CHATHAM – A neighborhood group has appealed a Barnstable Superior Court justice's decision dismissing their legal challenge to skydiving at Chatham Municipal Airport.
Citizens for a Safe Chatham Airport (CSCA) filed a notice of appeal on Aug. 12 seeking review of Judge Beverly J. Cannone's July 29 order ruling that federal law, under which the town allowed skydiving, overrode the group's assertion that the activity constitutes a nuisance under the state's Tort Claims Act.
It's been nearly six years since Skydive Cape Cod's contract to operate at the town-owned airport was not renewed. Town officials initially expressed safety concerns, but after a report by an independent aviation expert found the facility safe for skydiving, and the Federal Aviation Administration issued a final safety risk assessment, the town solicited firms to resume skydiving at the airport at the direction of the federal agency.
Skydive Cape Cod was one of two firms that responded, but the town put issuing a contract on hold after CSCA filed suit. Skydive Cape Cod also sued the town, claiming discrimination in failing to renew its contract; that action remains on hold pending resolution of the CSCA suit.
Cannone allowed the town's motion for summary judgment of the CSCA suit based on “federal preemption,” ruling that FAA grant assurances require that the town allow skydiving as a general aviation activity. The grant assurances are included in numerous grants the town has received for the airport over the years totaling more than $6 million. The neighborhood group's claim that skydiving constitute a nuisance under the state Tort Claims Act “must give way to conflicting federal law which requires the defendants to enter into such contracts,” according to the ruling.
CSCA president Joseph Tischler said the membership and board agreed that they wanted to “vigorously appeal” Cannone's decision, which looked only at the narrow issue of the applicability of the state's Tort Claims Act and did not consider the “very, very substantial amount of evidence” about skydiving's negative impact on the neighborhood and community.
“Our basis from the beginning has been that we'd like to have a trial on the merits of the case,” he said.
“I'm disappointed but I'm not surprised,” Selectman Dean Nicastro said of the appeal. While the group has the right to appeal, he felt their case “makes no sense” because it asserts that the town violated state law by complying with federal law.
“I can't predict the appellate outcome, but there's a good chance that the town will prevail,” said Nicastro.
The board of selectmen was scheduled to hold an executive session with Town Counsel Patrick Costello Monday night. The skydiving case was one of several listed for discussion.
The Aug. 12 filing by CSCA's attorney, Ira H. Zaleznik, was simply a notice that the is appealing Canonne's July 29 decision as well as previous orders, to the state Appeals Court. A brief setting out the factual and legal basis of the appeal will be filed when the case is transferred and docketed at the Appeals Court level, said Costello. Tischler said he does not know when that will occur.
“We obviously are going to put on a very robust and vigorous appeal,” he said.