BARNSTABLE — Opponents of skydiving at Chatham Municipal Airport will have the chance to continue their legal battle against the town, after a Barnstable Superior Court judge Tuesday declined to throw out the case. Judge Robert Rufo denied the town's request to dismiss the suit under the Massachusetts Tort Claims Act, which will now become the focus of the litigation.
Rufo decided that the plaintiffs, a group of airport neighbors organized as the Citizens for a Safe Chatham Airport (CSCA), could not pursue their case under a different part of Mass. General Law, Chapter 231. But he said that, as a tort claim, the request for an injunction against skydiving can proceed.
Chatham Town Counsel Patrick Costello said he will now confer with the board of selectmen to decide whether to appeal Judge Rufo's decision or to prepare for summary judgment or a trial.
The town is under a Federal Aviation Administration directive to enter into a contract for skydiving. Skydive Cape Cod's contract was not renewed in late 2013 after concerns were raised regarding the safety of tandem parachute jumping. The FAA found that the town violated its federal obligations by disallowing skydiving and ordered the town to solicit proposals to bring the activity back to Chatham Airport. Two proposals were received, one from Skydive Cape Cod, and the other from Skydive Barnstable, which operates out of the Cape Cod Airfield in Marstons Mills.
The CSCA is seeking a preliminary injunction to block the town from issuing a contract to any skydive vendor, and in response, the filed a motion to have the case dismissed.
The Massachusetts Tort Claims Act, Chapter 258 of Mass. General Laws, provides exceptions to the legal doctrine that municipalities are immune from tort claims, known as sovereign immunity.
On Tuesday, Costello argued that the airport commission's decision to allow skydiving, in itself, does not constitute a legal nuisance to nearby residents. An exemption in the law protects the governing body from claims when it is acting within its normal discretion, as it was doing when it allowed skydiving, Costello argued.
“But the town was forced to do so” by the FAA, Rufo said. If it doesn't act to issue a skydive contract, “the FAA could shut them down,” he said. Thus, their action was not truly discretionary. Costello disagreed, saying the airport commissioners acted in its normal discretion when partnering with the FAA to use grant money to make improvements at the airport.
Costello also argued that under the so-called “public duty exclusion,” the town has no affirmative duty to protect the public from harm from others. In this case, the harm being alleged by skydive critics is in the form of noise from the aircraft and from the skydivers, who sometimes scream during their descent.
“With all due respect to the plaintiffs, if you live in the vicinity of an airport, there's going to be noise,” Costello said.
Rufo asked if the scenario was similar to a house near a municipal golf course that has its windows shattered by golf balls. In this example, town officials don't actively harm the resident but have responsibility.
Costello argued that a shattered window represents actual harm, unlike noise.
CSCA Attorney Ira Zaleznik said their complaint makes “specific factual allegations” of harm, in the form of nearby residents who lose the use of their yards and patios when they go inside to avoid the skydiving noise.
“Even inside, they still felt vibrations and heard noise,” he said.
“Doesn't that occur through normal use of the airport?” Rufo asked.
The noise with skydiving is more severe, Zaleznik argued. “Planes take off at roughly 20 minute intervals,” he said.
After the hearing, Costello said the town sees the ruling as “a mixed bag,” since he would have preferred to have had the injunction dismissed on both counts. But by trying the case under the Tort Claims Act, the town has additional possible defenses, Costello said.
Zaleznik told CSCA members that he intends to argue strongly that the practice of skydiving represents a legal nuisance. He said they will make the case that the activity is a nuisance not just because of noise but also because skydiving is unsafe. Neighbors made that claim after a Skydive Cape Cod plane landed in Lover's Lake in 2012 after apparently running out of fuel.