CHATHAM – On a recent Friday afternoon, airport commission member Tom Wilson was in his backyard when he saw what he described as a metal frame with wings flying overhead. The experimental aircraft, known as an ultralight, had taken off from the town's airport.
There are no requirements that ultralights be registered or that pilots be licensed by the Federal Aviation Administration, and they are free to operate at airports, like Chatham's, that have no control tower. However, a different section of FAA regulations states that ultralights are not allowed to fly over “congested areas” or an assembly of people, Wilson said.
“I scratched my head and said, then why is this guy flying here?” he said at the Oct. 23 airport commission meeting.
At issue is the definition of the word “congested,” which is also at the heart of a neighborhood group's court challenge to skydiving at the airport. The commission rejected Wilson's attempt to pass a local regulation banning ultralight aircraft at Chatham Municipal Airport. Neither the FAA nor any other agency has determined that Chatham is a “congested” area, and until that determination is made – which may happen through the litigation – commission members said it's premature to pass a regulation which may be counter to FAA rules.
The Oct. 6 flights by at least two ultralights at the airport resulted in at least one complaint being filed, by longtime airport critic David Bixby. Airport Manager Tim Howard confirmed that he spoke to the pilots, at least one of whom was from Brewster, and that they asked if they could operate out of the airport. Howard said the pilots had information about the airport, were familiar with the area and the traffic patterns, and had radios on their ultralights. He had no authority to prevent them from using the airport.
“We had no restrictions on this. This is uncontrolled airspace,” Howard said, adding that the pilots demonstrated responsibility and no problems ensued from their use of the airport.
Commission Chairman Peter Donovan said it was the first time he's seen ultralights at the airport. Howard said the pilots who were in Chatham usually take off and land on beaches or parks.
Commission member and pilot Rene Haas agreed that the safety concerns about ultralights are valid. “This is a risky activity” for the operator, he said. However, he said a review failed to show any instance in which a person on the ground was injured or killed by an ultralight.
“It was be an extreme freak accident if that first accident happened, on the entire planet, in our little town of Chatham,” he said.
Citizens for a Safe Chatham Airport (CSCA) sued the town to prevent skydiving from returning to Chatham Airport. Skydive Cape Cod operated out of the airport for several years until 2013, when the town declined to renew its contract. Citing the grant assurances the town agreed to in taking some $6 million in federal airport funds, the FAA ordered the town to reinstitute the activity. The town advertised for skydive contractors, but the suit by the neighborhood group put further compliance with the FAA order on hold. Skydive Cape Cod also sued the town, seeking $100,000 for breach of contract. Earlier this month a Barnstable Superior Court judge narrowed the focus of that suit but allowed it to go forward.
The CSCA suit hinges on the contention that skydiving is an unsafe activity in Chatham and that it fits the definition of a congested area and therefore can be prohibited under FAA regulations. The FAA has made no ruling on whether or not Chatham can be considered a congested area under its regulations.
“The only time I've heard that Chatham is congested is from the consultant the CSCA hired,” said Airport commissioner Huntley Harrison. “That's purely an opinion.”
The town has requested a safety assessment of skydiving, said commissioner Michael Geylin, but it has yet to happen. “That's been an open wound for a lot of years,” he said. Having such an assessment would “give us a tremendous tool,” added Haas. “It would be clear cut.” But it's up to the FAA to make that determination.
“The danger really bothers me,” said commission member Nancy Patterson. But, she added, “we can't go down the congested area path. We can't. There must be another way of getting at this.”
Wilson argued that under the state law authorizing it, the airport commission can set up its own regulations. “In my mind our job is to make a determination if this is an activity that puts the public in Chatham at risk,” he said. “We are the ones who should be making a determination and then enforcing the determination.” He suggested that could be done with an affirmative vote of the commission. Failing to do so is just “passing the buck,” he said.
Even if that happened, Geylin said, under federal law, ultralights could still operate at the airport.
Harrison said such a decision could have far-reaching consequences. It's not so far fetched to think that down the road, the commission may have to be dealing with other types of aircraft, including flying cars.
“Are we going to consider that unsafe? I don't know; I think we're in a nebulous area here,” he said. He also questioned whether banning ultralights at the airport, which is the only location the commission can control, would push them into other, less safe areas.
“Then you are passing the buck,” he said.
Wilson suggested the commission file a complaint with the FAA, noting that Bixby had already done so, in order to force a ruling on whether the town meets the definition of a congested area. But Selectman Amanda Love urged against the action, given the pending litigation over skydiving. There's no rush, since the recent ultralight flights were the first at the airport in at least a decade, said Geylin. The commission voted to table the matter until after the next hearing on the skydive suit, which happens in December. They also asked Howard to inform them if there is further ultralight activity at the airport.