Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:01-cv-00201-VJW

Document 269

Filed 05/19/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CAROLE AND ROBERT TESTWUIDE, et. al. ) ) ) ) ) ) ) ) ) ) )

Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.

No. 01-201L Honorable Victor J. Wolski

DEFENDANT=S MOTION TO ENFORCE THE SETTLEMENT AGREEMENT WITH RESPECT TO PLAINTIFFS FLORA, MATTHEWS, AND WALLER Defendant, United States, hereby moves to enforce the Settlement Agreement & Release ("Settlement Agreement") with respect to certain Plaintiffs who refuse to provide the United States with avigation easements as required by the Settlement Agreement entered into by the parties on May 15, 2007. Exhibit A. Plaintiffs Charles Flora (404 Gregory Lane, Virginia Beach, Virginia 23451), Buddy Matthews (217 68th Street Virginia Beach, Virginia 23451), and Buffy Waller (3340 Ives Road Virginia Beach, Virginia 23456) were included in the Whitley v. United States Complaint, No. 04-1331L (Filed August 16, 2004), alleging a taking of the property by the United States as a result of flight operations of F/A-18 C/D aircraft at Naval Air Station Oceana. Whitley v. United States was consolidated with other related cases under Testwuide v. United States on February 14, 2005. The related cases were included in the Settlement Agreement, which requires, inter alia, Plaintiffs to provide the United States with a permanent avigation easement in exchange for their portion of the settlement proceeds. As discussed below, these Plaintiffs must be ordered to comply with the express terms of the

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Settlement Agreement, which require each of them to provide the United States with an avigation easement. Although federal courts generally have limited jurisdiction, they can enforce settlement agreements concerning causes of actions that remain pending. See Langley v. Jackson State Univ, 14 F.3d 1070, 1075 (5th Cir. 1994); Massachusettes Casualty Ins. Co. v. Forman, 469 F.2d 259 (5th Cir. 1972); Cf. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994) (unless a court retains jurisdiction over a settlement contract in its dismissal order or otherwise has some independent basis for federal jurisdiction, it may not enforce a settlement agreement with respect to an action that has been dismissed). Given that the consolidated cases under Testwuide v. United States, including Whitley v. United States, remain pending, this Court has the power to enforce the Settlement Agreement. Settlement agreements are contracts. Massie v. United States, 40 Fed. Cl. 151, 164-65 (1997). "[C]ontract interpretation principles may be used to determine the[ir] validity." Id. at 165; see also Core-Vent Corp. v. Implant Innovations, Inc., 53 F.2d 1252, 1258 (Fed. Cir. 1995); Link v. Dep't of Treasury, 51 F.3d 1577, 1582 (Fed. Cir. 1995) (citing Greco v. Dep't of Army, 852 F.2d 558, 560 (Fed. Cir. 1988)); Bloomington Hosp. v. United States, 29 Fed. Cl. 286, 292 (1993). An agreement is binding if the parties agree on all material terms. Seymour v. Hug, 413 F. Supp. 2d 910, 925 (N.D. Ill. 2005). Whether the parties came to agreement is determined not by their subjective intent, but by what they expressed to each other in their writings. Id. see also International Transducer Corp. v. United States, 30 Fed. Cl. 522, 526-27 (1994). In the present case, the parties expressly specified the terms of the settlement in the Settlement Agreement. The plain language of the Settlement Agreement makes it clear that the

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parties intended to be bound by the terms of the agreement, and in consideration for the specified payment from the United States that Plaintiffs would comply with its terms1: In exchange for their share of the payment specified in paragraph 1 and as a condition to receiving any compensation, all Plaintiffs participating in the Settlement as reflected in the list provided by Counsel for Plaintiffs (and attached as Exhibit B), and Plaintiffs' attorneys acting on their behalf, agree to this Settlement Agreement & Release. Exhibit A ¶ 7. Nicholson v. United States, 29 Fed. Cl. 180, 192 (1993) ("courts are loathe to find ambiguity where the terms of the contract can be brought into harmony by a plain meaning interpretation"). Plaintiffs Flora, Matthews, and Waller were included among the Plaintiffs that participated in the settlement and agreed to its terms. Exhibit A ¶ 7. Moreover, Plaintiffs explicitly agreed, inter alia, as a "condition to receiving any compensation ... [to] grant the United States a perpetual and permanent avigation easement." Exhibit A ¶ 8. (emphasis added). Plaintiffs' counsel has informed Defendant's counsel that Plaintiffs Flora, Matthews, and Waller refuse to sign avigation easements over to the United States as expressly required in the Settlement Agreement. Further, despite the plain language of the Settlement Agreement, which mandates that they provide an avigation easement to the United States to be entitled to any compensation, these Plaintiffs are still improperly demanding a portion of the settlement proceeds. In light of the plain meaning of the Settlement Agreement and Plaintiffs Flora, Matthews, and Waller participation thereof, they are required to provide the United States with an avigation easement.

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In accordance with the Settlement Agreement, the settlement payment has been transferred to an escrow account,

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CONCLUSION For the foregoing reasons, Defendant respectfully moves this Court to order Plaintiffs Charles Flora (404 Gregory Lane, Virginia Beach, Virginia 23451), Buddy Matthews (217 68th Street Virginia Beach, Virginia 23451), and Buffy Waller (3340 Ives Road Virginia Beach, Virginia 23456) to provide the United States with signed avigation easements with respect to the listed properties in accordance with the express terms of the Settlement Agreement.

Dated: May 19, 2008

Respectfully submitted,

Ronald J. Tenpas Assistant Attorney General Environmental & Natural Resources Division United States Department of Justice

/s/ Steven D. Bryant Steven D. Bryant Environmental & Natural Resources Division United States Department of Justice 601 D Street, NW, Rm. 3120 Washington, D.C. 20004 Counsel for Defendant [email protected] 202-305-0424 Of Counsel: Robert J. Smith Navy Litigation Office 720 Kennon Street Washington Navy Yard, D.C. 20374

Jet Noise Lawsuit Settlement Trust Account, managed by Plaintiffs' counsel.

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CAROL AN ROBERT TESTWIDE, et. al.,

)

Plaitis,
v.

)

)
)

NO.01-201L

) )
)

THE UNITED STATES OF AMRICA,

Defendat.

) ) ) )

Judge Victor J. Wolski

SETTLEMENT AGREEMENT AN RELEASE

Ths Settlement Agreement and Release is made ths ls day of May, 2007, by and

between the United States of America (hereinafer referred to as the "United States") and Plaitiffs
for the followig cases: Testwde v. United States, No. 01-201L; Burlage v. United States, No. 04-

(

120L; Adams v. United States, No. 04-279L; Anderson v. United States, No. 04-333L; Beagle v.
United States, No. 04-11 76L; Aralar v. United States, No. 04-l280L; Whtley v. United States, No.

04-1331L; Price v. United States, No. 04-l718L; and Mack v. United States, No. 05-628L,

(hereinafer collectively refered to as the "Plaitiffs"), with the exception of the followig
individuals:

LAT
NAME

FIRT

NAME

PROPERTY

CITY ZIP

COMPLA

Edey

Doris

Ha

Jean

996 Lynaven Pkw.
412 27th S1.

Hicha
Hubbard Savostyanov

Shiley Wilam II & Tracy

928 Smoke Tree Lae
3014 Dedi Ct. 863 Park Place Dr.

Ga&Mai
Ane

Alexei & Nataja
James & Jennfer

Valance

Werer

3117 Bloomfeld Ct. 1272 Alanton Dr. Page 1 oflO

VB 23452 WHTLEY VB 23451 WiTLEY VB 23452 WiTLEY VB 23456 WHITLEY VB 23451 WiTLEY VB 23456 WHTLEY VB 23454 WHTLEY

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LaRossa

La & Paula

2124 Land ofProinse Rd.

Ches. 23322 WHITLEY

The above individuas not parcipatg in ths Settement Agreement and Release are herinafer

collectively refered to as the "Non-Settg Plaitiffs." Any plaitis in addition to the above
individu who do not parcipate in the settement wi also be considered "Non-Sett Plati."

WHEREAS, the Plaiti being owners on July 1, 1999 of al respective propees situted
in Chesapeake, Virgi and Virgia Beach, Virgia that are the subject of

th litigaon (herin

referrd to as "Proper or "Properes"); and,

WHEREAS, Plaitiffs brougt the above-captioned lawsuit, Testde v. United Staes, No.

01-201L (Filed Apri 5, 2001) and the followig eight related cases that are the subject of ths
litigation and ths Settement Ageement and Release: Burlage v. United States, No. 04-120L (Filed

Janua 29,2004); Ada v. United States, No. 04-279L (Filed March 2,2004); Anderson v. United
States, No. 04-333L (Filed March 8, 2004); Beage v. United States, No. 04- I l76L (Filed July 19,

2004); Aralar v. United States, No. 04- 1280L (Filed Augt 13, 2004); Whtley v. United Staes, No.

04-133 lL (Filed Augt 16, 2004); Prce v. United States, No. 04- 1 7 1 8L (Filed Novembe 29,2004);

and Mack v. United Staes, No. 05-628L (Filed June 16, 2005), in the United States Cour ofF ederal
Clai, alegig a ta of their Properes by the United States by vi of flghts origiatig from

United States Naval Ai Station Oceana ("NAS Oceana") and Nava Auxai Ladig Field Fentrs

(''NALF Fentress"); and

NOW THEREFORE, for good and vauale consideration, the sufciency of which is
hereby acknowledged, and intedig to be legaly bound, the Plaitis and the United States do

hereby agee as follows:

1. The United Staes wi pay to Plaitiff an amount not to exceed 1b-Four Mion
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Four Hundred Six Thousand Dollars ($34,406,000.00), which shal be made payable to the Jet NoiYe

Lawuit Setemet Tru Account. Ths payment is inclusive of al pricipal interest, and
attrneys' fees, costs, and other expenses incured to date and in the fue, other th attorneys'

fees, costs and any other expnses solely incured afer the date of ths Setement Ageement and
Release in connection with the Non-Setg Plaitis. Ths maxum payment sh be reduced as
specifed in paragaphs 2-6, in. The disbursement offuds as between and among the Plaitis

shal be determed solely by the Plaitiffs, to include payment of cost and attorneys' fees incur
2. In the event that more than 740 of

the Propertes have bee sold by an Plaiti pror

to March 20, 2007. the United Staes' payment specifed in parh 1 shal be reduced by

$5,000.00 for each Propert sold in excess of 740 Propertes. In the event that more th 800
Propertes have been sold by any Plaitis pror to March 20. 2007, the United Stas may, in its sole
dicreon, void ths Settement Ageement and Release without penaty.

3.
LAST
NAME

The followig Plaitis have agreed to volunta dismss their clai wi prjudce:
FIRST NAME

PROPERTY
905 Townsend Drive 1112 Bonfield Court
206 Bierc Drive

CITY
VB VB VB VB VB VB VB VB VB

zip

COMPLAINT

Abernethy Agresti

J.R. & Evelyn
Danny & Robin

cassidy
Correia Cox Doe Elms Holava

Kevin & Adele Jeffrey & Gloria
Willam & Connie

2413 Kerr Drive

23452 WHITLEY 23454 BEAGLE 23454 WHITLEY 23454 WHITLEY

2420 Mohaw Trail
908 Avatar Drive

234

Jon
Robert & Phylls

266 Raintee Road
2912 Wilcox Drive

23454 23452

Scott & Cathy

234

Jansohn
Mils Neal

Deanne
Samuel & Mary

1141 Whitestone Way
729 Becley Lane

Ches.
VB

Nancy
Randolph P. &

Parker Reeves

Laura
Alan & Tammy

1268 Laskin Road 717 School House Road
130 Fernham Lane

23454 23322 23451
23322 23322
23451 23322 23454 23454

WHITLEY WHITLEY WHITLEY WHITLEY WHITLEY WHITLEY WHITLEY WHITLEY WHITLEY WHITLEY WHITLEY WHITLEY WHITLEY

Ches. Ches.
VB

1152 VB Boulevard

Ross
Smith Smith Turner

Ruby
John & Jane

#101 1313 Mockngbird Lane
2200 Oak Drive 1278 Eaglewood Drive
Page 3 of 10

Ches.
VB VB

Paul
Darr & Sandra

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In the event that there are additiona Plaitiffs who agree to voluntay disinss their clais with
prejudice, the United States' payment specifed in paragph 1 shal be reduced by $l8,000.00 for
each Propert formerly or curently owned by these addtional Plaitis.

4. In the event that there is some reason other than a Propert havig been sold tht

prevents the Plaitis from conveyg the easement discussed in paraph 8 (and atched as
Exhbit A) over a Proper, and the Plaitiff canot correct the defect that prevents conveyance of

the easement, the United States' payment specifed in paragph 1 shal be fuer reduced by
$5,000.00 for each such Propert.

5. The United Staes' payment specified in parph 1 shal be reduced by $18,000.00

for each of the fit 24 Propertes curently or formerly owned by Non-Settg Plaitis.
6. The United States' payment specified in paraph 1 sha be fuer reduced by
$18,000.00 for each Proper in excess of30 Propees curently

or former owned by Non-Setg

Plaitiffs.
7. In exchange for their shae of the payment specifed in paraph 1 and as a codition

to receivig any compensation, al Plaitiff parcipatig in the Settement as reflected in the list

provided by Counel for Plaitiffs (and attched as Exhbit B), and Plaitiffs' attrneys actig on
their beha, agee to ths Setement Ageement and Releas.
8. In exchange for their share of the payment specified in paraph 1 and as a fuer

condition to receivig any compenstion, al Plaitiffs parcipatig in ths proposed settement sh
grant the United States a peietu and permanent avigation easement, in the form set fort as Exbbit

A, for their respectve Properes. Each easement wi include the fu naes of al owner as shown
in the land records. If

the grtor of an eaement is not a plaitiff, an explanation wi be provided as Page 4 oflO

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to why the grtor ha authority to convey the easement (for example, the Named Plaiti conveyed
to Curent Ower, who is grantig the easement). Plaitiff who no longer own an interest in any

Propert tht is the subject of

ths litigaon ar exempt from the requiements of ths parph. See

paragrph 13, in.
9. For each avigation easement grted, Plaiti rerese th

the gr is the cut
ths litigation, and th the grtor otherse ha

owner of the Propert, and the land described is al of the land owned by the grantor in the Cities of
Vira Beach and Chesapeake that is the subject of

the authority to convey the avigation easement over the Propert. For each avigation easement
grted, Plaitiffs fuer represent tht the lega description of

the Proper and GPIN No. in the

easment are accur to the best of thei knowledge. The United Stas wi conduct and review title

searches to conf that the land descrbed is al of the land owned by the grtor in the Cities of
Virgia Beach and Chesapeake tht is the subject of ths litigation, and th the grtor oth ha

the authority to convey the avigaon eaement over the Propert. In the event that the United States
lear that the lega description of the Propert or the GPIN No. is inaccurt~or the easement is

otherwse defective but the Plaitiffs can correct the defect, Counsel for the United States wi noti
Counel for Plaitis who hereby agee to promptly tae reasonale steps to obta a corrected

easment from Plaitiffs and provide it to the United States at no additiona cost to the Unite Sta.
10. The United States shal be responsible for the recordation of

the executed

easements.
11. Plaitiffs' counel shal use thei best effort to obtai the agement of 1 00% of the

Platis to parcipate in ths setement. In the eyent that there is less than 100% parcipaton by

Plaitiff in ths settement, the United States may, in its sole discretion, void ths Settement

Ageement and Releae without pealty uness the Plaitis who agee to the Settemen Ageement Page 5 oflO

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and Release own in tota, at least the followig percentaes of

Propertes:

a) At least 96% of

the Propertes; and

b) At leas 98% of al Properes located inide the 75 decibel ("dB") Day-night

Average Sound Level ("DNL") noise contour as measured by the BASE 2000 contours (i.e., the modeled 2000 baselie noise contours from the Final

Envionmenta Impact Staement for the Introducton ofF/A-i8 ElF (Super
Hornet) Aicra to the East Coast of

the United Staes); and

c) Al

12 of

the followig "Test Case Properes" that were to be the subject

of the intial tral:

i. Theodore Digle, 912 Caroli Avenue, Virgia Beach, Virgia 23451;
Ü. Hal and Elaie Levenon, 2004 Brickell Cour Virgia Beach,
Virgi 23454;

il. Caroll Lindsay, 2709 Eat Kigs Road Virgia Beach, Virgia 23452;
iv. Herer and Bett Van Nostrd 305 Corvette Lae, Virgia Beach, Virgia 23452;

V. James and Virgia Riddick 1805 Loganberr Cour, Virgi Beach, Virgia 23453;

vi. Eddie and Elibeth Wateran 2244 Windy Pines Bend, Virgia Beah,
Virgia 23456;

vi. Sara Hoag, 1301 Brat Road, Virgia Beah, Virgia 23451;

vi. Wilam and Bett Capps, 409 Palet Road, Virgi Beach, Virgia
23454;

ix. Eileen May, 620 Litte Neck Road, Virgia Beach, Virgia 23452;

x. Kenneth and Tamy Hi 925 Laplight Lae, Vira Beach, Virgia
23452;

xi. Michael and Diane Leai, 3209 Chicory Cour Vira Beach, Virgia
23453; and
xi. Sean and Grciela Ryan 1856 Pathder Drve, Virgia Beah, Vira

23454.

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12. Pror to the execution of

ths agreement, Counel for Plaitiffs shal have provided to

the United States:
a) A lit of al Plaitiff who agee to parcipate in the settement. For each
Plaitiff

who agees to parcipate in the settement, the followig addtiona

inormation has been provided:

i. The address of each Plaitiff s Proper or Propees th ar th subjec of
ths litigation curently or formerly

owned by the Plaitiff; and

n. A statement identifyg whether each Propert is located inide the 75dB
DNL noise contour as measured by the BASE 2000 metrc; an
il. A statement identifyg wheter an easent can be granted for the

respve Platiff s Proper or propertes. If an eaent caot be grte
for the Proper or Properes, the staement sha indicate tht the Proper or Properes were sold either before or afer March 20, 2007; and
iv. A statement identig wheter the propert was one of

the 12 "Test

Case Properes"; and

v. A statement identifyg which of the nie related cases the Plaitiff was a
named par.

b) With respect to the Non-Settg Plaiti, and prior to the execution of ths
agent, Counel for Plaitis shal have provided to the United States:

i. A statement identig whether each Non-Setg Plaitis Propert is

located inide the 75dB DNL noise contour as measured by the BASE 2000
metc; and

n. A staement identig whether the Non-Settg Plaitiff curently own
the Propert. If the Non-Setg Plaiti no longer owns the Proper or

Properes, a statement identig the date that the Propert or Propees
sold.
13. The pares acknowledge that some of

the Plaitis are not able to convey the

avigation easent dicussed in paraph 8 (and attched as Exhbit A) to the Unite Stas bec
they conveyed their Propert or Properes. Such Plaiti shal be included as parcipati

plaitis for purses of deterg the tota percentae of pacipation dicussed in pah 11,
assumg these Plaitis, or their attorneys actg on Plaitiffs' behal execute th Settlement Page 7 oflO

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Agreement and Release, and provided that such Plaitiffs provide to the United States legaly
sufcient documentation evidencing that they conveyed their Propert or Properes prior to March

20,2007.

14. Each Plaitiff that grants to the United States the easement discussed in parph 8
(and attched as Exhbit A), covenats and agees to wart and defend said easement and rights of

the United States and its assign arsing from the easement agai the lawf clai and demds of

al persons whatsoever in accordace with the genera warty contaed with the eaen Ths
waranty and indemcation is not in any way lited by the fact that the United States conducted

title search reviews discussed in pargrh 9.
15. As discussed in paraph 1, the settement payment shal be made payable to the Jet

Noise Lauit Setemet Trut Accoun A porton of ths setement payment, specifical
$5,000.00 for each of

the 1,353 Propertes over which the United States is expted to acqui an

avigation easement, is contigent upon the United States reviewig the title searches as speified in

paragaph 9. Counel for plaitiffs agee to reta Six Mion, Seven Hundred Six-Five Thousad
Dollar ($6,765,000.00) of

the settement payment hereinafer referred to as "Contigent Funds", in

the Jet Noise Lawuit Settement Trut Account, pendig the United States' review of the title .

searches. Counel for the United States wi authorie disbursement of the Contient Funds in four
intaents as the title search reviews progress and it appeas tht easements can be acquied over

the Properes. The fist thee disbursements of

the Contigent Funds wi be in intaents of

Two

Mion Dollar ($2,000,000.00) each. Each of

these thee instaents corresponds with reviews of

the title searches of 400 Properes for a tota of 1,200 Properes. The four and fial diburt
wi be the remaig Seven Hundred Six-Five Thousand Doll ($765,000.00), as the fial 153

title searh reviews are completed, includig any correctons mae by Plaitiffs, and it appears that Page 8 oflO

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easements can be acquied over al

1,353 Properes. As specified in paragaph 9, Counel for th

United Staes wi noti Counl for Plaitis of any incuracies or defects it uncover that need to

be correced durg the reew. In the event that there is some reason other th a Proper havig
been sold after March 20, 2007 tht prevents the Plaitiffs from conveyig the easement and

Plaitis canot correct it as specified in parph 9, Counel for Plaitiffs are not autori to
disbure $5,000.00 for each such Proper, and ths porton of

the Contigency Funds wi be mae

payable to the United Staes.
16. FORAN IN CONSIDERATION of

payment by the United States to the

Plaitis as se fort in ths Settement Ageement and Release, and subject to the conditions on

such payment set fort herein, and for fu and :f settement of the mattr with respect to

Platis, sufciency of

which is acknowledged, the undersigned atorneys actg on Plaitiff'

behalf, or the underigned Plaitiffs, on behalf of ourelves, our successors, heir, executors,
admstrtors, and assign, do RELEASE, REMISE, ACQUIT, AN FOREVER
DISCHAGE, the United States of Amerca of and from any and al causes of

action, clai,

demds, costs, suits at law, suits in equity, and al cla of any natue and kid whatsoever,
known or unown foreseen or unoreseen, which the undersigned had or may in the

fue be entitled to have agt the pares released and naed above, related to the facts as
aleged in the Complait fied in the above-captioned lawsuit and the Complaits in the eight

related cases, as well as any potential clai that could have been brought relatig to any and al
flght opertions at NAS Oceana or NALF Fentress at any tie pror to executig ths Settement

Ageement and Release.

17. The pares understad that ths settement is a comproinse of disputed cla,
and that any and al payments or actons on account of or in an way related to sae are not to

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be constred as an admssion of liabil by the United States, which liabilty is expressly denied,

nor sha the ter of ths settement be used as precedent in an futue litigation or other offcial

proceedig.
18. In constrg or interpret ths Settlement Ageement and Release, no one par

sha be deemed to have dred or created ths Settement Ageement and Release, and any

perceived uncertty or ambiguty shal not be constred or interpreted agt anyone par to
ths Settement Agreement and Release.

19. Ever proviion of

ths Settement Agreement and Release sha be deemed

severable from ever other provision; if any provision of ths Setement Ageeent and Release

is later deemed ileg, invald or unenorceable, in any respec, the valdity, legalty and

enforceabilty of the remaig provisions contaed herei shal not in any way be afected or
impai thereby, and such invald, ilegal or unenforceable provision shal be deemed modified
to the extent necessai to render it vald whie most nearly preserg its origi intent.

Date: 11e. 1'/1 Jr07

Date: ~1 (5", 20cil
Steven D. Bryant

Atorney for Defendat an
Authori Representave

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Exhibit

A

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GRAT OF A VIGATION EASEMENT

This Easement is made this' day of , 2007, between (FULL NAMES OF

ALL OWNERS IN CAPS, 1 herein referred to as the GRATOR, and the UNTED
STATES OF AMERICA, herein referred to as the Governent or GRANTEE, and.

WITNESSETH:

GRATOR is the owner in fee ofthat certain parcel or those certain parcels ofland situated in
the City of (Virginia Beach or Chesapeake J, Virginia, more paricularly described on Exhbit A attached
hereto and made a par hereof fprepare Exhibit A legal description attachment - list all

land owned by

Grantor. If Grantor owns land in both Cities prepare two easements, one for each City.. J hereinafter

called "the GRATOR'S Property", or "the Property."
GRATOR, for itself and all its successors and assigns, in consideration of the settlement of

the

following actions filed in the United States Cour of

Federal Claims entitled: Testwide, et. a1. v. United

States, No. 02-201L; Burlage, et. a1. v. United States, No. 04-l20L; Adams, et. a1. v. United States, No. 04-279L; Anderson, et. a1. v. United States, No. 04-333L; Beagle, et. a1. v. United States, No. 04-1l76L;

Aralar, et. a1. v. United States, No. 04-l280L; Whitley, et. a1. v. United States, No. 04-1331L; Price, et.

a1. v. United States, No. 04-l7l8L; Mack, et. a1. v. United States, No. 05-628L; does hereby grant,

bargain, sell, and convey with general warranty to GRATEE, its successors and assigns, a perpetual
and assignable avigation easement and right-of-way ofthe natue and character and to the extent

hereinafter set forth, over and across the GRATOR'S property, as follows:

i. GRATEE shall have, for all aircraft now operating or operating at any time in the future
at Naval Air Station Oceana, hereinafter "NAS Oceana," or Naval Auxiliar Landing Field Fentress,

GPINNO.

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hereinafter "NALF Fentress," as well as the noise emissions from any

aircraft, including any futue

aircraft, which produces a noise level up to and including the sound exposure level, hereinafter "SEL,"
of

the F/A-l8 ElF, plus 3 decibels (dB) SEL, with respect to any flight operation that affects

GRATOR's Property (See,~, Exhibit B, Table 4-l9 from the Final Environmental Impact Statement

for the Introduction of F/A-18 ElF (Super Hornet) Aircraft, which contains representative SEL values of
the Super Hornet at certain altitudes durng certain modes of flight), a right of free and unobstructed

passage or overflight above the GRATOR's Property at altitudes for the landing patterns and for field
carer landing practices in accordance with the current practice at NAS Oceana (1,000 feet or above)

and NALF Fentress (800 feet or above), together with the right (1) to cause in and through said airspace

such noise and vibrations that is inherent in the operation ofthe aforementioned aircraft and (2) to fly
the aforementioned aircraft through said airspace up to and including 240,039 annual flight operations in NAS Oceana air traffic control tower airspace as recorded in Air Traffic Activity Reports (Control
Tower Operations), or any successor report that accounts for operations in a similar fashion, and

l52,497 annual flight operations at NALF Fentress as recorded in Air Traffc Activity Reports for
NALF Fentress, or any successor report that accounts for operations in a similar fashion. It is

UNERSTOOD that aircraft descending to a ruway on approach or ascending from a ruway after
takeoff

will be below minimum flght altitudes of standard flight patterns at NAS Oceana and NALF

Fentress. It is further UNERSTOOD

that the distrbution ofthe flight operations among the ruways

at NAS Oceana and NALF Fentress will var based on weather, operational modifications, and repair
and maintenance.

If one or more of the preceding parameters is exceeded, the GRATEE's right will not be
exceeded unless the resulting anual Day-Night Average Sound Level ("DNL") at the owner's property

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is more than 3 dB in excess ofthe DNL at the property under Alternative Realignent Scenaro 2

(ARS2), the projected 1999 noise contours for NAS Oceana and NALF Fentress (See Exhibit C, which depicts the ARS2 projected 1999 noise contours for NAS Oceana and NALF Fentress as reflected in the
Final Environmental Impact Statement for the Realignent ofF/A-I8 Aircraft and Operational

Functions from Naval Air Station (NAS) Cecil Field, Florida to Other East Coast Installations.)

II. GRATOR shall not make use of the easement area in any maner that would create an
obstacle, obstrction, or hazard as provided by Federal Aviation Regulations, 14 CFR Par 77, which is

incorporated into this easement by reference, that would interfere with the overflight, landing, or taking

off of aircraft, nor shall GRATOR erect or permit the erection of any structue or obj ects of natural
growth that would create an obstacle, obstruction, or hazard.

TO HAVE AN TO HOLD said easement and all rights appertaining thereto unto the

Governent as GRATEE, its successors and assigns, it being understood and agreed that these covenants and agreements shall ru with the land. GRATOR shall, prior to effectuating a transfer of
the GRATOR'S Property, advise any purchaser, grantee or donee of all or par of

the parcel ofthe

terms of this grant of an avigation easement. The acquiring federal agency is the United States Navy.

It is UNERSTOOD that this instruent conveys unto the GRATEE such avigation rights
above described in and over the streets and roads leading into, adjacent or contiguous to the

GRATOR'S property to the full extent of GRATOR'S rights or interest therein.
GRATOR reserves such use rights and privileges in the subject land as may be exercised and
enjoyed without interfering with the rights hereby granted.

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This easement is given subject to existing rights of

way for public highways, roads, and ways,

and public utilities, if any.

IN WITNESS WHEREOF, the GRATOR, above named, has hereunto set its hands this
day

of

,2007.

(seal)

(GRATOR NAME HERE)
Dated:

COMMONWEALTH OF VIRGINIA )
)
COUNTY

OF )

I CERTIFY that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that he/she signed this instrument and acknowledged it to be his!her free and voluntary act for the uses and purposes mentioned in the

instruent.
Dated:

Notary Public

Printed Name

My appointment expires_

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Page 16 of 23

EXHIBITB

Table 4-19

Comparison of Representative SEL Values (dB) for Aircraft on
Approach, Departure, and in the FCLP or Touch-and-Go Pattern

Operation Approach

Altitude (ft AGL)
1,000 1,000 1,000 800 1,000

F-14A
93 110 93 96

F-14B/D
87 108

F/A -18C/D
109 117
108 109 108
ILL ILL

F/A-18E/F
114
i 17
113 115 113

AV-8B
103 113

EA-6B
107 114

Depare
FCLpa

NASOceana
NALF Fentress MCAS Cherr Point MCAS Beaufort NewOLF"

--99

-

95 97

----103

----103

600 600

--99

117 117
the downward leg of

-107

--106

a FCLP or touch-and-go pattern altitude reflects the highest altitude of

the pattern.

b The new OLF wil primarily support Super Hornet FCLP operations. Other aircraft types are shown
for comparison.
KEY:

AGL = Above ground leveL. FCLP = Field carer landing practice. SEL = Sound exposure leveL.

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Case 1:01-cv-00201-VJW

Document 269-2

Filed 05/19/2008

Page 17 of 23

EXHIBITC

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Case 1:01-cv-00201-VJW

Document 269-2

Filed 05/19/2008

Page 18 of 23

Exhibit B

Case 1:01-cv-00201-VJW

Document 269-2

Filed 05/19/2008

Page 19 of 23

Whtley, et a1. v. United States - 04-133lL
Edgar Earl Whitley 100 Sawgrass Bend Virginia Beach, VA 23451;
And Jeff & Heidi Blair 1000 Wymers Cour Chesapeake, VA 23322; And

Kelvin & Dienetta Cooper
L004 Baracle Cour

Virginia Beach, VA 23451;

And
Edward & Megan Moses 1004 Wasseman Drive Virginia Beach, V A 23454;

And
Steven & Mary Pancoast
L005 Blue Spring Lane

Virginia Beach, V A 23452;

And

Robert & Sonya Flora 1005 Cookham Arch Chesapeake, VA 23322;

And
Wiliam & Debra Yantz

1006 Harwich Drive Chesapeake, VA 23322;

And

Eric & Andrea Cumings 1008 Culver Lane Virginia Beach, VA 23454;

1

Case 1:01-cv-00201-VJW

Document 269-2

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Page 20 of 23

2108 Shade Tree Street Virginia Beach, V A 23456; And
Tom & Lora James 212 Lavergne Lane Virginia Beach, V A 23454;

And
Jeffrey & J anne Arstrong 2145 Teasdale Drive Virginia Beach, V A 23454;

And

Michael & Patricia McLean 215 65th Street Virginia Beach, VA 23451;
And The Estate of Jeremiah Hall 215 North Birdneck Road Virginia Beach, V A 2345l ; And
Stephen & Laura Wright 2156 Crestwood Lane Virginia Beach, V A 23456;

And
Harry Heinke 216 65th Street Virginia Beach, V A 2345l;

And
Peter & Stacy Wojcikowski 216 Middle Lane Virginia Beach, V A 23454;

/

And
Buddy Matthews

64

Case 1:01-cv-00201-VJW

Document 269-2

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Page 21 of 23

217 68th Street Virginia Beach, VA 23451;
And
Louis, Jr. & Prestina Car
217 Dilon Drive

Virgiira Beach, VA 23452;
And

Allan Hitt 217 Lavergne Lane Virginia Beach, VA 23454;
And

Kirk & Veroirca Balfan 217 St. Paul Street Virginia Beach, VA 23454;
And
Chrstopher & Victoria Vacher

2l8A 58th Street Virgiira Beach, VA 23451;
And

Mike & Cheryl Caffyn 2201 Bierce Drive Virginia Beach, V A 23454;

And
Victor & Deborah Morkunas 2201 Shinglewood Way Virginia Beach, VA 23456;

And
Gary & Sharon Wasson 2203 Carolina Road Chesapeake, VA 23322;

And
Richard & Kathy Kune

65

Case 1:01-cv-00201-VJW

Document 269-2

Filed 05/19/2008

Page 22 of 23

3332 Cedar Bridge Road Virginia Beach, VA 23452;

And

Otto & Magdolna Szivak 3332 Plainsman Trail Virginia Beach, VA 23452;

/

And

Buffy Waller 3340 Ives Road Virginia Beach, V A 23456;

And
Toni Toledo 3341 Lakecrest Road Virginia Beach, VA 23452;

And

Robert Senich 3348 Edinburgh Drive Virginia Beach, V A 23452;
And

Albertine & Leslie Rubin
3349 Prince of

Wales Court

Virginia Beach, VA 23452;

And

Richard & Sherr Kortyka 3349 Terrazzo Trail Virginia Beach, VA 23452;
And
Charles & Bernadette Scott 336 Appian Avenue Virginia Beach, V A 23452;

And
Miles & Ada Coles

112

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Page 23 of 23

402 Vanderbilt Avenue Virginia Beach, VA 23451;
And
Shad LaJ esse

403 Shagbark Road Virginia Beach, V A 23454;

And
Gertrude F alato 404 Garcia Drive Virginia Beach, V A 23454;

/

And
Charles Flora 404 Gregory Lane Virginia Beach, V A 23451;

And

Kendall & Car Byrd 404 Lee Highlands Boulevard Virginia Beach, V A 23452;
And
Hal & Dolores Hoyt 404 Slate Street Chesapeake, VA 23322;

And
Nancy Neal

405 Biltmore Court Virginia Beach, V A 23454;

And
Steven & Laura Dack 405 Linkenborough Drive Chesapeake, V A 23322;

And
Wayne & Marlene Cooke

124