CHATHAM – The fight over skydiving at Chatham Municipal Airport continued last week, with the town and a group of residents arguing over whether a suit seeking to ban the activity should move forward.
At a hearing in Barnstable Superior Court April 25, Citizens for a Safe Chatham Airport (CSCA) contested the town's motion for summary judgment of an injunction it sought to prevent the town from issuing a contract for skydiving operations at the airport. The group charges that skydiving was a nuisance and shouldn't be allowed to continue. Town Counsel Patrick Costello countered that, faced with a mandate to allow the activity from the Federal Aviation Administration, the town had no choice but to allow skydiving at the George Ryder Road airport.
The town shouldn't be held liable for a federal mandate, Costello said, since FAA funding for the airport included grant assurances that require general aviation activities, including skydiving.
“We don't have any choice,” Costello told Associate Justice Beverly Connone. “We're doing what the FAA tells us to do.”
Ira Zaleznik, the attorney for the Citizens for a Safe Chatham Airport, said the town could have done more to counter the FAA mandate, including seeking a waiver from the federal mandate, as has been done in other communities. His clients have suffered “extraordinary interference with the right to use and enjoy their property” due to skydiving and deserve to have the case move forward to a full trial, he said.
Connone took the arguments under advisement. Costello said a decision is likely within about 90 days.
CSCA filed suit against the town in 2015, after the board of selectmen voted to allow skydiving to return to the airport. In 2013 the town declined to renew Skydive Cape Cod's contract to operate at the facility, but was later ordered by the FAA to allow the activity. The town solicited operators but did not issue a contract due to the pending litigation. The continuation of the suit makes it unlikely that skydiving will return to the airport this season.
Members of the citizens group claims that skydiving is not safe and is a nuisance, with multiple flights and screaming and yelling by tandem jumpers interfering with the “quiet enjoyment” of their property. They point to a 2012 crash of a skydiving plane into Lovers Lake after it ran out of fuel and the severe injuries suffered by a tandem jumper as evidence of the safety concerns.
In court last week, Zaleznik also argued that an FAA assessment stating that skydiving at Chatham Airport was safe was “in essence an opinion” and should not be admissible. The report was “very one-sided” and “utterly and completely failed to consider local circumstances,” he said.
The report was done after the town's continued requests, Costello said, and was based on adherence to FAA regulations. The court should be able to assess its factual value in reviewing the case, he said.
In allowing skydiving, “all the town did was act in accordance with the statutory mandate” required by the FAA, Costello said in arguing for summary judgment of the case. The town has received some $6 million in federal funding for the airport for runway paving and other projects, and those grants include specific “assurances” that mandated that general aviation activities, which include skydiving, be allowed. Costello noted that the town was required by the FAA to remove language the agency saw as restrictive from the request for proposals issued to solicit skydiving contractors.
Skydive Cape Cod is also suing the town, alleging breach of contract.
“We're sort of between a rock and a hard place,” Costello said. “All Chatham can do, and I suggest must do under the current circumstances, is allow skydivers to use Chatham Airport.” CSCA is attempting to hold the town liable for the federal mandate, he added.
After the initial “firestorm” of complaints about skydiving, it should have been clear to town officials that it was a public nuisance, Zaleznik said. A previous judge ruled that the case could move forward under the state Tort Claims Act, which provides exceptions to the doctrine that municipalities are exempt from immunity claims, he said.
Skydiving prevented members of the group from having normal conversations inside and outside of their homes and caused property sales to be aborted, he said, specifically singling out the Great Hills neighborhood, which is in the runway flight path. There are documented instances of parachute failure, he added. “There are human bombs who are falling when this activity takes place,” he said.