CHATHAM – The town's attempt to block a citizens group's lawsuit that seeks to prohibit skydiving at Chatham Municipal Airport has been denied by the state appeals court.
“We're disappointed,” said Chairman of Selectmen Jeffrey Dykens. “We've tried to exhaust all legal avenues for dismissal of complaint” in order to avoid prolonged and potentially expensive litigation.
Associate Justice Eric Neyman turned down the town's interlocatory appeal of a September Barnstable Superior Court ruling that denied the town's motion to dismiss the lawsuit brought by Citizens for a Safe Chatham Airport. The town asserted that the state Tort Claims Act gives the board of selectmen and airport commission, named as defendants, immunity from claims of harm from third parties based on its function of approving contracts with outside vendors.
Neyman wrote in the decision, recorded Nov. 4, that a single justice could not grant relief from a superior court order, except in “truly extraordinary and exceptional cases.”
“Having reviewed and considered all of the papers filed by the defendants, I do not find that this matter rises to the level of warranting such extraordinary relief,” Neyman wrote.
Selectmen must now decide if they want to appeal that decision further. Town Counsel Patrick Costello said in an email Monday that he had just received the decision and was in the process of reviewing options with town officials. Dykens said the board has been united thus far in its strategy, and has scheduled a special executive session for Monday, Nov. 14, to discuss options.
It's been three years since the town declined to renew Skydive Cape Cod's contract to operate at the airport. The town has since been ordered by the Federal Aviaton Administration to allow the activity, and two contractors – including Skydive Cape Cod – submitted proposals to resume skydiving here. That process was put on hold pending resolution of the CSCA suit, which claims the activity represents a public nuisance.
Selectmen Dean Nicastro said he believes the principle of town immunity contained in the Tort statute is vital to democracy and the way the town conducts business. He came in for criticism recently by skydiving opponents for statements supporting the town's appeal in which he said the skydiving issue is less important than the ability of town officials to make decisions and set policy without fear of legal action.
Skydiving opponents should be making their case with the Federal Aviation Administration, which has ordered the town to allow the activity, he said, “instead of sticking it to taxpayers of the town, and they should not expect the town to roll over and play dead.”
CSCA member Michael Tompsett said he hopes the case moves ahead and is heard on its merits.
“Obviously we're pleased,” he said of the appeals court ruling. “I think there's a very strong case.”
A statement from the group read, "The town's third effort to dismiss our case had nothing to do with its merits, so we are very happy that the court has upheld the rights of the citizens to pursue their case. The judge summarily rejected town counsel's position without even requesting opposition papers. Having now been rebuffed three times in its attempt to have the case dismissed on technicalities, the town should finally admit the obvious, that CSCA has more than an imaginary case. The town will now have to argue on the merits, although better still, the Town should enter into discussions with CSCA about a way forward that would benefit both sides."