Whеn the zoning board of appeals (board) of Newburyport (city) affirmed the city building inspector’s grant of a permit allowing the plaintiff, DePiero, to build a single-family residence at 1 Clark Road, the defendants, the Burkes, appealed to the Superior Court pursuant to G. L. c. 40A, § 17 (the zoning appeal). A Superior Court judge concluded that although the Burkes had standing to challenge the board’s decision, their substantive claim of insufficient frontage failed. De-
1. The procedural history.
Hearings before the city’s planning board on DePiero’s proposal began on August 15, 2001. On August 22, 2001, the Burkes took an appeal to the Department of Environmental Protection (DEP). The basis of that appeal was that the city’s conservation commission had approved DePiero’s plan without notice to the Burkes and that they believed DePiero’s project did not “protect the interests of the Wetland Protection Act.” The planning board, on October 17, 2001, after consideration of a traffic impact and access study, as well as the recommendations of the police and fire departments, approved the subdivision with numerous specified conditions, waivers, and requirements, some of which pertained to the proposed construction of Clark Road.
Pursuant to G. L. c. 41, § 81BB, the Burkes filed a timely notice of appeal from the planning board’s decision with thе Land Court on November 13, 2001, alleging that the planning
The Burkes responded to the issuance of the permit by requesting the building inspector to enforce the frontage requirement of the zoning ordinance. Their request was denied on the stated basis that the planning board had approved the constructiоn pursuant to G. L. c. 41, § 81U. The Burkes then turned to the board, asking that it overturn the building inspector’s issuance of a foundation permit to DePiero. When the board denied the Burkes’ request, they filed their zoning appeal with the Superior Court pursuant to G. L. c. 40A, § 17. That appeal was based upon the Burkes’ assertion of insufficient frontage, that is, because of areas of trees and grass between the property line of lot 2 and the proposed Clark Road, lot 2 had only twenty feet of frontage, whereas the zoning ordinance required 125 feet.
The ordinance provides, in pertinent part:
“Frontage is the length of the lot аlong the property line on a public or planning board approved subdivision street on which the lot has legal and physical access for pedestrians and four wheeled vehicles ...” (emphasis added).
Based on this provision, and citing Fox v. Planning Bd. of Milton,
There then followed DePiero’s unverified abuse of process cоmplaint against the Burkes, which forms the basis of the instant appeal. The gist of the abuse of process complaint is set out in paragraphs 29 and 31, which read, in pertinent part:
“29. At the time the [Burkes] brought [their G. L. c. 40A, § 17, appeal], they knew that the Planning Board, the Land Court case, the Building Inspеctor and the Zoning Board of Appeals had all addressed the same safety and frontage issues raised by [them] regarding the subdivision at 3 Spofford Street and that all these involved parties had subsequently determined that [the Burkes’] concerns were adequately and legally satisfied with the approved subdivision plan.
“31. Upon information and belief, [DePiero] contends that the [§ 17 appeal] was brought falsely and maliciously, with the sole intent and purpose of hindering, delaying and potentially preventing construction at the approved subdivision lot now known as 1 Clark Roаd and the subsequent sale of 3 Spofford Street to disinterested parties.”
DePiero also alleges in the abuse of process complaint that the Burkes’ actions cost her lost income and damages in the amount of $439,004.37. In an affidavit filed in support of her ex parte motion seeking an attachment on the Burkes’ real property located at 1 Spofford Street, DePiero stated that it was her “opinion and belief” that the Burkes’ zoning appeal was brought “to accomplish an ulterior purpose.”
In response to DePiero’s abuse of process complaint, the Burkes filed a motion to dismiss pursuant to G. L. c. 231, § 59H, in which they essentially track the language of the statute, that is, they state that all their complained-of actions were “petitioning activities” which “were not devoid of any reasonable factual support or any arguable basis in law” and which “caused no actual
“Indubitably this action [for abuse of process] is based upon the [Burkes’] petition[ing] activity, to wit, the initiation of the prior Superior Court action [brought pursuant to G. L. c. 40A, § 17]. Although the fact that [the Burkes] failed to obtain a favorable outcome in that action does not, in [and] of itself, mean that the action was devoid of legal and factual support, the decision of [the judge in the zoning appeal] makes clear that indeed, it was lacking such support, moreover [DePiero was] harmed by the filing of the action, at least to the extent of the legal expenses which they incurred in defending.”
2. Discussion. The procedure to be followed in ruling on a G. L. c. 231, § 59H, motion is set out in Duracraft Corp. v. Holmes Prod. Corp.,
Our reading of DePiero’s abuse of process complаint, as well as all the exhibits attached thereto, leads us to conclude, as did the judge below, that the Burkes made the showing necessary to satisfy their burden under G. L. c. 231, § 59H. DePiero has made no argument to the contrary, that is to say, she does not challenge the sufficiency of the Burkes’ showing thаt their actions were based on protected petitioning activities.
The next issue to resolve is whether DePiero preserved her abuse of process claim by showing “by a preponderance of the evidence, based on the pleadings and affidavits, that the pеtitioning activity is ‘devoid of any reasonable factual support or any arguable basis in law,’ and that ‘the [Burkes’] acts caused actual injury’ to [her]” (footnote omitted). Adams v. Whitman, 62
Based upon that acknowledgment and the fact that the Superior Court judge apparently relied solely on the first judge’s memorandum of decision in the zoning appeal as sufficient basis for denying the Burkes’ special motion, we look to all that was before the judge in the zoning appeal as well as her memorandum of decision in that case, to determine whether DePiero sustained the burden of proof required of her by G. L. c. 231, § 59H. We do so while keeping in mind that our determination does not turn on whether the zoning appeal judge was correct in granting summary judgment to DePiero. See Donovan v. Gardner,
At the hearing before the board on their appeal from the building inspector’s grant of a building permit to DePiero, the Burkes’ attorney stated that the planning board did not have the right to “vary the zoning ordinance and that is what they did.” That was also the argument the Burkes made to the judge in their zoning appeal, i.e., the zoning ordinance required linear frontage of 125 feet on Clark Road so as to provide “legal and physical access for pedestrians and four wheeled vehicles” (emphasis added), but becаuse of grass and trees on the property line between lot 2 and Clark Road, there was, in fact, only twenty feet of physical access from Clark Road to lot 2.
The judge in the zoning appeal determined that while planning boards were authorized by G. L. c. 41, § 81R, to waive “strict compliance with [their subdivision] regulations and rules,”
It does not appear from the materiаls before us that the Burkes, in their zoning appeal, disputed that Clark Road was a planning board approved street. Rather, and as previously stated, their position before the board and the zoning appeal judge was that the access from Clark Road to lot 2 was insufficiеnt to satisfy the zoning ordinance, a question that the board did not consider in denying the Burkes’ appeal from the building inspector’s grant of a building permit to DePiero.
Before us, the Burkes argue that in concluding that twenty feet of access to lot 2 from the planning board’s approved Clark Rоad was sufficient to satisfy the zoning ordinance’s requirement for access by “pedestrians and four wheeled vehicles,” the judge in the zoning appeal never addressed this issue. Instead, they contend, she relied on cases they deem inapposite because of plausiblе distinctions. See, e.g., Gordon v. Zoning Bd. of Appeals of Lee,
It follows from all that we have said that DePiero failed to meet her burden of showing by a preponderance of the evidence that the Burkes’ unsuccessful zoning appeal was devoid of legal and factual support. Because DePiero did not satisfy her burden of proof on that issue, we need not consider whether she was
3. Conclusion. The order denying the special motion to dismiss is reversed, and the case is remanded to the Superior Court for entry of a new order consistent with this opinion and including an award of reasonable attorney’s fees and costs pursuant to G. L. c. 231, § 59H. Within fifteen days of the date of the issuance of the rescript in this matter, the Burkes may also apply to the panel deciding this appeal for an award of appellate attorney’s fees and costs. See Fabre v. Walton,
So ordered.
Notes
“SLAPP is an acronym for ‘strategic litigation against public participation.’ ” Cadle Co. v. Schlichtmann,
We take the facts of the procedural history of the dispute between the parties from the judge’s memorandum of decision in the Burkes’ unsuccessful zoning appeal, DePiero’s abuse of process complaint and its attached exhibits, and her accompanying motion for a writ of attachment with its attached exhibits.
DePeiro alleges in her abuse of process complaint that the Burkes’ motivation in entering into the stipulation of dismissal was based upon the requirement that they post a surety bond. The Burkes’ explanation for the dismissal was that they “dropped” their appeal to the Land Court because they had no wish to interfere with DePiero’s plan as it related to lot 1 and that they did so without prejudice and without waiving their right to pursue the issue of frontage related to lot 2.
Nor does DePiero, in seeking to affirm the denial of the special motion to dismiss, make any argument concerning the determination of the judge in the zoning appeal that the Burkes, based upon their status as abutters and their traffic concerns, had standing to appeal the board’s decision.