Taber law Group 

VIA E-MAIL AND U.S. MAIL 

August 14, 2013 

Office of the Chief Counsel, 

Attention: FAA Part Proceedings Docket 

AGC-610 

Federal Aviation Administration 

800 Independence Ave. SW 

Washington, D.C. 20591 

. ~rE~LEO~nE~ 

Ez~13 J 

PART '16 DOCKETS 

Re: Virginia One Development, LLC, R.W. Parsons, Inc., D. Scott Henderson, 

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

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

Second Motion to Supplement Record. 

Dear Sir/Madam: 

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

Record. 

If you have any questions or comments, please feel free to call me at (949) 735-8217 or 

send me an e-mail at staber@taberlaw.com. 

Yours very truly, 

TABER LAW GROUP 

Steven M. Taber 

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/a DIPLOMAT TOWNHOMES, ) 

COLONY CAMP CREEK, LLC, and ) 

CROSSINGS TOWNHOMES, LLC, ) 

) 

Complainants, ) 

) 

v. ) 

) 

THE CITY OF ATLANTA, GEORGIA, ) 

) 

Respondent. ) 

_______________________ ) 

Case No.: FAA Docket No. 16-12-09 

COMPLAINANTS' SECOND MOTION TO SUPPLEMENT RECORD 

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

Steven M. Taber 

TABER LAW GROUP 

13 Atlanta 

Irvine, California 92620 

(949) 735-8217 (phone) 

(714) 707-4282 (fax) 

staber(altaberlaw .com 

Counsel for Complainants Virginia One Development, LLC, Avery Park Partners, LLC d/b/a 

Avery Park, DSH Diplomat, LLC d/b/a Diplomat Townhomes, Colony Camp Creek, LLC and 

Crossings Townhomes, LLC. 

August 14,2013 
BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

VIRGINIA ONE DEVELOPMENT, LLC, ) 

R. W. PARSONS, INC. d/b/a CLUBHOUSE) 

D. SCOTT HENDERSON d/b/a ) 

AVERY PARK, DSH DIPLOMAT, LLC ) 

d/b/a DIPLOMAT TOWNHOMES, ) 

COLONY CAMP CREEK, LLC, and ) 

CROSSINGS TOWNHOMES, LLC, ) 

) 

Complainants, ) 

) 

v. ) 

) 

THE CITY OF ATLANTA, GEORGIA, ) 

) 

Respondent. ) 

______________________ ) 

Case No.: FAA Docket No. 16-12-09 

COMPLAINANTS' SECOND MOTION TO SUPPLEMENT RECORD 

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

LLC d/b/a A VERY PARK, DSH DIPLOMAT, LLC d/b/a DIPLOMAT TOWNHOMES, 

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

"Landowners") by and through their undersigned counsel and pursuant to 14 C.P.R.§ 16.19, 

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

proceeding. 

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

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

2 
(1) The City of Atlanta's proposed Amendment to its Part 150 Noise 

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

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

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

attached as Exhibit C. 

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

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

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

responsibilities under the NCP. A copy of the Declaratory Judgment 

Complaint is attached as Exhibit D. 

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

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

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

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

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

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

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

3800 Hershel Road." Until2013, Atlanta had not made any effort to amend or modify its 

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

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

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

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

3 
would be submitting the amendment to the FAA for approval. Upon information and belief, this 

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

5. The website stated that the commenting period "closes AprillO, 2013." Because 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

specific fmdings concerning (I) Atlanta's rights, responsibilities and legal obligations under the 

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

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

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

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

4 
regulations, rules and advisory circulars, it did not include the FAA as a party in the Declaratory 

Judgment Action. 

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

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

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

Dated: August 14, 2013 Respectfully Submitted, 

Steven M. Taber 

TABER LAW GROUP 

13 Atlanta 

Irvine, California 92620 

Telephone: (949) 735-8217 

Facsimile: (714) 707-4282 

staber(iiltaberlaw .com 

Counsel for Complainants Virginia One Development, LLC, Avery Park Partners, LLC d/b/a 

Avery Park, DSH Diplomat, LLC d/b/a Diplomat Townhomes, Colony Camp Creek, LLC and 

Crossings Townhomes, LLC. 

5 
CERTIFICATE OF SERVICE 

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

MOTION TO SUPPLEMENT RECORD on the following persons at the following addresses 

and facsimile numbers (if also served by facsimile) by U.S. Mail: 

John L. Watkins 

Roy E. Hadley, Jr. 

Thompson Hine 

Two Alliance Center 

3560 Lenox Road, Suite 1600 

Atlanta, Georgia 30326-4266 

Fax: (404) 541-2905 

Dated this 14th day of August, 2013, 

6 

For: Virginia One Development, LLC, 

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

DSH Diplomat, LLC d/b/a Diplomat 

Townhomes, and Colony Camp Creek, LLC. 
Exhibit B 
8114113 

..JL Hartsfield-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 

1/3 
8/14113 

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 Calendar Year Summary of Registered Noise Concerns 

Aircraft Flight Tracks 

Aircraft Engine Run-Ups 

Airport Noise Mitigation Program 

2012 and 2017 Noise Exposure Maps and Open House 

Federal Aviation Regulation Part 150 Program 

• Active Noise Insulation Program 

• Active Property Acquisition Program 

History of Airport Noise Abatement 

Noise Land Reuse Plan 

Current Noise Land Reuse Plan 

Inquiries about purchasing available noise land 

(}.•· 

,,., '·"! ,.;j 

WNW.atlanta-airport.com/Airport/Environmentai/Noise.aspx 213 
Exhibit C 
TABER LAW GROUP PC 

July II, 2013 

VIA E-MAIL AND U.S POST 

Mr, Walter Vinson (walter,vinson@atlanta-airportcom) 

Manager of Intergovernmental Affairs 

Department of Aviation 

P.O. Box 20509 

Atlanta, Georgia 30320 

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

Include Consent Order with City of College Park. 

Dear Mr, Vinson: 

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

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

Federal Aviation Administration approved Part !50 Noise Compatibility Program ("Part !50 

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

law firm represents the owners of the following properties: 

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

13-0004-LL-04 5-5. 

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

Number 14-0224-LL-052-3. 

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

Number 13-0036-LL-130-7. 

4. 2700 Camp Creek Parkway, College Park, Georgia 3033 7, Parcel Identification 

Number 14-0224-LL-055-6. 

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

0193-0002-036-0. 

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

13-0062-LL-009-0. 

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

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

Atlanta's actions with respect to this proposed amendment to the Part !50 NCP is even more 

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

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P.O. BOX 60036 I IRVINE, CA 92602 I TEL 949.735.8217 I FAX 714.707.4282 I staber@taberlaw.com 
Mr. Walter Vinson 

July 11, 2013 

Page2 ·::i"~Taber Law Group 

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

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

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

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

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

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

of Atlanta would: 

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

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

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

building with four (4) or more residential units. 

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

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

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

Section 6.9: 

Section 6.10 Compliance with Federal Consent Order 

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

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

acquisition activities within the College Park city limits. 

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

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

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

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

(the "Amendment"). Leaving aside the internal inconsistency of the proposed Amendmene and 

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

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

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

A copy of the Consent Order is attached as Exhibit A. 2 The fact that Atlanta has chosen to take this action only after the same property owners pointed out that 

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

Aviation Administration (FAA Docket No. 16-12-09) has not been lost on the Property Owners. 3 The Consent Order, as the Amendment points out, states prohibits the City of Atlanta from acquiring any 

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

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

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

July 11, 2013 

Page 3 ~Taber Law Group 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

under federal law. 

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

ASSURANCES. 

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

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

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

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

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

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

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

July II, 2013 

Page 4 

A. The Amendment Will Violate Grant Assnrance 5. 

The FAA has held that Grant Assurance 5 prohibits the airport sponsor from giving away 

rights and powers the sponsor needs to control and manage the noise created by aircraft in the 

surrounding area. JetAwayAviation, Inc., v. Montrose County, FAA Docket No. 16-08-01, 

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

that: 

[fJor all noise compatibility program projects which are to be carried out by another unit 

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

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

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

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

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

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

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

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

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

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

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

5. 

Moreover, Grant Assurance 5(d) states that "[fJor noise compatibility program projects to 

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

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

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

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

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

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

made part of its Part !50 NCP. 

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

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

Atlanta would be bound to ensure that College Park complies with the Part !50 NCP program 

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

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

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

promised it would do when it submitted the Part !50 NCP for approval. 
Mr. Walter Vinson 

July 11, 2013 _,,Taber Law Group Page 5 

In sum, including the Amendment into the Part 150 NCP violates one of the central 

holdings of the Administrator in Town of Fairview v. City of McKinney, FAA Docket No. 16-99-

04 and by doing so, violates Grant Assurance 5. In Fairview, the FAA held that "without some 

showing of a mechanism or agreement that acts to prevent McKinney from exercising powers to 

adhere to FAA's interpretation of the sponsor's Federal obligations, there can be no violation of 

this assurance." Id., at 35-36. In the instant case, the Amendment restricts Atlanta's ability to 

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

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

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

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

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

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

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

would be in violation of Grant Assurance 5. 4 

B. The Amendment Will Violate Grant Assurance 21. 

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

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

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

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

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

to restrict the use ofland adjacent to or in the immediate vicinity ofthe airport to 

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

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

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

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

program measures upon which Federal funds have been expended. 

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

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

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

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

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

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

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

assurance. 

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

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

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

July II, 2013 ~~~Taber Law Group Page 6 

The standard for determining whether a sponsor is out of compliance with Grant 

Assurance 21 can be found in Keathly v. City of McKinney, Texas and the Collin County 

Regional Airport, Docket No. 16-03-14, Director's Determination (October 13, 2004). In 

Keathly, the Director determined that: 

With regard to compatible land use issues, FAA typically addresses two questions in 

order to determine if a sponsor has violated its obligations. 

I. Are the facility's operations compatible with local airport operations? 

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

airport? 

Id at *58. Atlanta itself, in the Part !50 NCP, determined that properties located within the 

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

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

of the Part !50 NCP. In addition, the Part 150 NCP commits Atlanta to take action to prevent 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE FAA. 

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

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

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

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

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

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

July II, 2013 

Page 7 

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

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

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

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

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

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

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

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

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

To which the FAA replied: 

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

voluntary5 acquisition of property within College Park. If College Park demonstrates that 

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

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

on December I 0, 2004, at a meeting between College Park and City of Atlanta, when 

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

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

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

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

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

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

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

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

residential acquisition program with affected local political jurisdictions using the 

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

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

it can receive grants to carry out those projects. 

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

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

which the property sits. 

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

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

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

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

The word "voluntary" here means voluntary on the part of the property o\VTler- Atlanta, College Park and 

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

July 11,2013 !'~~Taber Law Group Page 8 

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

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

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

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

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

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

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

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

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

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

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

150 NCP, if it so desired. 

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

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

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

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

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

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

150. 

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

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

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

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

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

Atlanta must comply with the Uniform Relocation Assistance and Real Property 

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

individuals in obtaining comparable replacement housing. 

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

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

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

IV. CONCLUSION 

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

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

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

July 11, 2013 

Page 9 

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

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

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

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

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

complies with the Part 150 NCP. 

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

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

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

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

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

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

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

TABER LAW GROUP, P.C. 

Steven M. Taber 

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

Mr. Derek L. Stotts, FAA Attorney- AlP, Southern Region 
Exhibit A 
Case 1:08-cv-01464-JEC Document 64 Filed 08102/10 Page 1 of 8 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

CITY OF COLLEGE PARK and 

CHARLES E. PHILLIPS, SR., 

Plaintiffs 

v. 

CITY OF ATLANTA and SHIRLEY 

FRANKLIN, in her official capacity as 

Mayor of the City of Atlanta, 

Defendants. 

CONSENT ORDER 

This matter having come before the ,Court on plaintiffs' and defendants' 

Joint Motion for Relief under Federal Rule of Civil Procedure 60(b), and the Court. 

having reviewed the record and the arguments of the 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 in its 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 Order by 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. 

~ .~ ~!; 1 
Case 1:08-cv-01464-JEC Document 64 Filed 08/02/10 Page 3 of 8 

CONCLUSION 

Based upon the above, and the consent of the parties, the Court rca!Tirms its 

issuance of the 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 of Atlankl., materially affects or 

could materially a!Tect tbe interests of College Park or a significant number 

of its 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 of Aviation staff about 

tbe subjects of such meeting, unless College Park can show that such 

intonnation 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 planning meeting; or 

3 
Case 1 :08-cv-01464-JEC Document 64 Filed 08/02/10 Page 4 of 8 

I .2.2. subsequent to the time of disclosure during the applicable 

planning meeting, becomes known to the public or appears 

in published literature through no fault of College Park; or 

1.2.3. was acquired by College· Park from a third-party. 

2. ~DVANCE NOTICE · 

Atlanta agrees to provide College Park at least thirty (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 of Atlanta, materially affects or could 

materially aifect the interests of College Park or a significant number of its 

€itizens. 

3. REPURCHASE OF WYNTERBROOK APARTMENTS 

3.1.College Park will, contemporaneously with tht: date of its execution or this 

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"). 

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

3.3.Atlan4l will notify College Park in wriling of the Wynterbrook Demolition 

Completion Date within ten (I 0) 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 of the 

Wynterbrook Demolition Completion Date and by the process detailed on 

Exhibit "B". 

3.5.lf purchased 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 of the Wynterbrook Demolition 

Completion Date, Atlanta, at its expense and subject to any applicable laws, 

including laws governing the procurement of services, will promptly engag~ 

the se1·vices of an 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 current Part I SO Program to eliminate aLithorization 

·to acquire any aparurtenl complex within College Park other than Clubhouse 

5 
Case 1 :08-cv-01464-JEC Document 64 Filed 08/02/10 Page 6 of 8 

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

other applicable law, on what properties, identified in the existing and 

future Part 150 documents as eligible for receipt of noise mitigation funds, 

are mitigated and the timing of the mitigations. 

5.2.This consultation shall take place prior to mitigation of each property and 

Atlanta shall notii)> College Park when mitigation of each property has b.:cn 

completed. If Atlanta groups properties into packages for mitigation. 

consultation may take place prior to mitigation of each package (a~ opposed 

to each property) and Atlanta may notity College Park when mitigation of 

each package (as opposed to each property) has been 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 of the Order Date, a potential arrangement whereby, for luture real property 

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

Case 1:08-cv-01464-JEC Document 64 Filed 08/02/10 Page 7 of 8 

acquisitions for operations of the airport and for which Atlanta is tax exempt. the 

City of Atlanta will pay a Payment in Lieu of Taxes. 

7. WYNTERBROOK SITE; MISCELLANEOUS 

7.1.College Park agrees that the portion of Frontage 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 by or existing for the benefit of College Park or its Citi~.ens. 

7.2. The' parties have disposed' of this case through 'the execution oC this ' 

Consent Order and the remand/dismissal of the appeal. Additionally. within 

three {3) days of the Order Date, College Park will dismiss "with prejudice" 

the following litigation, each in its entirety: 

7.2.1. City of College 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. 

7 
Case 1 :08-cv-01464-JEC Document 64 Filed 08102110 Page 8 of 8 

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 other litigation costs. 

8. EFFECTIVE DATE OF AGREt:MENT 

· Tne parties agree that lhis 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 behalf of 

Defendants, City of Atlanta and 

Mayor Shirley t,:_ranklin 

Executed: '6- "'- , 20 I 0 

Greg Michell, on behalf of 

Plaintitls, City of College Park and 

Charles E. Phillips. Sr. 

l:xecutcd: ____ , 20 I 0 
Case 1 :08-cv-01464-JEC Document 64-1 Filed 08/02/1 0 Page 1 of 3 

EXHIBIT A 
Case 1:08-cv-01464-JEC Document64-1 Filed 08/02/10 Page2of3 

Exhibit A 

Restrictive Covenants 

This transfer .and any subsequent transfer of any 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 behalf of 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 1 and 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 of Atlanta, or its successors and assigns, through its 

Aviation General Manager. 

9 
Case 1 :08-cv-01464-JEC Document 64-1 Filed 08/02/10 Page 3 of 3 

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 1 of 3 

EXHIBIT B, 
Case 1 :08-cv-01464-JEC Document 64-2 Filed 08/02/10 Page 2 of 3 

Exhibit B 

Fair Market Value Purchase Price 

. The fair market value, purchase price shall bf;! determined as follows: 

Appraisal Process 

Within thirty (30) days of College 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. If the appraisers report opinions of Fair Market 

Value within five percent (5%) of each other, the average of the two appraisals will 

constitute the Purchase Price. If not, 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. If the 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 of any 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 professional judgment: 

a. The appraisers shall utilize the Survey provided by the Parties hereto, and 

shall, using. their professional discretion and judgment, pla~e a value on the 

property by a collective valuation of like or similar properties by applying a 

standard price variable to like properties of varying sizes; 
Case 1 :08-cv-01464-JEC Document 64-2 Filed 08/02/10 Page 3 of 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 account any 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. 

!2 
Case 1 :08-cv-01464-JEC Document 64-3 Filed 08/02/1 0 Page 1 of 3 

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

Exhibit C 

Avigation and Height Easemenf 

The Grantor (City of Atlanta) hereby reserves an interest in the Property described 

in this deed that will create a servitude on particular areas that will restrict the use 

of the surface and that will assure the City of Atlanta of the right and privilege of a 

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 of entering the land. The restrictions in this easement shall include but not 

be limited to: 

(I) The right to restrict or prohibit radio or electromagnetic interference 

to aircraft flying overhead. 

(2) The right to restrict or prohibit lights, lighted signs, and other lighted 

objects that unreasonably 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 of the parcel rising to 

an elevation of I ,175-feet above mean sea level at the western most 

edge of the parcel. Any point between the east and west elevations can 

be interpolated using a sloping plane between the two elevations. 

(5) The right to restrict or prohibit specific agricultural or horticultural 

uses such as growth and harvesting of timber, 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 transferring title to the Wynterbrook site. 

13 
Case 1:08-cv-01464-JEC Document 64-3 Filed 08/02/10 Page 3 of 3 

(6) 

(7) 

orchards or other plant growth that may eventually penetrate the 

imaginary surfaces depicted on the Exhibit "D" Drawing. 

The right to restrict or prohibit 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 of any trees or portions 

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 of written 22 notice from the City 

of Atlanta of the requirement to do so and, in such event, to collect the 

cost of such removal from the owner. 

!4 
Case 1 :08-cv-01464-JEC Document 64-4 Filed 08/02/10 Page 1 of 2 

Exhibit B 
TABER LAW GROUP PC 

MEMORANDUM 

To: File 

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

Date: June 4, 2013 

Re: Human Health Effects of Aircraft Noise 

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

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

establishing the level below which land uses are deemed compatible in Part !50 Noise 

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

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

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

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

understand noise exposure and its effects. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

disease. Four studies from Europe have shown this connection: 

I 
TABER LAW GROUP PC 

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

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

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

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

Jun 27. 

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

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

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

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

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

M-L, Savigny P, Seiffert I, Swart W, Breugelmans 0, Bluhm G, Selander J, Haralabidis A, 

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

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

Environ Health Perspect 2008; 116:329-33 

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

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

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

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

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

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

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

concentrate solely on aircraft noise, the article concluded that: 

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

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

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

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

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

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

should not be imposed by others. 

2 
TABER LAW GROUP PC 

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

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

rather than having the citizens choosing for themselves. 

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

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

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

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

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

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

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

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

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

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

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

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

several other reports: 

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

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

PARTNER-COE-2010-002. 

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

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

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

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

PARTNER-COE-2008-004. 

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

April2007. (Report No. PARTNER-COE-2007-001) PARTNER Project I, Low 

Frequency Noise Study, final report. 

3 
TABER LAW GROUP PC 

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

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

PARTNER-COE-2008-006 

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

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

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

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

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

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

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

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

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

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

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

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

in the surrounding communities. 

4 
Exhibit C 
U.S. Department 

of Transportation 

Federal Aviation 

Administration 

January 25, 2008 

Dr. Thomas E. Nissalke, Ph.D. 

ATLANTA AIRPORTS DISTRICT OFFICE 

170 I Columbia Avenue 

Campus Building, Suite 2-260 

College Park, Georgia 30337 

Phone: 404-305-7150 Fax: 404-305-7155 

Director of Environmental and Technical Services 

City of Atlanta/Department of Aviation 

P. 0. Box 20509 

Atlanta, Georgia 30320-2509 

Dear Dr. N!ssalke: 

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

Noise Compatibihty Program Record of Decision 

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

Hartsfield-Jackson Atlanta International Airport contained in the "FAR Part !50 Study Noise 

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

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

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

Part !50 Study Noise Compatibility Program Report". I am pleased to inform you that the 

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

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

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

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

the enclosed Record of Approval. 

Each airport Noise Compatibility Program developed in accordance with 14 CFR Part !50 is a 

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

airport operator with respect to which m•~asures should be recommended for action. The FAA's 

approval or disapproval of 14 CFR Part !50 Program recommendations is measured according to 

the standards expressed in 14 CFR Part 150 and the 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 CFR Part !50; 
Program measures are reasonably consistent with achieving the goals of reducing 

existing noncompatible land uses around the airport and preventing the introduction 

of additional noncompatible land uses; 

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

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

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

Federal Government; and 

Program measures relating to the use of flight procedures 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 Administrator prescribed by law. 

2 

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

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

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

constitute a commitment by FAA to implement specific noise compatibility measures. FAA 

approval of some measures may require preparation of an 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 should be submitted to the FAA Airports District Office. 

Sincerely, 

Scott L. Seritt, Manager 

Atlanta Airports District Office 

1 Enclosure 

cc: 

Mayor Jack Longino, City of College Park, Georgia 

APP-400 

AS0-610 

AS0-7 
FEDERAL AVIATION ADMINISTRATION 

RECORD OF APPROVAL 

FAR PART 150 

NOISE COMPATIBILITY PROGRAM 

HARTSFIELD-JACKSON ATLANTA INTERNATIONAL AIRPORT 

ATLANTA, GEORGIA 

Regional Counsel, AS0-7 

Airports Division Manager 

Southern Region 

~/ 

CONCUR NONCONCUR 

APPROVED DISAPPROVED 

Date 
FEDERAL AVIATION ADMINISTRATION 

RECORD OF APPROVAL 

FARPART150 

NOISE COMPATIBILITY PROGRAM 

HARTSFIELD-JACKSON ATLANTA INTERNATIONAL 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 or other 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 or decisions 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 

after Apri11 0, 1985 that was 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 consider this type of transac:tion a "voluntary" progwam, even 

though the residents will voluntarily participate under 14 CFH Part 150. Under the 

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 of Aviation 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 local 
political jurisdictions involved in redevelopment of acquired properties not n<eeded for 

aviation use. (NCP pages 7-1 thru 7-2; Table 9.2) 

FAA Action: Approved. Redevelopment plans must be consistent with Federal grant 

assurances regarding property values and compatibility with normal airport operations. 

3. Voluntary sound insulation program for eligible residential buildings in the 65-70 DNL 

contours. This voluntary measure will benefit those 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 benefit would 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) 

FAA Action: 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 of Aviation has no control over land use and zoning decisions beyond the 

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

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

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

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

overflights and noise; and/or other measures. The dEltermination as to which of the 

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

exposure at the proposed development site and would be styled and 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 prior to the new property being acquired, if deemed appropriate by the 

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

and 9.;~) 

FAA A•ction: Approved. 

7. Continuation of the 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 1 03.(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 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 the 
proposed 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 uses within the 65 DNL contour.·. 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 or souncfTnsulation for theirpr()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, Georgia 
Subject: 

Memorandum 

U.S. Department 

of Transportation 

Federal Aviation 

Administration 

Disposition of Comments regarding Hartsfield-Jackson International 

Airport Part I SO Noise Compatibility Program 

~1-~ 

Date: Januacy24;20Q8 

From: Scott Serritt, Atlanta Airport Distdct Office 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 of the City of Atlanta's Part I SO 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 behalf of the City of College Park. The first 

letter, dated November 6, 20071, \\aS !Tom the Mayor of the City of College Park, Jack Longino. The second letter, dated 

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

letters raised concerns with Hartsfidd-Jackson International Airport's NCP update. 

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

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

addressed below. 

City of College Park Comments: 

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

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

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

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

College Park that there would be no more acquisition and demolition of any property within College Park without the 

direct involvement of College 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 of the affected properties which indicates no consultation occurred; 

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

consent, participation and management ofthe City of College Park. Each of these 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 of the state and of any 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 of Atlanta, 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 of Atlanta established the Noise Mitigation Advisory Council (NMAC). to 

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

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

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

Charter of the NMAC states the mission of the NMAC is to assist [the City of Atlanta] 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 of Part 150 aircraft operational, land use compatibility alternatives, 

and mitigation priorities. !d. At B<:. The NCP update indicates the City of College Park was represented on the NMAC, 

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

The representative of the City 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 of College Park and others were provided with copies of the draft 

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

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

recommendations for the NCP upclate were reviewed during the meeting. Comments were requested from NMAC 

members by August 11th. The cosl of the voluntary property acquisition was estimated at $43 million during this 

meeting. See, Appendix G, 8/3/06 NMAC Meeting Minutes. 

The City of Atlanta 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 of Atlanta agreed to accept comments from the City of College 

Park until October 30, 2006. 

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

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

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

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

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

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

measure. See, Appendix T, NCP Update. 

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

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

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

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

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

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

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

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

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

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

without the consent of College Park." 

Based on these facts, the City of Atlanta 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 of residences (including apartment complexes) in the 70 DNL contour and fOr voluntary acquisition or sound 

insulation of residences in the 65 to 70 DNL contour during the Part !50 NCP update process. (As reflected in the 

.Re~ord f)f,',~grgy~],jhe sj)on~()r has~i'tr!fied its intent that the. owners'O(the multltiintily residential. p roperti. es· stradd I in g 

tl]e<65/7o PNL.~ontourhave the-dJ)tfon ofvoluntary lillld acquisitionprsound insulation. Five of the seven multifamily 

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

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

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

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

FAA. 

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

fulfill the consultation requirements is inadequate. 

FAA Response: 

I b ).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/p lanning-toolkitlmedia!VI.A. pdf). The NCP 

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

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

the 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<, Park that there would be no more acquisition and demolition of any property within 

College Park without the direct involvement of College Park. 

FAA Response: 

lc). As discussed above in Response to Comment 1a, the City of Atlanta consulted College Park about the measures in 

the NCP that involve voluntary acquisition of property 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 of Atlanta, when College Park voiced concerns regarding the ongoing acquisition of property in College Park by 

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

specifically stated that he would not purchase proper\)' within College Park without the dty' s concurrence. 1-l.~\\'ever, 

FAAls awatethat Mr,DeCQ$la-nas al$0 111ade a commitment to assist the residents of .the communities _surrounding the 

airport that are~ negatively impacter!l:ly airport noise. Approval of the Part 150 NCP update does not foreclose direct 

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

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

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

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

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

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

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

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

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

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

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

that no consultation occurred. 
FAA Response: 

I d). See Response to Comment I a regarding the City of Atlanta's consultation with College Park and Response to 

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

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

airport sponsor's grant obligation to take reasonable steps to assure to rastrict the use of land 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 of communities as 

recognized under Part 150. 

Part 150 does not require the airport sponsor to include plans for reuse of the properties or plans for where tenants will be 

relocated • in its .NCP .. · ijOwev~r,jljc N:CP update includes a measuieioio\ionllnatethe r~~d~>Yelopm.entoflilnd purchased 

U!l~~r_-:!h~ ·-I~j;!_~~ntial :a_cq_Ui:S i_ti Q_it _pTi}~-~-~~c:_~ith::-1 ?P<i_l poHtJcal j uris-di_cii 9.!ls. ~ Ill_:~d(IJH_~n_-, __ if th~: airport --~P_iulSor_ imp leriJ entS 

the.NCP · meas~re~ancl acquires. residential propeflY,::tll;lCi\y of Atlanta must. cC.mipf)'wl\ii .. the Unifonn Rel<!cai1on 

Assistance and. Real Proper!YA.cqidsition PolleiesActofl97.0, which·requires. the airport 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 the jurisdictional boundaries of College Park consistent with federal grant obligations. 

FAA Response: 

I e). If detertnined 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 of Atlanta. 49 U.S.C. § 47504(c)(l ), (c)(3). If College Park applies 

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

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

U.S.C. § 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 of this position, the City of College Park contends: a) there have been past 

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

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

a secretive 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 of the 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 of multifamily structures in the past, without NCP authority. 

FAA Response: 

2a) The.airport sponsor bas aqihorit)'t<>acquire multifamilyresidentlalpro]Jerties·using its powers as a municipal entity 

outside the; Part f50program.• See, NCPUpdate, .VoL II, 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 

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

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

of all 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 a multifamily apartment complex since 
2002 is irrelevant to whether HJIA complied with the Part 150 consultation requirements. The Part 150 process is but 

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

regulations only require consultation, and do not require approval or concurrence of local jurisdictions. College Park has 

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

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

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

significant time and resources commenting on the wrong document. Further, FAA summarily rejected 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 of multifamily dwellings in the NCP update. The April 2007 Federal Register notice stemmed from the City 

of Atlanta's efforts to separate and move 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 of a revised notice, The events unfolded as follows: 

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

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

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

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

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

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

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

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

Register on April23, 2007. The notice did not specify the two measures involved but directed the public to contact 

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

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

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

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

withdrew the notice. 

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

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

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

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

concern to College Park. 

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

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

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

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

FAA Response: 

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

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

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

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

Comment I c. 

3b). Citv o(At/anta 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 "residential" acquisition- citing an intent to minimize to the 

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

3b). A close reading of City o[Atlanta v. Watson (267 Ga. 185) reveals that the City of Atlanta detennined not to include 

multifamily housing in the initial phase of the 1985 NCP voluntary residential acquisition measure, ~;but expressly lt~aves 

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

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

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

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

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

noise land to finance future acquisition. 

lnai\yevent,the cited case has np 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 .·of reducing existing 

andl<ifprev~ntingllli~tenoh-compatiblelana•us~S 

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

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

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

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

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

alternatives also fails to meet the requirements of the law and, in particular, 14 CFR §150.23. 

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

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

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

4). Analysis of program alternatives is discussed in 14 CFR §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 of land and land interests, construction of 

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

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

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

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

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

acquired, and instead, request sound insulation. Six of the 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 of the Wynterbrook apartment complex will select acquisition. These measures, 

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

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

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

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

acquisitions outside the municipality of Atlanta until the questions of compliance 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 of compliance issues, the FAA administers its airport noise compatibility planning program separately from 

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

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

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

are relevant in detennining whether a NCP 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 of Atlanta 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 over the span of five 

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

comprehensive NCP. 
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/F AA@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 

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

Measure 1 or Measure 3 to their property. 

Thank you for your assistance with this issue. 

Kimberly L. Arnao 

Attorney, Office of the Regional Counsel 

FAA Southern Region 

(404) 305-5206 

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

you 

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

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

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. 
Exhibit D 
Case 1:13-cv-02480-SCJ Document 1-4 Filed 07/26/13 Page 1 or 2 

JS44 (Ri!v, 1/IJ NDCA) CIVIL COVI<:R SHEET 

Th\' .J.S.-14 dyiJ <'t~H·r ~hw! und rhc inrormaHou tonli!ill~d lirr~lu ndth~r r~r'hll'<' n11r ~uppl~ment tlu.' liliut: ~ml Hnice nr pl~ndin!.~ or u!ln:r pnpcrs ~~ r~tluired h~- hn1. eH~[Jt "~ 

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l. (a) PLA!NTIFF(S) 

The City of Atlanta, Georgia 

(b) COUNT\' OF RFSIIJENCE OF FIRST !.ISTW 

PI.AlNTlFF Fulton 

_:_::~ff~;x~<e=f:~v=r ="~' r=Ls=·. =,=.A=,_=~=n=r:!=• r=:,=,=,=s)-

DEFENDANT(S) 

Avery Park Partr>ers, LLC, d/b/a Avery Park, 

Colony Creek, LLC and The City of College 

Park, Georgia 

COLJNTV OF RESIDENCE OF FIUST LISTED 

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John L Watkins, Esq., John.Watkins@thompsonhine.com 

Roy E. Hadley, Jr. Esq., Roy.Hadley@thompsonhine.com 

Les!ie J. Susan, Esq., Les!ie.Suson@thompsonhine.com 

Thompson Hine LLP 

Taber Law Group, P.C. 

13 Atlanta 

Irvine, California 92620 

staber@taber!aw.com 

(949) 735-8217 

3560 Lenox Road, Suite 1600 

Atlanta, Georgia 30326: 404-541-2900 (ph): 404-541-2905 (fax) 

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D L UJHJSU<llly h1rgc numhcrol'p>lrtics. 

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

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Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 1 of 1..< 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 

THE CITY OF ATLANTA, GEORGIA 

Plaintiff, 

v. 

A VERY PARK PARTNERS, LLC d/b/a : 

A VERY PARK, COLONY CREEK, 

LLC, AND THE CITY OF COLLEGE 

PARK, GEORGIA, 

Defendants. 

Case No. 

Judge 

COMPLAINT FOR DECLARATORY JUDGMENT 

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

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

Park ("A very"), Colony Creek, LLC ("Colony Creek"), and the City of College 

Park, Georgia ("College Park"). 

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

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

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

International Airport (the "Airport"). 
Case 1:.13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 2 of .LL 

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

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

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

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

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

Georgia 30115. 

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

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

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

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

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

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

Georgia 30115. 

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

municipal corporation, partially situated within Fulton County, and incorporated 

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

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

2 
Case 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 in the outcome of this litigation. 

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

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

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

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

in College Park, is related to this action. On or about July 30, 2010, Hon. Julie 

Carnes entered a Consent Order, which, with one exception, prevents the City from 

acquiring multi-family residences within College Park (the "Consent Order"). A 

true and correct copy of the Consent Order is attached hereto as Exhibit "A." 

JURISDICTION AND VENUE 

8. This Court has subject matter jurisdiction of this action pursuant to 28 

U.S.C. § 1331, and § 2201. Pursuant to 28 U.S.C. § 1331, the district courts have 

original jurisdiction of all civil actions asserting claims or protecting rights that 

arise under federal law. 

9. Venue is proper in this judicial district under 28 U.S.C. § 1391(b), as 

a substantial part of the events giving rise to the claims in this Complaint occurred 

in this judicial district, the property that is the subject of the action is situated in 

3 
Case 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 Court has personal jurisdiction over Defendants. 

BACKGROUND 

11. The Aircraft Safety and Noise Abatement Act of 1979, 49 U.S.C. 

47501 et seq. ("Noise Abatement Act"), establishes a voluntary and uniform 

national program for addressing aircraft noise, and authorizes the Federal Aviation 

Administration ("FAA") to regulate "airport noise compatibility planning" and to 

make federal funds available to reduce incompatible land uses in the vicinity of 

airports caused by aircraft noise. 

12. To implement the Noise Abatement Act, the FAA established the 

Noise Compatibility Planning Process as part of the Federal Aviation Regulations, 

listed as Part 150 of Title 14 of the Code of Federal Regulations ("Part 150"). 

13. Part 150 establishes uniform national methods for preparing noise 

exposure maps ("NEM"). NEM establish "noise contours," which are areas on the 

NEM where computer-modeled average annual noise levels are indicated in a unit 

of measurement known as "DNL." In essence, DNL is a measure of noise 

exposure in decibels over a 24-hour period, weighted more heavily toward the 

nighttime hours. 

4 
Case 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 

airport vicinity consistent with local interests. 

15. In 2007, the City submitted a properly prepared NEM (the "2007 

NEM"). The 2007 NEM was accepted by the FAA on April10, 2007. A true and 

correct copy of the FAA's letter accepting the 2007 NEM is attached hereto as 

Exhibit "B." 

16. In 2007, the City proposed amendments to the Airport's NCP, which 

were approved by the FAA on January 24, 2008 (the "Airport-NCP") (attached 

hereto as Exhibit "C"). 

17. The FAA-approved Airport-NCP allows the Airport to undertake 

voluntary measures to provide: (a) possible sound insulation for qualifYing 

properties located within the 65 DNL contour on the 2007 NEM; and (b) possible 

acquisition of qualifYing properties located within the 70 DNL contour. 

18. As amended in 2007, multi-family properties became potentially 

eligible to participate in the Airport-NCP. Multi-family properties were not 

previously eligible. 

5 
Case 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 approved by the FAA. 

20. Developers recently acquired their properties. Developers' properties 

are located wholly or partially within the 70 DNL contour on the 2007 NEM and 

on the 2012 NEM. 

21. As one of the general requirements in establishing NCPs, participating 

airport sponsors, such as the City, must consult and work with local authorities. 

This is so because every locality is different. Although federal law establishes 

uniform standards for assessing noise and preparing NEMs, the law and 

regulations recognize that local considerations should be considered in 

implementing NCPs. 

22. College Park is located adjacent to and generally west of some of the 

Airport, and the Airport is partially located in College Park's boundaries. 

23. In response to the possible acquisition of multi-family properties in 

College Park under the Airport-NCP, College Park filed the College Park Suit, in 

which it alleged, among other things, that the City's acquisition of property in 

College Park violated the Voting Rights Act for various reasons. 

24. After the City substantially prevailed in the College Park Lawsuit in 

this Court, College Park appealed to the United States Court of Appeals for the 

6 
Case 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 of federal law and 

regulations requiring consultation and cooperation with local jurisdictions in 

implementing noise compatibility programs. The Consent Order also is consistent 

with the directives of federal law and regulations providing for local administration 

of noise compatibility programs and providing airport sponsors with considerable 

discretion in implementing noise compatibility programs in a manner consistent 

with local interests. 

26. The Consent Order, with one exception, effectively prevents the City 

from acquiring multi-family residences within College Park. Since the entry of the 

Consent Order, the City has abided by the substance of its terms by, among other 

things, not acquiring multi-family residences within College Park pursuant to the 

Airport-NCP. 

27. Pursuant to the requirements of the Consent Order, the City's 

Department of Aviation has submitted an amendment to the Airport-NCP to the 

FAA, which includes language referencing the Consent Order's terms pertaining to 

land acquisition within College Park. 

7 
Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 8 ci, _l_L 

28. Developers seek to force the City to acquire their properties under the 

Airport-NCP in violation of the Consent Order. Developers contend that, because 

their properties are located within the 70 DNL contour on the 2007 and 2012 

NEM, the City is obligated by federal law to acquire their properties without 

regard to the terms of the Consent Order. 

29. Developers have refused the City's suggestion for Developers to seek 

College Park's consent to the acquisition of their properties. 

30. The City disputes Developers' interpretation of their alleged rights 

and the City's alleged obligations under federal law and regulation. Contrary to 

Developers' assertions, the City, as an airport sponsor, is vested with considerable 

discretion under the Airport-NCP in deciding whether to acquire any property. 

31. The City, as an airport sponsor, is also vested with considerable 

discretion in cooperating with local political jurisdictions such as College Park in 

implementing the Airport-NCP, including, but not limited to, agreeing to 

provisions such as are contained in the Consent Order. 

32. In any event, Developers' position would require the City to violate 

the Consent Order, which is a valid and outstanding order and judgment of this 

Court. 

8 
Case 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 of fact. At 

the same time, Developers have refused the City's suggestion to contact College 

Park to secure a waiver or consent regarding the Consent Order. Developers have 

therefore acted in bad faith and have caused the City unnecessary trouble and 

expense, entitling the City to an award of attorney's fees under O.C.G.A. §13-6-11. 

34. On information and belief, College Park contends that the Consent 

Order constitutes a valid and outstanding order and judgment of this Court, and 

opposes any action by the City to acquire Developers' properties under the 

Airport-NCP. 

35. A ripe, justiciable controversy exists between the City, on the one 

hand, and Developers, on the other. College Park has an interest in the outcome of 

the controversy. 

RELIEF REQUESTED 

36. The City seeks and is entitled to a judicial declaration of the rights, 

obligations and responsibilities of the parties because the City has no other 

adequate remedy that will resolve the current controversies. 

9 
Case 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 of the parties as follows: 

(a) The Consent Order is a valid and binding order of this Court; 

(b) The City, as the Airport sponsor, has considerable discretion 

under applicable federal law and regulation, in implementing and administering the 

Airport-NCP, including, but not limited to, taking into consideration the stated 

wishes of College Park and other municipalities that may be affected by Airport 

operations; 

(c) Developers have no right under the Consent Order to require 

the City to acquire their properties, regardless of whether the properties are 

otherwise eligible for acquisition under the Airport-NCP; 

(d) Developers have no right under federal law to require the City, 

as an airport sponsor, to acquire their properties regardless of whether the 

properties are potentially otherwise eligible for acquisition or other relief under the 

Airport-NCP; and 

(e) The City, as an airport sponsor, has discretion in implementing 

the Airport-NCP and may exercise that discretion in deciding whether or not to 

acquire potentially eligible properties or to provide sound insulation to potentially 

eligible properties, so long as it has a rational basis for its action. 

10 
Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 11 or 1L 

3 8. The City also requests that this Court enter an Order requiring the 

Developers to pay the City's attorney's fees and litigation expenses pursuant to 

O.C.G.A. § 13-6-11. 

WHEREFORE, the City requests that: 

(a) the Court enter an Order declaring the rights, duties and 

obligations of the parties, as set forth above; 

(b) the Court enter an Order awarding the City its reasonable 

attorney's fees and litigation expenses to be paid by Defendant Developers, in an 

amount to be proven at trial or upon disposition of this action; 

(c) the Court assess the costs of this action on Defendant 

Developers; and 

(d) the Court award the City such other and further relief as is just 

and proper. 

Respectfully submitted this 26th day of July 2013. 

Is/ John L. Watkins 

John L. Watkins, Esq. 

john.watkins@thompsonhine.com 

Georgia BarNo. 740515 

11 

Roy E. Hadley, Jr., Esq. 

roy .hadley@thompsonhine.com 

Georgia Bar No. 003730 
Case 1:13-cv-02480-SCJ Document 1 Filed 07/26/13 Page 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 

Leslie J. Suson 

leslie.suson@thompsonhine.com 

Georgia Bar No. 142162 

Attorneys for The City of Atlanta 

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

EXHIBIT A 
Case 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/IJfi O 

CITYOFCOLLEGEPARKaml ~~- .2 COftJ. ' -liA.r,. CHARLES E. PIHLLIPS, SR., ·:cz.t_ 

. ' CIVIL ACTION NO. · .·· . 

Plaintiffs I :08-CV -1464 . ' 

v. 

CITY OF ATLANTA and SHIRLf!:Y 

FRANKLIN, in her official capacity as 

Mllj'or of the Clty of Atlanta, 

Defcnda tl:ts. 

CONS.ENT QRDER 

This mauer having come befor~ the ·Court on plaintiffs' and -defendants' 

Joint Motion for Relief under Federal Rule of Civil Procedure l'iO(b ), and the Court, 

having reviewed the •·ecord and tne arguments of the partil!l>, issues the lol!owinl:l 

Consent Order: 

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 of the record and incorporated 

i nw this Conse!ll Otde ,. by reference. 
Case 1:.13-cv-02480-SCJ Document+1--Filed 07/26/13 ·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 

· Judgment to the United States (::gurt.of Appealsf()rthe Eleventh 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 not filed thelr Brief of AppeJICQS. 

On September l 0, 2009, pursuant to a directive from the United States Court 

of Appeals 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 Rei ief 

:··:·_;<:_· __ -_-- :/_ ~:_,; __ :;:_\;_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,hd Qpinipn 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 of pursuing the appeal, allowing 

the appeal'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 of this 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 Page 3 of 8 

CONCLUSION 

Based upon the above, and the consent of the parties, the Court reaffirms its 

issuance of the Order and Opinion and Judgment and further enters the following 

Consent Order: 

I. 

CONSENT ORDER 

MEETINGS AND BRIEFINGS 

l. L The 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 

of its 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 of A\;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 planning meeting; or 
Case 1:-13-cv-824BO·SCJ-Document 1"1 Filed 07/26113 Page 5 of 21 

Case 1:08-cv-01464-JEC Document 64 Filed 08102110 Page 4 of 8 

1.2.2. subsequent to the time of disclosut·e during the applicable 

planning meeting, becomes known to the public or appears 

in published literantre through no fault of College Park; or 

1.2.3. was· acquired by College Park 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, of any proposed aclion by 

Atlanta that, in the good faith detennination of Atlanta, materially affects or could 

materially affect the interests of O;:>llege Park or a significant number of it~ 

€itizens .. " ~ ., 

if.·. -i<• <: 

3. REPURCHAsE OF WYNTERBROOK APARTMENTS 

3.l.College Park will, C!)ntemporaneously with the date of its 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"). 

4 
Case 1:1::FCV"02480,SCJ Document 1-1 Filed 07/26/13 Page6 of 21 · 

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

J.J.Atlantn will notity College Park in wriling of the Wynterbrook Demolition 

Completion Date within ten (I 0) days of that date, at which time College 

. Park will have an option, exercisable by written notice to Atlanta within one ·<;, 

hundred eighty (I 80) days of the Wynterbrook Demolition Completion 

Date, to purchase at fai;· market vil:lue the Wynterbrook site. · 

3.4."Fair market value" for the Wynterbrook site shall bt! detem1ined as of the 

Wynterbrook Demolition Completion Date and by the process detailed on 

Exhibit "B". 

3.5.1f purchased 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 of the Wynterorook Demolition 

Completion Date, Atlantll, at its expense and subject to any applicable laws, 

including laws governing the procurement of services, will promptly engage 

the services of an 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 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 · Page 7 of 21 

Case 1 :08-cv-01464-JEC Document 64 Filed 08102/10 Page 6 of 8 

Apartments, located at 3800 Hershel Road. for purposes of this Consent Order, an 

apartment complex means any building with four (4) or more residential u11i1s. 

5. NCP PROGRAM 

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 of noise mitigation funds, 

are mitigated and the timing of the mitigations. 

5.2. Thi.s consultation shall take pJace prior to mitigati9n ofeach pro~rty an<:! 

.~· Atlanta shall notifY College Park when mitigation of each property has been ;·. 

completed. If Atlanta groups prop~rdes into packages for mitigatio11, 

consultation may take place prior to miti~tion of each package (a~ opposed 

to each property) and Atlanta rnay notify College Park when mitigation of 

each package (as opposed to ea<;h property) 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. OPERATIONAL ACQUISITIONS 

Atlanta agrees to discuss with College Park, within ork hundred twenty ( 120) 

days of the 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 7 of 8 

acquisitions for operations of the airport and for which Atlanta is Lax exe111pt. the 

City of Atlanta will pay a Payment in Lieu of Taxes. 

7. WYNTERBROOK SITE; MISCELLANEOUS 

7.l.Colhige Park agrees that the portion of Frontage 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 of College Park or its Citizen:;. 

7.2. The" parties have disposed- of this case through ''the execution of this ' 

Consent Order and the remand/dismissal ofthe appeal. Additionally. within 

three {3) days of the Order Date, College Park will dismiss "with prejudice" 

the following litigation, each in its entirety: 

7 .2.1. City of Co !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 Superior Court, Case No. 2005-CV -1 0 1612; 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. 

7 
I 

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 of 8 

7 .2.2. City of College Park v. City of Atlanta, Fulton 

County Superior CoUTt, 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 or qther litigation cqsts. -_, 

8. EFFECTIVE DATE•OF AGREEMENT 

·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 DISTRICT JUDGE 

R bert B. Caput, Senior Assistant 

City Attorney, on behalf of 

Defendants, City of Atlnnta and 

Mayor Shirley Franklin 

Executed: ~- '(' , 20 I 0 

Greg Michell, on behalf of 

PlaintitTs, City of College Park and 

Charles E. Phillips. Sr. 

Executed: . -- , 20 I 0 -······-
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 1 of3 

~.· 

.~· 
·" 

~-- ~ Case 1:13-cv-02480-SCJ Document 1·1 Filed fJ7/26/13 Page 11 of 21 :,.. 

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

Exhibit A 

Restrictive Cove_11::mts 

This transfer and any subsequent tra9-sfer of any 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 of Hartsfield Jackson Atlanta. International 

·Airport: · · ·· -,: 

Grantee agrees on behalf of 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 certain land uses as identified 

inFAAA<hiisory Ci.rcular 15p!?200.,_;33B ("AC") and any ,. 

aniendinl;)nts to Table 1 and .the A C. .!n the event Table I 

m: P1e AF shaH be 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 :of useshall 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, 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 fpr Airport . 

Parking unless such use is approved, in writing, by the 

City of Atlanta, 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 3 of 3 

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 that this 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 of 21 

Case 1 :08-cv-01464-JEC Document 64-2 Filed 08!02/1 0 Page 1 of 3 

EXHIBIT B ··:, 
',.. / 

· Case 1:13-cv-02480-SCJ Documentl-1 Filed 07/26/13 Page 14of 21 · 

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

E:xhibit B 

Fair Market Value Purchase Price 

.. The fair market value, purchase price shall~ determined as follow~: 

Appraisal Process 

Within thirty (30) days of College 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. If the appraisers report opinions of Fair Market 

Value within five percent (5%) of each other, the average of the two appraisals will 

·constitute the Purchase Price. If not,· 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. If the two 

appraisers selected by Atlartta and College Park fail to select a third 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 of any third appraiser will be 

split fifty/fifty (50/50) between the parties. Arty 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 professional judgment 

a. The appraisers shall utilize the Survey provided by the Parties hereto, and 

shall, using ... their professional discretion and judgment, pla<;e a value on the 

property by a co!Jective valuation of like,or similar properties by applying a 

standard price variable to like properties of varying sizes; 
. ,,,. 

( 

.J (". 

Case 1:13-cv-02480-SCJ Document 1-1 Filed 07/26/13 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 Fulton County, Georgia and Incorporated Areas; 

c. The appraisals shall take into .account any and all easements jlnd covenants 

(specifically the Restrictive Covenant attached to the Order as Exhibit "A") 

encumbrances or other statUtory or regulat~ry restrictions placed on the · 

property's use by the.Seller, the FAA or applicable. state and Federal. law due 

to. its proximity •to. Hartsfield~Jackson International Airport, specifically 

· including, ~ut . not limited ·to, aJ?plicable noise reduction construction · 

requirements, and height restrictions and avigation easements attached to the 

Order as Exhibit "C".) 

Each appraiser shall acknowledge iii. writing that he or she has received these 

considerations and will specifically reference them 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 1 of 3 

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

Case 1 :08-cv-01464-JEC Document 64-3 Filed 08102/10 Page 2 of 3 

Exhibit C 

Avigation and Height Easement' 

The Grantor (City of Atlanta) hereby reserves an interest in the Property described 

in this deed that will create a servitude on particular areas that will restrict the use 

of the surface and that will assure the City of Atlanta of the right and p1ivilege of a 

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 of entering the land. The restrictions in this easement shall include but not 

be limited to: 

(I) The right to restrict or prohibit radio or electromagnetic interference 

to aircraft flying overhead. 

(2) The right to restrict or prohibit lights, lighted signs, and other lighted 

objects that unreasonably 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 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 of the parcel rising to 

an elevation of I, 175-feet above mean sea level at the western most 

edge of the parcel. Any point between t~e east and west elevations can 

be interpolated using a sloping plane between the two elevations. 

(5) The right to restrict or prohibit specific agricultural or horticultural 

uses such as growth and harvesting of timber, 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 to the Limited Warranty Deed transferring title 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 Document 64-3 Filed 08/02/10 Page 3 of 3 

orchards or other plant growth that may eventually penetrate the 

imaginary surfaces depicted on the Exhibit "D" Drawing. 

(6) The right to restrict or prohibit 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. 

(7) The right to require tile removal by the owner of any trees or portions 

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 of written 22 notice from the City 

of Atlanta of the requirement to do so and, in such event, to collect the 

cost of such 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 1 of2 

:;. 

EXHIBIT n·~ :.:::. 

_; 
Case 1:1::s~cv--D2480-SCJ Document 1'1 Filed 07126/13 Page 20 ot 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, November 04, 2010 10:35 AM 

Nissalke, Tom 

Subject: RE: Update 

Attachments: Mike Flannagan. vel 

Can we put itfn writing on letterhead? I think I understand the issue's and that makes sense.lf you could just write it up 

with positive spin that its a done deal, just timing the actual approval to be difficult sense it is outside the normal way 

the city does business??? Sound about right? 

Let's talk today about the other communities. Have had a·nv conversations with the attorney? l have a meeting 

scheduled 9:30AM 11.17.2010 with Bill Johnson. I am going to touch on the order .... I want to see if he is going to come 

around to our way of thinking after I spell it out for hirn. 

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} 624-5743 Hobfe: 

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, 

I have some good news and bad news. The good news is that legally we can enter into the transaction for you to selfperform the noise insulation work at Hartsfield Landing. The bad news is that because we're not competitively 

procuring your "services11

, we have to waive the City procurement code and that causes us to jump through a few 

'rocedural hoops. This means that the legislation won't make the December 6 City Council meeting and therefore we're 

Joking at around a J~nuary 15 meeting. J have no control over that. 

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

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

U.S. Department 

of Transportation 

Federal Aviation 

Administration 

April10, 2007 

Mr. Thomas E. Nissalke, Ph.D. 

Director of Environmental and Technical Services 

City of AtlantaJDepartment of Aviation 

P _ 0. Box 20509 

Atlanta: Georgia 30320-2509 

Dear Mr. Nissa ike: 

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 

------.nrs l<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 properties with 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 exposure 
Case 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 under 49 U.S.C. 47503 of ASNA, (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 or disapprove 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 

AS0-7 
Case 1:U-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 1 or 12 

EXHIBIT C 
Case 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 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 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 the 
Case 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 discuss their 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. Nissa Ike, City of Atlanta/Department of Aviation 

Mayor ,Jack Longino, City of College Park, Georgia 
Subject: 

Case 1:U-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 4 or 12 

Memorandum 

U.S. Department 

of Transportation 

Federal A viatioh 

Administration 

Disposition of Comments regarding Hartsfield-Jackson lntemational 

Airport Part l SO 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 of the City of Atlauta'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 behalf of the City of College Park. The first 

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

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

letters raised concerns with Hartsfield-Jackson International Airport's NCP update. 

Although the letters on behalf of (1)1lege Park were received after the close of the comment period, FAA considered and 

responded to the issues raised in reviewing the NCP for approval under Part I 50. The comments are summarized and 

~----Oddressed-below, ~----- -~---- ~~~~-~---~-- ___ _ 

City of College Park Comments: 

I a). The airport sponsor. City of Atlanta, failed to meaningfully consult the City of College Park about 

acquisition of apartment complexe~ located within the City ofCoUege Park as required by the Part 150 regulalions. !n 

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

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

College Park that there would be ID more acquisition and demolition of any property within Co !lege Park without the 

direct involvement of College 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 of the affected properties which indicates no consultation occurred; 

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

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

as subparts to this comment. 
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 of the state and of any 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 of Atlanta, the owner and operator of Hartsfield-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 of Atlanta established the Noise Mitigation Advisory Council (NMAC) to 

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

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

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

Charter of the NMAC states the mission of the NMAC is to assist [the City of Atlanta] 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 of Part 150 aircraft operational, land use compatibility alternatives, 

and mitigation priorities. ld. At 8-::. The NCP update indicates the City of College Park was represented on the NMAC, 

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

The representative of the City of C.:Jllege Park attended the October 27, 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 of College Park and others were provided with copies or the dra!\ 

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

Of these, 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 of the voluntary property acquisition was estimated at $43 million during this 

meeting. See, Appendix G, 8/3/06 NMAC Meeting Minutes. 

The City of Atlanta 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 of Atlanta agreed to accept comments from the City of College 

Park until October 30, 2006. 

The City of College 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 of these 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 of College 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 of the comment period, there was no obligation on the pan of 

the sponsorto address them as part of the NCP update under 14 CFR § 150.23(e)(7). 

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

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

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

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

Atlanta is further evidenced by College Park's Jetter to the FAA dated November 6, 2007, and signed by the Mayor of 
Case 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 of ANY property within College Park without the direct 

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

without the consent of College Park." 

Based on these facts, the City of Atlanta 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 of residences (including apartment complexes) in the 70 DNL contour and for voluntary acquisition or sound 

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

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

the 65170 DNL contour have the option of voluntary land acquisition or sound insulation. Five of the seven multifamily 

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

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

voluntary acquisition included apartment complexes as early as October 2005. Since that time the City ofCo!!ege Park 

has had numerous opportunities to discuss its concerns about this measure in depth with both the City of Atlanta 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.govlaboutl office_ org/headquarters _ offtceslaep/plann ing-too I kiVmedia/VI.A.pdf). The NCP 

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

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

the 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. 

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

College Park without the direct involvement of College Park. 

FAA Response: 

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

the NCP that involve voluntary acquisition of property within Co !lege Park. If College Park demonstrates that it is 

capable of carrying out the projects within its jurisdiction, 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 of Atlanta, when College Park voiced concerns regarding the ongoing acquisition of property in College Park by 

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

specifically stated that he would not purchase property within College Park without the city's concurrence. 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 of the Part 150 NCP update does not foreclose direct 

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

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

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

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

J d). The NCP does not include plans for re·use/re~development of the properties nor does it include plans for 

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

approprit:~te land use for the re~use of the affected properties. College Park believes that given the long term use of this 

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

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

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

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

that no consultation 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 of Atlanta's consultation with College Park and Response to 

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

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

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

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 of communities as 

recognized under Part 150. 

Part 150 does not require the airpm1 sponsor to include plans for reuse of the properties or plans for where tenants will be 

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

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

the NCP measure and acquires residential property, the City of Atlanta must comply with the 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 a NCP sponsor so as to facilitate further NCP land acquisition and 

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

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

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 of Atlanta. 49 U.S. C.§ 47504(c)(l), (c)(J). If College Park applies 

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

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

U.S.C. § 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 of the NCP's 

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

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

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

a 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 of the 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 of multifamily structures in the past, without NCP authority. 

----·--l'l'v\ltesporrsec-·· 

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

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

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

of all 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 a multifamily apartment complex since 
Case 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 of local jurisdictions. Co !lege Park has 

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

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

of the 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 of multifamily dwellings in the NCP update. The April2007 Federal Register notice stemmed from the City 

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

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

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

The Ci1y of Atlanta submitted to the FAA for review a baseline/current condition NEM and an NCP that did not include 

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

complete revision of the 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 of the comprehensive NCP 

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

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

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

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

Register on April23, 2007. The notice did not specifY the two measures involved but directed the public to contact 

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

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

and prepared to issue a Record of Approva1.3 However, College Park discovered the misunderstanding and contllcted the 

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

withdrew the notice. 

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

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

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

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

concern to College Park. 

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

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

______ _,T"'h"e~C"it,y.,o,f_,Coll~g~~m:k .. .tO~JL~i.t~~JLtig~tion from 1995 to support this })Q_iiJJ::i_QXLQ~_QfiJl_S_~ in that litigation. the City of 

Atlanta took a similar position in support of excluding 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 

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

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

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

Comment I c. 

3b). 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 of the 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). A close reading of Ci(v o(Atlanto v. Watson (267 Ga. 185) reveals that the City of Atlanta detennined notto include 

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

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

Atlanta did not state in the 1985 NCP that it would never seek to acquire multifamily 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 of previously 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 of reducing existing 

and/or preventing future non-compatible land uses. 

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

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

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

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

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

alternatives also fails to meet the requirements of the law and, in particular, 14 CFR § 150.23. 

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

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

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

4). Analysis of program alternatives is discussed in 14 CFR §8 150.7. 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 !50 Study, these include: acquisition of land and land interests, construction of 

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

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

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

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

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

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

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

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

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

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

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

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

acquisitions outside the municipalily of Atlanta until the questions of compliance 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 of compliance issues, the FAA administers its airport noise compatibility planning program separately from 

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

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

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

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

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

federal grant assurances. 
Case 1:13-cv-02480-SCJ Document 1-3 Filed 07/26/13 Page 10 or 12 

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

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

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

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

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

comprehensive NCP. 
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 

and 
Case 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.