Free Response to Cross Motion [Dispositive] - District Court of Federal Claims - federal

Case 1:01-cv-00201-VJW

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00001 1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS 2 3 CAROL AND ROBERT TESTWUIDE, ) 4 et al., ) ) 5 Plaintiffs, ) ) 6 v. ) NO. 01-201L ) Judge Victor J. Wolski 7 THE UNITED STATES OF AMERICA, ) ) 8 Defendant. ) 9 10 11 DEPOSITION UPON ORAL EXAMINATION 12 OF HAROLD LEVENSON TAKEN ON BEHALF OF THE DEFENDANT 13 14 Virginia Beach, Virginia 15 June 8, 2005 16 17 18 19 Appearances: 20 21 22 23 24 25 SHUTTLEWORTH, RULOFF GIORDANO & SWAIN, P.C. By: STEPHEN C. SWAIN, ESQUIRE Counsel for the Plaintiffs

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00005 1 BY MR. BRYANT: 2 Q.

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And please don't nod your head or say uh huh, the

3 like. Please respond with yes or no, or whatever answer you 4 are going to say? 5 A. Fine. If I fail to do that, you'll call it to my

6 attention, right. 7 Q. I'll certainly try to.

8 You mentioned a break if it rains. You can take 9 a break at any time. Just let me know. 10 A. 11 Q. Okay. And if you don't understand a question I ask or

12 something is confusing, whatever, please ask me to rephrase 13 and I'll be happy. 14 A. 15 Q. 16 A. Okay. What is your name, address, and occupation? My legal name is Harold Levenson. I'm known as

17 Hal. My address is 2004 Brickell Court, Virginia Beach, 18 Virginia. 23454. 19 Q. 20 A. 21 Q. 22 A. And your occupation? I work part time for Harris Publishing Company. And what do you do for Harris Publishing Company? We take information and sell alumni directories

23 for colleges and high schools. 24 Q. In other words, address, contact information,

25 that kind of thing?

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00006 1 A.

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No. What happens is that we work in a call

2 center in Chesapeake. I do this 20 hours a week. And what 3 happens is the company has sent out notices to client 4 schools that are doing their alumnae directories every five 5 years or so. People call in, give us updated information, 6 and we offer the directory for sale. 7 Q. I see.

8 Do you do anything else besides that position? 9 A. Not in the way of earned income, you know.

10 Passive income. Not earned income. 11 Q. And how long have you been working for Harris

12 Publishing? 13 A. 14 Q. 15 A. 16 Q. 17 A. 18 Q. 19 A. About 10 years. 10 years? Yes. Do you -I consider myself semiretired. And what did you do before you retired? I was a television news professional for about 25

20 years. 21 Q. 22 A. And what did you do as a TV news professional? Jobs ranged from, you know, the early days, when

23 I was a copy boy up through being a news director and the 24 Washington Bureau Chief of the National News Service. 25 Q. And when did you semiretire from that?

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00028 1 have studied the F/A-18 situation for 7 years now. So when 2 you do that in a serious kind of way you obtain a book of 3 knowledge that I certainly didn't have when I first came to 4 Virginia Beach. And that's what I mean by that. 5 Q. When did you first experience jet noise or

6 overflights in this house? 7 A. After we bought -- first of all, we didn't

8 experience any overflights when we -- prior to going to 9 closing on the house. Okay? And typically what happens is 10 that people from out of town, you know, will look at a 11 house, look at it a second time, buy it. They normally 12 visit the house on a day when there are no overflights. 13 Okay? That's typically what happens. 14 I don't know really how my awareness of that 15 situation evolved after 1986. And I want to tell you why. 16 Jet noise was not an issue of any consequence in this 17 community prior to the relocation of the F/A-18 from Cecil 18 Field. It really wasn't. The Tomcats are no where near as 19 noisy as the Hornets are. And I think it is fair to say -20 and I have said this publicly on many occasions. I do a lot 21 of public speaking, obviously, and I get interviewed 22 frequently on this subject. Jet noise was not an issue, a 23 public issue in Virginia Beach prior to the arrival of the 24 Hornets. And the reason it wasn't is because the Tomcat 25 noise was tolerable. It was acceptable.

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00030 1 Q.

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Before the F-18 arrived, did that impact your

2 life-style at all? 3 A. Not -- not in any significant way. Did they fly

4 over my house? Sure. They have to. Because there's two 5 runways at Oceana, and when the wind is blowing in a certain 6 way and they are using the short runway, which is the runway 7 that affects our neighborhood, the planes will land and the 8 flight path is pretty directly over our house. But in case 9 you are not aware of it -- I can't imagine you are -- but 10 the Hornet is about 20 dB at worst louder than the Tomcat 11 is. 12 Q. 13 A. Okay. Are you aware of that? You're asking the

14 questions. 15 Q. 16 A. 17 Q. 18 A. 19 Q. 20 A. 21 Q. 22 A. I'm going to ask the questions. All right. Okay. So getting back to that -Sure. There were overflights over your house? Of Tomcats, sure. How often did that occur? I really can't tell you honestly, because it

23 wasn't anything that was interrupting. It wasn't anything 24 that was interfering. It wasn't anything that was really 25 horribly meaningful in our life at the time. So we didn't

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00031 1 pay too much attention to it.

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2 As a matter of fact, I can remember saying to the 3 other people who formed CCAJN, I said, Are you really sure 4 that the F/A-18s are going to be as loud as you say they are 5 going to be when they come? Oh, yes, they are going to be 6 very loud. Because I mean it was something that wasn't an 7 issue for me prior to the arrival of the F/A-18s. 8 Q. Has -- you mentioned the two runways, and there's

9 a shorter runway? 10 A. 11 Q. Yes. When they are using the shorter runway and the

12 winds are changing, that is when it affects your house? 13 A. Right. That's when it affects our house most

14 often. Okay? When touch-and-go's, and SCLPs are being 15 done, that's when the traffic is the heaviest over our 16 house. When the short runway is being used, and the wind is 17 in whatever direction. 18 Q. Was it -- is it roughly used the same, that short

19 runway -20 A. 21 Q. 22 A. No. No. -- now as it was back then? No. No. Thank God. The other runway is used

23 more often than this. This runway is used more often than 24 our runway. 25 Q. Actually, what I'm asking is back before the

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00032 1 F-18s got there -2 A. 3 Q. 4 A. 5 Q. Right.

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-- when it was the Tomcat and -Whatever aircraft. -- whatever other aircraft may have been

6 flying -7 A. 8 Q. I'm sorry. -- your experience has been in terms of flying

9 over when the winds were changed, was it roughly the same, 10 you know, amount of time, experience of overflights, as you 11 do -12 A. 13 Q. 14 A. 15 Q. 16 A. I don't remember. You don't remember? No. Okay. And I don't remember because, as I mentioned to

17 you, it was not something that I took any notice of. Okay? 18 The Tomcat overflights, no. 19 Q. Do you recall in terms of flight patterns, you

20 said sometimes it goes directly over your house? 21 A. 22 Q. 23 A. Sometimes. And -Sometimes 50 feet to one side or the other side

24 of the house. Sometimes 100 feet, or 100 feet on either 25 side. 200 feet, 300 feet, 400 feet. The pilots are not as

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00035 1 feet, or 150 feet. Is that what you want to know? 2 Q. 3 A. Yes. To be honest with you I really wouldn't want to

4 guess. I mean have I kept statistics? No. Do I have a 5 clear recollection? You know, have I modeled in my head, 6 you know, what the percentages are of that? No. All I can 7 tell you is a certain amount of time, a goodly amount of the 8 time they fly directly over my house. 9 And that shouldn't be a surprise to anybody, 10 because, as I am sure you know by now, the purpose of the 11 training at Oceana is to get the pilots to make a perfect 12 landing on a carrier. If they make a perfect landing they 13 would -- it doesn't happen this way, but they would fly in a 14 certain trajectory, and that trajectory, as I have 15 experienced it myself, and as the gist of the discussion was 16 that day with Rountree and Ray -- Ray was just listening; 17 Rountree was doing most of the talking -- comes over my 18 house, yes. 19 Q. 20 A. 21 Q. 22 A. Now going back to before you bought the house? Yes. You mentioned that you were aware of NAS Oceana? I was aware only in my capacity as the news

23 director of WAVY that periodically in our newscast there 24 were stories about NAS Oceana. That's all I knew. 25 Q. And did you know where the location of Naval Air

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00037 1 operations? 2 A. Absolutely not.

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3 MR. SWAIN: He didn't finish his question. I 4 know you know what he's going to say but let him finish the 5 question. 6 THE DEPONENT: I'm sorry. 7 MR. SWAIN: Don't be sorry. Just listen. 8 Q. Did you do anything to find out about jet

9 operations before buying the house? 10 A. No. I wasn't aware of jet operations in the

11 vicinity of the house when we bought it. 12 Q. Why didn't you inquire about that to find out if

13 it was? 14 A. 15 Q. 16 A. 17 Q. It didn't occur to me. Going back to before the F-18s arrived? Yes. And you have lived in the home consecutively

18 since that period of time? 19 A. 20 Q. Absolutely. Did -- you said it wasn't -- I don't want -- what

21 was your exact words in terms of it wasn't a significant 22 issue, it wasn't a general -23 A. The noise from the Tomcats was not a significant

24 public issue. 25 Q. And for you personally and your family?

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00038 1 A. 2 Q. 3 A. 4 Q. 5 A. 6 Q.

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Was not a significant personal issue either. Did you all talk about it at all? About the Tomcat noise? Whatever jet noise. Not that I recall. Did you ever have barbecues or outdoor parties or

7 anything of that? 8 A. Infrequently. We don't do that. Very

9 infrequently. 10 Q. And in doing so, before the F-18s arrived, were

11 there ever occasions where there were overflights? 12 A. I'm sure there were, but I don't have any

13 particular recollection of it, no. And the reason I don't 14 have any recollection of it is, as I mentioned to you, is 15 that it just wasn't -- it wasn't that bothersome. Okay? It 16 wasn't that intrusive. 17 Q. Okay.

18 Well, you did recognize it occurred obviously 19 back then? 20 A. I'm sure I did. But, you know, I guess I'm a

21 kind of a one dimensional individual. I tend to pay 22 attention to things I really care about. And I tend not to 23 pay attention to things that I consider immaterial or 24 inconsequential. 25 Q. And so if -- you mentioned the altitude of I

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00041 1 noise, any more than the guy mowing his lawn next door, you 2 know. Sure, you hear the guy mowing his lawn next door. 3 Q. You can still have a conversation outside if

4 somebody is mowing their lawn I guess? 5 A. Yes, you can. Although sometimes I guess if the

6 mowing is going on on this side of the house and you are 7 over on that side of the house, it might be a little 8 difficult. But, yes, as I said to you, jet noise was not an 9 issue in Virginia Beach prior to the arrival of the Hornets. 10 Q. So if it's equivalent, something akin to mowing

11 your -- a neighbor mowing his lawn, that wouldn't require 12 you to turn up the TV or any of those kinds of things 13 either, I guess, if you are in your house? 14 A. I don't have any recollection of jet noise being

15 such, prior to the arrival of the F/A-18s, that we couldn't 16 have telephone conversations easily, that we couldn't listen 17 to the TV easily, that people were in the great room and 18 couldn't hear what they were saying in the great room. 19 Okay? I don't recall that kind of problem during the Tomcat 20 period, prior to the arrival of the Hornets. 21 Q. 22 A. 23 Q. Let's talk about the Hornet period now. Right. When -- when did you notice that there was a

24 change? When did it become -25 A. Well, CCAJN was formed late in 1997 out of

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00042 1 concern for what was going to happen. And the Hornets 2 arrived sometime during 1999. And I don't remember when. 3 And once we had a chance to experience the noise levels from 4 the Hornets, it became very clear that the concern that some 5 people in the original CCAJN group had about the situation 6 had come to pass with the noise level substantially -7 substantially louder than the Hornet level -- than the 8 Tomcat noise level, and it was going to be very different 9 for us. 10 Q. 11 A. You lost me there. It was going to be very different. The

12 experience of having overflights over the house. The 13 experience of having Tomcat overflights over the house is 14 what I already told you it was. Once the Hornets were 15 flying, sometime in '99, whenever it was, it became clear 16 that that aircraft was much, much louder than the F-14. 17 Q. 18 A. 19 Q. When did that happen? Sometime in '99. I don't recall. Was there some sort of defining moment? You were

20 outside, or inside? 21 A. Not that I recall, no.

22 I was hoping the concern of some other people on 23 the original CCAJN board was wrong. I was hoping -- I was 24 hoping that their concerns were misplaced about the noise 25 level of the Hornets. I really was. I remember asking, you

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00044 1 Q. 2 A. What changed?

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The level of noise that occurred over our house.

3 In fact, the level of noise that occurred all over the high 4 noise zone in the city of Virginia Beach. 5 Q. 6 A. 7 Q. 8 A. Let's discuss your property specifically? Yes. Conversations, how did that affect those? When an F/A-18 flies four to five feet over our

9 house -10 Q. 11 A. Four to five? 400 to 500 feet over our house. Sorry. It is

12 very difficult to have a conversation and be heard. It is 13 very difficult to talk on the telephone. It is very 14 difficult to hear the TV. In fact, if there is a sustained 15 operational activity that day, in which, you know, sometimes 16 the overflights would occur every 30 to 40 seconds, okay? 17 When I want to watch TV, I have to put head sets on. I have 18 both the TV head set and I have an AM-FM radio head set. So 19 if I want to attempt to escape from the noise, that's what I 20 will do. At its worse. It's not that way all the time. At 21 its worse. 22 Q. And you said it's difficult to watch TV aside

23 from having head sets on? 24 A. 25 Q. Yes. Or difficult to have a telephone conversation?

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00049 1 All our Navy friends get the e-mail service too. 2 So if you want to know what CCAJN has said for the past 3 seven years, I am sure there's a very good file. 4 Q. What have you done to document the jet noise over

5 your house? 6 A. Nothing.

7 Well, except for this. I call the hotline when I 8 feel sufficiently annoyed, and when I feel sufficiently -- I 9 haven't called them recently. When I'm not involved in 10 having to get something else done I will call the hotline. 11 Of course, you get tired of calling the Hotline because you 12 call the hotline and there is no indication that anything 13 happens after that, none whatsoever. 14 Q. 15 A. How many times have you called the Hotline? Over a period of seven years? Well, since --

16 well, not seven years. Since 1999, many times. Many. 17 Q. 18 A. And I think you said that you didn't call before. Oh, no. I never called the Hotline prior to the

19 F/A-18s. I have no recollection of ever having called. I 20 don't think I even knew the hotline number before the 21 F/A-18s arrived. 22 Q. Did you ever speak with anybody at -- you said

23 you had a conversation with. 24 A. Oh, I used to talk to Ray Furenzi frequently. I

25 have talked to Bobby Rountree a little bit. You know, we

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00061 1 real estate gets transacted in Virginia Beach, people who 2 are buying a house in a high noise zone customarily visit 3 the house on days when there are no overflights. There are 4 exceptions. There are exceptions. When a local person buys 5 a house in a high noise zone, the local person knows the 6 situation, so there are exceptions. But out-of-towners? 7 Out-of-towners will customarily buy a house when there are 8 no overflights on the days that you are looking at the 9 house. 10 I mean, let's be reasonable about it. If 11 somebody saw an F/A-18 fly 400 or 500 feet over my house on 12 the day they were considering buying it, why in God's name 13 would they buy the house? 14 Q. And going back to your -- you used the word if

15 the F-18S went away permanently? 16 A. If the government -- if the Navy --

17 MR. SWAIN: Wait a minute. Let him finish. 18 MR. BRYANT: Thank you. 19 A. I'm sorry.

20 BY MR. BRYANT: 21 Q. If the F-18s went away permanently, the word you

22 used, you believe your house value would increase 23 significantly? 24 A. 25 Q. Yes. What do you mean by significantly?

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