BARNSTABLE — After waiting on the edge for years, the legal battle between skydive opponents and the town of Chatham just got a shove.
Last week, Barnstable Superior Court Judge Gary Nickerson set a Dec. 4 trial date for the suit filed against the town by the Citizens for a Safe Chatham Airport. Skydive opponents, who were arguing for a preliminary injunction to block the issuance of any skydiving contracts during the 2017 season, were pleased with the move.
Town officials are caught in the middle of a legal battle between skydive opponents and the Federal Aviation Administration, which has a pending administrative complaint against the town which would force airport officials to allow skydiving as part of general aviation activities. In a closed-door session this week, Chatham selectmen were expected to discuss strategy in the case, including whether they will continue to voluntarily refrain from accepting proposals from skydiving vendors until the suit is resolved in court. If they do so, this would be the fourth season since Skydive Cape Cod's contract was not renewed that there has been no skydiving at Chatham Airport.
The suit, filed by a group of residents who live near the airport, alleges that the homeowners suffered irreparable harm when skydiving was allowed at Chatham Airport in 2012 and 2013. Speaking for the plaintiffs, attorney Ira Zaleznik said his goal was to bring the suit to trial sometime before summer 2018, and his request for preliminary injunction aimed for “a delay of one more summer” in the town's issuance of a request for skydiving proposals. The suit will not seek monetary damages, just an injunction to block skydiving at the airport.
“It's not the kind of thing you could put a dollar value on,” Zaleznik said at last Thursday's hearing. “People will never get their summers back in 2012 and 2013.” But the harm is tangible, he argued. One neighbor was in the process of selling his home and skydive aircraft flew over the property three times as it was being shown to the prospective buyer.
“The buyers experienced that, and walked,” he said.
The plaintiffs allege that skydiving represents a nuisance under the state's Tort Claims Act, partly because of the noise from the airplanes and the skydivers, and partly because of the dangerous nature of skydiving. Zaleznik said dropping skydivers over an airport that has no control tower is “an accident waiting to happen.” He cited the emergency landing of a skydive aircraft in Lover's Lake in 2012 and an injury suffered by one skydiver who was hurt landing at the airport, along with the airport's tendency to have fog and birds in the area. “All of these dangers pose a severe threat to the neighbors,” Zaleznik argued.
Town Counsel Patrick Costello told the court that the case is legally complex and will be significant not only for Chatham “but for municipalities generally.” Since 2010, nuisance claims have been established under the Tort Claims Act, and arguing that noise from an airport represents a legal nuisance would open the possibility of claims at “virtually every municipal airport.” Costello said he grew up near Logan Airport, and it is reasonable to expect a certain amount of noise from any operation. “I'm sitting here in the courtroom and hearing airport noise,” he said.
Costello said the nuisance claim is faulty because the plaintiffs haven't suffered any peculiar inconvenience “that the public at large would not suffer.” Also, he argued, the suit seeks to block the town from issuing a new contract to a skydive vendor, and that particular action does not cause the plaintiffs special legal harm.
With regard to safety concerns, Costello argued that there were thousands of skydive flights from Chatham over two years, and only two major incidents. The emergency landing in the lake was a case of operator error unrelated to skydiving, he said, and the woman who was injured in a skydive landing alleged negligence on the part of the skydive vendor, not the town. The risk associated with skydiving is “inherent in any aviation” and in almost all recreational activities, he argued.
Though skydive opponents argue that Chatham is violating federal rules by allowing skydiving in a congested area, Costello rejected that claim. The arm of the federal government that would enforce those rules is the FAA, the very agency that has ordered the town to allow skydiving, he argued. “The FAA knows what's going on in Chatham,” he said.
A key part of the town's defense, though a fine point of law, is that the town had a choice when it came to accepting FAA funds for airport improvements. In doing so, it essentially entered into a contract, accepting money in exchange for a promise to allow general aviation activities. That action of entering into a contract is protected under the discretionary exemption for the Tort Claims Act, Costello said. The town would likewise be protected from nuisance claims for the action of signing a contract with a skydive vendor, he said.
Zaleznik refuted that idea, saying the town has no discretion to avoid following the law, based on plaintiffs' assertions that the town violated federal rules by allowing skydiving in a congested area. He argued that even if it was a skydive contractor that caused the noise and danger, the town is responsible because it was aware that the activity represents a nuisance.
Nickerson observed that, so far, the FAA has not taken any action against the town for not issuing a skydiving contract.
“They've ignored you for three years,” he said. By statute, the request for a preliminary injunction can be combined with a trial on the merits of the case, Nickerson said. “It seems to me the practical thing is to try the case and be done with it.”
Costello said he still hopes to file a motion for summary judgment first, in an effort to avoid the cost of a full trial. He said he would consult with town officials to finalize plans.
“I'm asking you to move it along,” Nickerson said. He set the trial date for Dec. 4.
Both attorneys said they will need time to prepare their cases, including time to depose a few witnesses, including at least one representative of the FAA.