CHATHAM — In an assertion of the town's legal “sovereign immunity” to legal nuisance claims, the board of selectmen has voted to appeal a recent Barnstable Superior Court ruling to the Massachusetts Appeals Court, over the issue of skydiving.
Following Judge Robert Rufo's Sept. 13 ruling that skydiving opponents can proceed with their legal effort to block skydiving at the Chatham airport, Town Counsel Patrick Costello indicated that the town might consider filing a petition for interlocutory review to the state appeals court. In a closed-door session Tuesday, the board voted to do so.
The plaintiffs, organized as the Citizens for a Safe Chatham Airport (CSCA), were given the go-ahead to pursue a tort claim against the town, arguing that the airport commission would be allowing a public nuisance by letting skydiving resume. They argue that the noise and safety risks represent a nuisance to area property owners.
In a statement issued Friday afternoon, the board of selectmen said it intends to fight that assertion, setting the stage for a ruling that could set an important precedent for other municipalities in the state.
“The town strongly believes that express immunity defenses set forth in the [Tort Claims] Act should preclude the need for it to incur the significant cost, inconvenience and diversion of town employee time and effort in extensive discovery and litigation proceedings in this case,” the statement reads.
The decision to appeal is a fiscally prudent one for taxpayers, Board of Selectmen Chairman Jeffrey Dykens said.
“If we can adjudicate it now and prevent the expense of a trial and litigation now, so be it,” he said. Should the matter go to trial, “the amount of time and expense would be extraordinary, and we want to avoid that,” Dykens said.
“The selectmen believe that pursuing this course of action is not only fiscally sensible but also necessary to preserve the authority and autonomy of elected and appointed town officials to operate municipal facilities in the manner they deem to be most appropriate in accordance with town interests and the law,” the statement reads.
The town will be asserting two of the immunity defenses included in the Tort Claims Act. One would allege that the airport commission was rightly exercising its “discretionary function” by approving a contract with a skydive vendor, just as it entered into a contract with the FAA to make infrastructure improvements in exchange for grants. The defense would be that there was no wrongdoing by the town other than to issue the contract, Costello said.
The other immunity defense is the so-called “public policy exemption,” which asserts that the town cannot be held liable if third party causes harm to a plaintiff; in this case, the CSCA claims that the harm comes in part from the noise caused by skydiving.
“The noise is caused by the airplanes themselves – it happens around airports – or by the noise that skydivers are allegedly making when they jump out of planes,” Costello said. In either case, the “harm” is coming from pilots or skydivers, not town officials, he said.
If the appeals court accepts either of those defenses, the case will be dismissed. The case could set an important precedent, Costello added.
“It wasn't until 2010 that the Massachusetts Supreme Judicial Court actually issued a clear, black letter opinion that said that nuisance claims fall under the scope of the Tort Claims Act,” he said. So it remains to be seen whether the various immunity defenses would apply to a nuisance claim.
“The legal issues raised in this appeal relative to the scope and application of the Act’s immunity defenses are significant not only for the town of Chatham, but also for all other municipalities and governmental entities in Massachusetts which are subject to the Act,” the selectmen's statement reads.
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.
Ira Zaleznik, the attorney for CSCA, could not be reached in time to comment for this story.
The town's appeal will likely be heard by a single justice of the appeals court, but the case could be referred to a whole panel of the court. Costello said he hopes the court will render a decision in a couple of months. It is not the town's intention to “drag out” the case, he added.