Judge Dismisses Lawsuit Seeking To Block Skydiving

By: Tim Wood

A decision dismissing a neighborhood group's lawsuit to prevent skydiving from returning to the Chatham Airport has been appealed. FILE PHOTO

CHATHAM – A lawsuit filed by a group of residents hoping to prevent skydiving from returning to Chatham Municipal Airport was dismissed by a Barnstable Superior Court judge last week.

In a six-page decision issued July 29, Justice Beverly J. Cannone said federal law governing airports overrides nuisance claims under the state's Tort Claims Act.

Citizens for a Safe Chatham Airport, Inc. (CSCA), filed the suit in 2015 claiming that under the state law, skydiving at the airport constituted a nuisance arising from noise and risk associated with the activity. Town officials argued they had no choice but to allow skydiving because requirements of Federal Aviation Administration grants given to the airport over the years mandate that general aviation activities, including skydiving, be permitted at the George Ryder Road facility.

While officials said the decision vindicates the town's position, skydiving won't be returning to the airport anytime soon. A lawsuit against the town by Skydive Cape Cod is still pending, and the airport group has 30 days to file an appeal of Cannone's decision.

“It would be nice if the town didn't have to spend any more money defending this,” said Selectman Dean Nicastro, but if an appeal is filed, he will “strongly recommend” that the town fight it.

“I think we have a great decision to defend,” said Nicastro, an attorney. Cannone shows “very thorough and comprehensive understanding of the actual issues behind skydiving at Chatham Airport” and her decision will be difficult to overturn, he said.

Joseph Tischler of Citizens for a Safe Chatham Airport said the group is disappointed by the decision and will review it with their attorney before deciding whether to appeal. The group has “always wanted to have a trial on the merits of our case,” he said, which focuses on the town's responsibility for safely operating the airport.

“We like the airport, but would like it to be safe,” he said.

A lawsuit filed by Skydive Cape Cod after the town failed to issue a contract for skydiving at the airport, despite an FAA order to do so, remains on hold, said Town Counsel Patrick Costello. Nicastro said he expects selectmen will wait out the appeal period before deciding how to proceed with the Skydive Cape Cod suit and contract.

Skydive Cape Cod began operating at the airport in 2011 under a contract with airport manager Cape Cod Flying Circus. In May 2012, a skydiving plane crash landed in Lover's Lake due to pilot error, and a tandem skydiver was seriously injured while landing two months later. Some neighbors of the airport began raising alarms about the safety of the operation, and when Cape Cod Flying Circus renewed Skydive Cape Cod's contract in 2013, Town Manager Jill Goldsmith declined to approve the new agreement pending a safety assessment. An outside aviation expert found the airport safe for skydiving in 2015, and in December 2017 the FAA issued a final safety risk assessment which found that skydiving at the airport posed a “medium” risk which could be mitigated to a “low” risk.

In her decision, Cannone did not examine the merits of the claims made by CSCA but focused on the town's request for summary judgment based on “federal preemption.” The grant assurance requirements, specifically Assurance 22, require that the town allow skydiving, the town argued. Cannone agreed, writing that CSCA's claims conflict with federal statutes regulating aircraft operation in federal airspace, therefore “Massachusetts Tort Claims Act nuisance claims stemming from the defendants' contracting for skydiving concessions at the airport must give way to conflicting federal law which requires the defendants to enter into such contracts.”

The conflict between the federal requirement and the safety concerns expressed by CSCA and others has been “probably the primary issue that has been chasing the town all along,” said Costello. “Who prevails, the FAA or a claim under state law? We feel the judge's decision was very clear and straightforward.”

“I have all along felt this was a federal matter,” Nicastro said. The town has received some $6 million in grants from the FAA, funding runway paving and other activities, and the grant assurances go along with accepting the money. He said some have criticized the town for continuing to defend its decision to allow skydiving, but Cannone's “strong decision” is a “total vindication of the board of selectmen, including both present and some past members, for our steadfast defense against this lawsuit.”

“We're just pleased that this matter has achieved some level of disposition,” said Costello. “It's been going on for a while and we'd like to put it behind us.”