Claim Against Abutters Filing Multiple Appeals Dismissed Under Anti-SLAPP Statute

Beveridge & Diamond, P.C. - Massachusetts Environmental & Land Use Alert, November 2007

In DePiero v. Burke, Appeals Court No. 06-P-401 (Perretta, J., Sept. 18, 2007), a complaint for abuse of process filed by the developer of a two-lot subdivision against abutters who filed multiple unsuccessful appeals was dismissed under the anti-SLAPP statute, G.L. c. 231, § 59H. Notwithstanding the multiple appeals, the Court ruled all of the actions taken by the abutters were protected petitioning activities.

The anti-SLAPP statute (“SLAPP” is an acronym for “strategic litigation against public participation”) provides a unique mechanism for individuals to dismiss cases they believe are based solely on the exercise of their right to petition, which includes the filing of appeals.  In this case, the abutters of the proposed subdivision brought multiple appeals from the project – to DEP, to Land Court, to the Zoning Board of Appeals, and then to the Superior Court.  The subdivision proponents were victorious in these appeals and then filed the complaint for abuse of process against the abutters. 

The abutters satisfied their initial burden of demonstrating the claim was based on their petitioning activities – the filing of multiple appeals.  The plaintiff asserted the G.L. c. 40A, § 17 zoning appeal, however, was devoid of any reasonable factual support or any arguable basis in law so that it should fall outside the protection of the anti-SLAPP statute.  The Appeals Court ruled that it was not sufficient that the abutters lost their appeals, finding that they made legally supportable but ultimately unsuccessful arguments which did not bring their activity outside the scope of the anti-SLAPP statute.

As required under the anti-SLAPP statute, because the abutters prevailed on their special motion to dismiss, the Court remanded for an award of reasonably attorney’s fees and costs and invited the abutters to apply to the appellate panel for an award of appellate attorney’s fees and costs.

For further information, please contact Brian Levey at blevey@bdlaw.com, Marc Goldstein at mgoldstein@bdlaw.com, or Krista Hawley at khawley@bdlaw.com.