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SJC-13460
BRISTOL ASPHALT, CO., INC., & another1 vs. ROCHESTER BITUMINOUS
PRODUCTS, INC., & others.2
Plymouth. October 2, 2023. - February 29, 2024.
Present: Budd, C.J., Gaziano, Lowy, Kafker, Wendlandt,
& Georges, JJ.3
"Anti-SLAPP" Statute. Practice, Civil, Motion to dismiss.
Constitutional Law, Right to petition government. Zoning,
Site plan approval, Wetlands. Municipal Corporations,
Conservation commission. Massachusetts Environmental
Policy Act.
Civil action commenced in the Superior Court Department on
August 17, 2020.
A special motion to dismiss was heard by Thomas F. McGuire,
Jr., J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
1 Edgewood Development Company, LLC.
2 Albert A. Todesca and Paul Todesca, individually and as
trustees of Todesca Realty Trust.
3 Justice Lowy participated in the deliberation on this case
prior to his retirement.
2
Michael S. Rabieh for the defendants.
Brian M. Hurley (Lauren C. Galvin also present) for the
plaintiffs.
Robert C. Ross, for NAIOP Massachusetts, amicus curiae,
submitted a brief.
Jeffrey J. Pyle, for New England First Amendment Coalition,
amicus curiae, submitted a brief.
KAFKER, J. In this case, along with another opinion issued
today, Columbia Plaza Assocs. v. Northeastern Univ., 493
Mass. (2023), we revisit the analytic framework of a statute
that has played an increasingly prominent, and complex, role in
civil litigation over the last thirty years. General Laws
c. 231, § 59H, more commonly known as the "anti-SLAPP" statute,
establishes a procedure for obtaining the early dismissal of a
claim that seeks to impose liability on individuals for
exercising their constitutional right of petition. This
procedure, referred to as a "special motion to dismiss," has
become a frequent subject of our jurisprudence since § 59H was
first enacted. This is largely attributable to the open-ended
language of the statute, which reaches any claim "based on" a
broadly defined category of petitioning activity, and the
advantages afforded to a party who successfully invokes it --
including the dismissal of adverse claims and an award of
attorney's fees. Indeed, the mere act of filing such a motion
serves to automatically stay discovery and prioritize the
resolution of the motion over other matters in the case.
3
Although these powerful procedural protections were
designed to target meritless suits brought to discourage
individuals from exercising their constitutional right of
petition, the statute has been regularly invoked in attempts to
dismiss a wide array of other claims concerning conduct far
afield of the petitioning activity that the Legislature
originally sought to protect. To align the statutory language
and purpose, and address its potential misapplication, in
Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168
(1998) (Duracraft), we adopted a construction of the anti-SLAPP
statute that would exclude its applicability to claims with a
substantial basis other than or in addition to an individual's
exercise of the right of petition.
The Duracraft framework governed our jurisprudence for
nearly twenty years. However, out of concern that the
"problematic sweep of the statute" had continued to invite its
misapplication to meritorious claims, this court in Blanchard v.
Steward Carney Hosp., Inc., 477 Mass. 141, 155, 159 (2017)
(Blanchard I), and Blanchard v. Steward Carney Hosp., Inc., 483
Mass. 200, 206-207 (2019) (Blanchard II), substantially
augmented the Duracraft framework, requiring that the factual
allegations supporting challenged claims be parsed, so as to
allow portions of such claims to be dismissed, and inserting an
4
additional multifactor test to evaluate the subjective
motivation of those bringing the challenged claims.
The resulting complexity of this augmented framework, which
also strays from the statutory language, has led to additional
time and expense for litigants seeking to bring, or defend
against, special motions to dismiss and has placed an enormous
burden on motion judges in their efforts to decide such motions.
These pragmatic difficulties detract from one of the principal
purposes of § 59H: to obtain the expeditious dismissal of
meritless claims that are based on petitioning alone.
The nature, scope, duration, and complexity of the instant
case exemplify the need to clarify and simplify decision-making
in this area. It concerns various claims arising out of the
unsuccessful efforts of the Todesca litigants (the defendants
and proponents of the special motion to dismiss in this case),
before various administrative and judicial bodies, to block the
Bristol litigants (the plaintiffs and opponents of the special
motion to dismiss) from obtaining approval to construct and
operate an asphalt plant that would rival their own. After the
last of these challenges failed in 2020, the Bristol litigants
brought suit, asserting that the Todesca litigants' legal
maneuvers amounted to abuse of process and violated G. L.
c. 93A, §§ 4 and 11. In response, the Todesca litigants filed a
special motion to dismiss under § 59H, asserting that their
5
legal efforts to block a competitor's asphalt plant constituted
a legitimate exercise of their right of petition under the First
Amendment to the United States Constitution, for which they
could not be sued. The special motion was denied, and the
Todesca litigants pursued an interlocutory appeal. The matter
is now before us three and one-half years after this lawsuit
first began.
Recognizing that our existing framework for analyzing
special motions to dismiss under § 59H has not provided an
efficient or practical solution to the problem it was designed
to address, we thus conclude that a simplification of our
existing anti-SLAPP framework, and one that hews to the
statutory language, is necessary to ensure that the legislative
intent behind the statute is not undermined by its
misapplication. Toward that end, we set forth a revised anti-
SLAPP framework in the instant opinion, along with an Appendix
designed to provide guidance on its practical administration.
Under this simplified anti-SLAPP framework, we eliminate
the additional analysis set forth in Blanchard I and
Blanchard II and return to the traditional approach set out in
Duracraft. We also seek to provide more detail on how to
determine whether petitioning activity is devoid of any
reasonable factual support or arguable basis in law. Finally,
we clarify that the appropriate standard of review for a ruling
6
on a special motion to dismiss is de novo, rather than for an
abuse of discretion. Applying this simplified framework to the
instant case, we conclude that the Todesca litigants'
petitioning activities were not entitled to the procedural
protections of § 59H.4
1. Factual background. We summarize the facts as derived
from the pleadings and attached documentary evidence before the
Superior Court, reserving certain facts for our discussion
below. See G. L. c. 231, § 59H; Dickey v. Warren, 75 Mass. App.
Ct. 585, 588 n.5 (2009), cert. denied, 560 U.S. 926 (2010).
The Todesca litigants -- the special motion proponents in
the instant suit -- own and/or operate an asphalt plant at 83
Kings Highway in the town of Rochester (town), within an area
that has been zoned for industrial uses since 1969.5 The area
4 We acknowledge the amicus briefs concerning the anti-SLAPP
framework submitted in this case, as well as the companion case
decided by this court today, by the Massachusetts Employment
Lawyers Association, GLBTQ Legal Advocates & Defenders,
Brazilian Women's Group, La Colaborativa, Dominica Development
Center, Massachusetts Coalition for Occupational Safety and
Health, and MetroWest Worker Center; JACE Boston, LLC, and
Arthur Leon; New England First Amendment Coalition; NAIOP
Massachusetts; and American Civil Liberties Union of
Massachusetts, Inc.
5 More specifically, the asphalt plant is owned by Rochester
Bituminous Products, Inc. (RBP), which was incorporated by
members of the Todesca family. Albert and Paul Todesca have
served in various executive and consulting capacities for RBP,
although the parties dispute the extent of their current
involvement in the company. For simplicity, we refer to them
7
where the asphalt plant is located also houses a concrete block
manufacturing plant, a building material deconstruction
facility, and several waste facilities. The Bristol
litigants -- the special motion opponents in this suit -- are
business competitors who sought to open their own asphalt plant
on an adjacent parcel of land in the same industrial zone,
beginning in late 2010.6 The Todesca litigants subsequently
launched a series of administrative and legal challenges to the
Bristol litigants' efforts to obtain regulatory approval for the
construction and operation of the proposed plant. Each one is
outlined, in turn, below.
a. Challenges to site plan approval. In late 2010, the
Bristol litigants submitted a site plan review application to
the town's planning board (planning board) for their proposed
asphalt plant. On May 24, 2011, the planning board issued a
unanimous written decision in which it determined that the
collectively as the Todesca litigants, except where otherwise
specified.
6 Most of the actions relevant to the instant suit were
taken prior to 2019, when Bristol Asphalt, Co., Inc. (Bristol
Asphalt), was first incorporated to follow up on the efforts of
related entities, including Edgewood Development Company, LLC
(Edgewood), to obtain permits necessary to construct and operate
the proposed asphalt plant on behalf of its developer, Lorusso
Corporation. The complaint indicates that any claims for
economic loss suffered by Edgewood have been assigned to Bristol
Asphalt. For simplicity, we refer to them collectively as the
Bristol litigants throughout this opinion.
8
proposed plant was a permitted use in the industrial district,
and approved the site plan subject to forty-three conditions
designed to regulate anticipated noise, dust, fumes, and visual
and traffic impacts relating to the project. Paul Todesca and
abutters to the site appealed from the planning board's decision
to the town's zoning board of appeals (zoning board). The
zoning board unanimously affirmed the site plan approval.
Albert and Paul Todesca (Todescas), as trustees of Todesca
Realty Trust, along with abutters, then pursued a further appeal
in the Land Court, pursuant to G. L. c. 40A, § 17.
In the Land Court, the Todescas argued that the site plan
approval did not comply with local bylaws because of the
anticipated effect that the proposed plant would have on noise
levels, property values, and traffic in the area. Upon the
parties' cross motions for partial summary judgment concerning
the Todescas' noise-related arguments, the Land Court judge
ruled in favor of the Bristol litigants, concluding that the
noise issue had reasonably been addressed by conditions
contained within the site plan approval.
After a trial on the Todescas' remaining claims, the Land
Court judge issued a written memorandum of decision containing
various findings of fact and entered judgment in favor of the
Bristol litigants. The judge concluded that the proposed
asphalt plant constituted a permitted use in the industrial
9
district and that the evidence did not "support a finding that
there are problems with the site plan that have not been
reasonably addressed or that require conditions beyond those"
already imposed by the planning board.
Thereafter, the Appeals Court affirmed the judgment of the
Land Court in an unpublished decision.7 See D'Acci v. Board of
Appeals of Rochester, 91 Mass. App. Ct. 1118 (2017). Upon
conducting de novo review of the issue disposed on summary
judgment, the Appeals Court concluded that the noise conditions
contained within the site plan approval had been reasonable and
that partial summary judgment had been properly entered in favor
of the Bristol litigants. See id. The Appeals Court further
concluded that the Land Court judge did not err in ruling in
favor of the Bristol litigants on the remaining claims because
the asphalt plant was a permitted use in the industrial district
and the conditions imposed by the planning board had been
reasonable. In so doing, the Appeals Court observed, inter
alia, that there was "no evidence to support the conclusion that
the addition of the [Bristol litigants' asphalt plant] would
cause property values across the industrial district to
decrease," nor any evidence that the harms anticipated by the
Todescas were "inherent to the [Bristol litigants' asphalt
7 The Todescas apparently did not join in the appeal of the
site plan approval to the Appeals Court.
10
plant] in particular, 'as opposed to any other industrial use.'"
Id.
b. Challenges to extension of order of conditions. As
part of their efforts to obtain regulatory approval for the
proposed asphalt plant, the Bristol litigants also filed a
notice of intent with the town's conservation commission
(commission), pursuant to the Wetlands Protection Act, G. L.
c. 131, § 40, and a municipal wetlands bylaw. After holding
public hearings on the matter, the commission issued an order of
conditions approving the proposed asphalt plant, subject to at
least twenty-six special conditions, in 2011.8 In light of the
delays in construction caused by the Todesca litigants' legal
challenges to the site plan approval, the Bristol litigants
sought a three-year extension of the order of conditions in
2018, pursuant to 310 Code Mass. Regs. § 10.05(8)(a) (2014).
After conducting a public hearing, a site visit, and a review of
aerial photographs, as well as soliciting input from the town's
conservation agent, the commission voted unanimously to approve
the extension request.
The Todesca litigants (specifically, Rochester Bituminous
Products, Inc. [RBP]), along with other abutters, filed a
8The Bristol litigants' amended complaint makes reference
to twenty-six special conditions, while the recommended final
decision of the office of appeals and dispute resolution refers
to twenty-nine special conditions.
11
complaint in the Superior Court seeking judicial review of the
extension of the order of conditions, pursuant to G. L. c. 249,
§ 4. RBP argued that the commission erred in granting the
extension request without first conducting a new delineation
(i.e., assessment) of the boundaries of nearby wetlands or
confirming that the prior delineation remained accurate, and
without considering changes in the area since the original order
of conditions had issued.
On the parties' cross motions for judgment on the
pleadings, a judge in the Superior Court affirmed the decision
of the commission. The judge concluded that "a review of the
administrative record does not show [RBP], or anyone else,
presented any evidence of changes to the area" and that there
was "nothing in the administrative record to support a finding
that any resource area delineation was no longer accurate." RBP
filed a notice of appeal, and the Appeals Court affirmed on the
same basis in an unpublished decision. See Rochester Bituminous
Products, Inc. v. Conservation Comm'n of Rochester, 98 Mass.
App. Ct. 1118 (2020).9
The Bristol litigants' complaint also makes reference to a
9
separate set of unsuccessful administrative appeals submitted by
a group of residents to the Department of Environmental
Protection (department) and, later, to the department's office
of appeals and dispute resolution. The appeals were denied on
the basis that the order of extension was not appealable to the
department. Albert Todesca initially sought judicial review of
12
c. Fail-safe petitions for MEPA review. While the
challenges to the order of extension mentioned supra were still
ongoing, Todesca Realty Trust also obtained signatures from town
residents and, through counsel, submitted a so-called "fail-safe
petition" requesting that the Executive Office of Energy and
Environmental Affairs (EOEE) conduct a review of the proposed
plant under the Massachusetts Environmental Policy Act, G. L.
c. 30, §§ 61-62H (MEPA).10 The EOEE issued an order denying the
fail-safe petition, concluding that it did not meet the
regulatory standards for review under 301 Code Mass. Regs.
§ 11.04(1) (2008). Todesca Realty Trust subsequently filed a
second fail-safe petition for MEPA review on January 22, 2020.
The EOEE issued an order denying this petition as well, noting
that it alleged "virtually identical facts" to the first,
unsuccessful fail-safe petition.
2. Procedural history. On September 2, 2020, the Bristol
litigants filed a three-count amended complaint against the
Todesca litigants, alleging that the above-mentioned legal
challenges constituted unfair or deceptive acts or practices in
these decisions in the Superior Court, but subsequently chose to
dismiss the complaint.
10Pursuant to 301 Code Mass. Regs. § 11.04(1) (2008), ten
or more citizens may file a petition requesting review of a
project that does not otherwise meet or exceed any thresholds
for review under the Massachusetts Environmental Policy Act,
G. L. c. 30, §§ 61-62H, provided certain requirements are met.
13
the conduct of trade or commerce, in violation of G. L. c. 93A,
§ 11; conspiracy in restraint of trade or commerce, in violation
of G. L. c. 93A, § 4; and abuse of process. The Todesca
litigants filed an answer, asserting the anti-SLAPP statute as
an affirmative defense, and later filed a special motion to
dismiss under G. L. c. 231, § 59H, or, in the alternative, a
motion to dismiss under Mass. R. Civ. P. 12 (c), 365 Mass. 754
(1974), for failure to state a claim upon which relief may be
granted.11 In support of the filing, the Todesca litigants
attached an affidavit from Albert Todesca asserting that he had
"good faith legal and factual bases" for each of the legal
challenges that the Todesca litigants had pursued. The Bristol
litigants filed an opposition, attaching two affidavits, along
with over one hundred pages of exhibits, consisting of
deposition excerpts and administrative and judicial decisions
arising out of the prior legal challenges.
After a hearing, a judge in the Superior Court denied the
special motion to dismiss.12 The motion judge acknowledged that
11It appears that the special motion to dismiss was filed
more than sixty days after the amended complaint. See G. L.
c. 231, § 59H ("Said special motion to dismiss may be filed
within sixty days of the service of the complaint or, in the
court's discretion, at any later time upon terms it deems
proper").
12The motion judge did allow the motion to dismiss the
abuse of process claim, pursuant to Mass. R. Civ. P. 12 (c), 365
14
all of the challenged claims sought to impose liability on the
Todesca litigants based solely on their petitioning activities
(i.e., their legal challenges to regulatory approval for the
proposed asphalt plant). However, the motion judge went on to
conclude that because the Todesca litigants' petitioning
activities had been a "sham," they were not entitled to
dismissal of the claims filed against them.
The Todesca litigants pursued an interlocutory appeal from
the denial of their special motion to dismiss. See Fabre v.
Walton, 436 Mass. 517, 521-522 (2002), S.C., 441 Mass. 9 (2004)
(holding that litigants have right to pursue interlocutory
appellate review from denial of special motion to dismiss). A
majority of the Appeals Court affirmed the denial of the Todesca
litigants' motion, after engaging in a detailed discussion and
analysis of each one of the Todesca litigants' petitioning
activities. See Bristol Asphalt Co. v. Rochester Bituminous
Prods., Inc., 102 Mass. App. Ct. 522, 538 (2023).
In a separate opinion dissenting in part, a justice of the
Appeals Court concluded that the Todesca litigants' challenge to
the site plan approval was not a sham insofar as it was based on
anticipated traffic impacts from the proposed asphalt plant.
See id. at 541 (Englander, J., dissenting). The dissent further
Mass. 754 (1974), insofar as it alleged abuse of process based
on administrative proceedings.
15
noted that it was error to review the resolution of a special
motion to dismiss only for abuse of discretion, as the nature of
the inquiry necessitated de novo review. Id. at 544. The
dissent also highlighted other difficulties posed by our
existing anti-SLAPP framework, particularly the additional
analysis required by Blanchard I and Blanchard II. Id. at 547-
548. We subsequently allowed the Todesca litigants' application
for further appellate review.
3. Anti-SLAPP framework for assessing special motions to
dismiss. a. Legislative history and development of current
framework.13 The acronym "SLAPP," which stands for "Strategic
Litigation Against Public Participation," was coined in the
1980s to refer to "meritless suits brought by large private
interests to deter common citizens from exercising their
political or legal rights or to punish them for doing so"
We recognize from the outset that it can be difficult to
13
follow a discussion of the conceptual framework set forth in
G. L. c. 231, § 59H, particularly because the statute focuses on
the legitimacy of the prior petitioning activity by the party
filing the special motion to dismiss, rather than on the
elements of the claims that the party is seeking to have
dismissed. This difficulty is exacerbated by the fact that
§ 59H may be invoked not only by a defendant seeking to dismiss
civil claims, but also by a plaintiff seeking to dismiss cross
claims or counterclaims, as the case may be. Accordingly, in a
particular case, the movant or proponent of the special motion
to dismiss may not necessarily be the defendant. In the
discussion that follows, we have elected to use the terms
"special motion proponent" and "special motion opponent" to
facilitate readers' conceptual understanding of the framework.
16
(citations omitted). Duracraft, 427 Mass. at 160 n.7, 161.
Although such suits may fail on the merits, they send a message
to average citizens that the price for speaking out is "a
multimillion-dollar lawsuit and the expenses, lost resources,
and emotional stress such litigation brings." Pring, SLAPPs:
Strategic Lawsuits Against Public Participation, 7 Pace Envtl.
L. Rev. 3, 6 (1989). In response to growing concerns about
large developers filing SLAPP suits to silence local residents,
the Commonwealth enacted its own so-called anti-SLAPP statute,
G. L. c. 231, § 59H. See Duracraft, supra at 161. The statute
creates a procedural vehicle -- known as the special motion to
dismiss -- intended to secure the early dismissal of a meritless
SLAPP claim, along with attorney's fees, before significant
discovery has occurred. Id. at 161-162.
The statute delineates the following procedure for filing
and analyzing special motions to dismiss:
"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
17
and supporting and opposing affidavits stating the facts
upon which the liability or defense is based."
G. L. c. 231, § 59H, first par. The statute goes on to define
the phrase "a party's exercise of its right of petition," used
in the above-quoted provision, to include
"any written or oral statement made before or submitted to
a legislative, executive, or judicial body, or any other
governmental proceeding; any written or oral statement made
in connection with an issue under consideration or review
by [such body]; any statement reasonably likely to
encourage consideration or review of an issue by [such
body]; any statement reasonably likely to enlist public
participation in an effort to effect such consideration; or
any other statement falling within constitutional
protection of the right to petition government."
G. L. c. 231, § 59H, sixth par. As illustrated by the multitude
of appellate cases interpreting § 59H since its enactment in
1994, the Legislature's broad conceptualization of petitioning
and prioritization of its protection within this statutory
formulation have led to a number of difficulties.
First, while the statute's applicability turns on the
special motion proponent's constitutional rights of petition,
the statute does not "rely solely on these rights, as defined by
the United States Supreme Court or this court, to determine the
scope of protected activity, and instead provides its own
express -- and broad -- definition of 'petitioning.'"
Commonwealth v. Exxon Mobil Corp., 489 Mass. 724, 727 n.3 (2022)
(Exxon). See, e.g., Blanchard I, 477 Mass. at 150-151
(statements to newspaper about decision to fire nurses
18
constituted petitioning under § 59H, because definition includes
any statement made "in connection with" issue under
consideration or review by governmental agency, and statements
had been made in manner "that was likely to influence or, at the
very least, reach" Department of Mental Health). Thus, a large
body of case law has developed construing the meaning and scope
of this statutory definition. See id. at 153 n.19 (collecting
cases). And unlike many other States' anti-SLAPP statutes, this
definition does not limit the applicability of the statute to
matters of public concern. See Duracraft, 427 Mass. at 163
n.12. As a result, a party may seek to invoke the powerful
protections of the anti-SLAPP statute to protect speech even if
it "involves a commercial motive," with only a limited
relationship to issues of public concern. See, e.g., North Am.
Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 863
(2009) (attempts to persuade foundation not to sponsor competing
events); Office One, Inc. v. Lopez, 437 Mass. 113, 122-123
(2002) (communications about purchase of condominium units owned
by Federal Deposit Insurance Corporation). See also Kobrin v.
Gastfriend, 443 Mass. 327, 331 (2005) (statute "applies to
matters of both public and private concern"). This has "led to
a significant expansion of [the statute's] application" beyond
the original problem it aimed to correct. Exxon, supra at 728
n.5.
19
In addition to defining petitioning expansively, the
statute goes on to immunize this broad category of conduct from
suit, except where it is "devoid of any reasonable factual
support or any arguable basis in law." G. L. c. 231, § 59H,
first par. That is, unless the opponent to a special motion to
dismiss can show that the petitioning activity was "devoid" of
"any" reasonable basis in fact or law, the opponent's claims --
regardless of their underlying merits -- must be dismissed. Id.
Indeed, the proponent of the special motion is presumptively
entitled to dismissal of these claims, along with a mandatory
award of attorney's fees. See id. Because this statutory test
is focused exclusively on the petitioning activity, without
considering whether there is support for the contentions put
forward in the special motion opponent's claims, the statute
"makes no provision for a [special motion opponent] to show that
its own claims are not frivolous." Duracraft, 427 Mass. at 164-
165. This approach differs from most States' anti-SLAPP
statutes, which permit special motion opponents to defeat such a
motion, and thereby preserve their claims, by demonstrating that
their claims are likely to succeed on the merits.14 See id. at
166 n.18.
See Ariz. Rev. Stat. Ann. § 12-751; Cal. Civ. Proc. Code
14
§ 425.16(b)(1); Colo. Rev. Stat. § 13-20-1101(3)(a); Conn. Gen.
Stat. § 52-196a(e)(3); Del. Code Ann. tit. 10, § 8137; Ga. Code.
Ann. § 9-11-11.1(b)(1); Haw. Rev. Stat. § 634G-6; Kan Stat. Ann.
20
By failing to consider the merits of the claims that are
subject to presumptive dismissal, § 59H raises a paradoxical
conundrum that "has troubled judges and bedeviled the statute's
application," and one that we highlighted in Duracraft: "[b]y
protecting [the special motion proponent]'s exercise of its
right of petition, unless it can be shown to be sham
petitioning, the statute impinges on the [special motion
opponent]'s exercise of its right to petition, even when it is
not engaged in sham petitioning." Id. at 166-167.
To address this constitutional problem and paradox, in
Duracraft we adopted a strict construction of § 59H's reference
to claims "based on" a party's petitioning activity.
Specifically, we construed the term "based on" so as to "exclude
motions brought against meritorious claims with a substantial
basis other than or in addition to the petitioning activities
implicated." Id. at 167. Accordingly, our holding in Duracraft
placed a threshold burden upon the proponent of a special motion
to dismiss to show that each of the claims it was moving to
dismiss had "no substantial basis other than or in addition to
[its] petitioning activities." Id. at 167-168. The sufficiency
§ 60-5320(d); Ky. Rev. Stat. Ann. § 454.472; Neb. Rev. Stat.
§ 25-21,245; Nev. Rev Stat. § 41.660; N.Y. C.P.L.R. 3211(g);
Okla. Stat. tit. 12 § 1434(C); Or. Rev. Stat. § 31.150(3); Tenn.
Code Ann. § 20-17-105(b); Tex. Civ. Prac. & Rem. Code Ann.
§ 27.005(c). See also D.C. Code § 16-5502(b).
21
of the special motion proponent's threshold showing was to be
evaluated count by count. See Ehrlich v. Stern, 74 Mass. App.
Ct. 531, 536 (2009). If a count was based substantially on
conduct other than petitioning activity, it survived. See id.
If, and only if, a count had no substantial basis other than
petitioning did the burden then shift to the special motion
opponent to demonstrate, per the statutory language, that its
claim should not be dismissed because the petitioning activity
forming the basis of the claim "was devoid of any reasonable
factual support or any arguable basis in law" and caused it
"actual injury." G. L. c. 231, § 59H. See Duracraft, supra.
In Blanchard I, 477 Mass. at 155-156, 159-161, and
Blanchard II, 483 Mass. at 206-207, in an attempt to more
precisely protect petitioning and more clearly permit other
lawsuits not based on "classic" petitioning activity to proceed,
this court chose to revisit the anti-SLAPP framework in two
significant and complex ways. First, we held that a special
motion proponent may seek to dismiss the portion of a special
motion opponent's claim that is based on petitioning activity,
so long as that petitioning activity could have independently
served as the sole basis for the claim. See Blanchard I, supra
at 155-156; Reichenbach v. Haydock, 92 Mass. App. Ct. 567, 574
(2017) (clarifying that revised threshold burden depends upon
nature of claim and theory of liability). That is, while a
22
claim based on a mix of petitioning and nonpetitioning activity
would not be subject to a special motion to dismiss under our
prior Duracraft framework, this court's holding in Blanchard I,
supra at 155-156, now required that a claim based on both types
of conduct be "carefully parsed" by the motion judge, with the
portion based on petitioning activity subject to possible
dismissal, while the remainder of the claim is allowed to
proceed. See Haverhill Stem LLC v. Jennings, 99 Mass. App. Ct.
626, 634 (2021).
This change from the Duracraft framework called for motion
judges to sift through each individual count, with an eye toward
the type of claim at issue, in order to identify whether the
petitioning activity could, standing alone, support the
underlying cause of action. See Reichenbach, 92 Mass. App. Ct.
at 574. Doing so has proven to be a difficult and onerous task,
and one that is not a traditional judicial function, as judges
are not ordinarily expected to redraft parties' pleadings. See,
e.g., id. at 575-576. See also Mmoe v. Commonwealth, 393 Mass.
617, 620 (1985) (observing that "[p]leadings must stand or fall
on their own," as courts do not have "the power to fashion
procedures in disregard of the Massachusetts Rules of Civil
Procedure"); Granahan v. Commonwealth, 19 Mass. App. Ct. 617,
620 (1985). This difficulty remains even where the factual
allegations are relatively simple, as the analysis called for
23
under Blanchard I may vary depending on the nature of the claim
at issue and the theory of liability advanced in the complaint.
See Reichenbach, supra.
The second major change set forth in Blanchard I, 477 Mass.
at 159-161, articulated an alternative means by which a special
motion opponent could defeat the special motion, and has proven
to be even more difficult to apply and controversial in its
application. See Nyberg v. Wheltle, 101 Mass. App. Ct. 639,
654-655 (2022). Under this so-called "second path," the
opponent must show, "such that the motion judge may conclude
with fair assurance," that the opponent's claims are "colorable"
and were not raised for the primary purpose of chilling the
special motion proponent's legitimate petitioning activity.
Blanchard I, supra at 160-161. Making this determination "rests
within the exercise of the judge's sound discretion" and is
reviewed for an abuse of discretion or error of law. Blanchard
II, 483 Mass. at 203, 207.
In assessing an opponent's showing under this second path,
we stated that "the judge may consider whether the case presents
as a 'classic' or 'typical' SLAPP suit, i.e., whether it is a
'lawsuit[ ] directed at individual citizens of modest means for
speaking publicly against development projects'" (citation
omitted). Id. at 206. We also identified numerous other
factors that may be relevant:
24
"by way of example, whether the lawsuit was commenced close
in time to the petitioning activity; whether the anti-SLAPP
motion was filed promptly; the centrality of the challenged
claim in the context of the litigation as a whole, and the
relative strength of the [special motion opponent]'s claim;
evidence that the petitioning activity was chilled; and
whether the damages requested by the [special motion
opponent], such as attorney's fees associated with an abuse
of process claim, themselves burden the [special motion
proponent]'s exercise of the right to petition" (footnotes
omitted).
Id. at 206-207.
As demonstrated by the briefing in this appeal, the
submissions from all the amici, and the feedback by way of
recent jurisprudence from appellate justices concerning the
second path, it has become clear that the second path presents
numerous problems. It strays from the statutory language. See
G. L. c. 231, § 59H. It shifts the focus to the motives of the
special motion opponent, which must be determined based on
documentary evidence alone. See Nyberg, 101 Mass. App. Ct. at
654-655 (pointing out difficulty motion judge will have
"discern[ing] a party's primary motivation" for bringing suit,
on basis of documentary evidence alone, and without "a more
complete evidentiary record scrutinized through cross-
examination"). And it involves consideration of an open-ended
list of factors, thereby inviting subjective, if not
unpredictable, decision-making. See, e.g., id. at 656
(upholding allowance of special motion to dismiss, despite
25
observing that "a different judge may have reached a different
result" in conducting "second path" analysis).
This additional complexity further serves to lengthen the
amount of time it takes for parties to litigate a special motion
to dismiss, and for motion judges to rule on them. See
Krimkowitz v. Aliev, 102 Mass. App. Ct. 46, 47 (2022)
("Typically, rulings on special motions to dismiss under the
anti-SLAPP statute run many pages and require difficult legal
analysis"). Thus, the resolution of these motions may span
years and result in significant attorney's fees. See Exxon, 489
Mass. at 728 n.5, and cases cited. All the while, discovery in
the case is automatically stayed. See G. L. c. 231, § 59H,
third par. And because the statute requires that the resolution
of such motions must be prioritized, the current anti-SLAPP
framework has a significant impact on a trial court's ability to
manage its docket in an orderly and efficient manner. See
Exxon, supra. In short, while special motions to dismiss were
designed to "be resolved quickly with minimum cost to citizens
who have participated in matter of public concern," resolution
under the augmented framework has become anything but.
Duracraft, 427 Mass. at 161, quoting 1994 House Doc. No. 1520.
Accordingly, for all these reasons we eliminate the second path
set out in Blanchard I and Blanchard II.
26
We also overrule the additional requirement set forth in
Blanchard I, 477 Mass. at 155-156, and further explicated in
Reichenbach, 92 Mass. App. Ct. at 574, that the motion judge
parse the factual allegations underlying each claim to determine
whether a portion of the opponent's cause of action could be
construed as being based on the proponent's petitioning alone.
We begin with the recognition that "the statute does not create
a process for parsing counts to segregate components that can
proceed from those that cannot." Ehrlich, 74 Mass. App. Ct. at
536. Engaging in such parsing has likewise significantly
complicated and delayed the resolution of these cases.
Furthermore, as this court cautioned in Duracraft, 427 Mass. at
166-167, we must always be aware that both proponents and
opponents of special motions to dismiss are engaged in
petitioning activity, requiring courts to proceed cautiously
when the protection of a proponent's petitioning activity
interferes with an opponent's own legitimate petitioning
rights.15
Both sides have a right to file suit, i.e., petition, for
15
the redress of grievances. See Sahli v. Bull HN Info. Sys.,
Inc., 437 Mass. 696, 700–701 (2002) (acknowledging
"constitutional right to seek judicial resolution of disputes
under the First Amendment to the United States Constitution and
art. 11 of the Massachusetts Declaration of Rights" [footnotes
omitted]).
27
Mixed claims, that is, those based on a proponent's
petitioning along with substantial conduct other than or in
addition to the petitioning activities, inevitably involve an
inquiry into both sides' legitimate petitioning rights. See id.
And any citizen, including an opponent of a special motion to
dismiss, certainly has a right to sue over matters not involving
the proponent's petitioning rights. Such suits are exercises of
the opponents own right of petition. See Sahli v. Bull HN Info.
Sys., Inc., 437 Mass. 696, 700–701 (2002). Thus, as we explain
in more detail below, the parsing of claims involving a mixture
of petitioning and other matters is best addressed in the course
of ordinary litigation, where both sides' claims and defenses
can be fully analyzed based on a more complete record, not
special motions to dismiss.
b. Simplified anti-SLAPP framework. As we seek to clarify
the anti-SLAPP framework, we recognize, as always, that our
primary duty is to effectuate the intent of the Legislature.
See Exxon, 489 Mass. at 726. We seek to discern this intent, in
the first instance, from the words contained in the statute,
"construed by the ordinary and approved usage of the language,
considered in connection with the cause of its enactment, the
mischief or imperfection to be remedied and the main object to
be accomplished" (citation omitted). Id. At the same time, a
statute must be construed, "when possible, to avoid
28
unconstitutionality, and to preserve as much of the legislative
intent as is possible in a fair application of constitutional
principles" (citation omitted). Duracraft, 427 Mass. at 167.
i. Stage one: scope of applicability of special motion to
dismiss. As is apparent from the plain language of § 59H, the
special motion to dismiss is strong medicine. It offers a party
the prospect of having the claims filed against it dismissed --
regardless of the merits of those claims and regardless that the
filing of those claims is itself a petitioning activity -- as
well as a mandatory award of attorney's fees, under a very
favorable statutory standard: presumptive entitlement to
dismissal, unless the opposing party can prove a negative. See
G. L. c. 231, § 59H ("The court shall grant such special motion,
unless the party against whom such special motion is made shows
that . . . the moving party's exercise of its right to petition
was devoid of any reasonable factual support or any arguable
basis in law . . ."). And irrespective of the outcome, the mere
act of filing the special motion stays discovery and prioritizes
resolution of the motion over the rest of the case. See id.
We thus conclude, as we originally did in Duracraft, 427
Mass. at 166-168, that these powerful procedural protections
were intended to be employed in a limited context: to ensure
the expeditious elimination of meritless lawsuits based on
petitioning activities alone. To prevent the misapplication of
29
§ 59H, this court in Duracraft adopted a necessarily narrow and
strict construction of the statute, which we return to today.
In particular, the narrow construction of the term "based on"
articulated in Duracraft appropriately established a threshold
showing that remains a necessary part of a simplified anti-SLAPP
framework, and ensures that an opponent's own petitioning
activity is not infringed by the allowance of a special motion
to dismiss. See id. at 167.
Accordingly, under the simplified framework we set forth
today (and as was the case prior to Blanchard I), a proponent of
a special motion to dismiss under § 59H must "make a threshold
showing through the pleadings and affidavits that the claims
against it are 'based on' the [party's] petitioning activities
alone and have no substantial basis other than or in addition to
the petitioning activities." Id. at 167-168. Thus, to survive
this first stage, the proponent must show that the challenged
count has no substantial basis in conduct other than or in
addition to the special motion proponent's alleged petitioning
activity. If the proponent cannot make the requisite threshold
showing, the special motion to dismiss is denied. If the
threshold showing is made, the second stage of analysis follows
(more on this below).
Importantly, this return to the traditional analysis at the
threshold stage does not mean that a special motion proponent
30
will be held liable for exercising his or her constitutional
right to engage in legitimate petitioning activity merely
because the special motion opponent advances a claim that is
based only in part on said petitioning activity. Such
petitioning may still be entitled to protection from liability
under the State and Federal Constitutions16 as the case proceeds
according to the ordinary litigation process. See Sahli, 437
Mass. at 702–703 (concluding, upon review of summary judgment
ruling, that "although the interest in remedying discrimination
is weighty, it is not so weighty as to justify what amounts to
an absolute restriction on an employer's right to petition the
courts"). See also Professional Real Estate Investors, Inc. v.
Columbia Pictures Indus., Inc., 508 U.S. 49, 57 (1993) (holding
that petitioning activity with objectively reasonable basis is
immunized from antitrust liability). Cf. Snyder v. Phelps, 562
U.S. 443, 451-452, 458 (2011) (defendants could not be held
civilly liable for picketing because statements involved matter
of public concern and were therefore entitled to special
protection under free speech clause of First Amendment).
Rather, returning to the traditional Duracraft analysis at
the threshold stage, which denies special motions to dismiss for
16Both the First Amendment to the United States
Constitution and the Massachusetts Declaration of Rights provide
a right to petition. See Sahli, 437 Mass. at 700-701. See also
Blanchard I, 477 Mass. at 158 n.24, and cases cited.
31
claims that have a substantial basis in addition to petitioning
activity, and addresses the legitimacy of the petitioning
activity implicated therein later on, in the ordinary course of
litigation, simply ensures that the incredibly powerful
procedural protections of the special motion to dismiss are
appropriately reserved for the narrow category of meritless
SLAPP claims that the Legislature sought to target -- namely,
those based solely on legitimate petitioning activity. See
Ehrlich, 74 Mass. App. Ct. at 537.17 Such an approach better
serves to eliminate meritless SLAPP claims quickly, "removes the
unwarranted intimidation or punishment produced by the claim's
very existence," and "leaves to substantive law," and the
ordinary course of litigation, "the task of sorting out rights
and responsibilities bound up in any surviving counts." Id.
ii. Stage two: standard for determining whether special
motion opponent has met burden to defeat special motion to
dismiss. Where a special motion proponent has met this
threshold burden, the statute requires allowance of the special
motion to dismiss, "unless the [special motion opponent] shows"
17In light of our holding, the appellate jurisprudence
prior to Blanchard I concerning mixed claims remains sound. See
Ehrlich v. Stern, 74 Mass. App. Ct. 531, 536 (2009). In setting
forth a simplified anti-SLAPP framework, we similarly do not
upend our jurisprudence concerning other aspects of the
threshold inquiry. See Blanchard I, 477 Mass. at 153 & n.19
(summarizing existing threshold burden under Duracraft and its
progeny and citing relevant cases).
32
that the special motion proponent's exercise of its right of
petition "was devoid of any reasonable factual support or any
arguable basis in law" and (2) "caused actual injury to the
[special motion opponent]." G. L. c. 231, § 59H. We have thus
far provided relatively limited guidance on the practicalities
of how to determine whether petitioning activity is devoid of
any reasonable factual support or any arguable basis in law when
assessing a special motion to dismiss. See 477 Harrison Ave.,
LLC v. Jace Boston, LLC, 477 Mass. 162, 173 (2017) (Harrison),
S.C., 483 Mass. 514 (2019) (characterizing determination as
"little-discussed second-stage burden").
We begin with the recognition that proving petitioning is
"devoid" of any reasonable factual support or any arguable basis
in law is a difficult task and one that the statute imposes on
the special motion opponent. In Baker v. Parsons, 434 Mass.
543, 553-554 (2001), we expressly held that the special motion
opponent "is required to show by a preponderance of the evidence
that the [special motion proponent] lacked any reasonable
factual support or any arguable basis in law for its petitioning
activity." The difficulty of making this showing was further
clarified in Benoit v. Frederickson, 454 Mass. 148, 149-151
(2009), where the petitioning activity consisted of the
reporting of an alleged rape to police, and the record contained
competing affidavits as to whether the rape had, in fact,
33
occurred. In discussing the nature of the special motion
opponent's burden, we explained:
"The question to be determined by a judge in deciding a
special motion to dismiss is not which of the parties'
pleadings and affidavits are entitled to be credited or
accorded greater weight, but whether the [special motion
opponent] has met its burden (by showing that the
underlying petitioning activity by the [special motion
proponents] was devoid of any reasonable factual support or
arguable basis in law, and whether the activity caused
actual injury to the [special motion opponent])."
Id. at 154 n.7. We emphasized that the "mere submission of
opposing affidavits by the [special motion opponent] could not,"
in this case involving conflicting affidavits as to whether a
rape had occurred, "have established that the [special motion
proponents'] petitioning activity," i.e., her report of the rape
to police, was devoid of any reasonable factual support or any
arguable basis in law. See id.18 See also Blanchard I, 477
Mass. at 156 n.20 (proving that petitioning activity was
illegitimate presents "high bar" for special motion opponent).
As material, disputed credibility issues may not be
resolved in the special motion opponent's favor, see Baker, 434
Mass. at 553, the evidentiary support in favor of the special
motion proponent's petitioning activity must be quite limited in
18To the extent we suggested otherwise in Baker v. Parsons,
434 Mass. 543, 553 (2001), we clarify that the mere existence of
an isolated "untrue" or "misleading" statement would not, in and
of itself, mean that the petitioning activity was devoid of any
reasonable factual support or arguable basis in law.
34
order for a special motion opponent to satisfy the "devoid of
any reasonable factual support" standard. The legal basis for a
special motion proponent's petitioning activity likewise need
only be "arguable." See G. L. c. 231, § 59H.
That being said, when the special motion opponent has
submitted evidence and argument challenging the reasonableness
of the factual and legal basis of the petitioning, a special
motion proponent cannot merely rely on speculation, conclusory
assertions, or averments outside of its personal knowledge for
the court to identify reasonable support. See, e.g., Gillette
Co. v. Provost, 91 Mass. App. Ct. 133, 138 (2017) (no reasonable
basis where special motion opponent provided detailed
evidentiary support, and, "[t]o counter [opponent's] evidentiary
proffer, [proponent] submitted a single declaration" with
conclusory assertion that petitioning activity had been filed
for legitimate, good-faith purpose).
The cases in which we have determined that no reasonable
factual support or arguable legal basis existed for the
petitioning provide helpful guidance on this point. In
Harrison, 477 Mass. at 174, for example, this court held that
there was no reasonable basis for an application for a criminal
complaint alleging trespass where the complaint was dismissed
for lack of probable cause and had been filed "after a Superior
Court judge explicitly granted the [special motion opponent] the
35
affirmative right to trespass on the [special motion
proponent's] property to protect it from damage." We determined
that "[t]he combination of the lack of probable cause finding
and the Superior Court order supplies the requisite
preponderance of the evidence in favor of the conclusion that
the criminal complaint lacked any reasonable basis in fact or
law." Id.
We reached a similar conclusion in Van Liew v. Stansfield,
474 Mass. 31, 39–40 (2016), where the special motion proponent's
petitioning activity consisted of an application for a
harassment prevention order. Because this application did not
contain three or more acts of harassment, as required under
G. L. c. 258E, §§ 1 and 3, the special motion proponent was not
entitled to issuance of the harassment prevention order.19 As a
result, and as the special motion opponent showed in accordance
with his burden to do so, we concluded that the petitioning
activity (i.e., the application for a harassment prevention
order) was "devoid of any reasonable factual support or any
arguable basis in law." Id. at 39, quoting G. L. c. 231, § 59H.
19The special motion proponent had sought a harassment
prevention order on the specific basis of alleging that the
special motion opponent had engaged in "three or more acts of
willful and malicious conduct," as defined in G. L. c. 258E,
§ 1. See Van Liew v. Stansfield, 474 Mass. 31, 36-39 (2016).
36
Various other cases provide additional examples of this
analysis. See Gillette Co., 91 Mass. App. Ct. at 138-139;
Maxwell v. AIG Dom. Claims, Inc., 72 Mass. App. Ct. 685, 696
(2008) (no reasonable factual support for allegation of workers'
compensation fraud was provided by innocuous observations or
assertions that "record shows was flatly incorrect"); Garabedian
v. Westland, 59 Mass. App. Ct. 427, 434 (2003) (special motion
proponents' efforts to prevent special motion opponent from
bringing fill onto his land were devoid of reasonable factual
support or arguable legal basis where there "was no showing of a
basis, in the by-laws of Southborough or elsewhere, to regulate
the kind of land filling" that opponent was conducting).
Analogous case law is also informative on how to apply the
no "reasonable factual support or arguable basis in law"
standard. Most notably, our jurisprudence has tended to "equate
the standard under the anti-SLAPP statute with the concept of
frivolousness." Demoulas Super Mkts., Inc. v. Ryan, 70 Mass.
App. Ct. 259, 267 (2007), and cases cited ("Though we
acknowledge that the two statutory standards are not linguistic
mirrors of each other, we are persuaded that they resolve the
same essential question"). And as we explained in Fronk v.
Fowler, 456 Mass. 317, 329 (2010), "[a] claim is frivolous if
there is an absence of legal or factual basis for the claim, and
if the claim is without even a colorable basis in law"
37
(quotations and citations omitted).20 Compare Baker, 434 Mass.
at 555 n.20, citing Donovan v. Gardner 50 Mass. App. Ct. 595,
600 (2000) (mere fact that petitioning activity was not resolved
in special motion proponent's favor "does not mean no colorable
basis existed" to support petitioning). Cf. Marengi v. 6 Forest
Rd. LLC, 491 Mass. 19, 29-30 (2022) (construing bond provision,
which prohibits award of costs "unless" court determines
appellant "acted in bad faith or with malice" in bringing
appeal, to require showing that appeal "appears to be so devoid
of merit as to allow the reasonable inference of bad faith or
malice" [citation omitted]).
iii. Standard of review. Finally, we take this
opportunity to clarify the appropriate standard of review on
appeal. Although we have previously stated, in passing, that
rulings on special motions to dismiss are reviewed for an abuse
of discretion or error of law, see Baker, 434 Mass. at 550;
McLarnon v. Jokisch, 431 Mass. 343, 348 (2000), subsequent
decisions have effectively engaged in de novo review, at least
as to the special motion proponent's threshold burden, see
Reichenbach, 92 Mass. App. Ct. at 572; Blanchard v. Steward
Carney Hosp., Inc., 89 Mass. App. Ct. 97, 112-113 (2016)
20We further explained in Fronk v. Fowler, 456 Mass. 317,
329 (2010), that "[t]he proper vantage point for evaluating
whether a claim is frivolous is from the time the claim was
brought and over the course of the litigation."
38
(Sullivan, J., concurring in the result), S.C., 477 Mass. 141
(2017), and 483 Mass. 200 (2019), and cases cited. We now
conclude that de novo review is required for both stages of our
inquiry. We do so because both stages of our framework require
resolution of legal questions based entirely on a documentary
record, for which "no special deference" is owed to a motion
judge. Board of Registration in Med. v. Doe, 457 Mass. 738, 742
(2010). Cf. Dartmouth v. Greater New Bedford Regional
Vocational Tech. High Sch. Dist., 461 Mass. 366, 373 (2012).
At the first stage, a court need only conduct a facial
review of a special motion opponent's pleading to identify which
factual allegations serve as the basis for a particular claim.21
Compare Dartmouth, 461 Mass. at 373 ("In reviewing the allowance
of a motion to dismiss under Mass. R. Civ. P. 12 [b] [6], we
examine the same pleadings as the motion judge and therefore
21We recognize that a motion judge may need to look to
other documents in the anti-SLAPP record to determine whether
these factual allegations fall within the statutory definition
of petitioning activity. This is an objective assessment to be
made based upon the documents before the motion judge, without
resort to judicial fact finding. Compare Blanchard I, 477 Mass.
at 149-151 (content of statements, and manner in which they were
issued, established "plausible nexus" between statements and
government proceeding, so as to constitute petitioning
activity), with Cadle Co. v. Schlichtmann, 448 Mass. 242, 250-
252 (2007) (party's "self-serving characterization" of website
did not alter court's analysis of whether statements on website
constituted petitioning activity where "[t]here is nothing in
the record to refute" conclusion that website had been created
to generate business).
39
proceed de novo"), with Reichenbach, 92 Mass. App. Ct. at 572
("Because the first stage of the Duracraft analysis is, like the
analysis of an ordinary motion to dismiss . . . directed to
examining the allegations of the complaint, our review is fresh
and independent, i.e., de novo" [quotation and citation
omitted]).
At the second stage, a motion judge likewise relies on a
documentary record, without resolving credibility disputes, and
thus, as with the first stage, no deference is required. See
Doe, 457 Mass. at 742. Cf. Adams v. Schneider Elec. USA, 492
Mass. 271, 288-289 (2023) (rulings on motions for summary
judgment are subject to de novo review, requiring court to
"determine judgment as a matter of law based on all uncontested
evidence, that is, evidence favoring the nonmovant and
'uncontradicted and unimpeached' evidence favoring the movant").
Both stages thus involve application of a legal standard to
documentary evidence alone. See Harrison, 477 Mass. at 176 n.15
(ruling on special motion to dismiss, which concerns whether
petitioning activity "falls within the protective ambit of the
anti-SLAPP statute," presents question of law). This is a
decision ordinarily subject to de novo appellate review. See
Robinhood Fin. LLC v. Secretary of the Commonwealth, 492 Mass.
696, 707 (2023) (questions of law are subject to de novo review
on appeal). See also Commissioner of Revenue v. Comcast Corp.,
40
453 Mass. 293, 302 (2009).22 The substantive legal questions
being decided are also not comparable to prototypical examples
of issues that we review for an abuse of discretion, such as the
resolution of evidentiary decisions, or trial management
judgment calls. See, e.g., Matter of Brauer, 452 Mass. 56, 73
(2008) (decision whether to grant continuance generally lies
within sound discretion of trial judge); Carrel v. National Cord
& Braid Corp., 447 Mass. 431, 446 (2006) (general evidentiary
determinations, such as whether evidence is relevant or whether
danger of unfair prejudice substantially outweighs its probative
value, are questions left to sound discretion of trial judge);
Goldstein v. Gontarz, 364 Mass. 800, 814 (1974) ("Permission to
use a blackboard as a graphic aid is discretionary with the
trial judge . . ."). Accordingly, we conclude that rulings on
anti-SLAPP motions are appropriately subject to de novo review.
4. Application of simplified anti-SLAPP framework to
instant case. Having clarified the relevant standards for our
22We further note that, where a party seeks appellate
review of a decision concerning the award of fees and costs
under G. L. c. 231, § 6F, for the advancement of frivolous
claims, the single justice conducts de novo review of whether
the claims at issue were frivolous. See Fronk, 456 Mass. at
327. But see id. at 336 (award of appellate fees under G. L.
c. 211A, § 15, and Mass. R. A. P. 25, which is not mandatory in
same way as award under § 6F, receives more discretionary review
on appeal).
41
anti-SLAPP framework going forward, we now apply it to the
circumstances of the instant case.
a. Todesca litigants' threshold burden. Here, there is no
dispute that the special motion proponents in this case, the
Todesca litigants, have met their threshold burden. All of the
claims at issue are based solely on the Todesca litigants'
administrative and legal challenges to regulatory decisions
approving the Bristol litigants' proposed asphalt plant.23 This
is quintessential petitioning activity. See Duracraft, 427
Mass. at 161–162; Dever v. Ward, 92 Mass. App. Ct. 175, 179
(2017).
The Bristol litigants do not contest this, but argue that
the anti-SLAPP statute should nonetheless be deemed inapplicable
because the Todesca litigants are not citizens of modest means,
but business competitors who have invoked the special motion to
dismiss as one additional strategic tactic in a larger series of
anticompetitive legal maneuvers. However, neither a special
motion proponent's identity, nor the motive behind its decision
to engage in petitioning activity (or to file a special motion
23Although not all the Todesca litigants appear to have
been involved in each of the petitioning activities, the Bristol
litigants have not argued that any particular special motion
proponent lacks sufficient connection to the petitioning at
issue to be able to invoke the statute's protections. See
generally Kobrin v. Gastfriend, 443 Mass. 327, 338 (2005).
Accordingly, we do not address the issue.
42
to dismiss), is relevant to the threshold inquiry. See Office
One, Inc., 437 Mass. at 121–122.
b. Bristol litigants' burden to show petitioning activity
was devoid of reasonable support. Because the Todesca litigants
met their threshold burden, we now consider whether the Bristol
litigants have shown by a preponderance of the evidence that the
petitioning activities lacked any reasonable factual support or
arguable legal basis. See G. L. c. 231, § 59H. We assess each
petitioning activity in turn.
i. Legitimacy of challenges to site plan approval. We
first consider the basis for the Todescas' challenges to the
site plan approval. To meet their burden as special motion
opponents, the Bristol litigants provided the motion judge with
the memorandum of decision of the Land Court as well as the
unpublished decision of the Appeals Court concerning the site
plan approval. Looking to the contents of these materials, they
reveal that the Todescas' challenges were premised upon two
legal theories: (1) that the proposed asphalt plant did not
constitute a use that was permitted "as of right" in the
industrial district; and (2) that, regardless of whether the
asphalt plant was permitted as of right, operation of the plant
would create problems so significant as to violate the standards
for site plan approval under the town's zoning bylaws.
43
A. Arguments that proposed asphalt plant was not use
permitted as of right in industrial district. We evaluate the
Todescas' first basis for challenging the site plan approval --
the contention that the asphalt plant was not a use permitted as
of right -- by turning to the applicable town zoning bylaw. As
indicated, the proposed site of the asphalt plant was located
within an industrial district, which the bylaws define as
permitting the following uses as of right: "[m]anufacturing,
industrial or commercial uses including processing, fabrication,
assembly and storage of materials," provided that "no such use
is permitted which would be detrimental or offensive or tend to
reduce property values in the same or adjoining district."
Rochester bylaws § IV(D)(1), as amended May 18, 2009.
Accordingly, an industrial use of the land would not be
considered a use permitted "as of right" under this definition
if such a use would necessarily carry with it effects that are
"detrimental," "offensive," or tending to reduce property values
in the area.
The Land Court judge's memorandum of decision indicates
that the Todescas presented "no evidence" of any detrimental or
offense effects "inherent in an asphalt plant use as opposed to
any other industrial use" (emphasis in original). Nor did the
Todescas present "any evidence" that an asphalt plant would tend
to reduce property values in the industrial district, or in an
44
adjoining district. Indeed, the Todescas' own asphalt plant was
approved under the very same bylaws in the very same industrial
district, on an adjacent parcel of land. And, as the Land Court
judge noted, there was "no evidence that the Asphalt Plant
proposed by [the Bristol litigants] would be appreciably
different, or more intense in character," than any of the
existing industrial uses in the area, including the operation of
Todescas' own asphalt plant. To the contrary, "the evidence
indicate[d] that the [Bristol litigants'] proposed Asphalt Plant
would be a smaller and less intense bituminous processing use"
than the Todescas' neighboring plant. Accordingly, we conclude,
as did the Appeals Court, that this challenge to the site plan
approval was advanced without reasonable factual support or an
arguable legal basis. See SCIT, Inc. v. Planning Bd. of
Braintree, 19 Mass. App. Ct. 101, 105 n.12 (1984) ("if the
specific area and use criteria stated in the by-law were
satisfied, the board did not have discretionary power to deny a
permit, but instead was limited to imposing reasonable terms and
conditions on the proposed use").
B. Arguments that, insofar as use was permitted as of
right, site plan nonetheless violated applicable bylaws. The
remaining basis for the Todescas' challenge was the theory that,
even to the extent that the site plan involved a use permitted
as of right in the industrial district, the proposed asphalt
45
plant would create noise and traffic problems so significant as
to necessitate denial of the site plan under the town's zoning
bylaws. See Prudential Ins. Co. of Am. v. Board of Appeals of
Westwood, 23 Mass. App. Ct. 278, 283 (1986) (where site plan
approval involved use permitted as of right, inquiry was limited
to whether proposal created problem that was "so intractable
that it could admit of no reasonable solution"). To evaluate
whether this argument was colorable, we look first to the
applicable bylaws governing site plan approval and denial.
The town's zoning bylaws specify that site plans involving
building construction shall be designed, inter alia, to
"[m]aximize pedestrian and vehicular safety both on the site and
egressing from it" and "[c]onform with State and local sound
regulations." Rochester bylaws § XVI(1.4)(7),(14), as amended
Oct. 24, 2005. The bylaws further authorize the planning board
to impose conditions to ensure that these considerations "have
been reasonably addressed" by the site plan applicant. Id. A
site plan will be denied if it "has not met these standards for
review and reasonably addressed the conditions" contained
therein, or is otherwise "so intrusive on the needs of the
public in one regulated aspect or another" that "no form of
reasonable conditions can be devised to satisfy the problem with
the [site] plan." Rochester bylaws § XVI(1.3)(3),(4), as
amended Oct. 24, 2005.
46
With regard to noise, the Todescas supplied a study they
had commissioned from a private consultant that projected that
the plant would generate noise levels in excess of State
regulations. With regard to traffic, the Todescas offered
testimony, from an expert who had never previously studied the
operations of a bituminous facility, that it was possible a
queue of up to seven trucks could develop in the driveway of the
asphalt plant. Based on an assumption supplied by the Todescas
that every truck entering the site would be fifty-two feet long,
rather than an independent study of proposed site conditions,
the expert opined that the last truck in the queue would spill
over onto Kings Highway, "causing a potentially unsafe traffic
condition." The expert further opined that the Bristol
litigants' plan for addressing possible spillover by maneuvering
trucks to the rear of the site was "unworkable."
The question now before us is whether this amounted to
reasonable factual support or an arguable legal basis for
challenging the site plan approval. We conclude that it did
not. Here, the planning board's approval of the site plan was
already squarely conditioned on addressing the very concerns
about noise and traffic that the Todescas later asserted had not
been, and could not be, reasonably addressed. The planning
board not only conditioned site plan approval on the requirement
that the asphalt plant comply with State and local noise
47
restrictions, but also required that the Bristol litigants hire
a noise monitoring consultant to submit seasonal reports to
ensure compliance. Further, irrespective of the testimony
offered by the Todescas' expert that the queue of driveway
traffic could potentially result in one truck lacking sufficient
space to join the queue on the property, which was based on
unsupported assumptions, the planning board had already
conditioned approval of the site plan on prohibiting trucks from
parking along Kings Highway. The planning board further
required that the Bristol litigants "coordinate with the [t]own
to install the necessary signage to enforce this restriction,"
along with imposing numerous other traffic-related conditions.24
Thus, even assuming, arguendo, that a single truck found itself
unable to enter the driveway, it would not be permitted to idle
on Kings Highway, obviating the basis for the Todescas'
contention about an "intractable" traffic problem. See
Prudential Ins. Co. of Am., 23 Mass. App. Ct. at 283.
24Other traffic-related conditions imposed by the planning
board included the installation of a "No Right Turn" sign
opposite the exit driveway on Kings Highway; the construction of
the driveway at an angle to accommodate traffic entering from
the north; the installation of "Trucks Entering" and "No Jake
Breaks" signs along Kings Highway; and the provision of copies
of the rules regarding truck operation to the planning board, as
well as all drivers, contractors, and clients of the Bristol
litigants.
48
Finally, while the bylaws contemplate that a site plan may
be denied if an applicant has not "reasonably addressed the
conditions" imposed by the planning board, there is nothing in
the memorandum of decision by the Land Court or the unpublished
decision by the Appeals Court to indicate that the Todescas
presented any evidence suggesting that the Bristol litigants
would not or could not comply with the above-mentioned
conditions imposed by the board. The only additional evidence
we have before us, offered by the Todesca litigants in support
of their special motion to dismiss, is Albert Todesca's
affidavit stating that he had "good faith legal and factual
bases" for challenging the site plan approval. This conclusory
averment fails to supply reasonable factual support. See
Gillette Co., 91 Mass. App. Ct. at 138. Accordingly, the
Bristol litigants have met their burden of showing that this
petitioning activity was a sham. See Garabedian, 59 Mass. App.
Ct. at 434.
ii. Legitimacy of challenges to extension of order of
conditions. Next, we examine the legal challenges to the
extension of the order of conditions for the proposed asphalt
plant. The regulatory authority to extend or deny an order of
conditions is set forth in 310 Code Mass. Regs. § 10.05(8).
Pursuant to that provision, the commission "may deny the request
for an extension" in one of five enumerated circumstances. See
49
310 Code Mass. Regs. § 10.05(8)(b). The record before us
indicates that RBP provided no evidence as to the presence of
any of the five circumstances set forth in § 10.05(8)(b). RBP's
assertion that the commission retained the authority to deny the
extension request even if none of these circumstances applied --
without identifying any legal source from which this authority
would derive -- did not constitute an "arguable legal basis" for
challenging the commission's decision to extend the order of
conditions. Cf. Fronk, 456 Mass. at 335 ("Claims that are so
unmoored from law or fact are the very definition of 'frivolous'
. . ."). The Bristol litigants have thus met their burden of
showing that this petitioning activity was a sham as well.25
iii. Legitimacy of fail-safe petitions. Finally, we
address the two fail-safe petitions filed by the Todesca
litigants under 301 Code Mass. Regs. § 11.04(1).26 The
25As noted, Albert Todesca apparently sought to challenge
the order of extension in a separate set of unsuccessful
administrative appeals, and later sought judicial review of the
denial of those administrative appeals. See note 8, supra. In
their briefing before this court, the parties mention these
appeals only in passing. In light of our conclusion that the
defendants lacked a reasonable basis to challenge the order of
extension, the Bristol litigants have similarly met their burden
as to these administrative appeals.
26We note that the motion judge was provided with only the
EOEE orders denying the MEPA petitions, and not the MEPA
petitions themselves. The Todesca litigants have provided the
petitions in the addendum to their appellate brief, and in light
of the de novo standard of review discussed supra, we consider
50
applicable regulation permits ten or more citizens to file a
petition requesting "fail-safe review" of a project that does
not otherwise meet or exceed any thresholds for MEPA review,
provided certain requirements are met. See id. The decision
whether to grant such a request is left to the discretion of the
Secretary of Energy and Environmental Affairs. See id.
(Secretary "may require" MEPA review upon making certain
findings). See also Ten Persons of the Commonwealth v. Fellsway
Dev. LLC, 460 Mass. 366, 376 (2011) (citing 301 Code Mass. Regs.
§§ 11.03 and 11.04 as regulations that call for Secretary to
make "a purely discretionary determination"). Thus, the mere
fact that a fail-safe petition was denied, without more, would
not signify that it lacked legitimacy. See Wenger v. Aceto, 451
Mass. 1, 7 (2008). Nonetheless, the Bristol litigants have
sustained their burden in the circumstances of the instant case.
A fail-safe petition for MEPA review is required to "state
with specificity the Project-related facts" that the Todesca
litigants believe warrant MEPA review, including facts
indicating that such review is "essential to avoid or minimize
Damage to the Environment." 301 Code Mass. Regs. § 11.04(1).
Far from doing so, the first fail-safe petition relied on vague
assertions that the proposed plant would exacerbate the negative
them ourselves, rather than remanding the matter back to the
trial court.
51
impacts of other, unspecified "development in the area." By
failing to provide support that could meet the relatively low
threshold requirements of 301 Code Mass. Regs. § 11.04(1), the
first fail-safe petition lacked a reasonable basis. It is
readily apparent that this was also the case for the second
fail-safe petition, which, apart from identifying an existing
incineration facility in the area, relied on "virtually
identical" assertions as the first petition. Accordingly,
neither fail-safe petition constituted legitimate petitioning
activity.27
5. Conclusion. The denial of the Todesca litigants'
special motion to dismiss is affirmed, and the matter is
remanded to the Superior Court for further proceedings
consistent with this opinion.
So ordered.
27On appeal, the Todesca litigants do not appear to contest
that the Bristol litigants have met their burden of showing that
the petitioning activity caused actual injury. And indeed, the
Bristol litigants have met this burden by supplying an affidavit
from the manager and chief executive officer of Edgewood, Gerard
Lorusso, averring that the Bristol litigants have incurred over
$200,000 in legal expenses relating to the petitioning
activities between 2018 and 2020, and that the delays in opening
the asphalt plant have resulted in an estimated $11.9 million in
lost profits. See Van Liew, 474 Mass. at 40 (special motion
opponent's evidence that he incurred legal expenses to defend
against improper petitioning activity was sufficient to
demonstrate actual injury). See also Garabedian v. Westland, 59
Mass. App. Ct. 427, 434 (2003) (special motion opponent's delays
in completion of project to bring fill onto property constituted
actual injury).
Appendix.
Stage one:
DENY
proponent's
Has special motion proponent
special
shown that it was engaged in the No
motion to
exercise of its own right of
dismiss
petition, under G. L. c. 231,
opponent's
§ 59H?
claim.
Yes
Has special motion proponent
shown that the opponent's claim DENY
is based on this petitioning proponent's
No
activity alone, with no special
substantial basis other than or motion to
in addition to said petitioning dismiss.
activity?
Stage two: Yes
Has special motion opponent
ALLOW
shown, by a preponderance of the
No proponent's
evidence, that proponent's
special
petitioning activity was devoid
motion to
of any reasonable factual
dismiss.
support or any arguable basis in
law?
Yes
Has special motion opponent ALLOW
shown, by a preponderance of the proponent's
No
evidence, that petitioning special
activity caused the opponent motion to
actual injury? dismiss.
Yes
DENY proponent's
special motion to dismiss.