Man Bites Dog: Real Estate Developer SLAPPs Objecting Abutters’ Claims

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A decision late last year from the Massachusetts Supreme Judicial Court (SJC), 477 Harrison Ave., LLC v. JACE Boston, LLC (pdf), gives real estate developers a surprising new weapon when confronted by litigious neighbors.

The dispute began in 2012, when the plaintiff developer obtained zoning relief to redevelop a residential property in Boston’s South End. After several years of legal challenges by abutting property owners, the developer abandoned that zoning relief and pursued a new project that appeared to require no zoning relief. When it turned out the developer’s new project did require zoning relief, the abutters seized the opportunity to appeal the new zoning relief as well.

While the abutters’ new appeal was pending, the developer filed a separate case against them alleging abuse of process and violations of the Massachusetts unfair trade practices statute, M.G.L. c. 93A (Chapter 93A). After the abutters’ efforts to dismiss the new case were rejected, they filed counterclaims

Breaking: Mass. SJC Overhauls SLAPP Statute Practice

The Supreme Judicial Court (SJC) today issued two decisions which together make important changes in how Massachusetts courts apply the often troublesome SLAPP statute, M.G.L. c. 231, § 59H, enacted in 1994. While of general application, the SLAPP statute often surfaces in disputes over real estate development.

Today’s decisions are dense and will require further study, but at first glance Blanchard v. Steward Carney Hospital, Inc. (pdf) is the more dramatic of the two. Massachusetts courts have long recognized that, as drafted, the reach of the SLAPP statute is not limited to classic SLAPP suits – weak or baseless cases brought primarily for the purpose of chilling a defendant’s legitimate “petitioning activity” – but extends to virtually any claim asserted in response to petitioning activity. After over 20 years of decisions construing the statute, Blanchard directly addresses this scope issue. As the SJC puts it, “[u]nder current case law, the inquiry ends without permitting confirmation that the fundamental