CITIZENS FOR A SAFE CHATHAM AIRPORT, INC., & others.1 v. TOWN OF CHATHAM & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Citizens for a Safe Chatham Airport, Inc. (Citizens), and three individuals who are members of Citizens and who own real property that is in close proximity to the Chatham Municipal Airport (airport), seek to prevent the resumption of skydiving activities at the airport. The plaintiffs brought this action against the defendants, the town of Chatham (town) and the Chatham airport commission (commission), asserting claims for nuisance and declaratory judgment and requesting that the Superior Court enjoin the defendants from entering into a contract with a skydiving vendor.4 The defendants moved for summary judgment, and a Superior Court judge allowed the defendants' motion on the basis that the plaintiffs' claims were preempted by Federal law.5 The plaintiffs appealed. We do not reach the question of preemption and instead affirm on the basis that the plaintiffs' claims are not ripe for review.6
Background. We take the facts from the summary judgment record, construing the evidence in the light most favorable to the plaintiffs and drawing all reasonable inferences in their favor. See Drakopoulos v. United States Bank Nat'l Ass'n, 465 Mass. 775, 777 (2013). In 2012, Skydive Cape Cod, Inc. (SDCC), began operating a full-time skydiving business at the airport pursuant to a vendor contract.7 Around that time, the plaintiffs began to view skydiving as a nuisance due to noise and safety concerns. The plaintiffs contend that the noise from skydiving was unique in that (1) skydiving planes flew more frequently and were louder than other planes and (2) skydivers screamed -- and in particular screamed profanities -- during the course of their jumps. The plaintiffs also contend that skydiving creates a risk that skydiving planes and skydivers will crash or land on their properties. The plaintiffs point to evidence showing that SDCC took safety risks that resulted in one of SDCC's planes crashing in a nearby lake and skydivers sometimes -- although very infrequently -- landing offsite or having “near misses.”8 The plaintiffs voiced these concerns to the town, which declined to approve SDCC's vendor contract in 2013.
The matter did not end there, however, as the town's efforts to resolve its disagreement with the plaintiffs caused a new disagreement to arise between the town, SDCC, and the Federal Aviation Authority (FAA). After the town declined to approve SDCC's vendor contract, SDCC filed an administrative complaint with the FAA. SDCC claimed that the town was violating its obligations under an FAA grant agreement. Specifically, in exchange for receiving Federal grant money for airport improvements, the town agreed to “make the airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities,” and SDCC claimed that the town was violating this assurance (assurance 22). The FAA's New England Region Airports Division (Airports Division) commenced an informal investigation pursuant to 14 C.F.R. Part 13 and found that the town was in noncompliance with assurance 22 by unjustly discriminating against the aeronautical activity of skydiving.9 Regarding the alleged safety concerns, the Airports Division's position was that the FAA is the final authority in determining what constitutes a compromise of safety.
To resolve the finding of noncompliance, the town agreed to issue a request for proposals (RFP) for skydiving services. After some back-and-forth between the town and the Airports Division regarding the requirements in the RFP, an RFP issued.10 The RFP included a submission deadline of November 30, 2015. On November 25, 2015, the plaintiffs commenced this action. By the submission deadline of November 30, 2015, the town received two responses, including one by SDCC.
While the litigation progressed, the town asked the FAA to assess whether skydiving could occur safely at the airport. By letter dated December 18, 2017, the Airports Division reported that it “toured the airfield and carefully examined one parachute landing area ․ to determine whether or not it is suitable for skydiving.” The Airports Division (1) reviewed fourteen risk factors (e.g., whether the landing area was an appropriate distance from hazards), (2) determined that twelve of the fourteen risk factors presented low risks, (3) proposed mitigation measures to reduce the risk levels associated with the other two risk factors, and (4) concluded that it was “feasible from a safety perspective” for skydiving to occur at the airport.
After receiving the results of the Airports Division's safety assessment, the defendants submitted a motion for summary judgment, which was granted on the basis that the plaintiffs' claims were preempted by Federal law. The judge concluded that the plaintiffs' 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 plaintiffs appealed.
Discussion. As noted above, we do not reach the question of preemption, as we conclude that the plaintiffs' claims are not ripe for review. It has long been held that courts should avoid “entangling themselves in abstract disagreements.” Abbott Lab. v. Gardner, 387 U.S. 136, 148 (1967). See Quincy City Hosp. v. Rate Setting Comm'n, 406 Mass. 431, 439 (1990) (discussing “rule for avoiding issuance of abstract legal opinions”). To avoid such entanglements, the ripeness doctrine requires us to ask whether the alleged injury has matured such that it is no longer hypothetical or speculative. See Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465, 474 (2015) (acknowledging Commonwealth's ripeness argument but reaching merits under court's “broad powers of superintendence” given case's significance). If an injury is imminent, that is enough; a plaintiff need not wait for the consummation of the threatened injury to obtain preventative relief. Cf. City Council of Boston v. Department of Pub. Utils., 7 Mass. App. Ct. 379, 380-381 (1979) (addressing declaratory judgment statute's actual controversy requirement).11
In the absence of at least a contract award, there is no evidence in the summary judgment record from which we could infer that the alleged injuries -- skydiving-related noises, plane crashes, and offsite landings -- are imminent. The plaintiffs point to evidence of noise and safety problems that occurred with SDCC nearly ten years ago. At this stage, however, we do not know if skydiving operations will resume at all,12 much less whether they will resume under SDCC or a different skydiving vendor. And, where we do not know who the skydiving vendor -- if any -- will be, we also do not know what the hours of operation will be,13 how frequently flights will run, or any other information that would allow us to conclude that the same alleged problems with noise will recur. For similar reasons, the summary judgment record is undeveloped on the plaintiffs' safety concerns. We do not know, for example, that a different skydiving vendor would tolerate the same sort of safety risks that the plaintiffs allege SDCC took, or even whether SDCC, perhaps chastened by its previous termination, might adjust the safety of its operations, should it be awarded a contract.14
Put another way, whether skydiving will resume, and more importantly, will upon its resumption create a nuisance is dependent on facts that have not yet occurred; the alleged injuries at this point are entirely hypothetical or speculative. 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. See, e.g., Boothroyd v. Zoning Bd. of Appeals of Amherst, 449 Mass. 333, 342 n.14 (2007) (plaintiff's claim that comprehensive permit impermissibly allowed twenty percent of project's units to be set aside for minority households not ripe where set aside was contingent on future events); Commonwealth v. Casimir, 68 Mass. App. Ct. 257, 259 (2007) (defendant's claim that plea judge did not administer alien warnings required by G. L. c. 278, § 29D, was not ripe in absence of showing that defendant was facing immigration consequences).
4. The town and the commission own, maintain, and operate the airport. While the town, by and through the commission and the town manager, entered into a contract delegating day-to-day operations of the airport to Cape Cod Flying Circus, Inc., the town reserved the right approve vendor contracts.
5. It appears that the plaintiffs' declaratory judgment claim had already been dismissed, but the judge nonetheless addressed that claim when ruling on the defendants' motion for summary judgment.
6. Ripeness in this context is an issue of subject matter jurisdiction that may be raised at any time. Cf. Department of Community Affairs v. Massachusetts State College Bldg. Auth., 378 Mass. 418, 422-423 (1979) (declaratory judgment statute's actual controversy requirement is jurisdictional).
7. From 2009 to 2011, SDCC and its predecessor entity operated a skydiving business at the airport on a more limited basis.
8. The individual plaintiffs all testified at depositions that no skydiving equipment ever crashed, and that no skydivers ever landed, on their properties. Moreover, the evidence in the summary judgment regarding offsite landings is that there were approximately 8,000 skydiving jumps at the airport from 2010 and 2013 and that all but six of those jumps resulted in airport landings.
9. As we do not reach the question of preemption, we do not discuss the scope of the Airports Division's authority under 14 C.F.R. Part 13 and what deference any findings resulting from an information investigation under 14 C.F.R. Part 13 are owed.
10. The town initially included requirements in the RFP that the Airports Division informed the town were “unreasonably restrict[ive]” or “unjustly discriminatory,” including various requirements that were more restrictive than what Federal regulations required.
11. The imminence of an injury is also sometimes discussed in the context of standing. See, e.g., Pugsley v. Police Dep't of Boston, 472 Mass. 367, 371-373 (2015). Here, where the speculative nature of the alleged injury is due more to the timing of the lawsuit than to the plaintiffs’ having an attenuated connection to skydiving activities at the airport, we think the imminence of the injury is better discussed in the context of ripeness. We specifically decline to address whether the plaintiffs have standing.
12. We note that over five years have passed since the RFP was issued, and we do not know whether either applicant is still interested in becoming a skydiving vendor. See Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102, 140 (1974) (in addressing ripeness, “it is the situation now rather than the situation at the time of the ․ decision [under review] that must govern”).
13. The RFP requires that skydiving jumps occur during daylight hours, but we do not know either applicant's business plans.
14. For that matter, we do not know what effect the safety mitigation measures proposed by the Airports Division will have.
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