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Developer "Slapp" Suits Face Tough Going In Court

by Stuart Lieberman

A "Slapp" suit, which stands for "strategic litigation against public participation," is an easy and often relatively inexpensive device available for shutting up members of the public who voice opposition to a proposed development.

Slapp suits are not new. What is new are the various laws and court decisions which make it clear that Slapp suits are extremely disfavored.

Unless objectors are acting maliciously, they generally have a right to have their voice heard.

Take, for example, the Massachusetts' anti-Slapp law, which in part provides: "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 may bring a special motion to dismiss.

"The court shall advance such special motion, unless the party against whom such special motion is made shows that: (1) 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 (2) that the moving party's acts caused actual injury to the responding party..."

We all know what typically happens before this kind of suit is filed. A developer or other applicant seeks approval for a controversial project. Neighbors rally, causing delay, which equates to dollars in the minds of the often cash-starved applicant. Time is money, after all. Soon, it all starts to get a little too personal, and a Slapp suit follows.

There is a classic tension in these kinds of cases. The citizens want to object and have a First Amendment right to do so. On the other hand, the developers and other applicants do not want to get bogged down in sometimes, really perhaps often, baseless delay tactics. And for them, as I have already said, time is money.

What is a developer to do? So as to intimidate objectors, some developers have taken to filing Slapp suits. The purpose is simple: to shut down opposition so that the project will be uneventfully approved.

In New Jersey, a recent appeals court decision called LoBiondo v. Schwartz has reflected the state's strong disfavor of these kinds of suits.

In the LoBiondo case, at issue was a proposal to enlarge a beach house. While some might have enjoyed the amenities associated with a larger beach house, an adjoining property owner was outraged by the proposal. And she was not alone. The property owner and her "partners" made it their business to vocally oppose the project at every step of the way. It got ugly -- which is not unusual.

Keeping in mind the theme of this article, you can guess what happened next. The applicant filed a Slapp suit against the opponents. The allegations in the lawsuit were typical: defamation, emotional distress and business interference. What's more, this angry applicant did not just seek compensatory damages, the applicant also sought punitive damages, in other words, a damage award sufficient to "punish" the objectors for opening their mouths.

While the trial court allowed the case to proceed, the appeals court stopped the lawsuit dead in its tracks. The appeals court dismissed the lawsuit against the objectors and, what's more, allowed the objectors' counterclaims against the plaintiff to proceed. That was an enormous victory for the citizens group.

The appeals court saw this lawsuit for what it was: a Slapp suit and nothing more. And the court made it clear that Slapp suits are extremely disfavored. The public must be allowed to participate in public application processes, even if they do so loudly, and sometimes even abusively.

So as to punctuate the court's disdain for these kinds of suits, it allowed the objector's claim for abuse of process to go forward. Abuse of process is sort of the anti-Slapp tonic that can be used to counter improper Slapp suits.

This appears to be a national trend. People have a First Amendment right to participate in local land use decisions and no one can stop them. Overall, this has to be seen by most as a good direction in which we should continue to head. So, three cheers for the First Amendment and three boos to thin-skinned land use applicants.

For more articles by Stuart Leiberman, please press here.