BEFORETHEU.S. DEPARTMENTOFTRANSPORTATION FEDERALAVIATIONADMINISTRATION WASHINGTON,D.C. ) VIRGINIA ONEDEVELOPMENT, LLC, etal., ) ) Complainants, ) ) v. ) ) THE CITY OF ATLANTA, GEORGIA, ) ) Respondent. ) 

## ____________________________) FAADocketNo. 16-12-09 

## RECEIVED APR 720!5 PART 16 DOCKETS
RESPONDENT THECITYOFATLANTA, GEORGIA'S BRIEFINRESPONSE TO COMPLAINANTS' APPEAL OFTHE

DIRECTOR'SDETERMINATIONDATEDJANUARY26,2015

Jolm L. Watkins RoyE. Hadley, Jr. THOMPSONHINE LLP Two Alliance Center 3560 LenoxRoad, Suite 1600 Atlanta, Georgia 30326-4266 Phone: (404) 541-2900 Fax: (404) 541-2905 jolm.watkinsialthompsonhine.com roy.hadley(lll,thompsonhine.com EricN. Heyer THOMPSONHINE 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

1Respondent, the City ofAtlanta, Georgia, respectfully submits this Briefin 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 andManagementAnalysis ("Director'sDecision"). INTRODUCTION This case is about the alleged violation by The City ofAtlanta, Georgia ("Atlanta"), as
owner and operator ofHartsfield-Jackson Atlanta International Airport (the "Airport"), offour 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 Atlantahas notviolated any grant assurances. Complainants have now appealedthe Director's Determination. Inmarked contrastto 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 ofthe "poundthe table" part ofthe old legal aphorism3,

1 Byway ofexample, Complainants assertthatthe Director's Determinationis "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 thatthe Director "consistentlymischaracterizes" facts and argument (id. at 37).
2 Complainants assertthatAtlanta'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 "tantamountto fraud" (j_cb at 29); thatAtlantais tryingto "weasel out" ofalleged obligations (j_cb at 31); and that Atlantahas gottenitselfinto apurported dilemma "throughits own stupidity and incompetence ofits attorneys" (id. at 37).
3 "Iftl1e law is on your side, pound the law; ifthe facts are on your side, pound the facts; if neitherthe lawnorthe 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:/Iguoteinvestigator.com/2010/07/04/legal-adage/. 2such adhominem attacks have no properplace in legal proceedings. Atlantawill 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 ofany prejudicial error. On thefacts andthe law, the Director's Determinationmust stand. STATEMENT OF THE CASE A. Procedural Posture The procedural posture ofthis case is set out at length at pages 5 and 6 ofthe Director's Determination. Nothing in Complainants' Appeal calls this into question, so it will not be addressedfurther here. B. Statement ofFacts l. TheAirport'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 ofpassengers) 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 adoptedto implement this legislation. The Abatement Act and Part 150 provide a uniform method ofmodeling 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. 3average 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-atthe Airport are shown in Figure 2 on page4 ofthe Director's Determination. The Abatement Act and Part 150 also provide for the voluntary establishment ofnoise 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 ofmeasuring 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 alocal program, not a Federalprogram andthatthe FAA does not substitute itsjudgmentfor that ofthe airport operator withrespectto 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'srole (and the role of grant assurances) is "tomake sme that funds spent for federally supportedprograms are spentfor appropriate purposes, not to mandate the spending of funds." @ at 31(quoting Atlanta's submissionwith approval).) As detailed in the Director's Determination, the Airport has a long history ofacquiring 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

41,700 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. (Id. at 38). 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 ofsingle-family homes. This provoked litigation chalLenging the distinction on constitutional grounds. These challenges were rejected by both the Supreme Court ofGeorgia and the United States District Court for the Northern District ofGeorgia. See City ofAtlanta 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 ofmulti-family properties would negatively affect College Park's tax base, and Part 150 expressly requires input from surrounding communities); ProvidentMutual Life Ins. Co. v. CityofAtlanta, 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) Ifa 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 30 years even as operations have (save for the last few years) generally increased. (See Director's Determination at 38, figure 3 (showing considerable reduction ofsize ofboth 65 and 70 DNL contours).) This is primarily due to quieter Stage 3 and Stage 4 aircraft cominginto use. 

### 5and (2) if a property is located in the 65 DNL contour, it is potentially eligible for sound insulation. 2. The CollegeParkConsent Order College Park, Georgia, is a municipality bordering the northwest corner ofthe Airport. (Director's Determination at 2-3 and figure 1). College Park has repeatedly objected to the acquisition ofapartmentcomplexes inCollegeParkunderthe 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 ofGeorgia styled City ofCollege Parle, et al. v. The City ofAtlanta, et al., Civil Action File No. l:08-cv1464-JEC. After College Park appealed to the United States Court ofAppeals 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 notto acquire "any apartment complex within College Park other than Clubhouse Apartments." (Director'sDeterminationat 9, FAAEx. 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 ownedby 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

6Camp Creek ownproperties withinthe 70 DNL contourthat are locatedwithinthe City Limits of College Park. Thus, only these two properties are affected by the Consent Order, which
consumes a considerable amount ofComplainants' 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 ofRunway 10-28 (the "FifthRunway"), whichbecame 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' assertionis notablydevoid ofcitations to thefactual record. The reason for the lack of citations is simple: Complainants' contention is simply not true. The location oftheirproperties shows thatthey are unaffected byoperations 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 20I0, 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 renderedworthless andunsellable. But there is much more. The undisputed testimony of Complainants' principals completelycontradicts their counsel'sunsupported assertionsthroughouttheirAppeal.

7a. Avery Park, LLC and Colony Camp Creek, LLC Complainants Avery Park, LLC and Colony Camp Creek, LLC own apartment complexes within the City Limits ofCollege 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 ofGeorgia styled City ofAtlanta, Georgiav. Avery Park Partners. LLC, et al., CaseNo. 1:13-cv-2480-SCJ (N.D. Ga.) (the "NorthernDistrictofGeorgiaLitigation"). David Scott Henderson owns 100 percent ofboth Avery Park and Colony Camp Creek,
as he testified at his deposition in the Northern District ofGeorgia Litigation, which is also part ofthe 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 ofthis briefing, Mr. Hendersonbecame aware thatthe 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 ofthe 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 ofthe Consent Order, whichprohibits the acquisition ofapartments inCollege Park. (Id. at 34.) To the extentthereis any doubt, Mr. Hendersontestified as follows: So was that

- basically at this point in time, September 22, 2010, the folks atthe airport were telling you, [w]e can't acquire properties because of this consent [order]? Mr. Howard: Objectto the form ofthe question. 

### Q. Wasthatyourunderstanding? 8A. 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 Avery 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 ofit and afterhereceived acopy, as he expressly admitted. (Id. at 36-37.) Far from being "wmthless," as Complainants' counsel suggests, 

### Mr. Henderson also testifiedthat Hanington Park is over 90 percent occupied and has positive cash flow. 

## Wi. at 18, 22-) Avery Parkis also over 90 percent occupied and has positive cash flow. (Id. at 22.) As Mr. Henderson snmmarized: "Both ofthose properties do extremely well." (Id.) In fact, Harrington Park and Avery Park have done well the entire time 

### Mr. Henderson (or his companies) has ownedthem. Atthe time ofthe initial purchase, there were about 200 vacantunits, but "wewere able to fill them up pretty quickly." (Id.) Although there is a "constant move them in and move themout,"the occupancyrateremainshigh. (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 gooddeals onwhatwebought." (Id. at 12.) As Mr. Hendersonfurther explained: 

### Q. Okay. So you felt you could mal(e more money by holding the property and sellingitatalater date? A. Yes. 9

### Q. Andthat wouldinclude 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 Parkremained potentially eligible for sound insulation under the NCP. Mr. Henderson acknowledged that the Airport performed a property condition survey ofHarrington 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 "onhold" due to Mr. Henderson's decisionnotto pursue eligibilityfor sound insulation. b. Virginia OneDevelopment, 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. VirginiaOne Development suedAtlantain litigationfiled inthe Superior Court ofFulton County, Georgia, styledVirginia One Development, LLC v. The City ofAtlanta, Case No. 2011CV204266 (the "VOD Lawsuit"). Considerable discovery was taken in the VOD Lawsuit, including the depositions ofMr. 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 neverre-filed it.

10At 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, 155-156.) Mr. Flannagan explained that, shortly after acquiring the property, he "made a determinationto go ahead and strip it to the studs" because ofon-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 soundinsulation from the Airport, representingthat it intended to renovate the existing structures, which was necessary because the NCP requires properties to havebeenbuiltbefore 1985. (FAAEx. 1, Item 3, Ex. 10; Director'sDetermination at 4, n.20.) Nicole Flannagantestified that she was aware ofno 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'sno reason to insulate a structure that's not going to be occupied." (Id. at202.)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, itis not eligible for soundinsulationunderthe NCP. Further, as a matter ofsimple

6 The record thus belies Complainants' unsupported claimthat "[r]elying on Atlanta'spromiseto provide sound insulation, the ownerpreparedthe complex for installation ofthe sound insulation by moving the tenants out to make installation of sound insulation and other repairs easier." (Appeal at 13.) llcommon sense, and as noted by Ms. Flannagan, there simply is no reason to insulate a structure that is notgoingtobe 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, almosttwo years after the approval ofthe 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. Hendersontestified at his deposition, he put all considerations ofsound insulation "onhold." (FAAEx. 1, Item 16, Ex. A, at47-48.) As Mr. Hendersonput it: "SamewithAvery, same with Crossings." (!d. at48.) STANDARD OF REVIEW The standard of review for considering Complainants' appeal of the Director's Determinationis establishedby 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 surnn1aryjudgment and any issues accepted in the Director's Determination using the following analysis: (1) Are the findings offact each supportedby apreponderance ofreliable,probative, and substantial evidence containedintherecord? (2) Are conclusions made in accordance with law, precedent andpolicy? (3) Are the questions on appeal substantial? (4) Have any prejudicial errors occurred? 14 C.F.R. 

### § 16.33(e).

12Subsection (f) addresses the raising ofnew arguments for the first time on an appeal ofa Director'sDeterminationandprovides 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 newissue or evidencewas notpresented to the Director. Such apetition must: (1) Set forth the newmatter; (2) Contain affidavits ofprospective witnesses, authenticated documents, or both, or an explanation ofwhy such substantiation is unavailable; and (3) Contain a statement explaining why such new issue or evidence could nothave been discovered in the exercise ofdue diligence priorto the date onwhichthe evidentiaryrecord closed. 14 C.F.R. § 16.33(£). In theirAppeal, Complainants take the positionthat Section 16.33(e) "does not contain a standard ofreview" and that, as aresult, de novo review ofthe Director's factual determinations underthe 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, 5U.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 suppliedjetfuel and other services to aircraft at the Westchester County Airport in White Plains, New York, alleged violations of grant
assurances bythe airport. In considering the FAA's dismissal ofthe petitioner's complaint, the SecondCircuitnoted as follows:

!3While we have held that an agency's review ofan 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 "adjudicationrequired by statuteto be determined onthe record after opportunity for an agency hearing." 5 U.S.C. §§ 554(a), 556 (emphasis added); see l RichardJ. Pierce, Jr. Administrative LawTreatise § 8.2 (4th ed. 2002). Wehave held that no hearing is requiredunder49 U.S.C. §4610l(a),whichempowersthe FAA to investigate complaints "if a reasonable ground appears." Lange, 208 F.3d at 391; Penobscot [Air Servs., Ltd. v. FAA, 164F.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 "onlyifthere [hadbeen] a finding ofnoncompliance" by the agency. Lange. 208 F.3d at 392; 14 C.F.R. § l6.3l(d). Because [petitioner] was not entitledto 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 inthat case, in which, as noted, he advancedthe sameunsuccessful argwnent as he makes here. None ofthe 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 reviewis notrequiredunder 5U.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 ofLabor 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 ofnon-competitive and pre-arranged trading); Janka v. Dep't ofTrans., 925 F.2d 1147, 1149 (9th Cir. 1991) (discussing hearing before ALI on revocation ofpilot's certificates andflight instructor certificate). 14Farfrom requiring acompletely new set offindings offacton 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 providingno deference to the Director's findings offact, such a standard requires thatthe Director's findings be upheld "[e]veniftwo different conclusions canbe drawn from the evidence"; the standard gives the Director "the benefit ofthe doubt" so long as the evidence "could satisfy areasonable factfinder." WilsonAir Cntr., 372 F.3d at 813. Evenifthis 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 Complainantshave offeredno persuasive argumentto 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 standingto 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 showthat they are directly and substantially affected by alleged noncompliance. 14 C.F.R. 

### § 16.23. The Director found thatthe Complainants alleged substantialimpact due to supposedfinancial implications:

15A 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

## Jbeen determined to be severely impacted by noise from the airport in the 

### ATL NCP, the [Complainants] were damaged economically and have found it impossibleto sell to otherpotential purchasers because it [sic

## Jhad beenidentified 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 affectedbythe alleged actions ofthe Airport. (Director'sDetermination at22 (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 acquiredtheproperties, and (2) the swamtestimony-whichis evidence, notmere allegations-ofComplainants' principals thatis part oftherecord. Specifically, Complainants acquired eachproperty in either 2009 or 2010, well after the 2007 NEMhadbeenpublished 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 whentheirproperties were "identifiedin 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 itselfdemonstrates thatbeing "identified"intheNCP did notpreventthepurchase and sale ofthe property. Further, Mr. Henderson, the owner of all Complainants except Virginia One Development, testified unequivocally that he was aware ofthe College Park Consent Order and

8 Such also demonstrates the patent falsehood ofComplainants' charge that "the City ofAtlanta has withdrawn specific properties from the NCP simply because the property owners had the audacity to challenge the City ofAtlanta in court ...." (Appeal at 12.) As described above, Atlanta's amendment ofthe NCP is required by the Consent Order entered into with College Park in August 2010-wellbefore any litigation between Complainants and Atlanta relating to the NCP (and, indeed, before Henderson even acquired Avery Park and Harrington Park). (FAAEx. 1, Item 3, Ex. 5.) 16that 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 acquiredAveryParkin late December2010. (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 beenbought 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, andthe occasional sale oftheproperties 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 purchasingthe properties-which, as noted, occurred afterthe 2008 NCP-andthathe 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 inAugust 2009, again after the 2008 NCP. Virginia One Development chose to pursue funding for a project involving new construction-whichwould have made it ineligible in any case under theNCPand 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

17testimony and evidence quoted and cited above). Accordingly, that property is compatible with aircraft noise. There is also no basis for alleging any allegation ofeconomic harm related to tbe NCP. As for Crossings Townhomes, itis potentially eligible only for soundinsulationunderthe NCP. However, as established by Mr. Henderson's sworn testimony, he has put any discussions ofsound insulation for any ofhis properties, including Crossings, "on hold." Again, tbere is no basis for alleging any economic harmrelatedto theNCP. For all ofthese reasons, and based on the evidence and notmere allegations, the Director should have dismissed the Complaint for lack ofstanding. 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' principals9 B. The Director's Conclusion That Atlanta Has Not Violated Grant Assurance 5, PreservingRights andPowers, is in Accordance With Law, Precedent, and Policy. In his Determination, tbe Director identified "Issue 1" as whether Atlanta has "violated Grant Assurance 5, PreservingRights and Powers, bynot implementingtbeNCP as approvedby 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 ofrecord in the NorthernDistrict ofGeorgiaproceeding representing Avery Park and Colony Camp Creek. There is thus simply no excuse for Complainants' counsel to be unfamiliar with tbe sworn testimony ofMr. 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 ifthis matterwere infederal court. FedR. Civ. P. 11. 18airport owner or sponsor to retain all rights and powers necessary to ensure the continued operationofthe airportconsistentwithits 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 somehowrequires Atlantato purchasetheirproperties, noting, interalia, 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 GrantAssurance 5claimhas no merit.

.... [F]or the purpose ofa 14 CFR Part 150 NCP and related projects, Complainants' discretion in decision-making is one ofeither accepting an offer of purchase or sound insulation, or not. Itis notto dictate that a particular offer by the airport sponsorbemade.

Inregulation and policy, the Part !50 (and NCP) is a voluntary program proposed and administered by the airport sponsor. . . . . Itis not the FAA'srole, nor is it a requirement, to mandate that specific projects be acquired or others sound insulated. Thatis outsidethe scope ofthe Part 150process.

. . . [T]he inherent limitations ofthe Part 150 process do not permit the interpretationthat strictnon-adl1erence to avoluntaryNCP is defacto inconsistent with the grant assurance, including Grant Assurance 5. This is especially true since FAA's approval ofan NCP measure is not a mandate for implementation, and the Part 150 process itselfprovides for updates, amendments, and changes, including those designed to accommodate local concerns. (Director'sDeterminationat 28-30.)

10 The full textofGrant Assurance 5 and therelevantportionofFAA Order 5190.6B interpreting GrantAssurance 5is found on pages 13-14oftheDirector'sDetermination. 19The Director also concluded that Atlanta's entering into the Consent Order with College Park, far fi·om constituting a violation ofGrant Assurance 5, underscored Atlanta's compliance withtheterms oftheNCP: In the end, the Airport is interacting with the local politicaljurisdiction as part of its noise-based acquisition process in a manner consistent with FAA obligations andguidance.....

. . . . If a non-sponsor [i.e., College Park] takes part in noise programs underfederal statues, it certainly does not supportthe argumentthatthe Airportis 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 airportmaking changes to itsNCP ordelaying its implementationbecause oflocal land use concerns is outside ofthis discretion and thus wouldresult in a violation ofa grant assurance (including GrantAssurance 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 ofthe ability to take action that is appropriate under the FAAapproved NCP..... (Director'sDeterminationat 30-32.) In their Appeal, Complainants first allege that any grant given to Atlanta to support its NCP is aviolation ofGrant Assurance 5because similarly situatedresidents and landowners are treated differently, and thus discriminated against, by Atlanta as a result ofthe Consent Order. Nothing in the language ofGrantAssurance 5orFAA 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 20owns. 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 situationin which itwere provided limitless funding to effect

nmse compatibility measures and neighboring jurisdictions with no countervailing concerns whatsoever, an airport sponsormust necessarily make choices in giving one projectpriority 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 ofproperties within its city limits 11 The contention that Atlanta's entering into the Consent Order with College Park somehowamountsto aviolation ofGrantAssurance 5is entirelyunsuppmied. 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 aircraftnoise, includingby facilitating purchase ofthe properties by CollegePark. As noted bythe Director, absent a specificrequest for a specific federal grant, the FAA is not in any positionto dictateto Atlantahowit carries outits NCP atthe local level. Further, evenifthe

11 GrantAssurance 6, Consistencywith Local Plans, provides as follows: The projectis reasonably consistentwithplans (existing atthetime ofsubmission ofthis application) ofpublic agenciesthat are authorizedbythe State inwhichthe projectis locatedto planforthe development ofthe area surroundingthe airport" (Director's Determination at 14.) Grant Assurance 7, Consideration ofLocal Interest, requires that Atlanta "has given fair consideration to the interest of communities in or near where the projectmaybelocated." (Id.) 21FAA were so positioned, there is no record evidence that College Park has ever approached Atlanta about purchasing the two properties within itsjurisdiction (Avery Park and Hanington Park), nor is there any reason to believe College Park would do so, given that it sued Atlantato 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 consentto such apurchase. (See FAAEx. 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 giventhe timeline ofrelevant facts inthis 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 ofthe Consent Orderprohibiting Atlantafrom buyingthe AveryParkproperty. (FAAEx. l, Item 16, Ex. "A," at 18-20, 26-28, 33-37.) Further, Complainants' argumentnecessarily assumesboth that (1) an NCP cannot be amended, and (2) an airpmi sponsor has no discretion in implementation,both ofwhich are demonstrablyincorrect. Simply put, no basis in fact, law, precedent, or policy exists to challenge the Director's conclusionthatAtlantahasnotviolated GrantAssurance 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 ofGrant 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.)

22As 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 subjectto approval ofthe Secretary, and incorporated into the grant agreement." (Director'sDeterminationat 15.) In his Determination, the Director emphasized that, contrary to Complainants' v1ew, Grant Assurance 16 "reflectsrequirements interms ofa specific grantproject. ... Moreover, the reference to 'otherperformance' in Grant Assurance 16 does not expand applicability to another undetermined class or type ofproject, ... , 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 thatthere is no actual grant orproject in effect at this time (and at the time ofthe 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 oftime 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 contendthatthe 2001 ROD, by allegedlyrequiring Atlantato mitigatethe increase in aircraft noise thatwouldbe causedby operationofthe FifthRunway, requires Atlantato now

23acquire the properties that Complainants themselves purchased some eight to ten years afterthe 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 ofthe 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 ofthe then-existing runways would be exposed to increased noise as a result ofL'le operation ofthe FifthRunway,butthat "[a]reas northofATLwill experience slightreductions in overallnoise levels." (2001 ROD at 12.) BecauseAveryPark and HarringtonPark are unaffected by Fifth Runway noise, there is no basis to suggestthatthe 2001 ROD somehowrequires Atlanta to acquire those properties. Additionally, prior to the 2008 NCP (including as ofSeptember 27, 2001), Atlanta's Agency-approved NCP excluded multi-family residences and so no specific noisemitigation grant couldhave possibly issuedthat wouldhave covered any ofComplainants' properties in any event. Atthe end ofthe day, the 2001 ROD merely memorialized Atlanta'splans 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 200l 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.Nothingin the 2001 ROD requires Atlantato purchase Complainants' properties. Complainants cannot identify a specific project grantthe plans or specifications for which Atlanta has allegedly violated because, as the Director properly noted, no such grant exists.

24Given the absence ofthe factual predicate for a violation ofprojectplans or specifications, the Director's conclusionthatAtlantacouldnothave violated GrantAssurance 16 is unassailable. D. The Director's Conclusion That Atlanta Has Not Violated Grant Assurance 21, Compatible Land Use,is in AccordanceWith Law, Precedent, and Policy. The Director identified "Issue 3" as whether Atlanta "is in violation of Grant Assurance 21, Compatible LandUse, for failing to take appropriate actionto restricttheuse ofland nearthe 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 ofuses ofthe land within its jurisdiction with

. . 12 mrport operatiOns. In his Determination,the Director concludedthat "the Consent Order does notpreventthe 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 localjurisdictions. Both are elements ofachieving compatible landuse." (Director's Determination at 37.) In their Appeal, Complainants assert that the Director misapplies the rule from Keathly v. City ofMcKinney, Texas and the Collin County Regional Airport, DocketNo. 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 ofthe Fifth RU11way. As a result, Complainants contend, Atlanta must offer acquisition to the owners ofthe properties located in or straddling the 70 DNL contourthatAtlanta supposedly made incompatiblethroughits operationofthe Fifth Rlli1way.

12 The full text of Grant Assurance 21 and the relevant portions of FAA Order 5190.6B interpreting GrantAssurance 21 arefound onpages 15-16 oftheDirector'sDetermination. 25As 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 ofa recycling facility on land that fell within the limits ofthejurisdiction ofthe airport sponsor. Thus, the sponsor could control land use planning regarding the facility. 13 2004 FAA LEXIS 876 at **14, 57. Here, in contrast, theresidential properties atissuefall outside Atlanta's city limits andwithinthe limits ofCollege Park or unincorporated Fulton County. 14 Atlanta is thus unable to directly control land use plarming as regards the properties or, in the words ofthe 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 ifAtlanta had been able to control land use plarming for the properties at issue, there is no factual support for the contentionthat Atlantahas lessened the compatibility of the properties with airport operations. As noted above, the use ofthe occupied properties as multi-family residential apartment complexes predates the approval ofthe 2008 NCP (and also the enactment ofthe original NCP in 1985)15 As Complainants themselves note intheirAppeal, "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 incompatiblelanduse. 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 sometime. 15 These properties would not even be potentially eligible under the 2008 NCP ifthey had not been constructed before 1985. As previously noted, multi-family residences were not eligible at all underthe 1984NCP. 26proposed any discrete project regarding any ofComplainants' properties. Absent such a specific proposal, FAAhas nothing to evaluate for compliancewith GrantAssurance21. Nor is it the case that "by constructing the Fifth Runway, Atlanta created new incompatible land uses." (Appeal at 30.) The construction ofthe Fifth Runway is not in any way relevant to the question ofcompliance 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 ofthe Fifth Runway was completed and it was in operation well before the noise exposure maps on which the 2008 NCP was based

wereprepared. The language ofFAA Order 5190.6B also does not support Complainants' contentions. As notedbythe Director, Order 5190.6B requires airport sponsorsto "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 ofits ownbudget annually for residential noise insulation measures. As reflected by thegraph found onpage 38 ofthe Director's Determination, the area vvithinthe 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 acquisitionbecause 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 ofthispossibility "onhold." 27operations. As also noted by the Director, in the Consent Order itself, Atlanta included a provision statingthat "ifpurchasedby College Park, the
... site shall be subjectto therestrictive covenants [preventing future incompatible landuse]." As the Director noted, "[t]hese actions are convincing indications that the Airport has taken action to mitigate noise, rather than not." (Director'sDeterminationat 39). Complainants' contention that Atlanta could further minimize incompatible land use by offering to pay College Park's local share ofthe cost ofpurchasing 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 Parkproperties situated withinits citylimits. To the contrary, College Parkrecently suedAtlanta 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 ofan alleged violation ofGrantAssurance21. Thus, as the Director found, no evidence exists to support Complainants' allegation ofa violation ofGrantAssurance 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 ofReal Property Acquisition. Grant Assurance 3 5 provides, in relevant part, that when an airport sponsor acquires real property, it should complywith land acquisition guidelines found in 49 C.F.R. Part 24, including by providing arelocation assistance program and fair and



### 28reasonable relocation payments and assistance to displaced persons. 17 As correctly noted bythe Director, "Grant Assurance 35 derives from the laws enactedby Congress to ensure that people whoserealproperty is acquired, orwho move as aresult ofprojectsreceiving Federalfunds, will be treated fairly and equitably and will receive assistance in moving from the property they occupy." (Director'sDeterminationat 16.) Even ifComplaina11ts 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 beenrepeatedly noted above, because Crossings Townhomes and Hmtsfield Landing do not fall within fue 70 DNL contour, they me not eligible for acquisitionunder 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 localpoliticaljurisdiction" (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 ofGrant 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 whichland is being acquired with federal funds, but since the Airport has not acquired the properties in question, GrantAssurance 35 cannotbe applicable to this matter ...." (Id. at43.)

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 becausethe property has been unoccupied for years and so fuere me no tenants or residents that could possibly be displacedby any actionAtlantawouldtake or fail to take. 19 ThetextofGrantAssurances 6 and 7 is setforth infootnote 11, above. 

### 29Complainants 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-guesstheDirector'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 ofthe 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 onwhether they ownproperty in College Park. (Appeal at 32.) Complainants also contend that the Director's Determination allows Atlanta to violate the "dormant" Conunerce Clause based onArticle I ofthe 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 raisedbeforethe 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 mustberejected.

30Moreover, 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 ofGeorgia 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 ofAtlanta v. Watson, 267 Ga. 185, 475 S.E.2d 896 (1996), the Georgia Supreme Court concluded thatthe previous version ofAtlanta's NCPjustified excluding multi-family properties because ofthe same adverse impact on College Park's residential and tax base that motivated College Park to file the College Park Suit in 2008, leadingto entry ofthe Consent Order ofwhi1:0h Complainants nowcomplain: 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 originalNCP. See Provident Mut. Life Ins. Co. ofPhiladelphiav. City ofAtlanta, 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 aboutthe negative impactsthat such acquisitions have

onits residential and tax base andAtlanta's obligationsto coordinate its activities undertheNCP 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 iliatthe equalprotection clause found in Georgia's constitutionis construedto be "consistentwithits federal counterpart." 267 Ga. at 187, 475 S.E.2d at 899. 31requirement of a reasonable relationship between the limited eligibility for acquisition and the goal ofthe NCP, which is to reduce land usage incompatible with aircraft noise in a way that is consistentwiththe concerns ofsurrounding land usejurisdictions. 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 Clausejurisprudence is "drivenby a concern about 'economicprotectionism-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 ofEnvtl. 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 ofan interstate market. Cf. Tamagni v. Tax Appeals Tribunal ofthe State ofNew York, 91 N.Y.2d 530, 541, 695 N.E.2d 1125, I132, 673 N.Y.S. 2d 44, 51 (1998) (noting, in evaluatingNewYork 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 ofBabylon, 66 F.3d 1272, 1285 (2d Cir. 1995) (holding
no violation ofdormant Commerce Clause where town's waste management system "treats all

32garbage 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 theburden imposed onsuchcommerce is clearly excessive inrelation to the putative local benefits." Oregon Waste Sys., 511 U.S. at 99 (internal citations and quotations omitted). Thus, even ifthe 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 ofmaintaining College Park's residence and tax base. Thus, even if the question could be reached on this appeal, Complainants' dormant Commerce Clause argumentclearly 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 ofthe FAA's April 14, 2014 letter with the District ofColumbia Circuit in case number 14-1066.**(See,~'** Appeal at 16-19.) Because the FAA allegedly can11ot divorce itselffrom 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, Hendersonhas testifiedthatbothproperties are more than 90 percent occupied and have anetpositive 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 makemoremoneybyholdingthem and selling at alater date. 33decision, Complainants assert, their Part 16 complaint should, at minimum, be determinedby an ALIafter 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 ofthe Complainants admittedly boughtthe properties atissue well after approval ofthe 2008 NCP and, at least inthe case ofAvery Park and Harrington Park, with actualnotice thatthe Consent Order prohibited Atlantafrom purchasing the properties, the Director did notrely on these crucial facts to dismiss Complainants' complaint. Instead, the Director (erroneously) concludedthatthere was sufficient evidence in the record to support Complainants' claims ofeconomic 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 ofthese proceedings, accompanied by multiple motions on both sides to supplement the record. Again, there is nsbasis for claiming "bias." Further, eventhough Complainants' arguments demonstrate a ratherblatant disregard for the facts and the text ofthe 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

34party, agency, or tribunal that does not agree with their view as guilty of"bias" and wmihy of scurrilous invective. This approach is neitherprofessional norpersuasive, and shouldbe 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 evidentiaryhearingbefore an ALIexceptifrequestedbytheairport sponsorinresponse to
a finding ofnoncompliance by the Director or as otherwise offeredbythe 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 notpresent a substantial questionfor appeal. CONCLUSION For the foregoing reasons, tlie Director's Determination is supported by a preponderance ofreliable, probative, and substantial evidence; was made in accordance withlaw,precedent, and policy; and was not the result ofany prejudicial error. The Director's Determination should be upheld.

35Dated: April 7, 2015

36 Respectfully submitted, THOMPSON HJNE LLP 

### By:_L_'

# _._ft_~"-------- Jolm L. Watkins GeorgiaBarNo. 740515 jolm.watkins@thompsonhine.com RoyE. Hadley, Jr. GeorgiaBarNo. 003730 roy.hadley@thompsonhine.com Two Alliance Center 3560 LenoxRoad, Suite 1600 Atlanta, Georgia30326-4266 Phone: (404) 541-2900 Fax: (404) 541-2905
EricN. Heyer DistrictofColumbiaBarNo. 500095 eric.heyer@thompsonhine.com 1919 M Street,N.W., Suite 700 Washington, D.C. 20036 Phone: (202) 331-8800 Fax: (202) 331-8330 CounselforRespondent, The City of Atlanta, GeorgiaCERTIFICATE OF SERVICE Ihereby certify that on this 7thday ofApril, 2015, I caused atrue and correct copy ofthe 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:
StevenM. Taber Taber LawGroup, P.C. 1League, #60036 Irvine, California92602 staberial.taberlaw.com Counsel for Complainants

37 EricN. Heyer District ofColumbiaBarNo. 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