inconsistent with this restrictive covenant shall be permissible. It is further expressly agreed that this restrictive covenant is intended to run with the land, in perpetuity, and is made in favor of, and for the benefit of, the City of Atlanta in the operation, and use of, Hartsfield-Jackson Atlanta International Airport.Case 1:08-cv-01464-JEC Document 64-2 Filed 08/02/10 Page 1of3



# EXHIBIT B,Case 1:08-cv-01464-JEC Document 64-2 Filed 08/02/10 Page 2 of3


### Exhibit B FairMarketValue Purchase Price

.Thefair marketvalue,purchase price shall bf;! determined as follows: Appraisal Process Within thirty (30) 

### days ofCollege Park's written notice to Atlanta that it is exercising its option,to purchase the Wynte(brook Site, Atlanta and, College Park sh:all each select a qualified real estate appraiser. To 

### be a qualified real estate appraiser, the appraiser must have obtained the MAl membership designation given by the Appraisal InstitUte. The appraisers shall have forty-five (45) days from the date of his/her notice to proceed from College Park and Atlanta, as applicable, to provide both Atlanta and College Park with their complete appraisal reports for the Wynterbrook site. Ifthe appraisers report opinions ofFair Market Value within five percent (5%) 

### ofeach other, the average ofthe two appraisals will constitute the Purchase Price. Ifnot, unless the parties agree otherwise, the two appraisers will have fifteen (15) 

### days to**;~gree** 

### on a third qualified real estate appraiser who will do an independent appraisal within thirty (30) 

### days thereafter and pro,vide a complete apprais_al report to Atlanta anQ. College Park. Ifthe t_wo appraisers selected by Atlanta and College Park fail to select a third appraiser within the fifteen (15). 

### day period, one will be selected by the President of the Atlanta Area Chapter of the Appraisal Institute. The average of the three appraisals will then constitute the Purchase Price. Each party will pay the expenses for the appraiser it selects and the expenses ofany third appraiser will be split fifty/fifty (50/50) 

### between the parties. Any closing of the sale of the Wynterbrook site is conditioned on College Park and Atlanta obtaining any necessary legislative approvals. Appraisal Considerations Atlanta and College Park specifically agree that all appraisers shall prepare their appraisals using standard appraisal principles and be given and required to use the following assumptions in preparing them, in addition to any other factors which they may usc in their professionaljudgment:
a. The appraisers shall utilize the Survey provided by the Parties hereto, and shall, using.their professional discretion andjudgment,**pla~e** 

### a value on the property by a collective valuation oflike or similar properties by applying a standard price variableto like properties ofvarying sizes;

### Case 1:08-cv-01464-JEC Document64-2 Filed 08/02/10 Page 3of

### 3
b. The appraisals shall take into account the flood plain maps applicable to the property as evidenced by National Flood Insurance Program (FIRM) Flood Insurance Rate Map Fulton County, Georgia and Incorporated Areas;
c. The**appraisal~** 

### shall take into accountany and all easements and covenants (specifically the Restrictive Covenantattached to the Order as Exhibit 

### "A") encumbrances or other statUtory or regulatory restrictions placed on the · property's use by the Seller, the FAA or applicable.state and Federal law due to its proximity ·to. HartsfietdcJackson International Airport, specifically including, but not limited to, aepticable noise reduction construction requirements, and height restrictions and avigation easements attached to the Order as Exhibit 

### "C".) Each appraiser shall acknowledge in writing that he or she has received these considerations and will specifically reference them in his/her appraisal reports.

!2Case 1:08-cv-01464-JEC Document 64-3 Filed 08/02/10 Page 1 of3



# EXHIBITC

### Case 1:08-cv-01464-JEC Document 64-3 Filed 08/02/10 Page 2of3

Exhibit C Avigation andHeightEasemenf The Grantor (City ofAtlanta) hereby reserves an interest in the Property described in this deed that will create a servitude on particular areas that will restrict the use ofthe surface and that will assure the City ofAtlanta oftheright and privilege ofa use in the airspace for the right of flight of aircraft, the right to cause noise, vibration, dust, fumes, and fuel particles normally arising from the operation of aircraft in flight, the right to prohibit future obstructions into the airspace, and the right to enter the land to exercise the rights reserved under this easement. The Grantor shall endeavor, but shall not be required, to provide notice to owner in advance ofenteringthe land. The restrictions in this easement shall include but not be limited to: (I) The right to restrict orprohibit radio orelectromagnetic interference to aircraft flying overhead. (2) The right to restrict orprohibit lights, lighted signs, and otherlighted objectsthatunreasonably interfere with aircraft flying overhead. (3) The right to restrict or prohibit hazardous or objectionable smoke, fumes, or vapor that unreasonably interferes with aircraft flying overhead. (4) As depicted on the Exhibit "D" Drawing, the right of flight shall include and be limited to, and the right to prohibit heights for buildings, structures and other improvements shall begin at I, 127-feet above mean sea level at the eastern most edge ofthe parcel rising to an elevation of I,175-feet above mean sea level at the western most edge ofthe parcel. Any point between the east and west elevations can be interpolated usinga sloping plane betweenthe two elevations. (5) The right to restrict orprohibit specific agricultural orhorticultural uses such as growth andharvesting oftimber, establishment of

2 

### The parties agree that an appropriate Exhibit "D", depicting the avigation and height easements applicable to the Wynterbrook site will be prepared and attached to the Limited Warranty Deed transferringtitle to the Wynterbrook site.
13

### Case 1:08-cv-01464-JEC Document 64-3 Filed 08/02/10 Page 3of3

(6)

(7) 

### orchards or otherplant growth thatmay eventually penetratethe imaginary surfaces depicted on the 

### Exhibit "D" Drawing. The right to restrict orprohibit specific agricultural uses, construction of ponds, lakes, or other water impoundments, sanitary landfills, or other man-made improvements that may attract or result in the concentration of birds or waterfowl that will or may unreasonably interfere with aircraft flying overhead. However, nothing contained herein shall require the owner or occupant to construct underground stormwater retention or storm water detention ponds. The right to require the removal by the owner ofany trees orportions of trees, now or hereafter existing, that penetrate imaginary surfaces as stated in Section ( 4), and the right to enter upon said properties and remove such trees or portions of trees if the owner fails to do so within thirty (30) days after receipt ofwritten 22 notice from the City ofAtlanta ofthe requirement to do so and, in such event, to collect the cost ofsuch removal from the owner.

!4Case 1:08-cv-01464-JEC Document 64-4 Filed 08/02/10 Page 1of2

# ExhibitB

## TABER LAW GROUP 

# PC

MEMORANDUM 

### To: File From: StevenM. Taber, Taber Law Group, P.C. Date: June 4, 2013 

### Re: HumanHealth Effects ofAircraftNoise
TheFAAlastreviewedthetechnical basesfor its noisepolicies in 1992. Forexample, 65 DNL as the "thresholdofsignificant impact"under theNational EnvironmentalPolicyAct and for establishingthe level below which land uses are deemed compatible in Part !50Noise CompatibilityPrograms has been used bythe FAAwithout substantial change since 1978 (it was "re-affirmed" byFICAN in 1992). Itis safeto saythat the FAA'spolicyno longer reflects the best scientific evidence ofthe effects ofaircraft noise exposure. This failure onthe partofthe FAA to update its policyunderminesthetrustthat the publicplaces in the FAAin theirpursuitto understand noise exposure and its effects. This is particularlytrue since substantial research done onthemeasurement and effect of aircraft noise on the communities surrounding airports has come from sources outside the United States. For example, the Hypertension & Exposureto Noise nearAirports (HYENA) study evaluatedthe effects ofaircraft noise on 4,861 persons residing near 7 European airports between 2002 and 2006. The 2002 RANCH study from London studied the effect ofaircraft and road traffic noise on 2,844 children's cognition and health. Both ofthese studies came outwithrather startling results concerningthe effect aircraft noise has onthe quality ofhuman life. Finally, WHO Europe issued "NightNoise Guidelines," which werebased on research donebythe European Union. This type ofstudyhas largelybeen absent in the United States. The emergingresearch suggests that current standards used bythe FAA are outdated and underestimatethe significanthealth risks posed by aircraftnoise. The currentunderstanding of the health effects ofaircraft noise goes beyond mere annoyance and sleep disturbance, which the currentDNL protocols were meantto address. The new research shows a strong correlation between aircraft noise and significant, serious health outcomes, such as hypertension and heart disease. Four studies from Europe have shownthis connection:
I

## TABER LAW GROUP 

# PC

I. Haralabidis AS, Dimakopoulou K, Velonaki V, Barbaglia G, Mussin M, Giampaolo M, Selander J, Pershagen G, DudleyML, Babisch W, Swart W, Katsouyanni K, Jiirup L; for the HYENAConsortium. Can exposure to noise affect the 24 h blood pressure profile? Results from the HYENA study. JEpidemiol CommunityHealth. 2010 Jun 27. 2. Haralabidis AS, Dimakopoulou K, Vigna-TagliantiF, Giampaolo M, Borgini A, DudleyML, Pershagen G, Bluhm G, HouthuijsD, Babisch W, Velonakis M, Katsouyanni K, Jarup L; for theHYENA Consortium. Acute effects ofnight-time noise exposure on blood pressure in populations living near airports. EurHeartJ. 2008 Feb 12 3. Jarup L, Babisch W, Houthuijs D, Pershagen G, Katsouyanni K, CadumE, Dudley M-L, SavignyP, SeiffertI, SwartW, Breugelmans 

### 0,Bluhm G, SelanderJ, HaralabidisA, Dimakopoulou K, Sourtzi P, Velonakis M, VignaTaglianti F, on behalfofthe HYENA study team. Hypertension and Exposure to Noise near Airports -theHYENA study. EnvironHealth Perspect2008; 116:329-33 4. Jarup L, DudleyML, 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 exposureto noise near airports (HYENA)

- Study design and noise exposure assessment. EnvironHealth Perspect2005; 113:1473-8. This is notto saythatthere has not been anyresearch done in the United States on this issue. In March 2007, for example, LisaGoines and Louis Hagler publishedtheir article entitled "NoisePollution: A ModernPlague" in theSouthernMedicalJournal. While it did not concentrate solely on aircraft noise, the article concludedthat: [n]oise produces direct and cumulative adverse effectsthat impair health and that degrade residential, social, working, and learning environments with correspondingreal (economic) and intangible (well-being) losses. It interferes with sleep, concentration, communication, and recreation. The aim ofenlightened governmental controls should be to protect citizens from the adverse effects ofairborne pollution, includingthose produced bynoise. People have the right to choose the nature oftheir acoustical environment; it should not be imposedby others. 2

## TABER LAW GROUP 

# PC

The City ofAtlanta, through its operation and ownership ofHartsfield-Jackson International Airport, imposes its "acoustical environment" onthe citizens ofthe surrounding communities, rather than havingthe citizens choosing for themselves. In addition several "findings"have been issuedbygovernmental or quasi-governmental sources. The Federal Interagency Committee on Aviation Noise (FICAN) has issued two findings: FICANRecommendation for use of ANSIStandardto PredictAwakenings from AircraftNoise (2008) andFindings of the FICANPilotStudyon the Relationship betweenAircraft Noise Reduction andChanges in StandardizedTestScores (2007). Partnership for AiR Transportation Noise and Emissions Reduction (PARTNER), a collaboration amongtheFAA, NASAandTransportCanada, issued in July2010, itsReview of the LiteratureRelatedto Potential Health Effects of AircraftNoise, (preparedbyHales Swift). Thatreview concluded that "[p ]otentiallyserious health outcomes havebeen identified in studies involvingtransportation noise exposure in a population. These includeheartdisease and hypertension and the observed effects seem to be related especiallyto nighttime noise exposure although similar daytime exposure effectshave also been identified." PARTNER 2010, p.62. PARTNERhas also issued several other reports:

• Sonic Boom and Subsonic AircraftNoise Outdoor Simulation Design Study. Victor W. Sparrow, Steven L. Garrett. A PARTNERProject 24 report. May 2010. Report No. PARTNER-COE-2010-002.

• Passive Sound Insulation: PARTNERProject 1.5 Report. Daniel H. Robinson, RobertJ. Bernhard, Luc G. Mongeau. January 2008. ReportNo. PARTNER-COE-2008-003.

• Vibration andRattle Mitigation: PARTNERProject 1.6 Report. Daniel H. Robinson, RobertJ. Bernhard, Luc G. Mongeau. January 2008. ReportNo. PARTNER-COE-2008-004.

• Low FrequencyNoise Study. Kathleen Hodgdon, AnthonyAtchley, Robert Bernhard. April2007. (ReportNo. PARTNER-COE-2007-001)PARTNERProject I, Low FrequencyNoise Study, final report.

3

## TABER LAW GROUP 

# PC

• Land UseManagement andAirportControls: A further study oftrends and indicators of incompatible landuse. Kai MingLi, GaryEiff. September2008. ReportNo. PARTNER-COE-2008-006

• En Route Traffic Optimization to ReduceEnvironmental Impact: PARTNERProject 5 Report. John-Paul Clarke, Marcus Lowther, LilingRen, William Singhose, Senay Solak, AdanVela, Lawrence Wong. July 2008. Reportno. PARTNER-COE-2008-005

•Land UseManagement andAirportControls: Trends and indicators ofincompatible land use. Kai Ming Li, GaryEiff, John Laffitte, DwayneMcDaniel. December 2007. (Report No. PARTNER-COE-2008-001) PARTNERProject 6 final report. Thus, there is no shortage ofrelevant, topical information for the CityofAtlantato use in assessingthe health risks and impacts ofnoise onthe communities surrounding Hartsfield-Jackson. As a direct result ofthese studies, tt is readily apparent thatthe City's foot-dragging with its commitment to the people and owners in the areas surrounding Hartsfield-Jackson is severely lacking. The City's failure totimelyaddress the commitments it madeinitsPart 150 NCP showsanutterlackofconcern forthehealthandwell-beingofthepeople in the surrounding communities.

4

# Exhibit CU.S. Department ofTransportation Federal Aviation Administration
January 25, 2008 Dr. Thomas E. Nissalke, Ph.D. 

### ATLANTA AIRPORTS DISTRICT OFFICE 170I ColumbiaAvenue Campus Building, Suite 2-260

College Park, Georgia 30337 Phone: 404-305-7150 Fax: 404-305-7155

Director ofEnvironmental and Technical Services City ofAtlanta/Department ofAviation P. 0. Box 20509 Atlanta, Georgia 30320-2509 Dear Dr. N!ssalke:
RE: Hartsfield-Jackson AtlantaInternational Airport, Atlanta, Georgia Noise Compatibihty Program Record ofDecision The Federal AviationAdministration (FAA) has evaluated the Noise Compatibility Program for Hartsfield-Jackson Atlanta International Airport contained in the "FARPart !50 Study Noise Compatibility Program Report" and related documents submitted to this office under the provisions of49 U.S.C., Section 47504. The recommended Noise Compatibility Program proposed by the City ofAtlanta is identified by action element number on page 9-3 ofthe "FAR Part !50 Study Noise Compatibility Program Report". I am pleased to informyou that the Regional Airports Division Managerhas approved seven ofthe seven proposed action measures in the Nois•: Compatibility Program in full. The specific FAA action for eachNoise Compatibility Program measure is set forth in the enclosed Record ofApproval. The effective date ofthis approval is January 24, 2008. All ofthe approval actions are more fully explained in the enclosed Record ofApproval. Each airportNoise Compatibility Program developed in accordance with 14 CFR Part !50is a local progrmn, nota Federal program. The FAA does not substitute itsjudgmentfor that ofthe airport operatorwith respect to which**m•~asures** should be recommended for action. The FAA's approval or disapproval of 14 CFRPart !50 Program recommendations is measured according to the standards expressed in 14 CFRPart 150 andthe Aviation Safety and Noise Abatement Act of 1979, (49 U.S.C. 47501-47507) and is limited to the following determinations: The Noise Compatibility Program was developed in accordance with the provisions and procedures of 14 CFRPart !50;

### Program measures are reasonably consistent with achieving the goals ofreducing existing noncompatible land uses around the airport and preventing the introduction ofadditional noncompatible land uses; Program measures would not create an undue burden on interstate or foreign commerce, unjustly discriminate against types or classes of aeronautical uses, violate the terms ofairport grant agreements, or intrude into areas preempted by the Federal Government; and Program measures relating to the use of flight procedures can be implemented within the period covered by the Program without derogating safety, adversely affecting the efficient use and management of the Navigabk Airspace and Air Traffic Control Systems, or adversely affecting other powers and responsibilities of the Administratorprescribed by law. 

### 2

Specific limitations with respect to FAA's approval ofan 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. Approval does not by itself constitute 

### a commitment by FAA to implement specific noise compatibility measures. FAA approval of some measures may require preparation ofan environmental assessment. Further, approval of a plan does not commit 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 FAA under the Airport and Airway Improvement Act of 1982. Where Federal funding is sought, requests for project grants shouldbe submittedto the FAA Airports District Office.
Sincerely,

Scott L. Seritt, Manager Atlanta Airports District Office 1Enclosure
cc: MayorJack Longino, City ofCollege Park, Georgia APP-400 AS0-610 AS0-7

### FEDERALAVIATIONADMINISTRATION RECORD OFAPPROVAL FARPART 150 NOISE COMPATIBILITYPROGRAM HARTSFIELD-JACKSONATLANTA INTERNATIONALAIRPORT ATLANTA, GEORGIA

Regional Counsel, AS0-7

Airports Division Manager Southern Region

### ~/ CONCUR NONCONCUR

APPROVED DISAPPROVED
Date

### FEDERALAVIATIONADMINISTRATION RECORDOFAPPROVAL FARPART150 NOISE COMPATIBILITYPROGRAM HARTSFIELD-JACKSONATLANTAINTERNATIONAL AIRPORT ATLANTA, GEORGIA

Regional Counsel, AS0-7

Airports Division Manager Southern Region CONCUR NONCONCUR
Date



# / APPROVED DISAPPROVED 1 

# /J.tl/!!_ Date

## RECORD OF APPROVAL I-IARTSFIELD-JACKSON ATLANTA INTERATIONAL AIRPORT ATLANTA, GEORGIA
The approvals listed herein include approval of actions that the airport recommends be taken by the Federal Aviation Administration (FAA). It s:hould 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 implement the actions. Later decisions concerning possible implementation of the measures in this ROA will be subject to applicable environmental orother procedures or requirements, including Section 106 of the National Historic Preservation Ac:t (NHPA). The measures below are summarized as closely as possible to the airport operator's recommendations in the Noise Compatibility Program (NCP) and are cross-referenced to the program. The statements contained within the summarized measures and before the inclicated FAA approval, disapproval, or other determination do not n3present the opinions ordecisions of the FAA.
LAND USE MEASURES 1. Volimtary property acquisition program for eligible single-family residences and multi-family complexes within the 70 DNL contour. This voluntary measure would providEl the opportunity for owners and residents of re1sidentially developed property within 1he high noise areas (2007 NEM 70 DNL and 9reater) to receive fair market value for their property and relocation assistance. Any resiclential development that occurred afterApri11 0, 1985 thatwas within the limits of the 1

**~185** 70 and greater DNL contour was constructed with the knowledge of the extent of significant noise exposure and would not be eligible for the acquisition program. (NCP pages 6-1 thru 6-4, 8-2, 9-1, and 9-4; Figures 6-1 and 6-2; Tables 6.1 and 9.2) 

### FAA A•ction: Approved for the properties identified in the NCP, Figure 6-2. It is noted the Umform Act does not considerthis type of transac:tion a "voluntary" progwam, even though the residents will voluntarily participate under 14 CFH Part 150. Underthe Uniform Act, it is termed a "buy out" program because the land use in the nElighborhood is bein!J changed (see Measure 2, directly below). Ac:quisitiCins 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 ofAviation and political jurisdictions will coordinate reg8lrding redevelopment of lands purchased under the residential acquisition program. The acquisition of residential properties within the 2007 NEM 70 DNL contour would remove properties from the tax rolls. The benefit of this recommendation is to have localpolitical jurisdictions involved in redevelopment of acquired properties not n<eeded for aviation use. (NCP pages 7-1 thru 7-2; Table 9.2) FAAAction: Approved. Redevelopment plans must be consistent with Federal grant assurances regarding property values and compatibilitywith normal airport operations. 3. Voluntary sound insulation program for eligible residential buildings in the 65-70 DNL contours. This voluntary measure will benefit those e·ligible residences located between the 2007 NEM 65 and 70 DNL contour by providing t11em the option to be included in the sound insulation program. The benefit would be in gaining a minimum of 5 dB reduction in interior noise. In return for the sound insulation, property owners would be required to sign a "right of flight" easement. To be

**eli~Jible** for sound insulation the structure must be capable of being sound insulated, c:onstructed 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 B.2) FAA Action: Approved. 4. Voluntary sound insulation program for eligible schools within the 65-70 DNL contours. This program will benefit the schools locatHd between the 2007 NEM 65 and 70 DNL noise contour by providing them the option to be included in the sound insulation program. The benefitwould be in gaining a minimum of 5 dB reduction in interior noise. It is estimated that four schools would be eligible. (NCP page•s 6-4 thru 6-7, 8-:3; Tables 6.2 and 9.2) FAAAction: Approved. 5. Voluntary sound insulation program for other eligible noise sensitive uses within the 65 DNL and greater contours. This program will

**bene~fit** 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 cl day care facilities, 16 places of worship, and one health care/retirement 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 9.2) FAA Action: Approved. 6. Establish Overlay Zones within the 60 DNL and gr•eater. It is recognized that the Department ofAviation 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 frameworkto local governments proximate to HJAIA that would enable tt1em to provide an equitable and workable method of maintaining (or enhancing) land use compatibility. Local regulations associated with noise overlay zones coulcllimit the development noise sensitive uses; could require new developmentto incorporate sound insulation into thedesign 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; and/or other measures. The dEltermination as to which of the control:s should apply for any given· situation is based on the extent ofthe noise exposure at the proposed development site and would be styled and implemented by the local governments without having to change the underlying structure of their current

**planni~g.** zoning, and building permit processes. OvHrlay Zones will protect owners of future residential and other future noise sensitive site development in high noise contou

**~areas.** It would provide the same protection afforded existing prope1rty owners in terms of sound insulation. It would also notify those acquiring new homes within the moderate noise exposure limits 

### (2012 60-65 DNL) of the existence of overflight and noise erxposure priorto the new property being acquired, if deemed appropriate bythe 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 A•ction: Approved. 7. Continuation ofthe Noise Mitigation Advisory Council (NMAC) during the implementation process. Members of the NMAC include aviation and political jurisdiction interests. The members of the NMAC have been involved throughout the FAR Part 

### 150 Study and it would be beneficial for them to continue to be involved in the implementation of the recommended noise mitigation measures. (NCP pages 8-4 thru 8-5, 9-4; Table 9.2) 

### FAA A1::tion: Approved.

# Federal Aviation Administration 

# Memorandum Date: January 24, 2008 From: ATL-ADO To: AS0-600 (through AS0-601A) Prepared by: Scott Seritt Subject: ACTION: Recommendation for Approval Hartsfield-Jackson Atlanta International Airport; Atlanta, Georgia Airport Noise Compatibility program (NCP)
On April 10, 2007, the Hartsfield-Jackson Atlanta International Airport (HJAIA) was notifiec:l 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 ("the Act"), (49 U.S.C.,, Section 47503). Following the finding that the Noise Exposure Maps were in compliance, we began the formal180-day 

### reviewperiod for the Hartsfield-Jackson Atlanta International 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 Southern Region has reviewed and evaluated the proposed Noise Compatibility Program 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 prO!Jrams. The standa1·d 14 CFR Part 150 Noise Compatibility Program Checklist was reviewed to ensure that all required items were included in the proposed program. The NCP documol'mt and checklist are attached. The proposed program has been reviewed by the Atlanta Airports District Office. It also was coordinated with Washington Headquarters to determine

**whethe~r** 

### 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 Exposure Map, Receipt of Noise Compatibility Program, and Request for Re•view. 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 proposed NCP Update: 1. The HJAIA has failed to consult in any meaningful manner with th•ll neighboring jurisdiction of College Park; and 2. College Park objects to theproposed intention to acquire seven apartment complexes in College Parle Review of submitted documentation and conversations with HJAIA staff confirm that many coordination meetings (dating back to February 12, 2003 with a seeping meeting

**attend(~d** by the Mayor, City Manager and an additional seven City officials) have been held. Representatives of College Park attended the Noise Mitigation Adv,isory 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 Marriott and was open to the public during the whole day. All requirements of public participation have been met. Also, the FAA met three times (in March, May, and June of 2007) with the City of Atlanta and the City of College Park, their consultants and their attorne1ys to discuss their comments. See the attached FAA Response to Comments.

**Throu~1h** 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 a\/ailat:•le to eligible ·.non-compatible land useswithin the 65 DNLcontour.·. The Departrr1E)ntpf••Avi(!tiof1.



### ~as clarified•.•.andthe ADO

..concurs••that f10n-'compatible •land usestllaJJiewithin both·the 70.and65.·.DNI.. 

### c0ntours··will have the•.option of.·selecting acquisiition 

### orsouncfTnsulation fortheirpr()perty, (See attached) This alternative was evaluated and recommended in accordance with 14 CFR Part 150. No other comments were mceived. Each proposed action in the Noise Compatibility Program Update was then reviewed and evaluated on the basis of effectiveness and potential conflict with

**F1~deral** policy and pmrogatives. These include safe and efficient use of the Nation's airspace, undue burden on interstate commerce, unjust discrimination and interference with a Federal regulatory compliance schedule (i.e., 14 CFR Part 91, Subpart E). Our recommendation on each of the proposed actions is described in !!he attached Recore! 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) AS0-7 (with attachment) Dr. Thomas E. Nissalke, City of Atlanta/Department of Aviation Mayor ,Jack Longino, City of College Park, GeorgiaSubject: 

# Memorandum

U.S. Department ofTransportation Federal Aviation Administration

Disposition ofComments regarding Hartsfield-Jackson International Airport Part ISO Noise CompatibilityProgram



# ~1-~ Date: Januacy24;20Q8

From: Scott Serritt, Atlanta Airport DistdctOffice Manager Reply to Attn. of: To: Rusty Chapman, Manager, Airpmts Division, Southern Region, AS0-7
Background On September 18) 2007, the Federal Aviation Administration (FAA) published notice in the Federal Register announcing FAA's receipt ofthe City of Atlanta's Part ISO 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 the public comment period ended, FAA received two (2) letters on behalfofthe City ofCollege Park. The first letter, dated November 6, 20071, \\aS !Tom the Mayor ofthe City ofCollege Park, Jack Longino. The second letter, dated December 4, 2007, was received rrom the City Attorney for the City ofCollege Park, Mr. Steven M. Fincher. Both ofthe letters raised concerns with Hartsfidd-Jackson International Airport's NCP update. Although the letters on behalfofCollege Park were received after the close ofthe comment period, FAA considered and responded to the issues raised in reviewing the NCP for approval under Part 150. The comments are summarized and addressed below. City ofCollegePark Comments: Ia). The airport sponsor, City ofAtlanta, failed to meaningfully consult the City ofCollege Park about acquisition ofapartment

**complexe~** located within the City ofCollege Park as required by the Part 150 regulations. In support ofthis position, the City ofCollege Park contends: b) the City ofAtlanta 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 no more acquisition and demolition ofany property within College Park without the direct involvement ofCollege Park d) HJIA proposes to remove a land use without consulting with College Park on the appropriate land use for the re-use/re-development ofthe affected properties which indicates no consultation occurred; and c) it is inappropriate for the City ofAtlanta to undertake land acquisition within the City ofCollege Park without the consent, participation and management ofthe City ofCollege Park. Each ofthese elements will be addressed separately as subparts to this comment.FAAR.esponse: Ia), The consultation requirements for a Noise Compatibility Program are contained in 14 C.F.R. § 150.23(c). Specifically, "each noise compatibility program must be developed and prepared
... in consultation with FAA regional officials, the officials ofthe state and ofany public agencies and planning agencies whose area, or any portion or whose area, of jurisdiction within the Ldn 65 dB noise contours is depicted on the noise exposure map." 14 C.F.R. § 150.23(c). The City ofAtlanta, the owner and operator of Hartsfield-Jackson International Airport (HJIA), began the process of updating the existing Part 150 NCP for HJIA in 2003. Volume I, NoiseExposure MapsReport,page 1-2.§1.3. According to the NCP update, in 2003 the City ofAtlanta established the Noise Mitigation Advisory Council (NMAC). to serve as the principal forum for coordinating the NCP update with College Park and other local politicaljurisdictions. Two committees ofthe NMAC, the Operations Advisory Committee (OAC) and the Land Use Advisory Committee (LUAC), provided technical input for preparation ofthe NCP update. Noise Exposure Maps Report, page 1-4, §1.4. The Charter ofthe NMAC states the mission ofthe NMAC is to assist [the City ofAtlanta] with the Part ]50 study and to provide a fOrum for effective communication and coordination with elected officials and local government planning/zoning departments. NCI' Update Volume Ill, Appendix B, B-1. The objectives included providing input and guidance into the development and implementation ofPart 150 aircraft operational, land use compatibility alternatives, and mitigation priorities. !d. At B<:. The NCP update indicates the City ofCollege Park was represented on the NMAC, the OAC, and LUAC and attended almost every committee meeting. See generally Appendix G. The representative ofthe City ofC>IIege Park attended the October 27, 2005 NMAC meeting during which the Part 150 consultant presented draft 2003 and 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, 10/27/05 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 DNL contours, noise sensitive sites would be eligible for voluntary sound insulation. See Appendix G, 10/27/05 NMAC Me<>ting Minutes. Before the NMAC met on August J, 2006, the City ofCollege Park and others were provided with copies ofthe draft NCP update. The draft NCP indicated that approximately 878 residential structures are located in the 70 DNL contour. Ofthese, five were single family residences and 873 were multi-family unites in seven apartment complexes. The draft recommendations for the NCP upclate were reviewed during the meeting. Comments were requested from NMAC members by August 11th. The cosl ofthe voluntary property acquisition was estimated at $43 million during this meeting. See, Appendix G, 8/3/06 NMAC Meeting Minutes. The City ofAtlanta held a public hearing on October 9, 2006. College Park Mayor Jack Longino and two College Park Councilmen attended. Attorney St,ephen Fincher also attended although it is not clear in what capacity. The comment period closed on October 23, 2006. However the City ofAtlanta agreed to accept comments from the City ofCollege Park until October 30, 2006. The City ofCollege 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 ofthese measures. College Park also indicated that 90 additional days would be needed to submit further comments. See, Appendix T, NCP Update. Approximately 120 days later the City ofCollege 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 measure. See, Appendix T, NCP Update. As College Park submitted these comments after the close ofthe comment period, there was no obligation on the part of the sponsor to address them as part ofthe NCP update under 14 CFR §150.23(e)(7). In an elfort to facilitate resolution ofthe issues regarding the property acquisition recommendations in the draft NCP, the FAA had three additional meetings with representatives from the City ofAtlanta and the City ofCollege 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 ofHJAIA, Ben DeCosta, in which DeCosta clearly heard from our policy makers that we desired no more ac•quisition and demolition ofANY property within College Park without the direct involvement ofCollege Park and received DeCosta's personal commitment that no more such acquisitions would occur without the consent ofCollege Park." Based on these facts, the City ofAtlanta fulfilled the consultation requirements of 14 CFR §150.23(c). The City of College Park was afforded notice and many opportunities to discuss with Atlanta the recommended measure for voluntary acquisition ofresidences (including apartment complexes) in the 70 DNL contour and fOr voluntary acquisition or sound insulation ofresidences in the 65 to 70 DNL contour during the Part !50 NCP update process. (Asreflected in the**.Re~ord f)f,',~grgy~],jhe** **sj)on~()r has~i'tr!fied**  itsintentthatthe.owners'O(the multltiintilyresidential.properti.es· straddI ing tl]e<65/7o**PNL.~ontourhave** the-dJ)tfon ofvoluntary lillld acquisitionprsound insulation. Five ofthe seven multifamily apartment complexes fall into this category.) The City ofAtlanta consulted with College Park as a member ofthe 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 ofCollege Park has had numerous opportunities to discuss its concerns about this measure in depth with both the City ofAtlanta and the FAA. !b). Reliance on the Noise Mitigation Advisory Council and the Land Use Advisory Committee meetings to fulfill the consultation requirements is inadequate. FAA Response: Ib).The Part 150 regulations do not specifY how the airport sponsor is to meet the consultation requirements under 14 C.F.R. § 150.23(c). However fhe FAA has guidance that it uses in this area. See FAA's 1990 "Community Involvement Manual" (http://www.faa.gov/about/office_erg/headquarters_offices/aep/planning-toolkitlmedia!VI.A.pdf). The NCP indicates that the City ofAtlanta used the NMAC, LUAC, and OAC as a means to fulfill the Part 150 consultation requirements. The City ofCollege Park was represented on these committees. This approach is consistent with methods the FAA 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. !c). HJIA assured Colleg<, Parkthat there would be no more acquisition and demolition ofany property within College Park withoutthe direct involvement ofCollege Park. FAA Response: lc). As discussed above in Response to Comment 1a, the City ofAtlanta consulted College Park about the measures in the NCP that involve voluntary acquisition ofproperty within College Parle lfCollege Parkdemonsirat<;s t),ai ]j

# ·rs Cap_able_:oJ**_Citny~Jl!·g:··g~.t:Jh~_,-pt6JeCtS**

### "Wlthiii-_itS"jUi-iSdictfOh, then)t 

### n-l'ay**recei\;ej~t_a~tS-:td:**implement.'dlOse"prOjeCts. 49 USC.§47504(<r)('l);(3). The FAA has been advised that on December 10,2004, at a meeting between College Park and City ofAtlanta, when College Park voiced concerns regarding the ongoing acquisition ofproperty in College Park by City ofAtlanta, Mr. Ben DeCosta committed to coordinating wifh College Park for future land acquisition. Mr. DeCosta specificallystatedthathe would notpurchase proper\)'within College Park without thedty's concurrence.**1-l.~\\'ever,** FAAls awatethatMr,DeCQ$la-nasal$0 111ade a commitmentto assistthe residents of.the communities_surrounding the airport that**are~** negatively impacter!l:ly airport noise. Approval ofthe Part 150 NCP update does not foreclose direct involvement ofCollege Park. The NCP update includes a measure to coordinate the re-development ofland purchased under the residential acquisition program with affected local politicaljurisdictions 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 include plans for re-use/re-development ofthe 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 ofthe affected properties. College Park believes that given the long term use ofthis property as multi-family residential, the most appropriate continuing use ofthis 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 HJIA to undertake this profound community disruption- enabled by Federal dollars- without the active consent, participation and management ofthe City ofCollege Park." The lack ofre-use/re-development plans indicates that no consultation occurred.FAA Response: Id). See Response to Comment Ia regarding the City ofAtlanta's consultation with College Park and Response to Comment lc regarding coordination ofredevelopment ofland purchased within College Park. The NCP gives the owner ofthe affected properties the choice ofwhether to continue residential use 

### orthe property. This is consistent with the airport sponsor's grant obligation to take reasonable steps to assure to rastrict the use ofland next to the airport to uses that**-~re**__compatible with airport operations. Corripatibill_t)r-
__**Wiih_affP_Ort~riO_is_e** at ihe_Se_'leVels can·:-be-'aChiCv60:bY**~Hher ticQ91~ftJQrt-;or**  _SOllli_Qpt'O_i:rfipg:_The NCP is also consistent with 

### lOCal land use planning authority ofcommunities 

### as recognized under Part 150. Part 150 does not require the airport sponsor to include plans for reuse ofthe properties orplans for where tenants will be relocated• in its .NCP
..·**ijOwev~r,jljc** N:CPupdate includes ameasuieioio\ionllnatethe**r~~d~>Yelopm.entoflilnd** purchased**U!l~~r_-:!h~ ·-I~j;!_~~ntial** :a_cq_Ui:Si_tiQ_it**_pTi}~-~-~~c:_~ith::-1**?P<i_lpoHtJcalj

### uris-di_cii9.!ls.**~ Ill_:~d(IJH_~n_-,** 

### __

## if**th~:**airport**--~P_iulSor_**impleriJentS the.NCP·**meas~re~ancl** acquires.residential propeflY,::tll;lCi\y of Atlanta must. cC.mipf)'wl\ii
..the Unifonn Rel<!cai1on Assistance and. RealProper!YA.cqidsition PolleiesActofl97.0, which·requires.theairport sponsor 10 assist displaced individuals in obtaining comparable replacement housing. l(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 thejurisdictional boundaries ofCollege Park consistent with federal grant obligations. FAA Response: Ie). Ifdetertnined capable by the FAA, then College Park may receive grants to carry out projects in this approved NCP update, either from the FAA directly or from the City ofAtlanta. 49 U.S.C. §47504(c)(l), (c)(3). IfCollege Park applies for a grant then FAA must detertnine, among other things, whether the issuance ofgrants directly to College Park would be reasonably consistent with the program and achieving the goals ofairport noise compatibility planning under 49 U.S.C. §47501 et seq., as implemented by 14 C.F.R. Part 150 and the national priority system for funding. 2,. ']'he NCP pr0cess.was**i~adeqllate** .because.FAA local officials have prejudged the approval ofthe NCP's multifamily resideiltia[acquisition. In support ofthis position, the City ofCollege Park contends: a) there have been past purchases by City ofAtlanta ofmultifamily structures; b) the City ofAtlanta 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 asecretive process to circumvent known objections by College Park, with an approval by the FAA within five business days. FAA Response: 2). Local FAA officials have not prejudged the approval ofthe NCP's voluntary multifamily residential acquisition measure. FAA considers the factors contained in 14 C.l';R. § 

### 150;;\5 in detertnining whether or not a specific NCP measure should be approved or disapproved. 2a). The FAA has allowed purchase ofmultifamily structures in the past, without NCP authority. FAA Response: 2a)The.airport sponsorbas aqihorit)'t<>acquire multifamilyresidentlalpro]Jerties·using its powers

# as amunicipal entity outside the;Part f50program.• See, NCPUpdate,.VoLII, Section 6.l,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 ofHJJA to consult with College Park on the multifamily element priorto negotiations has deprived College Park, to its great detriment, ofan opportunity to address this issue in an orderly manner and in asetting that would not have exposed it to this "dangerous litigation," and resulted in the financial losses ofall involved parties that could have been avoided. FAA Response: 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 amultifamily 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 regulations only require consultation, and do not require approval or concurrence oflocaljurisdictions. College Park has had ample opportunities to address the issue relating to purchase ofother apartment complexes. 2c). April 2007 NCP Update Federal Register notice was misleading and Jacked public involvement. Itwas part ofthe 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 Col.lege 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 meaningful opportunities to raise and discuss its concerns regarding the voluntary acquisition ofmultifamily dwellings in the NCP update. The April 2007 Federal Register notice stemmed from the City ofAtlanta's efforts to separate and move fonvard 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 ofarevised notice, The events unfolded as follows: The City ofAtlanta submitted to the FAA for review abaseline/current condition NEM and an NCP that did not include the newly opened 5th runway. As required by the FAA, the City ofAtlantarevised the NEM and NCP2. Htook time to complete revision ofthe comprehensiveNCP 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 ofthe comprehensive NCP update was in progress the City would submitthe revised NEMs to the FAA for acceptance along with an abbreviated NCP update. On March 29,2007, the City submitted a limited update consisting ofthe measures for voluntary acquisition ofmultifamily dwellings in the 70 DNL contour and for sound insulation within the 65 DNL contour. The FAA announced its acceptance ofthe NEMs and aperiod for public review and comment on the NCP in the Federal Register on April23, 2007. The notice did not specify the two measures involved but directed the public to contact FAA's representative Scott Seritt for copies ofthe NCP. College Park representatives reviewed and commented upon the draft comprehensive NCP update that it obtained from the HJIA website. The FAA drafted aresponse to the comment and prepared to issue aRecord ofApproval.3 However, College Park discovered the misunderstanding and contacted the FAA. Although the two measures in the abbreviated NCP were a subset ofthe draftcomprehensive NCP, the FAA withdrew the notice. As the City ofAtlanta 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 arevised Federal Register notice, which solicited public review and comment on the comprehensive NCP update. This ensured that the FAA and City ofAtlanta were able to fully considerthe issues of concern to College Park. 3a). College Park argues that it has a scarce supply oflow to moderate housing in College Park and loss ofthese apartment complexes would have significant negative financial, demographic and political impacts on the community. b) The City ofCollege Park then cites litigation from 1995 to supportthis position because in that litigation, the City of Atlanta took a similarposition in support ofexcluding multifamily housing from the original 1985 Comprehensive NCP. FAA Response: 3a). The Part 150 program is not intended to hann local communities. Undesirable negative financial and other impacts ofvoluntary acquisition ofapartment complexes in College Park can be addressed by various means, including efforts by the City ofAtlanta to properly coordinate redevelopment ofthe acquired property with College Park. As to future coordination ofredevelopment by the City ofAtlanta with College Park through the NMAC see the Response to Comment Ic. 3b). Citv o(At/anta v. Watson, 267 Ga. 185 is a 1996 Georgia Supreme Court opinion where HJIA supports its 1985 NCP position notto include multifamily housing in the "residential" acquisition- citing an intent to minimize to the greatest extent possible the loss ofthe tax base and utility services as well as the disruptions to the local community.FAA Response: 3b). A close reading ofCity o[Atlanta v. Watson (267 Ga. 185) reveals that the City ofAtlanta detennined not to include multifamily housing in the initial phase ofthe 1985 NCP voluntary residential acquisition measure,**~;but** expressly**lt~aves** open the possibility that such residences will be purchased during a later phase ofthe 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 funds or income from the redevelopment ofpreviously acquired noise land to finance future acquisition. lnai\yevent,the cited case hasnp**h<wri~g-on** FAA's**detenni~ation\V[ether** HJlA's proposed 2007 NCPmeasure to 

# a,quire ITiultifawiJl' .housirtgwi\hih!lw**65+Q~** 6S>ntour·is reasonalilY**consTsi~ni** 

### w)ili.iiJegoal.·ofreducing existing**andl<ifprev~ntingllli~tenoh-compatiblelana•us~S** 4. The City ofAtlanta 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 ofCollege Park points to the NCP's lack ofconsideration ofalternatives to acquisition and demolition. There is no discussion ofthe feasibility ofsoundproofing the affected properties as an alternative, particularly with respect to properties at the edge ofthe 70 DNL contour or straddling the 65 and 70 DNL contours. The lack ofdescription and analysis ofthe impact ofthis measure or the consideration of alternatives also fails to meet the requirements ofthe law and, in particular, 14 CFR §150.23. Specifically, the City ofCollege Park states that the lack ofconsideration ofalternatives fails to meet the requirements of 14 CFR §150.23 and requests consideration ofsound attenuation for properties within the 70 DNL "for some, but not all, ofthe multifamily residences listed in the airport's NCP." FAA Response: 4). Analysis ofprogram alternatives is discussed in 14 CFR §8150.7. It requires airport sponsors, to the extent the strategies are appropriate to the specific airport, to analyze specific measures. Section 8 150.7(b) provides the alternatives that must be considered within the Part 150 Study, these include: acquisition ofland and land interests, construction of barriers and soundproofing public buildings, preferential runway systems, flight procedures, airport restrictions, actions which would have abeneficial 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 ofpublic 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 DNL contour can opt not to be acquired, and instead, request sound insulation. Six ofthe seven properties at issue straddle**th(~** 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 ofthe 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 aNCP sponsor so as to facilitate further NCP land acquisition and sound insulation. Specifically, this is due to the City ofAtlanta's poor record ofreturning property to productive use once it has been acquired. College Park urges FAA to refrain from approving any aspect ofHJIA's NCP that would involve land acquisitions outside the municipality ofAtlanta until the questions ofcompliance with AlP Grant Assurance 31 for extant unneeded noise lands. FAA Response: As to College Parks' ability to receive grants to carry out projects in the NCP, see Response to Comment l(e). As to consideration ofcompliance 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 ifthey meet statutory and regulatory criteria. 49 USC § 47504(b). Neitherthe City ofAtlanta's performance in returning property to productive use, or in disposing ofnoise lands are relevant in detennining whether aNCP measure is approvable under Part ISO regulations. See 14 C.F.R. § 150.35. The FAA will take any appropriate action to assure that the City ofAtlanta is in compliance with its obligations under its federal grant assurances.I 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 ofNCP measures. In this case, and overthe span offive days, that expertise was sufficient to enable the FAA to respond to College Park's comments regarding the draft comprehensiveNCP.Kim, "Nissalke, Tom" <Tom.Nissalke@atlanta-airpo rt.com> 

### 11Jj912:0blc03:38.PM·•- To Kimberly Arnao/ASO/FAA@FAA cc !ii.lnnie**B~$1\in/ASO/FAA@F**AA,·Scott SerilVASQIFAA@FAA, DanaPerkins!ASO/FAA@FAA, RustyCnapiT!an/ASOIFAA@FAA bee Subject RE: Part 150 Study Request for Clarification

ThErhk**you:-'~_Q_:r-** ·**p¢)iD.t~ng-~_QUf.---:t'h~-t'.:J~lO(j_:q·s_ist·e~cy Jn:Ji_p.·e-"b~XF~--**  It is the City of Atlanta's intention to give residential Lirid

## --o-wners having property that straddles the 70 DNL contour the option of receiving either Mitigation Measure 1 or Mitigation Measure 3 as described in Table-sr:2:·· Thanks, Torn -----Original Message----- From: Kimberly.Arnao@faa.gov [mailto:Kimberly.Arnao®faa.gov] Sent: Friday, November 16 1 2007 10:44 AM To: Nissalke, Tom Cc: Bonnie.Baskin®faa.9ov; Scott.Seritt®faa.gov; Dana.Perkins®faa.gov; Rusty.Chaprnan®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 1 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 confidentialM- an attorney-client communication, part of the agencyrs deliberative process, or attorney-work product and must not be forwarded or otherwise shared without express permission.

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## t<

**'--~---** ·o-nCase 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 1 of 1..<



### UNITED STATESDISTRICT COURT FORTHE NORTHERNDISTRICT OF GEORGIA ATLANTADIVISION THE CITY OFATLANTA, GEORGIA Plaintiff,


## v. AVERYPARKPARTNERS,LLC d/b/a : AVERYPARK, COLONY CREEK, LLC,AND THE CITY OF COLLEGE PARK, GEORGIA, Defendants. CaseNo. Judge

COMPLAINTFORDECLARATORYJUDGMENT Plaintiff, the City of Atlanta (the "City"), files this Complaint for Declaratory Judgment against Defendants Avery Park Partners, LLC d/b/a Avery Park ("Avery"), Colony Creek, LLC ("Colony Creek"), and the City of College Park, Georgia ("College Park"). 1. 

### This is an action for declaratory reliefpursuantto 28 U.S.C. § 

### 2201 et

2. The City is a municipal corporation incorporated underthe laws ofthe State ofGeorgia. The City is the owner and operator ofHartsfield-JacksonAtlanta International Airport (the "Airport").Case 1:.13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 2 of 

### .LL



### 3. Defendants Avery and Colony Creek are developers (collectively, the "Developers") that own property in the City ofCollege 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 ofits registered agent for service ofprocess, David Scott Henderson, located at 105 Hendrix Drive, Canton, Georgia 30115. 5. Defendant Colony Creek is the owner ofHarrington Park, 2800 Camp Creek Parkway, College Park, Georgia 30337, Parcel Identification Number 14- 0224-LL-052-3, and Colony at Camp CreekApartments, 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 ofits registered agent for service ofprocess, David Scott Henderson, located at 105 Hendrix Drive, Canton, Georgia 30115. 6. Defendant City of College Park ("College Park") is a Georgia municipal corporation, partially situated within Fulton County, and incorporated under the laws ofthe State ofGeorgia. College Park may be served with process by serving the City Manager, Terrence Moore, located at City Hall, 3667 Main

2Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 3 ot .c2



### Street, College Park, Georgia 30337. College Park is named as a party because it has a potential interest inthe outcome ofthis litigation. 7. The City and the City ofCollege Park were parties to a prior case in this Court styled City ofCollege Park, et al. v. The City ofAtlanta, Civil Action File No. 1:08-cv-1464-JEC (the "College Park Suit"). The College Park Suit, which involves in relevant part the City ofAtlanta's purchase ofproperty located in College Park, is related to this action. On or about July 30, 2010, Hon. Julie Carnes entered a Consent Order, which, with one exception, prevents the City from acquiring multi-family residences within College Park (the "Consent Order"). A true and correct copy ofthe Consent Order is attached hereto as Exhibit 

### "A." JURISDICTION AND VENUE 8. This Courthas subject matterjurisdiction ofthis 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 thisjudicial district under 28 U.S.C. § 1391(b), as
a substantial part ofthe events giving rise to the claims in this Complaint occurred in this judicial district, the property that is the subject ofthe action is situated in

3Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 4 01 -'-2



### this judicial district, and because Defendants are subject to jurisdiction in this judicial district. 10. This Courthas personaljurisdiction overDefendants. 

## BACKGROUND 11. The Aircraft Safety and Noise Abatement Act of 1979, 49 U.S.C. 47501 et seq. ("Noise Abatement Act"), establishes a voluntary and uniform national program for addressing aircraft noise, and authorizes the Federal Aviation Administration ("FAA") to regulate "airport noise compatibility planning" and to make federal funds available to reduce incompatible land uses in the vicinity of airports caused by aircraft noise. 12. To implement the Noise Abatement Act, the FAA established the Noise Compatibility Planning Process as part ofthe Federal Aviation Regulations, listed as Part 150 ofTitle 14 ofthe Code ofFederal Regulations ("Part 150"). 13. Part 150 establishes uniform national methods for preparing noise exposure maps ("NEM"). NEM establish "noise contours," which are areas on the NEM where computer-modeled average annual noise levels are indicated in a unit of measurement known as "DNL." In essence, DNL is a measure of noise exposure in decibels over a 24-hour period, weighted more heavily toward the nighttime hours.
4Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 5 or12



### 14. Part 150 also delineates procedures, standards, and methodologies for
an airport's creation and implementation of Noise Compatibility Programs ("NCPs"), which are voluntary programs used to reduce noise impact within the airportvicinity consistentwith local interests. 15. In 2007, the City submitted a properly prepared NEM (the "2007 NEM"). The 2007 NEM was accepted by the FAA on April10, 2007. A true and correct copy ofthe FAA's letter accepting the 2007 NEM is attached hereto as Exhibit "B." 16. In 2007, the City proposed amendments to the Airport's NCP, which
were approved by the FAA on January 24, 2008 (the "Airport-NCP") (attached hereto as Exhibit "C"). 17. The FAA-approved Airport-NCP allows the Airport to undertake voluntary measures to provide: (a) possible sound insulation for qualifYing properties located within the 65 DNL contour on the 2007 NEM; and (b) possible acquisition ofqualifYing properties locatedwithinthe 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.

5Case Ei3-cv-02480-SCJ Document 1 Filed 07/26/13 Page 6 01 12



### 19. In 2012, the City submitted the 2012 NEM to the FAA for approval. The 2012 NEM has been approvedby the FAA. 20. Developers recently acquired their properties. Developers' properties
are located wholly or partially within the 70 DNL contour on the 2007 NEM and
on the 2012 NEM. 21. As one ofthe general requirements in 

### establishingNCPs, participating airport sponsors, such as the City, must consult and work with local authorities. This is so because every locality is different. Although federal law establishes uniform standards for assessing noise and preparing NEMs, the law and regulations recognize that local considerations should be considered in 

### implementing NCPs. 22. College Park is located adjacent to and generally west ofsome ofthe Airport, and the Airport is partially located in College Park's boundaries. 23. In response to the possible acquisition of multi-family properties in College Park under the Airport-NCP, College Park filed the College Park Suit, in which it alleged, among other things, that the City's acquisition of property in 

### CollegeParkviolatedthe Voting Rights Actfor various reasons. 24. After the City substantially prevailed in the College Park Lawsuit in 

### this Court, College Park appealed to the United States Court ofAppeals for the
6Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 7 o,

**.L~**



### Eleventh Circuit. While College Park's appeal was pending, the City and College Park reached a mediated settlement, which resulted in the entry of the Consent Order. 25. The Consent Order is consistent with the directives offederal law and regulations requiring consultation and cooperation with local jurisdictions in implementing noise compatibility programs. The Consent Order also is consistent with the directives offederal law and regulations providing for local administration ofnoise compatibility programs and providing airport sponsors with considerable discretion in implementing noise compatibility programs in a manner consistent with local interests. 26. The Consent Order, with one exception, effectively prevents the City from acquiring multi-family residences within College Park. Since the entry ofthe Consent Order, the City has abided by the substance ofits terms by, among other things, not acquiring multi-family residences within College Park pursuant to the Airport-NCP. 27. Pursuant to the requirements of the Consent Order, the City's Department ofAviation has submitted an amendment to the Airport-NCP to the FAA, which includes language referencingthe Consent Order's terms pertaining to land acquisitionwithin College Park.
7Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 8 

### ci, _l_L



### 28. Developers seekto force the City to acquire their properties under the Airport-NCP in violation ofthe Consent Order. Developers contend that, because their properties are located within the 70 DNL contour on the 2007 and 2012 NEM, the City is obligated by federal law to acquire their properties without regardto the terms ofthe Consent Order. 29. Developers have refused the City's suggestion for Developers to seek College Park's consentto the acquisition oftheirproperties. 30. The City disputes Developers' interpretation of their alleged rights and the City's alleged obligations under federal law and regulation. Contrary to Developers' assertions, the City, as an airport sponsor, is vested with considerable discretionunderthe Airport-NCP in deciding whetherto acquire any property. 31. The City, as an airport sponsor, is also vested with considerable discretion in cooperating with local politicaljurisdictions such as College Park in implementing the Airport-NCP, including, but not limited to, agreeing to provisions such as are contained in the Consent Order. 32. In any event, Developers' position would require the City to violate the Consent Order, which is a valid and outstanding order and judgment ofthis Court.

8Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 9 (), l:C



### 33. Developers have repeatedly attempted to bring pressure on the City to violate the Consent Order through regulatory proceedings and through federal and state political pressure based on incomplete or misleading statements offact. At the same time, Developers have refused the City's suggestion to contact College Park to secure a waiver or consent regarding the Consent Order. Developers have therefore acted in bad faith and have caused the City unnecessary trouble and expense, entitlingthe Cityto an award ofattorney's fees under O.C.G.A. §13-6-11. 34. On information and belief, College Park contends that the Consent Order constitutes a valid and outstanding order and judgment ofthis Court, and opposes any action by the City to acquire Developers' properties under the Airport-NCP. 35. A ripe, justiciable controversy exists between the City, on the one hand, and Developers, on the other. College Park has an interest in the outcome of the controversy. RELIEF REQUESTED 

### 36. The City seeks and is entitled to ajudicial declaration ofthe rights, obligations and responsibilities of the parties because the City has no other adequate remedy that will resolvethe current controversies.

9Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 10 u' 1.::



### 37. Specifically, the City requests the Court enter an Order declaring the rights, duties and obligations ofthe parties as follows: (a) The Consent Order is avalid andbinding order ofthis Court; (b) The City, as the Airport sponsor, has considerable discretion under applicable federal law and regulation, in 

### implementing and administering the Airport-NCP, including, but not limited to, taking into consideration the stated wishes ofCollege Park and other municipalities that may be affected by Airport operations; (c) Developers have no right under the Consent Order to require the City to acquire their properties, regardless of whether the properties are otherwise eligible for acquisition underthe Airport-NCP; (d) Developers have no right under federal law to require the City,
as an airport sponsor, to acquire their properties regardless of whether the properties are potentially otherwise eligible for acquisition or other reliefunder the Airport-NCP; and (e) The City, as an airport sponsor, has discretion in implementing the Airport-NCP and may exercise that discretion in deciding whether or not to acquire potentially eligible properties or to provide sound insulation to potentially eligible properties, so long as ithas arational basis for its action.
10Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 11 or 1L



### 38. The City also requests that this Court enter an Order requiring the Developers to pay the City's attorney's fees and litigation expenses pursuant to O.C.G.A. § 13-6-11. WHEREFORE, 

### the City requests that: (a) the Court enter an Order declaring the rights, duties and obligations ofthe 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 amountto beproven attrial orupon disposition ofthis action; (c) the Court assess the costs of this action on Defendant Developers; and (d) the Court award the City such other and further reliefas is just andproper. Respectfully submitted this 26th day ofJuly 2013. Is/John 

### L. Watkins 

### John L. 

### Watkins, Esq. john.watkins@thompsonhine.com GeorgiaBarNo. 740515

11

### Roy E. Hadley, Jr., Esq.

roy.hadley@thompsonhine.com GeorgiaBarNo. 003730Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 12 or 1<:

THOMPSON HINE

### LLP Two Alliance Center 

### 3560 Lenox Road, Suite 

### 1600 Atlanta, Georgia 

### 30326-4266 (404) 541-2900 -Main 

### (404) 541-4266- Facsimile LeslieJ. Suson leslie.suson@thompsonhine.com Georgia BarNo. 

### 142162 Attorneys for The City ofAtlanta

12Case 1:i3-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 

### i 

# ur L-'-



# EXHIBIT ACase 1:13-cv-02480-SCJ Document 1-1 Filed 07/26113 Page 2 ur 2.t Case i:OB-cv-01464-JEC Document 64 Filed 08/02110 Page 1 of 8 fl[f!) 

### IN TH.E UNITED 

### STATES DISTRICT COURT 

### t!,<f.,h'ICfi 

### FOR TH!i: NORTHERN VISTRK"TOFCEORGIA 

## ·'·c.



## .j~~ifs ATLANTA D!VlSION • . 

### 1/IJfiO CITYOFCOLLEGEPARKaml



# ~~- .2 COftJ. ' -liA.r,. 

### CHARLES

### E. PIHLLIPS,SR., ·:cz.t_

. 

# ' CIVIL ACTION NO. · .·· . 

### Plaintiffs I:08-CV-1464
. ' 

## v. CITY OF ATLANTAand SHIRLf!:Y 

### FRANKLIN, in herofficial capacity as Mllj'or oftheClty ofAtlanta, 

### Defcndatl:ts. 

### CONS.ENTQRDER This mauer having come

**befor~** 

### the ·Court on plaintiffs' and -defendants' JointMotion for 

### ReliefunderFederal Rule ofCivil Procedure l'iO(b), and the 

### Court, having 

### reviewed the •·ecord and 

## tne arguments ofthe partil!l>, issues the 

### lol!owinl:l ConsentOrder: BACKGROUND 

### On March 31, 2009, 

### this Court issued an: 

### [iJ Ord.;-r nnd Opinion; and 

### fii] 

### Judgment, ruling on plaintiffs' Request 

### tor Three.Judge Court and 

### Motion 

### tor Leave to 

### File First Amended Complaint, 

### denying such 

### Motions,

**dismis~ing** the


### case in 

### iLs en!irely 

### and vacating a previous injunction issued 

### by the Court. ,This Court's 

### Order and Opinion 

### and Judgment are part ofthe 

### record and incorporated 

### inwthis 

### Conse!ll Otde,. by reference.Case 1:.13-cv-02480-SCJ Document+1--Filed07/26/13 ·Page 3 ur

### L.L Case 1:08-cv-01464-JEC 

### Document 64 Filed 

### 08/02/10 

### Page 2 

### of 8


### On April 30, 2009, plaintiffs appeaJe.d this Court's Order and Opinion and

· Judgmentto the United States (::gurt.of

### Appealsf()rtheEleventh Circuit. Plaintiffs

tiled their Brief of Appellants with the United States Court 

### of. Appeals fur tlle

. . . 

### Eleventh Circuit on 

### July 

## .ls, 2009. To 

### date,· through a 

### series of ())(!ensions.



# detcncl<~nts' have 

### notfiled thelr BriefofAppeJICQS. On September l

### 0, 2009, pursuantto a directive from the 

### United States 

### Court ofAppeals for the Eleventh Circuit, plaintiffs and defendants mediated this case, reached a

### tentative settlsmem

### agreenwnt and.since the 

### initial mediation date, have rcttncd the terms 

### of.the so::ttleml]nt, reduced it to writing and obtained appropriate



## gcvernm~ntal**appr()~~l~()n.~~h~~~~191~!lt:frpmtheir res~tiY~.·.mu.nicipalities.** 

·<· . :·: -- - ··_. ·- .-_:-:_

**-::_·;·"~i-_-_.S;·~,_':-:~:\-** .::· ... __ ·:__:

**~}~** · .. --'_: ,_ ._ _ ...,;.. 

## On.May



## 24.~Q.IQ,•



## ~~~j}J{iKt:~~#·A~.f~'1~~~~ **·fil#,~.11)1,1int** ··Motion 

### for Reiief :··:·_;<:_·__-_-- :/_

**~:_,;**__ **:;:_\;_e:_,:y;p_~w~-i<.:? _-'<··:'~-_:** ..__:/
__**\~:·;_i:** 

### -.. <,:-_-.

__ _ : ·, _,. -_ . 

### from 

### Order and



## dt!ii119!V~ll~~'Wg~~~~t\t'~rli:Wf:~Fede:rill Ruk of Civil Procedure 60(b)(6



# )~ seeking



# rdi,I.~fM~!~t~b~~;gW~ Qrdeta,hdQpinipn rind Judgment

### through this 

### Court's



# acknovd~eqgi~i **il1~( t~e**  parties
.have settled 

### the case on appeal, entering an 

### enforceable Consent 

### Order outlining 

### the terms 

### of the settlement, re!ievi

### ng the parties from the.

**n~cessity** 

### and cost 

### ofpursuing the appeal, allowing 

### theappeal's remand to.

### this 

### Court and

### its ultimate dismissal. This 

### Court has consi(jered the Joint Motion 

### for Relief t!·om 

### Order and Opinion and is Willing to enter t.fie 

### Consent Order t·etlecting 

### the terms of the'· parties' settlement ofthis 

### case on appeal.j.··"'

1, 

### Case 1'13-cv-02480-SC-J- Document 1-1 Filed 07/26/13 Page 4 u1**L~** 

### Case 1:08-cv-01464-JEC Document 64 Filed 

### 08/02/10 Page3 of8



### CONCLUSION Based 

### upon the 

### above, and 

### the consent ofthe 

### parties, the Court 

### reaffirms its 

### issuance ofthe Order and Opinion and Judgment and further enters the following 

### Consent Order:



### I. 

### CONSENTORDER MEETINGSAND BRIEFINGS l.

### LThe City of**Atlanta~** 

### [)epartment of Aviation (''Atlanta"). agrees to invite and allow one (1) representative designated 

### by the City of College Park ("'College Park'] to attend any planning 

### meeting held 

### at any 

### location 

### by

. . ; . 

### AtlanMt that, i11 

### the good

### faith'detem1ination of

### Atlanm, materiallv affects or ,,

... .·-**~**..:;, -, '

.**~** ,. " '-:.. ' : ''·: ' '
. .**~** <!--• - - •. - ... _, ·-·->_**':_·-._~** ',_. ----. - '•_
. - ,; . 

### could mareriiilly**a!'fec~~h~,igt()re~ts** 

### of(Jollegt: 

### Park or a significant number 

### ofits**CitiZ~:n_s.** 

### I;2.College 

### Parkwill participate

# as!! partnqr in each planning meeting and

### ~ill

.-.**~-** ' ' .' .. 

### not use information obtainc?
..by it <Juring any such meeting lor any purpose**oth~r** 

### than to 

### facilitate discussions \Vith Department 

### ofA\;iation statl' about the subjects of such 

### meeting, unless College Park can show that such infonnation obtained

## by it during the applicable planning meeting: 1.2.1. was in its possession or was known to the public or published 

### to' the public prior to its· disclosure during the · applicable planningmeeting; orCase 1:-13-cv-824BO·SCJ-Document 1"1 Filed 07/26113 Page 5 of21 

### Case 1:08-cv-01464-JEC Document64 Filed 08102110 Page4 of8

1.2.2. subsequentto 

### the timeofdisclosut·e during the applicable planning meeting, becomes known to the public or appears 

### in published literantre through 

### no fault

### ofCollege Park; or 1.2.3. 

### was· acquired by 

### CollegePark from a third-party, 

### 2. . **~DVANCI(NOTlCE** 

### ' 

### Atlanta agree's 

### to provide College

### Park at leastthirty (30) days earlier notice, than 

### is otherwise required by·FAA or Federal Rules, ofany proposed 

### aclion 

### by Atlanta that, in the good faith detennination 

### ofAtlanta, materially affects 

### orcould materially affect the interests 

### of 

### O;:>llege Park or a significant 

### number of

**it~** 

### €itizens
.. 

## "

**~** .,
if.·. -i<• <: 

### 3. 

### REPURCHAsEOFWYNTERBROOKAPARTMENTS 3.l.College Parkwill, 

### C!)ntemporaneously with the date ofits execution of

### this Ordet· ("Order 

### Date"), issue 

### all pennits 

### necessary to 

### authorize Atlanta to erect fences, demolish 

### and remove existing 

### structures and 

### rcmedimc environmental hazards on the! Wynterbrook

### site. 

### 3.2.Atlama will demolish, remove all debris and remediatc 

### any environmental hazards on the 

### Wynterbrook site promptly upon 

### receipt from College 

### Park and any other governmental entities with jurisdiction of the necessary perrh.its and diligently 'pursue such activities until completion · ("Wymerbrook Demolition Completion Date").

4Case 1:1::FCV"02480,SCJ Document 1-1 

### Filed 07/26/13 Page6 of21 · Case 

### 1:08-cv-01464-JEC Document64 Filed 08/02/10 Page 5

### of8

J.J.Atlantn 

### will notity College Park in wriling ofthe Wynterbrook Demolition Completion 

### Date within ten (I0) days of

### that date, at which 

### time College

. Park will 

### have an option, exercisable 

### by 

### written notice to Atlanta within one ·<;, 

### hundred eighty (I80) days of the Wynterbrook Demolition Completion Date, to purchase at fai;·marketvil:lue the 

### Wynterbrook site. · 3.4."Fair market value" for the Wynterbrook site shall bt! detem1ined 

### as ofthe Wynterbrook 

### Demolition Completion 

### Date and by the process 

### detailed on 

### Exhibit "B". 3.5.1fpurchased by 

### College Park, tne Wynterbrook 

### site shall be 

### subject to 

### the" restrietivc coveilants contait1ctl on Exhibit "A". 3.6.lf

### College Park does 

### not exercise 

### its option 

### to purchase the Wynterbrook 

### site within one hundre(j eighty (180) days ofthe Wynterorook Demolition Completion Date, Atlantll, at 

### its expense and subject to any 

### applicable laws, including laws governing the procurement ofservices, will promptly engage the services ofan 

### economic development specialist/land planner to assist it in returning the Wynterbrooksite to productive use.

.4. PART 150 PROGRAM 

### Atlanta agrees to modify its current Part ISO Program to 

### e!iminatt: authorization ·to acquire any 

### upartrnent complex within CbUege 

### Park other than· Clubhollse

### Case 1'16-cv-02480-SCJ ·Documentl•l Filed 07/26/13· Page7 of 21 Case 1:08-cv-01464-JEC Document 64 Filed 08102/10 Page 6 of8 

### Apartments, located at 3800 

### Hershel Road. forpurposes 

### ofthis Consent Order, an apartment complexmeans any building with four (4) ormore residential u11i1s. 5. NCPPROGRAM 

### S.l.Subjeet to 

### the Section entitled "PART 150 PROGRAM", Atlanta agrees 

### to consult with College 

### Park, within the 

### confines ofthe

### Federal guidelines and other applicable law,' on what properties, identified iq the existing and future Part 150 documents as eligible tor receipt ofnoise mitigation funds,
are mitigated and the 

### timing ofthe mitigations. 

### 5.2.Thi.s consultation 

### shall take pJace prior to mitigati9n ofeach

**pro~rty** 

### an<:!

**.~·** 

### Atlantashall notifY CollegeParkwhen mitigation ofeach property has been

;·. 

### completed. If Atlanta groups

**prop~rdes** 

### into packages for mitigatio11, consultation may takeplace priorto

**miti~tion** 

### ofeach package

**(a~** 

### opposed to each property) and Atlanta rnay notify College Park when mitigation of each package (as opposed to ea<;hproperty)has been completed. 

### The patties

. . 

### may modify this consultation and notification process at any time as long as the modification is 

### agreed to 

### ill 

### writing by 

### all parties prior to 

### being implemented. 6. 

### OPERATIONALACQUISITIONS 

### Atlantaagrees to discuss with College Park, within ork

### hundred twenty (120) days ofthe Order Date, a potential arrangement whereby, lor future real

**prop~1iy**

### Case 1cb-cv·02480·SCJ Document 1-1 Filed 07/26113. Page 8 of21 Case 

### 1:08-cv-01464-JEC Document 64 Filed 08102/10 Page 7of8
acquisitions for operations ofthe airport and for which Atlanta is Lax exe111pt. 

### the CityofAtlanta will pay a 

### Payment in Lieu 

### of

### Taxes. 7. 

### WYNTERBROOK SITE; MISCELLANEOUS 7.l.Colhige Parkagrees thatthe portion ofFrontage Road owned

### by the City of Atlanta 

### abutting 

### the Wynterbrook ·Site 

### may 

# be. and



### re~ain permanently closed to vehicular traffic of any kind during the term of Atlanta"s ownership and that 

### the closure 

# or Frontage Road docs not and shall not constitute a 

### violation· of any law, ordinance •Or 

### other cvdc 

### provision entorceable

### by.or

### existing for the bene

### tit ofCollege Parkor its 

### Citizen:;. 7.2. The" 

### parties have disposed- of 

### this case through ''the execution of this ' 

### ConsentOrder

### and the 

### remand/dismissal ofthe appeal. 

### Additionally. within three {3) 

### days ofthe OrderDate, 

### College Park 

### will dismiss "withprejudice" the following litigation, each in its entirety: 7.2.1. City ofCo!lege 

### Park v. 2600 

### Camp Creek, LLC v. The Citv of 

### College Park. Jack P. Longino (as an individual). Joe Carn (as 

### an individual), Russell Slider (as an individual), Tracey Wyatt (as an individual\, 

### Charles E.


### ·Phillips. Sr 

### (as an individuaj), William E. Johnson (as an individual) and Oscar Hudson (as an individual). Fulton 

### County SuperiorCourt, 

### Case No. 2005-CV-1 01612;1 

### and

1

### The parties acknowledge that on 

### November 9, 2009; College Park ··dismissed this lawsuit

### without prejudice. 

### College 

### Park agrees to 

### !ile':an amended

Dismissal with Prejudice and to 

### take any further actions. including 

### tiling a motion or obtaining a Consent Order 

### in this case in order to dismiss 

### it in 

### its entirety with prejudice.
7I Case 1:1:0Hv,Q248Q,SCJ- -Dowment 1-1- Filed 07126/13 Page 9 of 21 Case 1:08-cv-01464-JEC Document 64 Filed 08/02/10 

### Page 8 of8



### 7.2.2. City of College Park v. City of Atlanta, Fulton County SuperiorCoUTt, Case No 2008-CV-148980. 

### ' 7.3.AII parties will bear their own costs; and no 

### party will seek an order l'or

**attorney'~** 

### fees orqtherlitigation cqsts. -_, 

### 8. 

### EFFECTIVE DATE•OFAGREEMENT ·The patties 

## agree that'this Order 

## shall be effective on the Order Daie and
' 

### shall remain effective until further order 

### or the Court, or tor 

### fifty (50) years. whichever shall lirst

### occur. 

### The parties agree that 

### compliance wjth these 

### requirements _is subject to 

### applicable .law.

, SO ORDERED and AGREED

## this..30



# '~yo~2010. ,



### By:



### By: 

# f.tJJ

**()p_~**

**Jk~LIE** 

### E. CARNES

-- __

CHIEF UNlTED STATES DISTRICTJUDGE

R 

### bert B. 

### Caput, Senior Assistant 

### City Attorney, on behalfof Defendants, City ofAtlnnta and MayorShirley Franklin Executed:



### ~- '(' , 20 I0 

### Greg Michell, on behalfof PlaintitTs, City ofCollegePark and Charles E. Phillips. Sr. Executed:
. -- ,20I0
-······-Case 1'13-cv-02480-SCJ Document 1-1 Filed 07/26113 Page 10 of 21
Case 1:08-cv-01464-JEC Oocument64-1 Filed 08/02/10 Page 1of3

**~.·**

**.~·**

# ·" **~-- ~**  Case 1:13-cv-02480-SCJ Document 1·1 Filed fJ7/26/13 Page 11of 21
:,.. Case 1:08-cv-01464-JEC Document 64-1 Filed 08/02/10 

### Page 2 of3


### ExhibitA Restrictive Cove_11::mts This transfer and any subsequent tra9-sfer ofany interest in the property transferred herein shall be expressly niade subject and subordinat", to'and contain the following Covenants tO 

### assure.

**futur~** 

### uses will be compatiQle with

, the operation ofHartsfield Jackson Atlanta.International ·Airport: · · ·· -,: 

### Grantee agrees on behalfof itself, its heirs, successors, transferees, and assigns that the land herein conveyed· shall 

### lie used only for land uses compatible with thOse designated in Table l, 'Land Use Compatibility with Yearly DaycNight Average Sound Levels', Section Al50.10l, Appendix A 

### to 14 

### CFR Part 

### 150 ("Tiible !"} 

# ari4 \'lith

**FAAguid~(ie** 

### on certainland uses as identified inFAAA<hiisory Ci.rcular 15p!?200.,_;33B ("AC") and any ,. aniendinl;)nts toTable 1and .theA

### C. .!n the eventTable I 

### m: P1e AF 

### shaHbe

**Stlpers~~ed,** 

### the FAA promulgation which shall be the S\lcbessor instrument setting·forth the .[and usi{c,ompatibilities .shall be. substituted in lieu of Table 1 . or the 

# AC, as appropriate ·(hereinafter,

**''8\lc~ss.or**

### Il1strumehts''). Compatibiiity:ofuseshall be determined at the time a building permit for an improvement on the land herein conveyed is issued and no subsequent amendment to Table 1, the AC, orSuccessorInstruments shall affectthe determination of compatibility as to the improvement constructed. Except as otherwise provided herein, all land uses allowed pursuant to local zoning and land use regulations are permissible uses under these covenants. However, ·.the land herein conveyed shall not be used fpr Airport
.

Parking unless such use is approved, in writing, by the CityofAtlanta, or its successors and assigns, through its Aviation General Manager.
9_;

/ ------------------ Case 1:13-<;v-02480-SCJ Documentl-1 Filed 07/26/13 Page 12 of 21
Case 1:08-cv-01464-JEC Document 64-1 Filed 08/02110 Page 3of3



### As used 

### herein, "Airport Parking" shall mean a parking

__ facility 

### or facilities, !.ncluding 

### but not limited 

### to, any

surface parking lot or deck, or 

### any portion or section 

### tl),ereof, designed or opj!rated 

### to provide park,ing for persons travelling 

# to or_from, or 

### otherwise accessing, Hartsfield-Jackson 

### Atlanta
__Intemationill -Airport. 

### Incidental parking'offered by

### an operator

## tO support a use 

### specifically allowed under the 

### local zoning and land- use regulations and" 

### not incpnsistent with 

### this restrictive- --covenant shall be

### pennissible. '

It is further

### expressly agreed thatthis 

### restrictive covenant
- is intended 

### to run with 

### the land, in per(leh1ity, 

### and is made in favor 

### of, and 

### for the benefit 

### of, the 

### City of 

### Atlanta in 

### the operation, and use of, 

### Hartsfield-Jackson Atlanta International 

### Airport.
-

,.,- -Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26113 Page 13 of21
Case 1:08-cv-01464-JEC Document 64-2 Filed 08!02/10 Page 1 of 3



# EXHIBIT B ··:,

### ',.. / · Case 1:13-cv-02480-SCJ Documentl-1 Filed 07/26/13 Page 14of21 ·
Case 1:08-cv-01464-JEC 

### Document64-2 Filed 08/02/10 Page 2 of3


### E:xhibit B FairMarketValue Purchase Price

..Thefair marketvalue,purchase price

**shall~** 

### determined as

**follow~:** 

### Appraisal 

### Process Within thirty (30) days ofCollege Park's written.notice to Atlanta that it is exercising 

### its optionJo purchase the Wyntel:brook Site, Atlanta and, College Park shall each select 

### a qualified 

### real estate appraiser. 

### :To be 

### a qualified real estate ··

**apprai~er,** 

### the appraiser

**mus~** 

### have obtained the 

### MAl.membership designation given by the Appraisal InstitUte. The appraisers··shall have forty-five (45) days · from the date of his/her notice to proceed from College 

### Park and Atlanta, 

### as applicable, to provide both Atlanta and College Park with their complete appraisal reports for the Wynterbrciok site. Ifthe appraisers report opinions ofFair Market Value within five percent(5%)ofeach other, the averageofthe two appraisals will ·constitute the Purchase Price. 

### Ifnot,·unless the parties agree otherwise, the two appraisers will have fifteen (15) days to ·ilgree on a third qualified real estate appraiser who 

### will do an independent appraisal within thirty (30) days thereaft:er and proyide a complete apprai&,al report to Atlanta anQ. College Park. Ifthe two appraisers selected 

# by Atlartta and College Park fail to 

### select 

# athird appraiser within the fifteen (15). day



### peri~d, oQewill be selected by the President of the Atlanta 

### Area Chapter. of the Appraisai Institute. The average of the three appraisals will then constitute the· Purchase Price. Each paJ1.y 

### will pay the ·expenses for the appraiser it selects.and the expenses ofany third appraiserwill 

### be split fifty/fifty (50/50) between the parties. 

### Arty closing ofthe sale of the Wynterbrook site is .conditioned on College Park and Atlanta obtaining any

.necessary legislative approvals. Appraisal 

### Considerations Atlanta and College Park specifically agree that all appraisers shall prepare their appraisals .using standard appraisal principles and be given and required to 

### use the following assumptions in preparing them, in addition to any other factors which they may usc in their professionaljudgment
a. The appraisers shall utilize the Survey provided by the Parties hereto, and shall, using
...their professional discretion andjudgment, pla<;e a value on the property by a co!Jective valuation oflike,or similar properties by applying a standardprice variableto likeproperties ofvarying sizes;. ,,,. 

### (

.J (". 

### Case 1:13-cv-02480-SCJ Document 1-1 Filed07/26/13 Page 15 of 21
Case 1:08-cv-01464--JEC Oocument64-2 Filed 08102/10 Page 

### 3of3

b. The appraisals shall take into account the flood plain maps applicable to the property as evidenced by National Flood Insurance Program 

### (FIRM) Flood Insurance E,ate Map FultonCounty, Georgiaand Incorporated Areas;

c. 

### The appraisals shall take into.accountany and all easementsjlnd covenants (specifically the Restrictive Covenant attached to the Order 

### as Exhibit "A") encumbrances or other statUtory or

**regulat~ry** 

### restrictions placed on the · property'suse by the.Seller, 

### the FAA 

### orapplicable.stateand Federal. law due to. its proximity •to. **Hartsfield~Jackson** 

### International Airport, specifically

· including,

**~ut** .

### not limited ·to, aJ?plicable noise reduction construction ·

requirements, andheightrestrictions and avigation easements attachedto the Orderas Exhibit"C".) 

### Each appraiser shall acknowledge 

### iii. writing that he or she has received these considerations and will specifically referencethem in his/her appraisal reports.

·v.·;;;-·



## (

,.. ) - -Case 1'13·ev-G-2480-SCJ Document 1-1 Filed 07/26/13 Page 16 of 21 Case 1:08-cv-01464-JEC Document 64-3 Filed 08/02/10 Page 1of3



# EXHIBITC····· Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 17 of 21 

### Case 1:08-cv-01464-JEC Document64-3 Filed 08102/10 Page 2of3

Exhibit C Avigation and HeightEasement' The Grantor (City ofAtlanta) hereby reserves an interest in the Property described in this deed that 

### will create a servitude on particular areas that will restrict the use ofthe surface and that will assurethe City ofAtlanta oftheright and p1ivilege ofa use in the airspace for the right of flight of aircraft, the right to cause noise, vibration, dust, fumes, and fuel particles normally arising from the operation of aircraft in flight, the right to prohibit future obstructions into the airspace, and the right to enter the land to exercise the rights reserved under this easement. The Grantor shall endeavor, but shaH not be required, to provide notice to owner in advance ofenteringthe land. The restrictions in this easementshall include but not be limitedto: (I) The rightto restrict orprohibitradio orelectromagnetic interference to aircraft flyingoverhead. (2) Therighttorestrictorprohibit lights, lighted signs, and other lighted objects thatunreasonably interfere with aircraftflyingoverhead. (3) The right to restrict orprohibit hazardous or objectionable smoke, fumes, ·or vapor that· unreasonably interferes with aircraft flying overhead: (4) As depibted (")n tj:te**~xhibit** 

### "D" Drawing, the right of flight shall include and be litriitei:l to, and the right to prohibit heights for buildings, stn.ictures al1d other improvements shall begin at 1,127-feet above mean sea level at the eastern most edge ofthe parcel rising to an elevation of I,175-feet above mean sea level at the western most edge ofthe parcel. Any point between**t~e** 

### eastand west elevations can beinterpolatedusinga sloping plane between the two elevations. (5) The rightto restrict orprohibit specific agricultural orhorticultural uses such as growth and harvestingoftimber, establishment of

2 

### The parties agree that an appropriate Exhibit "D", depicting the avigation J · 

### and height easements applicable to the Wynterbrook. site will be prepared and attached tothe Limited Warranty Deedtransferringtitle to the Wynterbrook site.
!3

### i

,.l i" •

. ,·· .· Case 1:16-cv-02480-SCJ Document 1'1 Filed 07/26/13 Page 18 of 21 

### Case 1:08-cv-01464-JEC Document64-3 Filed 08/02/10 Page 3of3
orchards orotherplantgrowth that may eventually penetrate the imaginary surfaces depicted on the Exhibit "D" Drawing. 

### (6) The right to restrict orprohibit specific agricultural uses, construction of ponds, lakes, or other water impoundments, sanitary landfills, or other man-made improvements that may attract or result in the concentration of birds or waterfowl that will or may unreasonably interfere with aircraft flying overhead. However, nothing contained herein shall require the owner or occupant to construct underground stormwaterretentionor storm water detention ponds. (7) The right to require

## tile removal

## by the owner ofany trees or portions of trees, now or hereafter existing, that penetrate imaginary surfaces as stated in Section (4), and the rightto enterupon said properties and remove such trees or portions of trees ifthe owner fails to do so within thirty (30) days after receipt ofwritten 22 notice from the City ofAtlanta oftherequirementto do so and, in such event, to collect the costofsuch removal from the owner.C::asel:1C5-cv-02480"SCJ Document

**1~1** Filed D7/26/13 Page 19 of 21 Case 1:08-cv-01464-JEC Document64-4 Filed 08102/10 Page 1of2

:;.



# EXHIBIT

**n·~** :.:::.

_;Case**1:1::s~cv--D2480-SCJ** Document 1'1 Filed 07126/13 Page 20ot 21---------- ---· ---- Case 1:1::S-cv-02480-SCJ Document 1-1 Filed 07/26/13 Page 21 of 21
Nissalke, Tom
:rom:

. Sent:

To: Mike Flannagan [MWF@va-one.com] Thursday, November04, 2010 10:35 AM Nissalke, Tom Subject: RE: Update Attachments: Mike Flannagan.vel

Can we put itfn writing on letterhead? Ithink I understand the issue's and that makes sense.lfyou could justwrite itup with positive spin that its a done deal, just timing the actual approval to be difficultsense it is outside the normal way the city does business??? Sound about right? Let'stalktoday aboutthe othercommunities. Have had a·nv conversations with the attorney? lhave a meeting scheduled 9:30AM 11.17.2010with Bill Johnson. I am goingtotouch onthe order
.... Iwant to see ifhe is going to come around to our way ofthinking after I spell it out forhirn. Sincerely,
Mike Flanr>agan Virginia One Development, LLC. 19375 Wrenbury Lane Leesburg, VA 20175 (703) 737-7924 Office V03) 579-1965 Fax (703) 624-5743 Cell

Mike Flann;gan

### -~ VIrginia One Development 

# I President (703)737-7924-Hork 

# I {70.:3} 624-5743Hobfe: mwf@va-ane.com 1 19375 V'l'renbury ln 

### I leesburgJ.VA 2.0175 1 ·A•ww.va-one.com

From: Nissalke, Tom [mailto:Tom.Nissalke@atlanta-airoort.coml Sent: Thursday, November 04, 2010 9:48AM To: Mike Flannagan Subject: Update Mike, Ihave some good news and bad news. The good news is thatlegallywe can enter intothe transaction for you to selfperformthe noise insulation work atHartsfield Landing. The bad news is that because we're notcompetitively procuringyour "services11

, we have to waive the City procurementcode and that causes us tojump through a few 'rocedural hoops. This means thatthe legislation won't make the December 6 City Council meetingand therefore we're Joking ataround a**J~nuary** 15meeting. Jhave no control overthat. 1Case 1:13-cv-02480-SCJ Document 1-2 Filed 07/26/13 Page 1 of 3



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

U.S. Department ofTransportation Federal Aviation Administration
April10, 2007

Mr. Thomas E. Nissalke, Ph.D. Director of Environmental and Technical Services City of AtlantaJDepartment ofAviation P
_0. Box20509 Atlanta: Georgia 30320-2509 Dear Mr. Nissaike: ATLANTA AIRPORTS DfSTRJCT OFFICE 1701 Columbia Avenue Campus Building, Suite 2-260 College Pa'rk, Georgia 30337

RE: Hartsfield-Jackson Atlanta International Airport NEM Compliance Determination and NCP Receipt/Review


### ------.nrsl<no notify 

### you ·that'lneTeaerai-AVimiDn71aministratioiY(FM) mr;n•valuamayounrnal
______ - submission of the Noise Exposure Maps (NEM) and stJpporting documentation transmitted by your· letter of March 29, 2007, in accordance with Section 103(a)(1) of the Aviation Safety and Noise Abatement Act of 1979 (ASNA), (49 U.S.C., Section 47503). We have determined that they are in compliance with applicable requirements of 14 CFR Part 150. Further, we have determined that the maps entitled "Noise Exposure Map: 2007 " and "Noise Exposure Map: 2012" fulfill the requirements for the current and the forecast year noise exposure maps. FAA's determination that your Noise Exposure Maps are in compliance is limiled to a finding that the maps were developed in accordance with the procedures contained in Appendix A of FAR Part 150. Such determination does not constitute approval of your data, Information or p(aM. Should questions arise concerning the precise relationship of specific properties to noise exposure contours depicted on your Noise Exposure Maps, you should note that the FAA will not be Involved in any way in determining the relative locations of specific propertieswith regard to the depicted noise exposure contours, or in interpreting the maps to resolve questions concerning, for example, which properties should be covered by the provisions of Section '107 of ASNA, (49 U.S.C., Section 47506). These functions are inseparable from the ultimate landuse control and planning responsibilities of-local government These local responsibiltties are not changed in any way under Part 150 or through FAA's determination relative to your Noise Exposure Maps. Therefore. the responsibility for the detailed overlaying of noise exposureCase 1:13-cv-02480-SCJ Document 1-2 

### Filed 07/26/13 Page 3 

### or 3

2
contours onto the maps depicting properties on the surface rests exclusively with you, the airport operator, or with those public agencies and planning agencies witll which consultation is re·cjuired under49 U.S.C. 47503 ofASNA, (49 U. S.c., Section 47503). The FAA relies on the certification by you, under 150.21 of F:AR Part 150, that the statutorily required consultation has been accomplished. We are also in receipt of the proposed Noise Compatibility Program Amendment (NCP) submitted in conjunction with the Noise Exposure Maps lor the Hartsfield-Jackson Atlania International Airport. It should be clearly understood, however, that FAA's determination on a Noise Exposure Map under Part 150 shall not be construed as approval or endorsement of 

### a NCP, potential related Federal funding of such a program, or any related operating restrictions at the airport. The FAA must approve ordisapprove such a program (other than the proposed use of flight procedures lor noise control) within 180 days. For the purpose of this review, the 180,day period begins on the date of the FAA official signature of the notice in the Federal Register. · The FAA will publish notice in the Federal Register announcing its determination on the Noise Exposure Maps for the Hartsfield-Jackson Atlanta International Airport, We will include in this notice that we have received your NCP for review. Such notice will include pertinent Information regarding the program as specified in Section 150.31 of FAR Part 150 and will invite comments by interested parties. Your notice of this ct·etenmlnatlon and the availability of the Noise Exposure Maps, when published at least three times in a newspaper of general circulation in the. county or counties where affected parties are located, will satisfy the requirements of Section 107 of ANSA, (49 U.S.C. 47506). Your attention is called to the requirements of Section 150.2.1(d) of FAR Part 150, involving the**~~~prompt** preparation,.anc;t.submiss!on .otrevisions. to**these~maps.~of-any-actual** or proposed change in the operation of the Hartsfield-Jacl\son Atlanta International Airport which might create any substantial, new, noncompatible use in any areas depicted on the Noise Exposure Maps, or significant reduction in any noise-sensitive areas depicted on the Noise Exposure Maps that were previously shown as noncompatible. Remedial mitigation is limited to exisftng non-compatible land uses located within the existing 65 ONL noise exposure contour of the offiCial "Noise Exposure Map: 2007" and is consistent with FAA's 1998 remedial mitigation policy (64 FR 16409). Sincerely,

# ~car-ctsl;ar Scotl L. Seritt Manager**CG~** APP-400 AS0-610 AS0-7Case 1:U-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 1 or 12



# EXHIBIT CCase 1:16-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 2 or 12


# Federal Aviation Administration 

# Memorandum Date: January 24, 2008 From: ATL-ADO To: AS0-600 (through AS0-601A) Prepared by: Scott Seritt Subject: ACTION: Recommendation for Approval Hartsfield-Jackson Atlanta International Airport; Atlanta, Georgia Airport Noise Compatibility program (NCP)
On April10, 2007, the Hartsfield-Jackson Atlanta International Airport (HJAIA) was notifiecl 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 ("the Act"), (49 U.S.C.,, Section 47503). Following the finding that the Noise Exposure Maps were in compliance, we began the formal180-day review period for the Hartsfield-Jackson Atlanta International Airport's proposed Noise Compatibility Program Update underthe 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 Southern Region has reviewed and evaluated the proposed Noise Compatibility Program 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**documo1~nt** and checklist are attached. The proposed program has been reviewed by.the Atlanta Airports District Office. 

### It also was coordinated with Washington Headquarters to determine whethm the NCP contained measures that were related to national policy issues. No national policy issues were identified. Notice was publish!ld in the Federal Register for the Noise Exposure Map, Receipt of Noise Compatibility Program, and Request for Re,view. 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 propos19d NCP Update: 1. The HJAIA has failed to consult in any meaningful manner with th19 neighboring jurisdiction of College Park; and 2. College Park objects to theCase 1:l.:s-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 3m 12

proposed intention to acquire seven apartment complexes in College Pari<. Review of submitted documentation and conversations with HJAIA staff confirm that many coordination meetings (dating back to February 12, 2003 with a scoping meeting attend<9d 

### by the Mayor, City Manager and an additional seven City officials) have been held. Representatives of College Park attended the Noise Mitigation Adviisory Council meetings, the Land Use Advisory Committee Meetings, and the Operations Advisory Committee meetings. These committees have been active throughout the c:ourse 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 Marriott and was open to the public during the whole day. All requirements of public participation have been met. Also, the FAA met three times (in March, May, and June of 2007) with the City of Atlanta and the City of College Park, their consultants and their attornEtys to discusstheir comments. See the attached FAA Response to Comments. ThroU(Jh 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 operational 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 available 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 mceived. Each proposed action in the Noise Compatibility Program Update was then reviewed and evaluated on the basis of effectiveness and potential conflict with Federal policy and prr;rogatives. These include safe and efficient use of the Nation's airspace, undue burden on interstate commerce, unjust discrimination and interference with a Federal regulatory compliance schedule (i.e., 14 CFR Part 91, Subpart E). Our recommendation on each of the proposed actions is described in the attached Record of Approval. Each approved action is described in detail in the HJAIA NCP.



# 1--~c~d:~ Scott L. Seritt, Manager Atlanta Airports District Office 2 Attachments
cc: APP-400 (with attachment) AS0-7 (with attachment) .. - -·-------------------- ....... --------

Dr. Thomas E. NissaIke, City ofAtlanta/Department of Aviation Mayor ,Jack Longino, City of College Park, GeorgiaSubject: Case 1:U-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 4 or 12



# Memorandum

U.S. Department ofTransportation Federal A viatioh Administration

Disposition ofComments regarding Hartsfield-Jackson lntemational Airport Part lSO Noise Compatibility Program 

# JiJ Date: January 24, 2008

From: Scott Serritt, Atlanta Airport District Office Manager Reply to Attn. of: To: Rusty Chapman, Manager, Airpons Division, Southem Region, AS0-7
Background On September 18,2007,the Federal Aviation Administration (FAA) published notice in the Federal Register announcing FAA's receipt ofthe City ofAtlauta's Part !50 Noise Compatibility Program (NCP) update for Hartsfield-Jackson International Airport (HJTA) and that FAA was accepting comments from the public through November 6, 2007. 72 Fed.Reg. 53,277. After the public comment period ended, FAA received two (2) letters on behalfofthe City ofCollege Park. The first letter, dated November 6, 20071, VI as from the Mayor ofthe City ofCollege Park, Jack Longino. The second letter, dated December 4, 2007, was received from the City Attorney for the City ofCo!!ege Park, Mr. Steven M. Fincher. Both ofthe letters raised concerns with Hartsfield-Jackson International Airport's NCP update. Although the letters on behalfof(1)1lege Park were received after the close ofthe comment period, FAA considered and responded to the issues raised in reviewing the NCP for approval under Part I50. The comments are summarized and**~----Oddressed-below, ~-----** **-~---- ~~~~-~---~--**  ___ _ City ofCollege Park Comments: Ia). The airport sponsor. City ofAtlanta, failed to meaningfully consult the City of College Park about acquisition ofapartment**complexe~** located within the City ofCoUege Park as required by the Part 150 regulalions. !n support ofthis position, the City of' College Park contends: b) the City ofAtlanta can not rely on the Noise Mitigation Advisory Council (NMAC) and its subcommittees to fulfill the Part ISO consultation requirements; c) HJIA assured College Park that there would be ID more acquisition and demolition ofany property within Co!lege Park without the direct involvement ofCollege Park d) HJIA proposes to remove a land use without consulting with College Park on the appropriate land use for the re-use/re-development ofthe affected properties which indicates no consultation occurred; and e) it is inappropriate for the City ofAtlanta to undertake land acquisition within the City ofCollege Park without the consent, participation and management ofthe City ofCollege Park. Each ofthese elements will be addressed separately as subparts to this comment.Case 1:Ll-Cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 5 or 12

FAA Response: la). The consultation requirements for a Noise Compatibility Program are contained in 14 C.F.R. § 150.23(c). Specifically, Heach noise compatibility program must be developed and prepared , , in consultation with FAA regional officials, the officials ofthe state and ofany public agencies and planning agencies whose area, or any portion or whose area, of jurisdiction within the Ldn 65 dB noise contours is depicted on the noise exposure map." 14 C.F.R. § \50.23(c). The City ofAtlanta, the owner and operator ofHartsfield-Jackson International Airport (HJJA), began the process of updating the existing Part 150 NCP for HJIA in 2003. Volume I, Noise Exposure Maps Report, page 1-2. §1.3. According to the NCP update, in 2[)03 the City ofAtlanta 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 ofthe NMAC, the Operations Advisory Committee (OAC) and the Land Use Advisory Committee (LUAC), provided technical input for preparation ofthe NCP update. Noise Exposure Maps Report, page 1-4, §1.4. The Charter ofthe NMAC states the mission ofthe NMAC is to assist [the City ofAtlanta] with the Part )50 study and to provide a forum for effective communication and coordination with elected officials and local government planning/zoning departments. NCP Update Volume Ill, Appendix 8, B-1. The objectives included providing input and guidance into the development and implementation ofPart 150 aircraft operational, land use compatibility alternatives, and mitigation priorities. ld. At 8-::. The NCP update indicates the City ofCollege Park was represented on the NMAC, the OAC, and LUAC and attended almost every committee meeting. See generally Appendix G. The representative ofthe City ofC.:Jllege Park attended the October27, 2005 NMAC meeting during which the Part 150 consultant presented draft 2003 ar1d 2008 noise exposure maps and the draft recommendations regarding property acquisition and sound insulation

**W(~re** discussed. The maps depicted the apartment complexes as predominately in the 70 DNL contours. See Appendix G, 10/27/05 NMC Meeting Minutes. The minutes indicate that the preliminary recommendation was to identify nnise sensitive sites within the 70 DNL+ contour as eligible for voluntary property acquisition. Within the 65-70 DNL contours, noise sensitive sites would be eligible for voluntary sound insulation. See Appendix G, 10/27/05 NMAC Meding Minutes. Before the NMAC met on August 3, 2006, the City ofCollege Park and others were provided with copies orthe dra!\ NCP update. The draft NCP indicated that approximately 878 residential structures are located in the 70 DNL contour. Ofthese, tive were single family residences and 873 were multi-family unites in seven apar1ment complexes. The draft recommendations for the NCP update were reviewed during the meeting. Comments were requested from NMAC members by August 11th. The cosl ofthe voluntary property acquisition was estimated at $43 million during this meeting. See, Appendix G, 8/3/06 NMAC Meeting Minutes. The City ofAtlanta held a public hearing 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 ofAtlanta agreed to accept comments from the City ofCollege Park until October 30, 2006. The City ofCollege Park submitted comments dated Novembe-r 6, 2006 on the draft NCP. ln these comments Co)lege Park expressed its' desire to participate as an NCP sponsor to facilitate implementation ofthese measures. College Park also indicated that 90 additional da;'s would be needed to submit funher comments. See, Appendix T, NCP Update
.

. -·- - ·----- Approximately 120 days later the City ofCollege Park submitted additional comments (dated March 22, 2007). In these comments College Park for the firs1 time expressed strong objections to the draft NCP recommendations to acquire and demolish seven apartment complex•es. The City asserted the right to actively consent to, participate in, and manage this measure. See, Appendix T, NCP Update. As College Park submitted these comments after the close ofthe comment period, there was no obligation on the pan of the sponsorto address them as part ofthe NCP update under 14 CFR §150.23(e)(7). In an effort to facilitate resolution ofthe issues regardingthe property acquisition recommendations in the draft NCP, the FAA had three additional meetings with representatives from the City ofAtlanta and the City ofCollege 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 Jetter to the FAA dated November 6, 2007, and signed by the Mayor ofCase 1:Ll-cv-02480-SCJ Document 1-3 Filed 07/26113 Page 6 or 12

College Park. In that letter, Mayor Longino states that there were "very high level Qiscussions between the College Park Mayor and Council and the General Manager ofHJAIA, Ben DeCosta, in which DeCosta clearly heard from our policy makers that we desired no more acquisition and demolition ofANY property within College Park without the direct involvement ofCollege Park and received DeCosta's personal commitment that no more such acquisitions would occur without the consent ofCollege Park." Based on these facts, the City ofAtlanta fulfilled the consultation requirements of 14 CFR §150.23(c). The City of College Park was afforded notice and many opportunities to discuss with Atlanta the recommended measure for voluntary acquisition ofresidences (including apartment complexes) in the 70 DNL contour and for voluntary acquisition or sound insulation ofresidences in the 65 to 70 DNL contour during the Part 150 NCP update process. (As reflected in the Record ofApproval, the sponsor has clarified its intent that the owners ofthe multifamily residential properties straddling the 65170 DNL contour have the option ofvoluntary land acquisition or sound insulation. Five ofthe seven multifamily apartment complexes fall into this category.) The City ofAtlanta consulted with College Park as a member ofthe NMAC, OAC, and LUAC. The NCP update indicates that College Parkhad specific notice that the recommendation for voluntary acquisition included apartment complexes as early as October 2005. Since that time the City ofCo!!ege Park has had numerous opportunities to discuss its concerns about this measure in depth with both the City ofAtlanta and the FAA. 1 b). Reliance on the Noh;e Mitigation Advisory Council and the Land Use Advisory Committee meetings to fulfill the consultation requirements is inadequate. FAA Response: lb).The Part ISO regulations do not specify how the airport sponsor is to meet the consultation requirements under 14 C.F.R. § 150.23(c). However the FAA has guidance that it t1ses in this area. See FAA's 1990 "Community Involvement Manual" (http://www.faa.govlaboutloffice_org/headquarters
_ offtceslaep/planning-tooI kiVmedia/VI.A.pdf). The NCP indicates that the City ofAtlanta used the NMAC,**LUA~,** and OAC as a means to fulfill the Part 150 consultation requirements. The City ofCollege Park was represented on these committees. This approach is consistent with methods the FAA 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. Ic). HJIA assured College· Park that there would be no more acquisition and demolition ofany property within College Parkwithout the direct involvement ofCollege Park. FAA Response: Ic). As discussed above in Response to Comment la, the City ofAtlanta consulted College Park about the measures in the NCP that involve voluntary acquisition ofproperty within Co!lege Park. IfCollege Park demonstrates that it is capable ofcarrying out the projects within itsjurisdiction, then it**mt:~y** receive grants to implement those projects. 49 USC§ 47504(c)(l), (3). The FAA has been advised that on December 10,2004, at a meeting between College Park and City ofAtlanta, when College Park voiced concerns regarding the ongoing acquisition ofproperty in College Park by City ofAtlanta, 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. llowever, FAA15-aW'aYe-tllaf1Vl'i'--:-·ueciJ"SUDJas also made a conimTfrifentto asSlsrllie-resiaeiitii"Ofthe··c-O'iTiiii'ii'riifies- sufl'Oi.iri'Cfiii]tliC
____ _ airport that are negatively impacted by airport noise, Approval ofthe Part 150 NCP update does not foreclose direct involvement ofCollege Park. The NCP update includes a measure to coordinate the re-development ofland purchased under the residential acquisition program with affected local politicaljurisdictions 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. Jd). The NCP does not include plans for**re·use/re~development** ofthe 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**approprit:~te** land use for the**re~use** ofthe affected properties. College Park believes that given the long term use ofthis property as multi-family residential, the most appropriate continuing use ofthis 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 HJIA to undertake this profound community disruption- enabled by Federal dollars- without the active consent, participation and management ofthe City ofCollege Park." The lack ofre-use/re-development plans indicates that no consultation occmTed.

## I Case 1:13-cv-02480-SCJ Document 1-3 Filed 07/26113 Page 7 01 12

FAA Response: ld), See Response to Comment ]a regarding the City ofAtlanta's consultation with College Park and Response to Comment Jc regarding coordination ofredevelopment ofland purchased within College Park. The NCP gives the owner ofthe affected properties the choice ofwhether to continue residential usc ofthe property. This is consistent with the airport sponsor's grant obligation to take reasonable steps to assure to restrict the use ofland next to the airport to uses chat 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 ofcommunities as recognized under Part 150. Part 150 does not require the airpm1 sponsor to include plans for reuse ofthe properties or plans for where tenants will be relocated in its NCP. However, the NCP update includes ameasure to coordinate the re-development ofland purchased under the residential acquisition program with local politicaljurisdictions. In addition, ifthe airport sponsor implements the NCP measure and acquires residential property, the City ofAtlanta must comply with the Unifonn Relocation Assistance and Real Property Acquisition Policies Act of 1970, which requires the airport sponsor to assist displaced individuals in obtaining comparable replacement housing. 1(e). College Park needs to participate as aNCP 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 thejurisdictional boundaries ofCollege Park consistent with federal grant obiigations. FAA Response: \e). If**dete~mined** capable by the FAA, then College Park may receive grants to carry out projects in this approved NCP update, either from the FAA directly or from lhe City ofAtlanta. 49 U.S. C.§ 47504(c)(l), (c)(J). IfCollege Park applies for agrant then FAA must detenniTle, among other things, whether the issuance ofgrants directly to College Park would be reasonably consistent with the program and achieving the goals ofairport noise compatibility planning under 49 U.S.C. §4750 I et seq., as implemented by 14 C.P.R. Part !50 and lhe national priority system for funding. 2. The NCP process was inadequate because FAA local officials have prejudged the approval ofthe NCP's multifamily residential acquisition. In support ofthis position, the City ofCollege Park contends: a) there have been past purchases by City ofAtlanta ofmultifamily structures; b) the City ofAtlanta 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 secretive process to circumvent known objections by Co!le:ge Park, with an approval by the FAA within five business days. FAA Response: 2). Local FAA officials have not prejudged the approval ofthe NCP's voluntary multifamily residential acquisition measure. FAA considers the factors contained in 14 C.P.R. § 150.35 in determining whether or not a specific NCP measure should be approved or disapproved. 2a). The FAA has allowed purchase ofmultifamily structures in the past, withoutNCP authority.

---- ·--l'l'v\ltesporrsec-·· 2a). The airport sponsor has authority to acquire multifamily residential properties using its powers as amunicipal entity**outsid~** the Part 150 program. See, NCP Update, Yo!. 11, Section 6.1, page**6~** 1, and Figure 6-1. 2b), Record reflects that**HJJA~has** been in negotiations to purchase amultifamily apartment complex since 2002, before the measure was presented to the public. Failure ofHJJA to consult with College Park on the multifamily element prior to negotiations has deprived College Park, to its great detriment, ofan 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 ofall involved parties that could have been avoided. FAA Response: 2b). The airport sponsor has authority to acquire multifamily residential properties in noise impacted areas outside the Part !50 program. The fact that HJJA may have been in negotiations to purchase amultifamily apartment complex sinceCase l:l.:S:cv-02480-SCJ Document 1-3 Filed 07/26113 Page 8 o, 12

2002 is irrelevant to whether HJIA complied with the Part 150 consultation requirements. The Part 150 process is but one method by which HJIA may seek to acquire property for noise mitigation purposes. Furthermore, the Part 150 regulations only require consultation, and do not require approval or concurrence oflocaljurisdictions. Co!lege Park has had ample opportunities to address the issue relating to purchase ofother apartment complexes. 2c). April 2007 NCP Update Federal Register notice was misleading and lacked public involvement Itwas part ofthe secretive process to circumvent known objections by College Park. This resulted in Co !lege Park spending signiftcant time and resources commenting on the wrong document. Further, FAA summarily rejected Col.lege 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 meaningful opportunities to raise and discuss its concerns regarding the voluntary acquisition ofmultifamily dwellings in the NCP update. The April2007 Federal Register notice stemmed from the City ofAtlanta'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 ofarevised notice. The events unfolded as follows: The Ci1y ofAtlanta submitted to the FAA for review abaseline/current condition NEM and an NCP that did not include the newly opened 5th runway. As required by the FAA, the City ofAtlanta revised the NEM and NCP2. It took lime to complete revision ofthe comprehensive NCP update. In the interim, the FAA was infonned that because the City of Atlanta was under contract to acquire the Wynterbrook apartment complex, while the revision ofthe 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, the City submitted alimited update consisting ofthe measures for voluntary acquisition ofmultifamily dwellings in the 70 DNL contour and for sound insulation within the 65 DNL contour. The FAA announced its acceptance ofthe NEMs and aperiod for public review and comment on the NCP in the Federal Register on April23, 2007. The notice did not specifY the two measures involved but directed the public to contact FAA's representative Scott Seritt for copies ofthe NCP. College Park representatives reviewed and commented upon the draft comprehensive NCP update that it obtained from the HJIA website. The FAA drafted aresponse to the comment and prepared to issue a Record ofApprova1.3 However, College Park discovered the misunderstanding and contllcted the FAA. Although the two measures in the abbreviated NCP were a subset ofthe draft comprehensive NCP, the FAA withdrew the notice. As the City ofAtlanta 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 arevised Federal Register notice, which solicited public review and comment on the comprehensive NCP update. This ensured that the FAA and City ofAtlanta were able to fully consider the issues of concern to College Park. 3a). College Park argues that it has a scarce supply oflow to moderate housing in College Park and loss ofthese apartment complexes would have significant negative financial, demographic and political impacts on the community. b)

______**_,T"'h"e~C"it,y.,o,f_,Coll~g~~m:k** ..**.tO~JL~i.t~~JLtig~tion** from 1995 to supportthis**})Q_iiJJ::i_QXLQ~_QfiJl_S_~** in that litigation. the City of Atlanta took a similar position in support ofexcluding multifamily housing from the original 1985 Comprehensive NCP. FAA Response: 3a). The Part 150 program is not intended to hann local communities. Undesirable negative financial and other impacts ofvoluntary acquisition ofapartment complexes in College Park can be addressed by various means, including efforts by the City ofAtlanta to properly coordinate redevelopment ofthe acquired property with College Park. As to future coordination of redevelopment by the City ofAtlanta with College Park through the NMAC see the Response to Comment Ic. 3b). City ofAtlanta v. Watson, 267 Ga. 185 is a 1996 Georgia Supreme Court opinion where HJIA supports its 1985 NCP position not to include multifamily housing in the Hresidential" acquisition -citing an intent to minimize to the greatest extent possible the Joss ofthe tax base and utility services as well as the disruptions to the local community.Case**1:13~cv-02480-SCJ** Document 1-3 Filed 07/26/13 Page 9 o, 12

FAA Response: Jb). Aclose reading ofCi(v o(Atlantov. Watson (267 Ga. 185) reveals that the City ofAtlanta detennined notto include multifamily housing in the initial phase ofthe 1985 NCP voluntary residential acquisition measure, "but expressly leaves open the possibility that such residences will be purchased during a later phase ofthe Program." (at 189). The City of Atlanta did not state in the 1985 NCP that it would never seek to acquire multifamily residenlial 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 alone time). This phased approach would also allow the City to use federal funds or income from the redevelopment ofpreviously acquired noise land to fmance future acquisition. In any event, the cited case has no bearing on FAA's detennination whether HJIA's proposed 2007 NCP measure to acquire multifamily housing within the 65+ DNL contour is reasonably consistent with the goal ofreducing existing and/or preventing future non-compatible land uses. 4. The City ofAtlanta has not demonstrated that it has the ability to comply with the lawful requirements to return property to productive use as required by Jaw. The City ofCollege Park points to the NCP's lack ofconsideration ofalternatives to acquisition and demolition. There is no discussion ofthe feasibility ofsoundproofing the affected properties as an alternative, particularly with respectto properties at the edge ofthe 70 DNL contour or straddling the 65 and 70 DNL contours. The lack ofdescription and analysis ofthe impact ofthis measure or the consideration of alternatives also fails to meet the requirements ofthe law and, in particular, 14 CFR §150.23. Specifically, the City ofCollege Park states that the lack ofconsideration ofalternatives fails to meet the requirements of 14 CFR §150.23 and requests consideration ofsound attenuation for properties within the 70 DNL "for some, but not all, ofthe multifamily residences listed in the airport'sNCP." FAA Response: 4). Analysis ofprogram alternatives is discussed in 14 CFR §8150.7. It requires airport sponsors, to the extent the strategies are appropriateto the specific airport, to analyze specific measures. Section 8 150.7(b) provides the alternatives that must be considered within the Part !50 Study, these include: acquisition ofland and land interests, construction of barriers and soundproofing public buildings, preferential runway systems, flight procedures, airport restrictions, actions which would have abeneficial 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 ofpublic 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 DNL contour can opt not to be acquired, and instead, request sound insulation. Six ofthe 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 aproperty· that is currently at issue, and that the owner ofthe 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 aNCP sponsor so as to facilitate further NCP land acquisition and sound insulation. Specifically, this is due to the City ofAtlanta's poor record ofreturning property to productive use once it has been acquired. College Park urges FAA to refrain from approving any aspect ofHJJA's NCP that would involve land acquisitions outside the municipalily ofAtlanta until the questions ofcompliance with AlP Grant Assurance 31 for extant unneeded noise lands. FAA Response: As to College Parks' ability to receive grants to carry out projects in the NCP, see Response to Comment l(e). As to consideration ofcompliance 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 ifthey meet statutory and regulatory criteria. 49 USC § 47504(b). Neither the City ofAtlanta's perfonnance in returning property to productive use, or in disposing ofnoise lands are relevant in detellTlining whether aNCP 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 ofAtlanta is in compliance with its obligations under its federal grant assurances.Case 1:13-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 10 or 12

1Although this letter was dated November 6, 2007, itwas not received by FAA until November 7, 2007. 2The revisions to the NCP were editorial in nature, not substantive. The recommended measures in the NCP were based upon the forecast 2010 NEM, which includedthe fifth runway. 3Over time the FAA has developed expertise in the evaluation ofNCP measures. In this case, and overthe span offive days, that expertise was sufficient to enable the FAAto respond to College Park's comments regarding the draft comprehensive NCP.Case 1:L:I-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 11 or 12

"Nissalke, Tom" <Tom.Nissalke@atlanta-airpo rt.com> 11/19/2007 03:38PM To Kimberly Arnao/ASO/FAA@FAA cc Bonnie Baskin/ASO/FAA@FAA, Scott SeriWASO/FAA@FAA, Dana Perkins/ASO/FAA@FAA, Rusty Chapman/ASO/FAA@FAA bee Subject RE: Part 150 Study Request for Clarification

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@fa:a.gov] 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 andCase 1:Ls-cv-02480-SCJ Document 1-3 Filed 07/26113 Page 12 01 12

the 70 DNL contours the discretion to request the application of either Measure 1 or Measure 3 to their property. Thank you for your assistance with this issue. Kimberly L. Arnao Attorney, Office of the Regional Counsel FAA Southern Region (404) 305-5206 IMPORTANT: This message is intended solely for specific recipients. If you are not an intended recipient of this communication, please, delete the original message and notify the sender immediately. This message may be confidential-- an attorney-client communication, part of the agency's deliberative process, or attorney-work product and must not be forwarded or otherwise shared without express permission.