Virginia One Development, Inc., Avery Park Partners, LLC d/b/a Avery Park, DSH Diplomat, LLC d/b/a Diplomat Townhomes, Colony Creek, LLC, and Crossings Townhomes, LLC v. The City of Atlanta, Georgia – No. 16-12-09
FAA Docket No:
FAA Docket No. 16-12-09
Complainant(s):
Virginia One Development, LLC, Avery Park Partners, LLC d/b/a Avery Park, DSH Diplomat, LLC d/b/a Diplomat Townhomes, Colony Creek, LLC, and Crossings Townhomes, LLCRespondent(s):
City of Atlanta, GeorgiaAirport(s):
Hartsfield-Jackson Atlanta International Airport (ATL)
History:
See also Director's Determination dated 1/26/15.
Holding:
Affirming Director's Determination (No Violation).Abstract:
Virginia One Development, LLC, an off-airport entity, and several other real estate entities who were either current or former owners of multi-family, residential properties either wholly or partially within, or in close proximity to, the 65 and 70 dBA day-night average sound level (“DNL”) noise contours of ATL, filed a formal Part 16 complaint against the sponsor of ATL, alleging that the Respondent had violated Grant Assurance 5 (Preserving Rights and Powers), Grant Assurance 16 (Conformity to Plans and Specifications), Grant Assurance 21 (Compatible Land Use), and Grant Assurance 35 (Relocation of Real Property Acquisition) because it failed to acquire the Complainants’ residential apartment properties, which were identified in the ATL Noise Exposure Map (“NEM”) as being impacted by aircraft noise.
In response, the Airport denied the allegations and asserted that the Complainants “have made fundamental misstatements regarding the facts and have made equally fundamental mischaracterizations regarding the (14 CFR) Part 150 program and roles of the [airport] and the [FAA].” For example, the airport argued that the Complainants failed to show how issues related to the airport’s administration of its noise compatibility program (NCP) program with respect to acquisition and sound insulation of incompatible properties were relevant to Grant Assurance 5. (Director’s Determination, p. 28.) Additionally, the airport argued that the properties “are not airport properties” and that it had “taken no action which would in any way … impede its rights to control the airport” in a manner consistent with Grant Assurance 5.
The Director’s Determination reasoned that the Respondent: (1) did not give away its rights and powers by entering into a Consent Order that prevented the acquisition and sound insulation of Complainants’ properties identified in its NCP in violation of Grant Assurance 5; (2) was not in violation of Grant Assurance 16 because this was not a situation where an actual noise mitigation grant had been issued, a project initiated, or the failure of a sponsor to meet the approved plans and specifications for the project; (3) was not in violation of Grant Assurance 21 because there was no indication that the airport had taken action that resulted in an incompatible land use; and (4) was not in violation of Grant Assurance 35 because the airport had not acquired the properties in question.
The Associate Administrator considered three issues on appeal: (1) whether compliance with Atlanta’s NCP, as approved by the FAA, was voluntary or required the purchase or noise remediation of Complainants’ properties; (2) whether the Director’s Determination with respect to Grant Assurance 5 was supported by substantial evidence and in accordance with the law; and (3) whether the Director’s Determination with respect to Grant Assurance 21 was supported by substantial evidence and in accordance with the law.
The Associate Administrator found unmeritorious the Complainants’ argument that Atlanta’s NCP, grant assurances, and various aviation statutes required the FAA to make Atlanta purchase or noise remediate their properties. (Final Agency Decision, p. 19.) “The Director properly found that nothing in the NCP or the Part 150 program requires the FAA to mandate the acquisition of specific properties or the institution of sound remediation of others.” (Final Agency Decision, p. 19.) “While the Complainants are correct that it is Congress’ declared policy to promote an environment for all Americans free of aircraft noise that can jeopardize the people’s health and welfare, the Complainants are incorrect that the FAA’s approval role under [the Airport Noise Compatibility Program] and Part 150 provides a ‘legally enforceable’ element to an overtly voluntary noise compatibility program. Rather, the FAA’s role in Part 150 noise compatibility planning approval under ASNA is comparatively narrow and is designed only to ensure ‘national uniformity of treatment’ in that federal approval be granted when commerce is not burdened, reasonable actions are taken to reduce or eliminate incompatible land uses, and necessary revisions to the NCP are provided for in the program.” (Final Agency Decision, p. 21.)
Next, the Associate Administrator agreed with the Respondent’s argument by stating that the record showed that Complainants’ properties “are not airport properties,” were “not located within airport boundaries,” and “the Airport has no control over them.” Moreover, the Respondent had “no affiliation whatsoever to the Complainant’s properties … Grant Assurance 5 does not bestow a right or responsibility to assert power over property the airport sponsor does not own. Accordingly, the Associate Administrator confirms that the Director did not err in his interpretation that Grant Assurance 5 ‘does not extend to any and all actions on the part of the Airport concerning a property that it does not own but might be interested in for noise mitigation purposes (in the NCP), as it is the case here.” (Final Agency Decision, p. 23.)
Finally, the Associate Administrator agreed with the Director’s Determination that the record contained no evidence indicating that the airport had taken action that resulted in an incompatible land use by failing to restrict the use of land adjacent to the airport to uses compatible with airport operations. And, the Complainants’ argument that that the Director’s application of the precedent of Mr. Donald Keathly v. City of McKinney, Texas [Docket No. 16-03-14, Oct. 13, 2004] was unsubstantiated or that the Respondent failed to take “all appropriate actions” to comply with Grant Assurance 21 were unpersuasive. (Final Agency Decision, p. 25.)
The Associate Administrator “confirms that the Complainants are correct that the Director did not provide a detailed analysis of the applicability (or inapplicability) of their reference to Keathly. However, upon review, the Associate Administrator’s [sic] confirms the inapplicability of Keathly to this case.” (Final Agency Decision, p. 27.) Moreover, “the Respondent’s lack of jurisdictional control over properties within the City of College Park cannot be construed as sufficient grounds for sustaining a violation of Grant Assurance 21.” (Final Agency Decision, p. 27.)