Zoning and Anti-SLAPP

foreclosure appeal

The Appeals Court issued an important decision this week on the interplay between zoning and the Massachusetts Anti-SLAPP law. The full decision, Haverhill Stem LLC v. Jennings, is below.

What is Anti-SLAPP?

As I’ve written before, Massachusetts (like many other states) has a law that prohibits “SLAPP” lawsuits, an acronym for “Strategic Lawsuit Against Public Participation.” Such lawsuits aim to punish one’s right to petition the government, such as pursuing zoning relief.

Massachusetts’s anti-SLAPP law allows a party to file a special motion to dismiss such a lawsuit. A successful motion entitles the moving party to costs and reasonable attorney fees, making it a powerful weapon for attacking baseless lawsuits.

Anti-SLAPP, however, is limited to a narrow type of lawsuit: one that is solely based upon petitioning activity. If the opposing party can show that their lawsuit had a basis other than punishing the other party for petitioning activity, anti-SLAPP won’t apply.

Zoning and Anti-SLAPP

Zoning matters often implicate anti-SLAPP matters. The reason for this, in my opinion, is that zoning appeals are sometimes brought for nefarious purposes, such as stalling a development or attempting to punish another party. In certain limited cases, anti-SLAPP may apply to zoning disputes.

Haverhill Stem LLC concerned a zoning request for a marijuana dispensary in Haverhill. Another party objected to this project and demanded compensation to drop their opposition to the dispensary. Such demands escalated with numerous verbal and written threats.

Eventually, the party opposing the marijuana dispensary brought a lawsuit against this project in Land Court, seeking to invalidate the recreational marijuana zoning bylaw on several grounds.

Shortly after, the developer sued the opponent of the project under a variety of claims, including Chapter 93A and defamation. The opponent sought dismissal under anti-SLAPP, arguing that the lawsuit was punishment for its opposition to the dispensary. The trial court denied this motion, and the opponent appealed.

Haverhill Stem LLC upheld the denial of the anti-SLAPP motion, reasoning that the lawsuit was not based solely on petitioning activity. In other words, the lawsuit wasn’t simply filed to punish the other side for opposing the dispensary. Rather, the developer had a basis for the lawsuit on grounds of coercion and extortion.

Practical Implications

This case affirms a central requirement of anti-SLAPP: the protections of this law apply only against a lawsuit solely based on petitioning activity. In other words, if one can show they have an otherwise legitimate purpose for legal action, anti-SLAPP likely will not apply.

Legal actions, of course, are often pursued for reasons other than the relief sought in them. This case, however, is clear that there is a high bar for implicating anti-SLAPP.

Anti-SLAPP, however, is great protection against frivolous lawsuits under the appropriate circumstances. The key, however, is to make a compelling case in the limited situations where it can apply.

Conclusion

If you need assistance with zoning and anti-SLAPP, contact me for a consultation.

s20P0537

Anti-SLAPP: Sherwin Law Firm Succeeds With Special Motion to Dismiss

Last week, I won a dismissal of a claim against my client in a real estate contract dispute, using Massachusetts’s “anti-SLAPP” law. Anti-SLAPP is a highly effective means of dismissing meritless claims aimed at inhibiting one’s right of petition.

“SLAPP” is an acronym for a strategic lawsuit against public participation. These lawsuits are brought to intimidate and harass those exercising their lawful rights under the law. Massachusetts, like many other states, has an anti-SLAPP law created purposely to punish those who pursue such claims.

Case Overview

I represented a client who was involved in a real estate case involving specific performance. The opposing party was seeking a court order against another party, ordering the sale of a home that my client ended up purchasing.

This opposing party brought a claim against my clients for monetary damages, due to a lawsuit that my client previously filed to obtain ownership of the home (which was successful).

In short, this opposing party was trying to punish my client for filing a necessary and viable lawsuit.

What is Anti-SLAPP?

Massachusetts’s anti-SLAPP law was created purposely for a case like this:

In any case in which a party asserts that the civil claims, counterclaims, or cross claims against said party are based on said party’s exercise of its right of petition under the constitution of the United States or of the commonwealth, said party may bring a special motion to dismiss. The court shall advance any such special motion so that it may be heard and determined as expeditiously as possible. The court shall grant such special motion, unless the party against whom such special motion is made shows that: (1) the moving party’s exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party’s acts caused actual injury to the responding party. In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

The “right of petition” broadly includes “any written or oral statement made before or submitted to a legislative, executive, or judicial body . . .”, including the filing of a lawsuit. Anti-SLAPP, in short, is intended to punish the pursuit of a legal claim without factual support or any arguable basis in law, aimed solely to harass the opposing party.

A party can invoke the protections of this law through a special motion to dismiss, which must be heard as “expeditiously as possible.” A successful anti-SLAPP motion, importantly, provides the claimant with mandatory attorney fees and costs from the opposing party.

Here, the Court agreed with my argument, and granted my motion to dismiss.

Final Thoughts

I’m incredibly pleased with the outcome of my special motion to dismiss and the availability of anti-SLAPP for protection against baseless lawsuits. The legal process exists to provide readdress for those who have been harmed . . . not to purposely harm others.

If you think anti-SLAPP may apply to you, contact me for a consultation.