State Appeals Court Dismisses Skydiving Suit

By: Tim Wood

Skydivers at Chatham Airport.  FILE PHOTO

CHATHAM – A lawsuit that attempted to prevent skydiving from returning to Chatham Municipal Airport was dismissed by the Massachusetts Appeals Court Monday.

The decision by a three-judge panel affirms a 2019 ruling by a Barnstable Superior Court judge that federal law requires that the town allow skydiving at the George Ryder Road airport.

It's not certain that skydiving will return to the airport, and if it does, the justices wrote that is “entirely hypothetical or speculative” that the same safety and noise allegation made by the group that filed the suit, Citizens for a Safe Chatham Airport, will occur. Currently there are no companies knocking on the airport commission's door to provide skydiving. Skydive Cape Cod last operated out of the airport in 2012, after which the town declined to renew the company's contract. However, should a skydiving company want to set up at the airport, the town would have to consider the request, based on Monday's decision, said Airport Commission Chair Huntley Harrison.

“We can't reject anybody, because of the grant assurances,” said Harrison, referring to the Federal Aviation Administration requirement that general aviation airports, like Chatham's, allow such activities in exchange for accepting federal funds. While the town solicited proposals for skydiving operations nearly six years ago, the legal complications put them on hold.

Citizens for a Safe Chatham Airport, Inc. first filed the suit in 2015. Monday's order becomes final if the group does not file an appeal with the Massachusetts Supreme Court within 20 days. Joseph Tischler – plaintiff in the suit along with Michael Tompsett and David Bixby – said Tuesday that the group is looking at its options.

“We're disappointed with the decision,” he said, noting that the appeals court didn't directly address the issue of whether federal law pre-empted the town from prohibiting skydiving.

Skydive Cape Cod began tandem jumps at Chatham Airport in 2011 under a contract with airport manager Cape Cod Flying Circus. After a jumper was seriously injured in a landing and a skydiving plane crashed into Lover's Lake, in 2012, some neighbors began raising questions about the safety of the operation. Complaints also mounted about noise from the company's frequent flights, shouts from skydivers – especially profanities – as they floated to earth, and concerns for safety of those on the ground.

After Town Manager Jill Goldsmith overruled the airport commission and blocked the renewal of Skydive Cape Cod's contract, the company filed an administrative complaint with the Federal Aviation Administration, which found that the town was not in compliance with the grant assurances. To comply, the town requested proposals from skydiving firms; Skydive Cape Cod was one of two submissions. After Citizens for a Safe Chatham Airport sued to stop the activity from returning, the proposals were put on hold. Meanwhile, the FAA examined the airport and found that there were some low risk factors for skydiving but that the activity was “feasible from a safety perspective.”

Based on that, the town asked the court to dismiss the group's suit. Justice Beverly J. Cannone did so in 2019, ruling that the group's claims “must give way to conflicting federal law which requires the defendants to enter into such contracts.”

The appeals court did not rule on the citizens' group's claims, pointing out that the claims of noise and safety concerns date back nearly a decade and thus are not imminent.

“At this stage, however, we do not know if skydiving operations” by Skydive Cape Cod or another vendor “will resume at all,” the justices wrote. Without knowing that, there is no way to determine the hours of operation, frequency of flights or other information “that would allow us to conclude that the same alleged problems with noise will recur.” Further, it is not known if another skydiving company, or Skydive Cape Cod, “perhaps chastened by its previous termination,” will adjust the safety of the operation.

“Where it is entirely possible that the alleged injuries may not develop, the disagreement between the parties is abstract and the plaintiffs' claims are not ripe for review,” concluded the panel, which included Chief Appeals Court Justice Mark Green and Associate Justices William Meade and Peter Rubin.

A lawsuit filed against Chatham by Skydive Cape Cod alleging discrimination for the town's failure to renew its contract remains pending in Barnstable Superior Court. A hearing in the case is scheduled for June 18.