102 Mass. App. Ct. 522
Mass. App. Ct.2023Background
- Plaintiffs (Bristol Asphalt Co., Inc. and Edgewood Development Co., LLC) sought permits to build a bituminous concrete plant in Rochester's industrial district adjacent to defendants' existing plant. Plaintiffs claim nearly $12 million in lost profits and substantial legal fees from years of opposition.
- Defendants (Rochester Bituminous Products, Inc., and Albert and Paul Todesca/Todesca Trust) repeatedly challenged permitting decisions (planning board/site plan approval, conservation commission order-of-conditions extension, and two MEPA fail‑safe petitions) and pursued appeals; plaintiffs prevailed at the planning board, ZBA/Land Court appellate stages, conservation commission certiorari, and EOEEA MEPA denials.
- In August 2020 plaintiffs sued under G. L. c. 93A § 11, G. L. c. 93 § 4, and abuse of process, alleging the defendants’ petitioning was a series of sham actions to block competition.
- Defendants filed a special motion to dismiss under the anti‑SLAPP statute, G. L. c. 231, § 59H. The motion judge applied the augmented Duracraft framework (as refined in Blanchard and Harrison), found the complaint was based solely on petitioning (threshold), but concluded plaintiffs met the high bar to show the petitioning was a sham lacking any reasonable factual or legal basis and caused injury, and denied the special motion.
- The Appeals Court affirmed, holding (1) the defendants met the first‑stage threshold, and (2) on the second‑stage first path the plaintiffs proved by a preponderance that the petitioning lacked any reasonable factual or legal support (noise, traffic, wetlands‑extension, and MEPA petitions) so the anti‑SLAPP protection did not apply; the case was remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complaint is "based on" petitioning activity (anti‑SLAPP threshold) | Bristol: claims target defendants' petitioning conduct and are therefore covered by § 59H only if not sham. | RBP: the suit targets protected petitioning and should be dismissed under § 59H. | Threshold satisfied for RBP: complaint is based solely on petitioning activity. |
| Whether the petitioning was a "sham" under the first path (objectively lacking reasonable factual or legal basis) and caused actual injury | Bristol: RBP’s challenges were objectively unreasonable and caused injury; plaintiffs met the high bar to show sham. | RBP: their petitions and appeals raised legitimate concerns and were fact‑ and law‑based. | Court held plaintiffs proved by preponderance that RBP’s petitioning (noise, traffic, wetlands‑extension, MEPA petitions) lacked a reasonable factual/legal basis and caused injury; anti‑SLAPP protection denied. |
| Whether the alternative Blanchard second‑path (plaintiff can show claim not primarily to chill petitioning) was required | Bristol: established sham under first path, so second path not reached. | RBP: even if some claims reasonable, anti‑SLAPP still protects them; second path analysis required. | Motion judge and majority did not reach second path because plaintiffs succeeded on first path; dissent argued second path and constitutional issues should have been considered for traffic claim. |
| Standard of appellate review for denial of special motion to dismiss | Bristol: acceptance of motion judge’s factual assessments; plaintiffs prevailed on second‑stage. | RBP: challenges to judge’s conclusions; dissent argued de novo review required for First Amendment petition immunity issues. | Majority: de novo for first‑stage threshold, abuse‑of‑discretion or error‑of‑law review for motion judge’s second‑stage ruling; dissent would apply de novo for whether petitioning was objectively reasonable (protecting petition clause). |
Key Cases Cited
- Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141 (2017) (announcing augmented Duracraft framework and alternative second‑path analysis)
- Blanchard v. Steward Carney Hosp., Inc., 483 Mass. 200 (2019) (clarifying anti‑SLAPP standards and appellate review principles)
- Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 (1998) (original anti‑SLAPP analytical framework)
- Baker v. Parsons, 434 Mass. 543 (2001) (sham petitioning defined as lacking reasonable factual support or arguable basis in law)
- 477 Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162 (2017) (describing plaintiff’s burden on first path to prove lack of objective reasonableness and injury)
- 483 Harrison Ave., LLC v. JACE Boston, LLC, 483 Mass. 514 (2019) (further discussion of burdens under anti‑SLAPP statute)
- Wenger v. Aceto, 451 Mass. 1 (2008) (losing petitioning activity not automatically a sham)
- Nyberg v. Wheltle, 101 Mass. App. Ct. 639 (2022) (procedural and interpretive points on § 59H special motion practice)