AG Overturns Airplane Ban

CHATHAM – A bylaw that sought to ban large aircraft from Chatham Municipal Airport is not legal, the state Attorney General’s Office has determined. 

 In a Dec. 1 letter to Town Clerk Julie Smith, Assistant Attorney General Kelli E. Gunagan wrote that the bylaw was inconsistent with state law and was therefore disapproved.

 The bylaw, as Article 59 passed by a 26-vote margin at the May annual town meeting, was submitted by petition and sought to prohibit aircraft with wingspans larger than 49 feet from landing at the airport. Critics argued that the airport was designed to accommodate so-called Federal Aviation Administration-designated design group 1 craft, traditional smaller planes with wingspans of less than 49 feet, and not turboprop-type planes with larger wingspans which have become more frequent users of the George Ryder Road facility. Their use of the airport is unsafe, critics assert, and the number of flights of the larger craft have exceeded the limit set by the FAA at which point additional safety standards must be met.

 Gunagan did not make a determination on the policy issue regarding the size or type of planes using the airport, only on whether the proposed bylaw is consistent with state law. She found that it was not, because the legislature has given the Aeronautics Division of the Massachusetts Department of Transportation sole authority to regulate public airports.

 Proponents of the bylaw said that the town has the authority to restrict use of the airport through land use regulations, but Gunagan wrote that according to state law, such restrictions only apply to private, noncommercial landing strips, not publicly owned airports where commercial activity takes place, such as in Chatham. “A town’s independent authority to regulate airports is narrow, extending only to private landing areas,” she wrote. The bylaw does not fall within that narrow area, she added.

 “Moreover,” the letter reads, citing a decision involving the town of Wendell, “prohibiting certain aircraft from using the airport ‘prevents the achievement of a clearly identified purpose,’ namely that the responsibility for supervision and control of aeronautics has been confirmed upon MassDOT by the legislature.”

 In a footnote, Gunagan wrote that the bylaw may also be preempted by grant assurances the town entered into with the FAA in exchange for federal funds. Further review of that issue is outside the scope of her review, she wrote, but added at the conclusion of the decision letter that given the safety issues raised by the proponents, “the town may wish to discuss with town counsel and legal counsel for the airport commission on what ways, if any, the town can address these concerns.”

 The airport commission is headed in that direction, chair Huntley Harrison wrote in an email Monday. 

 “The airport commission is fully committed to discussing any and all safety concerns that prompted Article 59,” he wrote. The airport’s capital improvement plan for the coming year includes a study to determine if the facility’s current design aircraft — FAA design group 1, planes with a wingspan of less than 49 feet — is appropriate or needs to be addressed, he said.

 “This study will provide information for how we consider future safety needs,” Harrison wrote.

 Gerry Stahl, who sponsored the bylaw petition article, noted that the Attorney General acknowledged the proponents’ safety concerns and encouraged the town to address them. In an email, he wrote that submitting the petition article was seen as the only way to stop the “unsafe expansion of traffic by the larger charter planes…for which the airport is not designed.”

 The number of flights by larger airplanes has in recent years exceeded the 500 operations a year limit set by the FAA before additional safety standards must be met, he asserted, but town and airport officials have refused to address the situation.

 “It is disappointing that the last possibility for protecting our neighborhoods from increasing charter plane traffic in and out of an airport with no tower and inadequate runways was denied this way,” Stahl wrote. “So much for the last vestige of direct democracy.” He claimed that the airport operators view charter flights as the future and will “levy fees on charters, sell them more polluting jet fuel and rent them new hangars” if taxpayers deny financial support. “Fond memories of the quaint hobby airport of Chatham past are receding in the exhaust fumes,” he wrote.

Airport critic David Bixby said the ruling appeared to conflict with the rights the town has under its grant agreements with the FAA, specifically that the town may “prohibit or limit any given type, kind or class of aeronautical use of the airport if such action is necessary for the safe operation of the airport.” He questioned whether the Attorney General has the authority to overrule a federal contract. 

“I don’t think the ruling has given adequate consideration to the issue of federal preemption,” Bixby wrote in an email. “The town acted within its rights. If there is a dispute, it is between the town and the FAA, not the AG.” 

The Attorney General’s Office approved other bylaws passed at the May annual town meeting in August, but under an agreement with town counsel, took an extra 90 days to review the airport article.