BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

) 

VIRGINIA ONE DEVELOPMENT, LLC, et al., ) 

) 

Complainants, ) 

) 

v. ) 

) 

THE CITY OF ATLANTA, GEORGIA, ) 

) 

Respondent. ) 

____________________________) 

FAA Docket No. 16-12-09 

RECEIVED 

APR 7 20!5 

PART 16 DOCKETS 

RESPONDENT THE CITY OF ATLANTA, GEORGIA'S 

BRIEF IN RESPONSE TO COMPLAINANTS' APPEAL OF THE 

DIRECTOR'S DETERMINATION DATED JANUARY 26,2015 

Jolm L. Watkins 

Roy E. Hadley, Jr. 

THOMPSON HINE LLP 

Two Alliance Center 

3 560 Lenox Road, Suite 1600 

Atlanta, Georgia 30326-4266 

Phone: (404) 541-2900 

Fax: (404) 541-2905 

j olm. watkinsialthompsonhine. com 

roy.hadley(lll,thompsonhine.com 

Eric N. Heyer 

THOMPSON HINE LLP 

1919 M Street, N.W., Suite 700 

Washington, D.C. 20036 

Phone: (202) 263-4128 

Fax: (202) 331-8330 

eric.heyer@thompsonhine.com 

Counsel for Respondent, the City of Atlanta, Georgia 

Dated: April 7, 2015 

1 
Respondent, the City of Atlanta, Georgia, respectfully submits this Brief in Response to 

the Appeal filed by Complainants Virginia One Development, LLC, Avery Park Partners, LLC 

d/b/a Avery Park, Colony Camp Creek, LLC, and Crossings Townhomes, LLC (collectively, 

"Complainants") of the January 26, 2015 decision of the Director of the Office of Airport 

Compliance and Management Analysis ("Director's Decision"). 

INTRODUCTION 

This case is about the alleged violation by The City of Atlanta, Georgia ("Atlanta"), as 

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

grant assurances to the Federal Aviation Administration (the "FAA" or "Agency"). A highly 

detailed, carefully reasoned and dispassionate 48-page Director's Determination concluded that 

Atlanta has not violated any grant assurances. 

Complainants have now appealed the Director's Determination. In marked contrast to the 

Director's carefully reasoned opinion, Complainants' appeal is short on analysis, largely devoid 

of supporting citations of fact, and long on invective directed toward both the Director1 and 

Atlanta2 Although perhaps illustrative of the "pound the table" part of the old legal aphorism3

, 

1 By way of example, Complainants assert that the Director's Determination is "unconscionable" 

and a "reprehensible assault on public health and welfare" that is "wholly unsupported by law 

and by fact" (Appeal at 1-2); that the Director's statement is "ludicrous" (j_cb at 35); and that the 

Director "consistently mischaracterizes" facts and argument (id. at 3 7). 

2 Complainants assert that Atlanta's approach is to "bully" landowners and College Park (Appeal 

at 13); that Atlanta "reneged" on a supposed promise (id. at 14); that Atlanta's actions are 

"tantamount to fraud" (j_cb at 29); that Atlanta is trying to "weasel out" of alleged obligations (j_cb 

at 31 ); and that Atlanta has gotten itself into a purported dilemma "through its own stupidity and 

incompetence of its attorneys" (id. at 37). 

3 "If tl1e law is on your side, pound the law; if the facts are on your side, pound the facts; if 

neither the law nor the facts are on your side, pound the table." The aphorism has been attributed 

to Oliver Wendell Holmes, Alan Dershowitz, and many others, although its exact origins appear 

unclear. http:/ I g uoteinvestigator.com/20 10/07 /04/legal-adage/. 

2 
such ad hominem attacks have no proper place in legal proceedings. Atlanta will thus not answer 

in kind to this sound and furl, but will stick to the issues. The Director's Determination is 

supported by a preponderance of reliable, probative, and substantial evidence, was made in 

accordance with law, precedent, and policy, and was not the result of any prejudicial error. On 

the facts and the law, the Director's Determination must stand. 

STATEMENT OF THE CASE 

A. Procedural Posture 

The procedural posture of this case is set out at length at pages 5 and 6 of the Director's 

Determination. Nothing in Complainants' Appeal calls this into question, so it will not be 

addressed further here. 

B. Statement of Facts 

l. The Airport's NCPs 

As noted by the Director, the Airport 1s a federally funded, public-access, FAAdesignated large hub airport used by many airlines that ranks as the busiest airport (in terms of 

number of passengers) in the United States. (Director's Determination at 2.) In 1979, Congress 

passed the Aircraft Safety and Noise Abatement Act of 1979, 49 U.S.C. § 47501, et ~(the 

"Abatement Act" or the "Act"). Title 49 C.P.R. Part 150 ("Part 150") was adopted to implement 

this legislation. 

The Abatement Act and Part 150 provide a uniform method of modeling aircraft noise 

using a computer model known as the Integrated Noise Model ("INM"). Based on considerable 

input regarding aircraft operations, the INM is utilized to prepare noise exposure maps 

("NEMs") with noise contours in a unit known as a "DNL" representing the yearly day-night 

4 See William Shakespeare, Macbeth, Act 5, scene 5. 

3 
average sound level. (See Director's Determination at 20). The NEM and resulting nmse 

contours-known as the 70 DNL contour and the 65 DNL contour-at the Airport are shown in 

Figure 2 on page 4 of the Director's Determination. 

The Abatement Act and Part 150 also provide for the voluntary establishment of noise 

compatibillty programs ("NCPs") by airport sponsors such as Atlanta. As explained by the 

Director, and as set forth in Part 150, establishing an NCP requires considerable local input. 

Although the Act provides for a uniform national method of measuring and modeling noise, 

NCPs are inherently local programs. As the Director noted: "In its approval letter [of the 

Airport's 2008 NCP], the FAA remarked, 'the 14 C.F.R. Part 150 NCP is a local program, not a 

Federal program and that the FAA does not substitute its judgment for that ofthe airport operator 

with respect to which measures are recommended for action."' (Director's Determination at 25.) 

The reason why NCPs are and must be inherently local programs is that local conditions 

vary drastically at airports across the country. The conditions that exist in densely populated 

urban areas for older airports such as at Reagan National or LaGuardia, for example, differ 

greatly from those at newer greenfield airport such as Denver International. Although NCP 

measures are subject to financial reimbursement by FAA funds, the FAA's role (and the role of 

grant assurances) is "to make sme that funds spent for federally supported programs are spent for 

appropriate purposes, not to mandate the spending of funds." @ at 31 (quoting Atlanta's 

submission with approval).) 

As detailed in the Director's Determination, the Airport has a long history of acquiring 

property and providing sound insulation for homes affected by aircraft noise. (Director's 

Determination at 6-8). The Airport's first Part 150 program was approved in 1984-1985. By 

2006, approximately 2,720 residences were acquired at a cost of $71.5 million, and more than 

4 
1,700 structures received sound insulation. (Id. at 7.) The Airport continues to acquire property 

and to provide sound insulation, with the grants issued in 2012 and 2014 totaling $23 million. 

(I d. at 3 8). 5 

Notably, the Airport's original NCP adopted in 1984-1985 did not apply to apartment 

complexes at all and only provided for potential acquisition or sound insulation of single-family 

homes. This provoked litigation chalLenging the distinction on constitutional grounds. These 

challenges were rejected by both the Supreme Court of Georgia and the United States District 

Court for the Northern District of Georgia. See City of Atlanta v. Watson, 267 Ga. 185 (1996) 

(rejecting Equal Protection challenge to Atlanta NCP, which was upheld as rationally based, 

given that (1) the multi-family residents were less affected by aircraft noise than single-family 

units and had high occupancy rates and (2) the Airport's acquisition of multi-family properties 

would negatively affect College Park's tax base, and Part 150 expressly requires input from 

surrounding communities); Provident Mutual Life Ins. Co. v. City of Atlanta, 864 F. Supp. 1274, 

1291-1293 (N.D. Ga. 1994). 

In 2003, Atlanta began the process of preparing a new NCP. Updated NEMs were 

approved by the FAA in 2007, and a new NCP was approved on January 25, 2008. (Director's 

Determination at 8.) Unlike the prior NCP, the 2008 NCP made multi-family properties 

(apartment complexes) potentially eligible for acquisition or sound insulation. As was the case 

with the prior NCP, the 2008 NCP adopted a "bright line" test for potential eligibility: (1) If a 

property is in the 70 DNL contour, it is potentially eligible for acquisition or sound insulation; 

5 Even as these measures have been adopted, the area affected by aircraft noise has steadily 

decreased over the past 3 0 years even as operations have (save for the last few years) generally 

increased. (See Director's Determination at 38, figure 3 (showing considerable reduction of size 

of both 65 and 70 DNL contours).) This is primarily due to quieter Stage 3 and Stage 4 aircraft 

coming into use. 

5 
and (2) if a property is located in the 65 DNL contour, it is potentially eligible for sound 

insulation. 

2. The College Park Consent Order 

College Park, Georgia, is a municipality bordering the northwest corner of the Airport. 

(Director's Determination at 2-3 and figure 1). College Park has repeatedly objected to the 

acquisition of apartment complexes in College Park under the NCP as detrimental to its interests. 

On April 18, 2008, shortly after the FAA's approval of the 2008 NCP, College Park filed a 

lawsuit against Atlanta in the United States District Court for the Northern District of Georgia 

styled City of College Parle, et al. v. The City of Atlanta, et al., Civil Action File No. l :08-cv1464-JEC. After College Park appealed to the United States Court of Appeals for the Eleventh 

Circuit, the case settled in conrt-ordered mediation. The settlement was memorialized in a 

consent order signed by the Honorable Julie Carnes on July 30, 2010, and entered on August 2, 

2010 (the "Consent Order"). Under the Consent Order, Atlanta agreed to modify the NCP so as 

not to acquire "any apartment complex within College Park other than Clubhouse Apartments." 

(Director's Determination at 9, FAA Ex. 1, Item 3, Ex. 2, at 2.) 

3. The Complainants 

As noted by the Director, the remaining Complainants are Virginia One Development, 

LLC, Avery Park Partners, LLC, Colony Camp Creek, LLC and Crossings Townhomes, LLC. 

DSH Diplomat changed ownership, and is no longer part of this matter. (Director's 

Determination at 4-5 & n.2l.) Virginia One Development, LLC is owned by Michael Flannagan 

and the remaining entities are owned by David Scott Henderson. (See discussion and record 

citations below.) As the Director correctly noted, there are "significant differences between the 

properties .... " (Director's Determination at 5.) For example, only Avery Park and Colony 

6 
Camp Creek own properties within the 70 DNL contour that are located within the City Limits of 

College Park. Thus, only these two properties are affected by the Consent Order, which 

consumes a considerable amount of Complainants' argument. 

Throughout the Appeal, Complainants' counsel repeatedly suggests that Complainants 

are victims of aircraft noise whose property was rendered worthless and unsellable by the 

construction and operation of Runway 10-28 (the "Fifth Runway"), which became operational in 

May 2006. Complainants also suggest that their properties were rendered worthless and 

unsellable when identified on the 2008 NCP. (Appeal at 15.) Presumably, this is actually a 

reference to the location of the properties on the NEM that was actually approved in 2007. 

Complainants' assertion is notably devoid of citations to the factual record. 

The reason for the lack of citations is simple: Complainants' contention is simply not 

true. The location of their properties shows that they are unaffected by operations from the Fifth 

Runway. (See Director's Determination at 4, figure 2 (showing that noise contours from Fifth 

Runway~most to the south on the map~do not affect Complainants' properties)). Further, 

Complainants bought their properties in 2009 and 20 I 0, and did not even own the properties 

when the Fifth Runway became operational in May 2006 and the 2007 NEM and 2008 NCP 

were approved. The fact that Complainants affirmatively acted to purchase the properties after 

the NEM and NCP were approved alone completely undermines their story that the properties 

were rendered worthless and unsellable. 

But there is much more. The undisputed testimony of Complainants' principals 

completely contradicts their counsel's unsupported assertions throughout their Appeal. 

7 
a. Avery Park, LLC and Colony Camp Creek, LLC 

Complainants Avery Park, LLC and Colony Camp Creek, LLC own apartment 

complexes within the City Limits of College Park and are partially within the 70 DNL contour. 

These Complaina.rtts are parties to a lawsuit pending in the United States District Court for the 

Northern District of Georgia styled City of Atlanta, Georgia v. Avery Park Partners. LLC, et al., 

Case No. 1:13-cv-2480-SCJ (N.D. Ga.) (the "Northern District of Georgia Litigation"). 

David Scott Henderson owns 100 percent of both Avery Park and Colony Camp Creek, 

as he testified at his deposition in the Northern District of Georgia Litigation, which is also part 

of the record in this matter. (FAA Ex. l, Item 16, Exhibit "A.") Mr. Henderson has been a real 

estate investor and developer for over twenty years. (Id. at 8.) He owns thirteen apartment 

complexes in Atlanta, all near the Airport and within a five mile radius. (Id. at 8, rO.) In early 

September 2010, Mr. Henderson attended a briefing regarding the Airport's Noise Insulation 

Program. As a result of this briefing, Mr. Henderson became aware that the Airport was offering 

possible sound insulation, but not acquisition, for apartment complexes in College Park. (Id. at 

26-28.) 

On September 22, 2010, Sarah Peek of Atlanta's Department of Aviation sent Mr. 

Henderson an email attaching a copy of the Consent Order. (Id. at 33-34 and Exs. 10 and ll 

thereto.) Ms. Peek's September 22, 2010 email specifically referred Mr. Henderson to Paragraph 

4 of the Consent Order, which prohibits the acquisition of apartments in College Park. (Id. at 34.) 

To the extent there is any doubt, Mr. Henderson testified as follows: 

So was that - basically at this point in time, September 22, 2010, the folks at the 

airport were telling you, [w]e can't acquire properties because of this consent 

[order]? 

Mr. Howard: Object to the form of the question. 

Q. Was that your understanding? 

8 
A. Yes. 

(Id. at 35.) 

On November 29 2010, Mr. Henderson, through Colony Camp Creek, LLC, acquired 

Hanington Park. (Id. at 15 and Ex. 2 thereto.) On December 28 2010, Mr. Henderson acquired 

the A very Park apartment complex. Mr. Henderson quitclaimed the property to Avery Park 

Partners, LLC on December 7, 2011. (Id. at 18, 20, and Exs. 4 and 6 thereto.) Mr. Henderson 

thus acquired both apartment complexes in issue after the Consent Order was entered, after he 

was aware of it and after he received a copy, as he expressly admitted. (Id. at 36-37.) 

Far from being "wmthless," as Complainants' counsel suggests, Mr. Henderson also 

testified that Hanington Park is over 90 percent occupied and has positive cash flow. Wi. at 18, 

22-) Avery Park is also over 90 percent occupied and has positive cash flow. (Id. at 22.) As Mr. 

Henderson snmmarized: "Both of those properties do extremely well." (Id.) In fact, Harrington 

Park and Avery Park have done well the entire time Mr. Henderson (or his companies) has 

owned them. At the time of the initial purchase, there were about 200 vacant units, but "we were 

able to fill them up pretty quickly." (Id.) Although there is a "constant move them in and move 

them out," the occupancy rate remains high. (Id.) 

Mr. Henderson also testified that Mr. Flannagan, the owner of Virginia One 

Development, had approached him about buying Avery Park and Harrington Park in early 

February 2014 and had talked numbers. However, as stated by Mr. Henderson: "I never would 

listen to him because I didn't want to sell anything because I know, you know, we had some 

good deals on what we bought." (Id. at 12.) As Mr. Henderson further explained: 

Q. Okay. So you felt you could mal(e more money by holding the property 

and selling it at a later date? 

A. Yes. 

9 
Q. And that would include Avery and Harrington. 

A. Everything. 

(Id.) 

Mr. Henderson's testimony also demonstrated that the Airport has not ignored or 

overlooked the properties. After the Consent Order, Harrington Park and Avery Park remained 

potentially eligible for sound insulation under the NCP. Mr. Henderson acknowledged that the 

Airport performed a property condition survey of Harrington Park for sound insulation. (Id. at 

46-47.) Mr. Henderson testified that he viewed discussions regarding sound insulation as "on 

hold" for all properties. (Id. at 47-48.) Further discussions are "on hold" due to Mr. Henderson's 

decision not to pursue eligibility for sound insulation. 

b. Virginia One Development, LLC 

Virginia One Development, LLC ("VOD") owns a property sometimes referred to as 

"Hartsfield Landing." This property is located outside the city limits of College Park and is 

partially within the 65 DNL contour. (FAA Ex. 1, Item 3, Ex. 3, '1]'1]2, ll, 27.) Accordingly, 

Virginia One's property is not eligible for acquisition under the NCP and is not affected by the 

Consent Order. 

Virginia One acquired this property in August 2009. (Id. at '1]7.) Virginia One is owned 

by Michael Flannagan. Virginia One Development sued Atlanta in litigation filed in the Superior 

Court of Fulton County, Georgia, styled Virginia One Development, LLC v. The City of Atlanta, 

Case No. 2011CV204266 (the "VOD Lawsuit"). Considerable discovery was taken in the VOD 

Lawsuit, including the depositions of Mr. Flannagan and his sponse, Nicole Flannagan, who 

acted as VOD's General Counsel. VOD dismissed the VOD Lawsnit without prejudice on 

October 31, 2013, and has never re-filed it. 

10 
At the time VOD purchased the property in August 2009, it had no tenants, was not in 

operation, and was in poor condition. In communicating with the Fulton County Commission, 

one ofVOD's attorneys described it as "vacant and uninhabitable."6 (FAA Ex. 1, Item 3, Ex. 5, 

15 5-15 6.) Mr. Flannagan explained that, shortly after acquiring the property, he "made a 

determination to go ahead and strip it to the studs" because of on-going theft at the property. (Id. 

at 60.) 

VOD hoped to redevelop the property using tax credits to be issued by the Georgia 

Department of Community Affairs ("DCA"), but its application was turned down in the 

competitive application process. VOD represented to DCA that its proposed development 

involved new construction-knocking down the existing structures and building new ones. At 

the same time, VOD was seeking sound insulation from the Airport, representing that it intended 

to renovate the existing structures, which was necessary because the NCP requires properties to 

have been built before 1985. (FAA Ex. 1, Item 3, Ex. 10; Director's Determination at 4, n.20.) 

Nicole Flannagan testified that she was aware of no further plans by VOD to develop the 

property. (FAA Ex. l, Item 3, Ex. 6, at 203.) She further testified that there would be no benefit 

in providing sound insulation to a vacant and abandoned apartment complex. As Ms. Flannagan 

succinctly stated: "There's no reason to insulate a structure that's not going to be occupied." (Id. 

at 202.) 

Because the property has been unoccupied smce 2009 and is uninhabitable, it is 

compatible with aircraft noise m its current state, and the Agency has so advised Atlanta. 

Accordingly, it is not eligible for sound insulation under the NCP. Further, as a matter of simple 

6 The record thus belies Complainants' unsupported claim that "[r]elying on Atlanta's promise to 

provide sound insulation, the owner prepared the complex for installation of the sound insulation 

by moving the tenants out to make installation of sound insulation and other repairs easier." 

(Appeal at 13.) 

ll 
common sense, and as noted by Ms. Flannagan, there simply is no reason to insulate a structure 

that is not going to be occupied. 

c. Crossings Townhomes 

Crossings Townl1omes is another property that is owned through an LLC owned by Mr. 

Henderson. He acquired the property on December 11, 2009, almost two years after the approval 

of the 2008 NCP. (FAA Ex. 1, Item 3, Ex. 9.) Crossings Townhomes is located in College Park, 

but is within the 65 DNL contour. It is thus potentially eligible for sound insulation, but not 

acquisition. ill correspondence prior to the filing of the Complaint, Atlanta stated it would 

inspect tl1e property and evaluate it for sound insulation. However, as Mr. Henderson testified at 

his deposition, he put all considerations of sound insulation "on hold." (FAA Ex. 1, Item 16, Ex. 

A, at 47-48.) As Mr. Henderson put it: "Same with Avery, same with Crossings." (!d. at 48.) 

STANDARD OF REVIEW 

The standard of review for considering Complainants' appeal of the Director's 

Determination is established by 14 C.F.R. § 16.33(e) and (f). Subsection (e) provides as follows: 

(e) On appeal, the Associate Administrator will consider the issues 

addressed in any order on a motion to dismiss or motion for surnn1ary judgment 

and any issues accepted in the Director's Determination using the following 

analysis: 

(1) Are the findings of fact each supported by a preponderance 

of reliable, probative, and substantial evidence contained in the record? 

(2) Are conclusions made in accordance with law, precedent 

and policy? 

(3) Are the questions on appeal substantial? 

(4) Have any prejudicial errors occurred? 

14 C.F.R. § 16.33(e). 

12 
Subsection (f) addresses the raising of new arguments for the first time on an appeal of a 

Director's Determination and provides as follows: 

(f) Any new issues or evidence presented in an appeal or reply will 

not be considered unless accompanied by a petition and good cause found as to 

why the new issue or evidence was not presented to the Director. Such a petition 

must: 

(1) Set forth the new matter; 

(2) Contain affidavits of prospective witnesses, authenticated 

documents, or both, or an explanation of why such substantiation is unavailable; 

and 

(3) Contain a statement explaining why such new issue or 

evidence could not have been discovered in the exercise of due diligence prior to 

the date on which the evidentiary record closed. 

14 C.F.R. § 16.33(£). 

In their Appeal, Complainants take the position that Section 16.33(e) "does not contain a 

standard of review" and that, as a result, de novo review of the Director's factual determinations 

under the Administrative Procedures Act, 5 U.S.C. § 557(b), is appropriate. (Appeal at !9-20.) 

This contention flies in the face of the plain language of Section !6.33(e) and of the 

Administrative Procedures Act, 5 U.S.C. §§55!, et seq., as well as federal case law. 

As Complainants' counsel is well aware, a federal appellate court that has addressed this 

very argument in factually indistinguishable circumstances has squarely rejected it. In 41 N. 73 

W. Inc. v. United States DOT, 408 Fed. Appx. 393, 2010 U.S. App. LEXIS 22830 (2d Cir. Nov. 

2, 2010), the petitioner, a fixed-base operator that supplied jet fuel and other services to aircraft 

at the Westchester County Airport in White Plains, New York, alleged violations of grant 

assurances by the airport. In considering the FAA's dismissal of the petitioner's complaint, the 

Second Circuit noted as follows: 

!3 
While we have held that an agency's review of an initial determination under § 

557(b) is de novo, see Mr. Sprout, Inc. v. United States, 8 F.3d 118, 123 (2d Cir. 

1993), § 557(b) does not apply in this case. Section 557 applies only to an 

"adjudication required by statute to be determined on the record after opportunity 

for an agency hearing." 5 U.S.C. §§ 554(a), 556 (emphasis added); see l 

Richard J. Pierce, Jr. Administrative Law Treatise § 8.2 (4th ed. 2002). We have 

held that no hearing is required under 49 U.S.C. § 4610l(a), which empowers the 

FAA to investigate complaints "if a reasonable ground appears." Lange, 208 

F.3d at 391; Penobscot [Air Servs., Ltd. v. FAA, 164 F.3d 713,] 720-21 [(1st Cir. 

1999)]. Similarly, we have found no hearing requirement in 14 C.F.R. Part 16. 

Here, the regulations would only have granted the County an opportunity for a 

formal hearing, and "only ifthere [had been] a finding of noncompliance" by the 

agency. Lange. 208 F.3d at 392; 14 C.F.R. § l6.3l(d). Because [petitioner] was 

not entitled to an opportunity for a formal hearing under Part 16 procedures or a 

relevant statute, § 557(b)'s standard does not apply. [Petitioner's] argument 

therefore fails. 

41 N. 73 W. Inc., 408 Fed. Appx. at 399, 2010 U.S. App. LEXIS 22830, at **13-14. 

Complainants' counsel is aware of this decision because he represented the unsuccessful 

complainants in that case, in which, as noted, he advanced the same unsuccessful argwnent as he 

makes here. 

None of the cases cited by Complainants hold to the contrary, as in each case a hearing 

was conducted before an administrative law judge ("ALI") from the applicable government 

agency7 Because Complainants' complaint was dismissed without a hearing pursuant to 49 

U.S.C. § 4610l(a)(3), sJe novo review is not required under 5 U.S.C. § 557(b). 

7 See Ahne & Svoboda. Inc. v. Chao, 508 F.3d 1052, 1056 (D.C. Cir. 2007) (discussing fortynine day hearing before Department of Labor ALJ on claims that company had misclassified its 

employees); Exxon Chemicals Am. v. Chao, 298 F.3d 464, 467 (5th Cir. 2004) (discussing 

hearing before Department of Labor ALJ on claims brought by terminated employee alleging 

whistleblower status); Seaquist v. Blakey, 210 Fed. Appx. 423, 425 (5th Cir. 2006) (discussing 

hearing before ALJ on denial of airman's medical certification due to history of alcohol 

dependence); Elliott v. CFTC, 202 F.3d 926, 934 n.9 (7th Cir. 2000) (discussing hearing by 

CFTC ALJ on charges of non-competitive and pre-arranged trading); Janka v. Dep't of Trans., 

925 F.2d 1147, 1149 (9th Cir. 1991) (discussing hearing before ALI on revocation of pilot's 

certificates and flight instructor certificate). 

14 
Far from requiring a completely new set of findings offact on appeal, Section 16.33(e)(l) 

requires only that the Director's factual conclusions be supported by a preponderance of 

"substantial evidence." That term, which is also used in the provision allowing for judicial 

review of final Agency orders, 49 U.S.C. § 46110(c), has been interpreted to mean "such 

relevant evidence as a reasonable mind might accept as adequate to support a conclusion." 

Wilson Air Cntr. v. FAA, 372 F.3d 807, 812-13 (6th Cir. 2004); J. Andrew Lange, Inc. v. FAA, 

208 F.3d 389, 391 (2d Cir. 2000) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 

(1951)). Thus, far from providing no deference to the Director's findings of fact, such a standard 

requires that the Director's findings be upheld "[e]ven if two different conclusions can be drawn 

from the evidence"; the standard gives the Director "the benefit of the doubt" so long as the 

evidence "could satisfy a reasonable factfinder." Wilson Air Cntr., 372 F.3d at 813. 

Even if this were not so clearly the case and the matter were considered under a de novo 

review standard, the Director's carefully reasoned Determinatiorr should be affirmed, as 

Complainants have offered no persuasive argument to the contrary. 

ARGUMENT 

As will be shown herein, the Director's Determination that Atlanta has not violated any 

grant assurances is conect and should be affirmed. However, as an initial matter, it should be 

noted that Complainants lack standing to proceed. 

A. Complainants Lack Standing and Atlanta's Motion to Dismiss Should Have 

Been Granted 

As the Director conectly noted, to have standing Complainants must show that they are 

directly and substantially affected by alleged noncompliance. 14 C.F.R. § 16.23. The Director 

found that the Complainants alleged substantial impact due to supposed financial implications: 

15 
A plain reading of the Complaint and pleadings does indicate that the "noise 

impact" and the financial implications are represented as being "directly and 

substantially affected." In fact, Complainants state that "once the ... [properties 

have J been determined to be severely impacted by noise from the airport in the 

ATL NCP, the [Complainants] were damaged economically and have found it 

impossible to sell to other potential purchasers because it [sic J had been identified 

in the ATL NCP as property that Atlanta will acquire or sound mitigate." .... 

[T]he Director finds that Complainants have provided sufficient evidence in the 

record for the FAA to conclude that Complainants are directly substantially 

affected by the alleged actions of the Airport. 

(Director's Determination at 22 (emphasis added).) 

The Director's Determination regarding standing refers only to allegations in pleadings. 

(Id. at n.137.) The Director thus overlooked (1) the undisputed evidence regarding when 

Complainants acquired the properties, and (2) the swam testimony-which is evidence, not mere 

allegations-of Complainants' principals that is part ofthe record. 

Specifically, Complainants acquired each property in either 2009 or 2010, well after the 

2007 NEM had been published and after the 2008 NCP had been approved8 (See testimony and 

evidence cited above.) Accordingly, simply as a matter of timing, it is impossible for 

Complainants to have been damaged when their properties were "identified in the ATL NCP" as 

being impacted by noise because they did not own the properties at that time. Further, the fact 

that Complainants bought the properties after the 2008 NCP was approved itself demonstrates 

that being "identified" in the NCP did not prevent the purchase and sale of the property. 

Further, Mr. Henderson, the owner of all Complainants except Virginia One 

Development, testified unequivocally that he was aware of the College Park Consent Order and 

8 Such also demonstrates the patent falsehood of Complainants' charge that "the City of Atlanta 

has withdrawn specific properties from the NCP simply because the property owners had the 

audacity to challenge the City of Atlanta in court .... " (Appeal at 12.) As described above, 

Atlanta's amendment of the NCP is required by the Consent Order entered into with College 

Park in August 201 0-well before any litigation between Complainants and Atlanta relating to 

the NCP (and, indeed, before Henderson even acquired Avery Park and Harrington Park). 

(FAA Ex. 1, Item 3, Ex. 5.) 

16 
that the Airport was not acquiring apartments in College Park in September 2010, before he 

acquired Harrington Park (through Colony Camp Creek) in late November 2010 and before he 

acquired Avery Park in late December 2010. (See testimony quoted above). 

Moreover, these are all older properties that have been located in close proximity to the 

Airport for over 40 years. These properties have operated, been occupied and have been bought 

and sold on multiple occasions over these years. (FAA Ex. I, Item 3, Ex. 9 (Fulton County Tax 

Assessors Records).) The effect of Airport operations on these properties did not change by 

being "identified" in the 2008 NCP. In fact, prior to the 2008 NCP, apartment complexes were 

not potentially eligible for any relief under the 1984-1985 NCP, and property ownership, 

occupancy, and the occasional sale of the properties continued. (Id.) 

Finally, the testimony of Complainants' principals absolutely contradicts the allegations 

that the Director accepted as sufficient. As noted above, Mr. Henderson testified that the 

properties owned by Avery Park and Colony Camp Creek are cash flow positive, have a high 

occupancy rate, and do very well. Mr. Henderson testified that he would not even listen to Mr. 

Flannagan about purchasing the properties, because he felt he had made "good deals" in 

purchasing the properties-which, as noted, occurred after the 2008 NCP-and that he wanted to 

hold the properties because he could make more money selling them at a later date. (See 

testimony quoted above). 

As to Hartsfield Landing (Virginia One Development), it was purchased in August 2009, 

again after the 2008 NCP. Virginia One Development chose to pursue funding for a project 

involving new construction-which would have made it ineligible in any case under the NCPand that proposal failed. Virginia One has no plans for renovating the existing structures, which 

have been vacant and uninhabitable since VOD purchased them and remain so today. (See 

17 
testimony and evidence quoted and cited above). Accordingly, that property is compatible with 

aircraft noise. There is also no basis for alleging any allegation of economic harm related to tbe 

NCP. 

As for Crossings Townhomes, it is potentially eligible only for sound insulation under the 

NCP. However, as established by Mr. Henderson's sworn testimony, he has put any discussions 

of sound insulation for any of his properties, including Crossings, "on hold." Again, tbere is no 

basis for alleging any economic harm related to the NCP. 

For all of these reasons, and based on the evidence and not mere allegations, the Director 

should have dismissed the Complaint for lack of standing. In this regard it is also notable that 

Complainants' counsel continues to allege that that pwperties became worthless and 

unsellable-without citing any evidence-in the face of sworn testimony to the contrary from 

Complainants' principals 9 

B. The Director's Conclusion That Atlanta Has Not Violated Grant Assurance 

5, Preserving Rights and Powers, is in Accordance With Law, Precedent, and 

Policy. 

In his Determination, tbe Director identified "Issue 1" as whether Atlanta has "violated 

Grant Assurance 5, Preserving Rights and Powers, by not implementing tbe NCP as approved by 

the FAA and by not acquiring or sound insulating Complainants' properties." (Director's 

Determination at 12.) As succinctly described by the Director, Grant Assurance 5 "requires the 

9 Complainants' counsel is also counsel of record in the Northern District of Georgia proceeding 

representing Avery Park and Colony Camp Creek. There is thus simply no excuse for 

Complainants' counsel to be unfamiliar with tbe sworn testimony of Mr. Henderson. Because 

Mr. Henderson's testimony completely undermines counsel's oft-repeated, albeit inaccurate, 

story, counsel chooses simply to ignore it. This approach should not be condoned, and, in fact, 

would be grounds for sanctions if this matter were in federal court. Fed R. Civ. P. 11. 

18 
airport owner or sponsor to retain all rights and powers necessary to ensure the continued 

operation of the airport consistent with its Federal obligations." 10 (Id. at 13.) 

In concluding that Atlanta had not violated Grant Assurance 5 as regards Complainants' 

properties, the Director squarely addressed Complainants' misguided view that the NCP 

somehow requires Atlanta to purchase their properties, noting, inter alia, that: 

[T]he Director does not agree with the Complainants that the applicability of 

Grant Assurance 5 extends to any and all actions on the part of the Airport 

concerning a property it does not own but might be interested in for noise 

mitigation purposes (in the NCP), as i[ s] is the case here. Accordingly, 

Complainants' assertion as to this Grant Assurance 5 claim has no merit. 

.... [F]or the purpose of a 14 CFR Part 150 NCP and related projects, 

Complainants' discretion in decision-making is one of either accepting an offer of 

purchase or sound insulation, or not. It is not to dictate that a particular offer by 

the airport sponsor be made. 

In regulation and policy, the Part !50 (and NCP) is a voluntary program 

proposed and administered by the airport sponsor. . . . . It is not the FAA's role, 

nor is it a requirement, to mandate that specific projects be acquired or others 

sound insulated. That is outside the scope of the Part 150 process . 

. . . [T]he inherent limitations of the Part 150 process do not permit the 

interpretation that strict non-adl1erence to a voluntary NCP is de facto inconsistent 

with the grant assurance, including Grant Assurance 5. This is especially true 

since FAA's approval of an NCP measure is not a mandate for implementation, 

and the Part 150 process itself provides for updates, amendments, and changes, 

including those designed to accommodate local concerns. 

(Director's Determination at 28-30.) 

10 The full text of Grant Assurance 5 and the relevant portion of FAA Order 5190.6B interpreting 

Grant Assurance 5 is found on pages 13-14 of the Director's Determination. 

19 
The Director also concluded that Atlanta's entering into the Consent Order with College 

Park, far fi·om constituting a violation of Grant Assurance 5, underscored Atlanta's compliance 

with the terms of the NCP: 

In the end, the Airport is interacting with the local political jurisdiction as part of 

its noise-based acquisition process in a manner consistent with FAA obligations 

and guidance ..... 

. . . . If a non-sponsor [i.e., College Park] takes part in noise programs 

under federal statues, it certainly does not support the argument that the Airport is 

obligated under 14 CPR Part 150 or its grant assurance, to acquire property or 

sound insulate, as Complainants suggest. It is umeasonable to assert that an 

airport making changes to its NCP or delaying its implementation because of local 

land use concerns is outside of this discretion and thus would result in a violation 

of a grant assurance (including Grant Assurance 5) . 

. . . . There is no evidence that the Airport [including by entering into the 

Consent Order] gave away its rights and powers concerning an AIP-funded and 

acquired property for mitigation purposes, which would be a violation of Grant 

Assurance 5. 

Against this background, the Director is not persuaded by the 

Complainants' allegations that the Airport, by entering into the Consent Order, 

deprived itself of the ability to take action that is appropriate under the FAAapproved NCP ..... 

(Director's Determination at 30-32.) 

In their Appeal, Complainants first allege that any grant given to Atlanta to support its 

NCP is a violation of Grant Assurance 5 because similarly situated residents and landowners are 

treated differently, and thus discriminated against, by Atlanta as a result of the Consent Order. 

Nothing in the language of Grant Assurance 5 or FAA Order 5190.6B, however, spealcs to such a 

concept of "non-discrimination" when selecting which properties to insulate or purchase 

pursuant to the NCP. Indeed, as noted by the Director, Grant Assurance 5 does not speak to 

purchases such as those sought by Complainants at all, but rather only to actions by a sponsor 

that would deprive it of necessary rights and powers with respect to property that it already 

20 
owns. Further, even if "non-discrimination" were an issue under the Grant Assurance, Avery 

Park and Colony Camp Creek are not treated differently than other apartment complexes in 

College Park. 

Absent a wholly umealistic situation in which it were provided limitless funding to effect 

nmse compatibility measures and neighboring jurisdictions with no countervailing concerns 

whatsoever, an airport sponsor must necessarily make choices in giving one project priority over 

another and in reaching mutually satisfactory land-use accommodations with neighboring 

jurisdictions. Such is exactly what Atlanta has done through the Consent Order here. Indeed, 

Grant Assurances 6 and 7, with which Atlanta must also comply, require Atlanta to give fair 

consideration to College Park's interests and to only undertake acquisition projects that are 

reasonably consistent with College Park's plans for the development of properties within its city 

limits11 The contention that Atlanta's entering into the Consent Order with College Park 

somehow amounts to a violation of Grant Assurance 5 is entirely unsuppmied. 

Nor does any support exist for Complainants' contention that, given the constraints 

created by the Consent Order, Atlanta must find alternative ways to protect landowners and 

residents from aircraft noise, including by facilitating purchase of the properties by College Park. 

As noted by the Director, absent a specific request for a specific federal grant, the FAA is not in 

any position to dictate to Atlanta how it carries out its NCP at the local level. Further, even if the 

11 Grant Assurance 6, Consistency with Local Plans, provides as follows: 

The project is reasonably consistent with plans (existing at the time of submission 

ofthis application) of public agencies that are authorized by the State in which the 

project is located to plan for the development of the area surrounding the airport" 

(Director's Determination at 14.) Grant Assurance 7, Consideration of Local Interest, requires 

that Atlanta "has given fair consideration to the interest of communities in or near where the 

project may be located." (Id.) 

21 
FAA were so positioned, there is no record evidence that College Park has ever approached 

Atlanta about purchasing the two properties within its jurisdiction (Avery Park and Hanington 

Park), nor is there any reason to believe College Park would do so, given that it sued Atlanta to 

prevent such acquisitions in the litigation resulting in the Consent Order. Further, Mr. 

Henderson readily admitted in his deposition testimony that he has never made any attempt to 

secure College Park's consent to such a purchase. (See FAA Ex. 1, Item 16, Exhibit "A", at 36-

37.) 

Complainants' claim that "the NCP is an offer that has been relied upon by residents and 

landowners" is particularly absurd given the time line of relevant facts in this case. As repeatedly 

noted above, both Henderson and Flannagan readily admit that they purchased the properties at 

issue after the 2008 NCP carne into effect and Henderson admittedly did so with full knowledge 

of the Consent Order prohibiting Atlanta from buying the Avery Park property. (FAA Ex. l, Item 

16, Ex. "A," at 18-20, 26-28, 33-37.) Further, Complainants' argument necessarily assumes both 

that (1) an NCP cannot be amended, and (2) an airpmi sponsor has no discretion in 

implementation, both of which are demonstrably incorrect. 

Simply put, no basis in fact, law, precedent, or policy exists to challenge the Director's 

conclusion that Atlanta has not violated Grant Assurance 5. 

C. The Director's Conclusion That Atlanta Has Not Violated Grant Assurance 

16, Conformity to Plans and Specifications, is in Accordance with Law, 

Precedent, and Policy. 

The Director identified "Issue 2" as whether Atlanta "is in violation of Grant Assurance 

16, Conformity to Plans and Specifications, by not implementing the NCP as approved by the 

FAA and by not acquiring or sound insulating Complainants' properties. (Director's 

Determination at 12.) 

22 
As noted by the Director, Grant Assurance 16 requires, in relevant part, that an airport 

sponsor: 

. . . execute the project subject to plans, specifications, and schedules 

approved by the Secretary. Such plans, specifications, and schedules shall be 

submitted to the Secretary prior to commencement of site preparation, 

construction, or other performance under this grant agreement, and, upon 

approval of the Secretary, shall be incorporated into this agreement. Any 

modification to the approved plans, specifications, and schedules shall also be 

subject to approval of the Secretary, and incorporated into the grant agreement." 

(Director's Determination at 15.) 

In his Determination, the Director emphasized that, contrary to Complainants' v1ew, 

Grant Assurance 16 "reflects requirements in terms of a specific grant project. ... Moreover, the 

reference to 'other performance' in Grant Assurance 16 does not expand applicability to another 

undetermined class or type of project, ... , but to actions related to that site of construction 

project I grant." (Director's Determination at 32-33.) Ultimately, the Director concluded that 

"[t]he fact is that there is no actual grant or project in effect at this time (and at the time of the 

Complaint) concerning noise mitigation of the affected properties. Accordingly, the Director 

finds that the Airport is not in violation of Grant Assurance 16." (Director's Determination at 

34.) 

In their Appeal, Complainants attempt to turn back the hands of time to the September 

27, 2001 Record of Decision approving construction and operation of the Fifth Runway. 

Complainants then attempt to bootstrap that almost fourteen-year-old Agency action into a 

mandate for a specific project that requires the purchase of their properties by Atlanta. 

Complainants contend that the 2001 ROD, by allegedly requiring Atlanta to mitigate the increase 

in aircraft noise that would be caused by operation of the Fifth Runway, requires Atlanta to now 

23 
acquire the properties that Complainants themselves purchased some eight to ten years after the 

fact. 

As noted above, however, Avery Park and Harrington Park, the two properties that would 

be potentially eligible for acquisition under the 2008 NCP absent the Consent Order, are well 

north of the flight path for aircraft using the Fifth Runway. (See Director's Determination at 4, 

Figure 2.) Indeed, the 2001 ROD specifically states that areas to the southeast, south, and 

southwest of the then-existing runways would be exposed to increased noise as a result of L'le 

operation of the Fifth Runway, but that "[a]reas north of ATL will experience slight reductions in 

overall noise levels." (2001 ROD at 12.) Because Avery Park and Harrington Park are unaffected 

by Fifth Runway noise, there is no basis to suggest that the 2001 ROD somehow requires Atlanta 

to acquire those properties. Additionally, prior to the 2008 NCP (including as of September 27, 

2001), Atlanta's Agency-approved NCP excluded multi-family residences and so no specific 

noise mitigation grant could have possibly issued that would have covered any of Complainants' 

properties in any event. 

At the end of the day, the 2001 ROD merely memorialized Atlanta's plans to conduct the 

new Part 150 study. Atlanta followed through on those plans and the updated noise exposure 

maps and revised noise compatibility program that was approved in 2008 were the result. The 

200 l ROD also memorialized Atlanta's commitment to "further evaluate other measures in 

coordination with surrounding jurisdictions." Atlanta has also followed through on this 

commitment through, among other actions, its entering into the Consent Order with College 

Park. Nothing in the 2001 ROD requires Atlanta to purchase Complainants' properties. 

Complainants cannot identify a specific project grant the plans or specifications for which 

Atlanta has allegedly violated because, as the Director properly noted, no such grant exists. 

24 
Given the absence of the factual predicate for a violation of project plans or specifications, the 

Director's conclusion that Atlanta could not have violated Grant Assurance 16 is unassailable. 

D. The Director's Conclusion That Atlanta Has Not Violated Grant Assurance 

21, Compatible Land Use, is in Accordance With Law, Precedent, and Policy. 

The Director identified "Issue 3" as whether Atlanta "is in violation of Grant Assurance 

21, Compatible Land Use, for failing to take appropriate action to restrict the use of land near the 

airport to uses that are compatible with normal airport operations." (Director's Determination at 

12.) At its core, Grant Assurance 21 requires an airport sponsor to take appropriate action to 

restrict the use of land within its jurisdiction to purposes compatible with normal airport 

operations and to not lessen the compatibility of uses of the land within its jurisdiction with 

. . 12 mrport operatiOns. 

In his Determination, the Director concluded that "the Consent Order does not prevent the 

Airport from complying with Grant Assurance 21 because (1) the volU11tary Part 150 NCP 

remains in effect and is ongoing, and (2) the Airport has coordinated with local jurisdictions. 

Both are elements of achieving compatible land use." (Director's Determination at 37.) 

In their Appeal, Complainants assert that the Director misapplies the rule from Keathly v. 

City of McKinney, Texas and the Collin County Regional Airport, Docket No. 16-03-14, 2004 

FAA LEXIS 876 (Director's Determination Oct. 13, 2004), and that Atlanta created new 

incompatible land uses tln·ough its construction of the Fifth RU11way. As a result, Complainants 

contend, Atlanta must offer acquisition to the owners of the properties located in or straddling 

the 70 DNL contour that Atlanta supposedly made incompatible through its operation of the Fifth 

Rlli1way. 

12 The full text of Grant Assurance 21 and the relevant portions of FAA Order 5190.6B 

interpreting Grant Assurance 21 are found on pages 15-16 of the Director's Determination. 

25 
As an initial matter, the facts in Keathly are easily distinguishable from the facts here, as 

in that case the incompatible land use involved the operation of a recycling facility on land that 

fell within the limits of the jurisdiction of the airport sponsor. Thus, the sponsor could control 

land use planning regarding the facility. 13 2004 FAA LEXIS 876 at **14, 57. Here, in contrast, 

the residential properties at issue fall outside Atlanta's city limits and within the limits of College 

Park or unincorporated Fulton County. 14 Atlanta is thus unable to directly control land use 

plarming as regards the properties or, in the words of the Keathly decision, to "prevent[] the 

facilit[ies] from operating near the airport." Id. at 57. Because Grant Assurance 21's 

requirements are limited only to those properties that fall within the airport sponsor's 

jurisdiction, Atlanta cannot have violated the Grant Assurance with respect to Complainants' 

properties. 

Further, even if Atlanta had been able to control land use plarming for the properties at 

issue, there is no factual support for the contention that Atlanta has lessened the compatibility of 

the properties with airport operations. As noted above, the use of the occupied properties as 

multi-family residential apartment complexes predates the approval of the 2008 NCP (and also 

the enactment of the original NCP in 1985)15 As Complainants themselves note in their Appeal, 

"at issue here is not the land use, that does not change." (Appeal at 36.) Atlanta also has not 

13 Additionally, in any event, the Director's determination in that case found the airpmi sponsor 

not to be in violation of Grant Assurance 21 because the recycling center was not an 

incompatible land use. 2004 FAA LEXIS 876 at **58-61. 

14 Further, as has been previously noted, Hartsfield Landing's land use is not incompatible with 

normal operations in any event, as the property has been, in the words of one of VOD's 

attorneys, "vacant and uninhabitable" for some time. 

15 These properties would not even be potentially eligible under the 2008 NCP if they had not 

been constructed before 1985. As previously noted, multi-family residences were not eligible at 

all under the 1984 NCP. 

26 
proposed any discrete project regarding any of Complainants' properties. Absent such a specific 

proposal, FAA has nothing to evaluate for compliance with Grant Assurance 21. 

Nor is it the case that "by constructing the Fifth Runway, Atlanta created new 

incompatible land uses." (Appeal at 30.) The construction of the Fifth Runway is not in any way 

relevant to the question of compliance with Grant Assurance 21. The Fifth Runway is located 

well south of Avery Park and Harrington Park~the two properties within College Park that 

could potentially be eligible for acquisition absent the Consent Order, and those properties are 

demonstrably not within the noise contours associated with the Fifth Runway. 16 (See Director's 

Determination at 4, Figure 2.) Additionally, construction of the Fifth Runway was completed 

and it was in operation well before the noise exposure maps on which the 2008 NCP was based 

were prepared. 

The language of FAA Order 5190.6B also does not support Complainants' contentions. 

As noted by the Director, Order 5190.6B requires airport sponsors to "take appropriate actions to 

the extent reasonably possible to minimize incompatible land." As the Director noted, Atlanta 

has taken such appropriate actions for years, including accepting $326 million in federal AIP 

grants for noise mitigation measures and noise land acquisition and spending approximately $8 

million out of its own budget annually for residential noise insulation measures. As reflected by 

the graph found on page 38 of the Director's Determination, the area vvithin the 65- and 70-DNL 

contours has been reduced by more than one-half since 1982 despite a tripling of airport 

16 As noted previously, Hartsfield Landing, which is owned by VOD, is not eligible for 

acquisition because the property is not in the 70 DNL contour. Additionally Hartsfield Landing 

is located in unincorporated Fulton County, not College Park, and so is unaffected by the 

Consent Order. Finally, in its unoccupied and uninhabitable condition, it is compatible with 

aircraft noise. Crossings Townhomes sits within the 65 DNL, and thus would potentially be 

eligible for sound insulation, but not acquisition. As noted above, Mr. Henderson has put 

consideration of this possibility "on hold." 

27 
operations. As also noted by the Director, in the Consent Order itself, Atlanta included a 

provision stating that "if purchased by College Park, the ... site shall be subject to the restrictive 

covenants [preventing future incompatible land use]." As the Director noted, "[t]hese actions are 

convincing indications that the Airport has taken action to mitigate noise, rather than not." 

(Director's Determination at 39). 

Complainants' contention that Atlanta could further minimize incompatible land use by 

offering to pay College Park's local share of the cost of purchasing the properties within its 

jurisdiction is also entirely theoretical, as there is no evidence in the record to suggest that 

College Park has ever indicated a willingness to purchase either the Avery Park or Harrington 

Park properties situated within its city limits. To the contrary, College Park recently sued Atlanta 

to prevent the acquisition of apartment complexes, resulting in the Consent Order. Atlanta's 

supposed "refusal" to do so is thus factually unfounded and no evidence of an alleged violation 

of Grant Assurance 21. 

Thus, as the Director found, no evidence exists to support Complainants' allegation of a 

violation of Grant Assurance 21. 

E. The Director's Conclusion That Atlanta Has Not Violated Grant Assurance 

35, Relocation of Real Property Acquisition, is in Accordance with Law, 

Precedent, and Policy. 

In their Appeal, Complainants do not address (and thus have waived any challenge 

regarding) the Director's conclusion that Atlanta has not violated Grant Assurance 35, 

Relocation of Real Property Acquisition. Grant Assurance 3 5 provides, in relevant part, that 

when an airport sponsor acquires real property, it should comply with land acquisition guidelines 

found in 49 C.F.R. Part 24, including by providing a relocation assistance program and fair and 

28 
reasonable relocation payments and assistance to displaced persons. 17 As correctly noted by the 

Director, "Grant Assurance 35 derives from the laws enacted by Congress to ensure that people 

whose real property is acquired, or who move as a result of projects receiving Federal funds, will 

be treated fairly and equitably and will receive assistance in moving from the property they 

occupy." (Director's Determination at 16.) 

Even if Complaina11ts had not waived their challenge to fue Director's conclusions as to 

Grant Assurance 35, the Director's conclusions are sound and fully supported by the record. As 

has been repeatedly noted above, because Crossings Townhomes and Hmtsfield Landing do not 

fall within fue 70 DNL contour, they me not eligible for acquisition under any circumstance, and 

so Grant Assurance 35 is facially inapplicable to them18 As regards Avery Pmk and Harrington 

Park, the Director properly concluded that the Consent Order was binding and was an 

appropriate order "addressing a local land use and development matter between the airport 

sponsor and fue local political jurisdiction" (Director's Determination at 41 ); that changes to fue 

NCP as well as to property acquisition procedures in order to maintain consistency with, inter 

alia, the requirements of Grant Assurances 6 and 7, is reasonable (id. at 42); 19 and that the Pm-t 

150 NCP "does not commit the Airport or fue FAA to an actual purchase" (id. at 43). As the 

Director succinctly concluded, "Grant Assurance 35 applies to situations in which land is being 

acquired with federal funds, but since the Airport has not acquired the properties in question, 

Grant Assurance 35 cannot be applicable to this matter .... " (Id. at 43.) 

17 The full text of the relevant portions of Grant Assurance 35 is found on page 16 of the 

Director's Determination. 

18 Grant Assurance 35 is further facially inapplicable to Hm-tsfield Landing because the property 

has been unoccupied for years and so fuere me no tenants or residents that could possibly be 

displaced by any action Atlanta would take or fail to take. 

19 The text of Grant Assurances 6 and 7 is set forth in footnote 11, above. 

29 
Complainants could not rmse any colorable argument to challenge the Director's 

conclusions as regards Grant Assurih'lce 35 and, indeed, have not attempted to do so. Grant 

Assurance 35 provides no basis second-guess the Director's Determination. 

F. Complainants' New Arguments Regarding Alleged Constitutional Violations 

Were Not Raised Below And Have Been Waived And Would Fail On Their 

Merits In Any Event. 

In their Appeal, Complainants assert that the Director's Determination must be reversed 

because it constitutes illegal discrimination and a violation of the Equal Protection Clause found 

in the 14th Amendment (and applicable to the federal government's actions pursuant to the 5th 

Amendment's Due Process Clause) insomuch as Atlanta is allowed to treat property owners 

differently based not on the effect or volume of aircraft noise to which they are exposed, but 

based on whether they own property in College Park. (Appeal at 32.) Complainants also contend 

that the Director's Determination allows Atlanta to violate the "dormant" Conunerce Clause 

based on Article I of the United States Constitution. (!d. at 34.) 

As an initial matter, Complainants' allegations of constitutional violations must be 

rejected because they were not raised in the briefing submitted to the Director and so have been 

waived. As noted above, 14 C.P.R. § 16.33(£) states that "[a]ny new issues ... presented in an 

appeal ... will not be considered unless accompanied by a petition and good cause found as to 

why the new issue ... was not presented to the Director." Here, neither the equal protection or 

dormant Commerce Clause argnments was raised before the Director and Complainants have not 

submitted a petition or any "statement explaining why such new issue ... could not have been 

discovered in the exercise of due diligence prior to the date on which the evidentiary record 

closed," as required by 14 C.P.R. § 16.33(£)(3). For this reason alone, Complainants' 

constitutional arguments must be rejected. 

30 
Moreover, even if Complainants had not waived their constitutional arguments, they 

would fail on their merits. As noted above, both the Georgia Supreme Court and the United 

State District Court for the Northern District of Georgia have previously addressed the specific 

question of whether Atlanta's NCP violates the constitutional right of equal protection by 

discriminating against some property owners. In City of Atlanta v. Watson, 267 Ga. 185, 475 

S.E.2d 896 (1996), the Georgia Supreme Court concluded that the previous version of Atlanta's 

NCP justified excluding multi-family properties because of the same adverse impact on College 

Park's residential and tax base that motivated College Park to file the College Park Suit in 2008, 

leading to entry of the Consent Order ofwhi1:0h Complainants now complain: 

Furthermore, even if we assume arguendo that the City [of Atlanta] had the 

financial resources in 1984 to have purchased all residences adversely affected by 

the airport noise, to have done so would have wreaked havoc on the City of 

College Park's residential base - the foundation of its infrastructure, business 

community, and congressional districting. 

267 Ga. at 189,475 S.E.2d at 900?0 

Similarly, the U.S. District Court for tl1e Northern District of Georgia had previously 

concluded that fundamental differences between commercial and residential properties provided 

a rational basis for excluding commercial properties from Atlanta's original NCP. See Provident 

Mut. Life Ins. Co. of Philadelphia v. City of Atlanta, 864 F. Supp. 1274, 1293 (N.D. Ga. 1994). 

Applying the rational basis test here, it is clear that a reasonable basis exists to exclude 

multi-family properties located in College Park from eligibility for acquisition under the NCP. 

College Park's well-documented concerns about the negative impacts that such acquisitions have 

on its residential and tax base and Atlanta's obligations to coordinate its activities under the NCP 

with local land-use jurisdictions, including the City of College Park, easily satisfy the 

20 While the Watson court analyzed equal protection claims under Georgia's state constitution, 

the court noted iliat the equal protection clause found in Georgia's constitution is construed to be 

"consistent with its federal counterpart." 267 Ga. at 187, 475 S.E.2d at 899. 

31 
requirement of a reasonable relationship between the limited eligibility for acquisition and the 

goal of the NCP, which is to reduce land usage incompatible with aircraft noise in a way that is 

consistent with the concerns of surrounding land use jurisdictions. 

Even if Complainants had not waived it by failing to raise it below, their dormant 

Commerce Clause argument is similarly unavailing. The Supreme Court's dormant Commerce 

Clause jurisprudence is "driven by a concern about 'economic protectionism-that is, regulatory 

measures designed to benefit in-state economic interest by burdening out-of-state competitors."' 

McBurney v. Young, 133 S. Ct. 1709, 1719 (2013). A dormant Commerce Clause violation is 

therefore only possible where a state or political subdivision thereof has interfered with the 

natural functioning of an interstate market "either through prohibition or through burdensome 

regulation." Id. (quoting Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976)). The dormant 

Commerce Clause is typically not implicated where there is no discrimination against interstate 

commerce, a notion that is defined as "differential treatment of in-state and out-of-state 

economic interests that benefits the former and burdens the latter." Oregon Waste Sys. v. Dep't 

of Envtl. Quality, 511 U.S. 93, 99 (1994). Here, the alleged "market" at issue is the local real 

estate market located entirely within Georgia-the very antithesis of an interstate market. Cf. 

Tamagni v. Tax Appeals Tribunal of the State of New York, 91 N.Y.2d 530, 541, 695 N.E.2d 

1125, I 132, 673 N.Y.S. 2d 44, 51 (1998) (noting, in evaluating New York state resident income 

tax, that "[t]he possible effect, if any ... on the New York real estate market represents a 

quintessentially local, rather than interstate, concern"). Further, the restrictions imposed by the 

Consent Order do not benefit Georgia economic interests vis-a-vis non-Georgia economic 

interests. See USA Recycling v. Town of Babylon, 66 F.3d 1272, 1285 (2d Cir. 1995) (holding 

no violation of dormant Commerce Clause where town's waste management system "treats all 

32 
garbage haulers alike"). Because the acquisition eligibility criteria established in the NCP and 

Consent Order do not interfere with or burden interstate commerce, the dormant Commerce 

Clause is facially inapposite21 

Further, "nondiscriminatory regulations that have only incidental effects on interstate 

commerce are valid unless the burden imposed on such commerce is clearly excessive in relation 

to the putative local benefits." Oregon Waste Sys., 511 U.S. at 99 (internal citations and 

quotations omitted). Thus, even if the NCP and Consent Order could somehow be construed to 

constitute regulation of interstate commerce (which they cannot), the burden placed on such 

commerce is minimal when compared to the substantial local benefits of maintaining College 

Park's residence and tax base. Thus, even if the question could be reached on this appeal, 

Complainants' dormant Commerce Clause argument clearly fails. 

G. Complainant's Argument that the FAA is Inherently Biased and Prejudiced 

Against Them is Unsupported and Does Not Present a Substantial Question 

for Appeal. 

Throughout their Appeal, Complainants repeatedly characterize the FAA and the 

Director's Determination as tainted with "prejudice and bias" because of the fact that 

Complainants elected to file a petition for review of the FAA's April 14, 2014 letter with the 

District of Columbia Circuit in case number 14-1066. (See,~' Appeal at 16-19.) Because the 

FAA allegedly can11ot divorce itself from the position it has taken in that case and render a fair 

21 Further, as a factual matter, it is hardly the case that the failure to include properties such as 

Avery Park and Harrington Park among those eligible for acquisition has "chilled" the local real 

estate market, as Plaintiffs contend. As noted above, Henderson has testified that both properties 

are more than 90 percent occupied and have a net positive cash flow. Further, when approached 

about selling the properties, Henderson was not interested in selling the properties (other than 

perhaps having Atlanta acquire them) because they were "good deals" and he believed he could 

make more money by holding them and selling at a later date. 

33 
decision, Complainants assert, their Part 16 complaint should, at minimum, be determined by an 

ALI after an evidentiary hearing. (Id. at 16.) 

In reality, the Director's Determination underscores the FAA's even-handedness and, 

indeed, even unwarranted solicitude toward Complainants and their unsupported contentions. 

By way of example, even though Atlanta amply demonstrated in the record that each of the 

Complainants admittedly bought the properties at issue well after approval of the 2008 NCP and, 

at least in the case of Avery Park and Harrington Park, with actual notice that the Consent Order 

prohibited Atlanta from purchasing the properties, the Director did not rely on these crucial facts 

to dismiss Complainants' complaint. Instead, the Director (erroneously) concluded that there was 

sufficient evidence in the record to support Complainants' claims of economic harm related to 

the NCP. 

Complainants even argue that the fact that the time for decision was extended is 

somehow indicative of "bias." Corrrplainants cite no rule or authority indicating that the 

extensions were improper. Given the parallel litigation in Fulton County Superior Court 

involving Virginia One and in the United States District Court for the Northern District of 

Georgia involving Avery Park and Colony Camp Creek, there were many developments during 

the course of these proceedings, accompanied by multiple motions on both sides to supplement 

the record. Again, there is ns basis for claiming "bias." 

Further, even though Complainants' arguments demonstrate a rather blatant disregard for 

the facts and the text of the Grant Assurances, the Director spent 48 carefully-reasoned pages 

considering Complainants' assertions. Complainants were given far more process tha11 is due 

under the circumstances. The reality appears to be that Complainants or their counsel view any 

34 
party, agency, or tribunal that does not agree with their view as guilty of "bias" and wmihy of 

scurrilous invective. This approach is neither professional nor persuasive, and should be rejected. 

As the remedy for the Agency's purported "bias," Complainants suggest that the case 

should be referred to an ALI for a hearing. Nothing in the Part 16 regulations, however, allows 

for an evidentiary hearing before an ALI except if requested by the airport sponsor in response to 

a finding of noncompliance by the Director or as otherwise offered by the FAA. See 16 C.F.R. § 

16.31(d). Nothing in Part 16 allows a Complainant to demand an evidentiary hearing or requires 

an airport sponsor to participate in one. Complainants' repeated claims that the FAA is biased 

and that referral to an ALI is appropriate are supported by nothing more than counsel's 

conjecture and do not present a substantial question for appeal. 

CONCLUSION 

For the foregoing reasons, tlie Director's Determination is supported by a preponderance 

of reliable, probative, and substantial evidence; was made in accordance with law, precedent, and 

policy; and was not the result of any prejudicial error. The Director's Determination should be 

upheld. 

35 
Dated: April 7, 2015 

36 

Respectfully submitted, 

THOMPSON HJNE LLP 

By:_L_' _._ft_~"-------- Jolm L. Watkins 

Georgia Bar No. 740515 

jolm.watkins@thompsonhine.com 

Roy E. Hadley, Jr. 

Georgia Bar No. 003 730 

roy.hadley@thompsonhine.com 

Two Alliance Center 

3560 Lenox Road, Suite 1600 

Atlanta, Georgia 30326-4266 

Phone: (404) 541-2900 

Fax: (404) 541-2905 

Eric N. Heyer 

District of Columbia Bar No. 500095 

eric.heyer@thompsonhine.com 

1919 M Street, N.W., Suite 700 

Washington, D.C. 20036 

Phone: (202) 331-8800 

Fax: (202) 331-8330 

Counsel for Respondent, 

The City of Atlanta, Georgia 
CERTIFICATE OF SERVICE 

I hereby certify that on this 7th day of April, 2015, I caused a true and correct copy of the 

foregoing Brief in Response to Complainants' Appeal of the Director's Determination Dated 

January 26, 2015, to be served via electronic mail and first class mail, postage prepaid, on the 

following: 

Steven M. Taber 

Taber Law Group, P.C. 

1 League, #60036 

Irvine, California 92602 

staberial.taberlaw.com 

Counsel for Complainants 

37 

Eric N. Heyer 

District of Columbia Bar No. 500095 

THOMPSON HINE LLP 

eric.heyer@thompsonhine.com 

1919 M Street, N,W., Suite 700 

Washington, D.C. 20036 

Phone: (202) 331-8800 

Fax: (202) 331-8330 

Counsel for Respondent, 

The City of Atlanta, Georgia