Search Site
Menu
SLAPP Suit

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.

Our Attorneys

Recent Twitter Posts

  • Unprecedented storms are slamming NJ – learn how to be the best advocate for your clients when the next flood hits.… https://t.co/TicH6iAjP0
    1 day ago
  • Trenton Water Works has removed 25 percent of lead pipes throughout its service area. https://t.co/KUvhMsJlvU
    2 weeks ago
  • Opposition grows to big warehouses in small NJ towns. https://t.co/CMjgYaPMRP
    2 weeks ago
  • Groups plead with Governor Murphy to stop plans for new gas-fired power plant along the Passaic River in Newark. https://t.co/0yODyXEI3C
    2 weeks ago

Recent Blog Posts

Registration for the NJSBA Flood Summit on January 26th

Register Now for NJSBA Flood Summit, January 26 9:00am to 11:30 via Zoom Stuart Lieberman, Esq. of Lieberman Blecher & Sinkevich PC will moderate the virtual CLE, which will train advocates on
Read More
Registration for the NJSBA Flood Summit on January 26th

Governor Murphy Blocks Vote on Passaic Valley Sewerage Commission for a More Indepth Review of Its Effects on the Environment

On January 13, 2022, Passaic Valley Sewerage Commission was to vote on a contract to build a $180 million back up generating power plant for its sewage treatment facility in
Read More
Governor Murphy Blocks Vote on Passaic Valley Sewerage Commission for a More Indepth Review of Its Effects on the Environment

Environmental Insurance Dispute to be Heard in New Jersey courts

On December 30, 2021 the Appellate Division of the Superior Court decided Getty Prop. Corp. v. St. Paul Fire & Marine Ins. Co. Getty Properties Corp. (“Getty”) filed an appeal
Read More
Environmental Insurance Dispute to be Heard in New Jersey courts

Governor Murphy’s NJDEP Proposes New Rule to Limit Carbon Dioxide Emissions

New Jersey Governor Phil Murphy’s administration proposed a new rule to combat greenhouse gas emissions, just before the start of his second term in office. The New Jersey Department of
Read More
Governor Murphy’s NJDEP Proposes New Rule to Limit Carbon Dioxide Emissions

In The Media

  • Gulf Coast Town Center facing foreclosure

    Naples Daily News, September 16, 2015

    Wells Fargo filed a lawsuit Sept. 8 against an affiliate of CBL & Associates, the owners of the decadeold, 1.2 million-square-foot mall in south Fort Myers for a $190.9 million unpaid loan. The center has 94 stores on 204 acres, with such anchors as Super Target, Belk, Best Buy, Dick’s Sporting Goods, Marshalls and Costco...

    Read More
  • Town liable for private company's leaking underground tanks, court rules

    NJ.com Jul 26, 2017

    CRANFORD -- A couple that owned a businesses in town and became sick from leaking underground tanks owned by an adjacent business can sue the township for damages because the tanks were partially ...

    Read More
  • Dark Waters: How a Class Action Catapulted NJ to Forefront of 'Forever Chemicals' Battle

    NJ Law Journal Jan 09, 2020

    As property owners become increasingly aware of PFAS contamination, and as individuals exposed to PFAS learn of the health risks associated with exposure, liability will likely affect entire supply chains.

    Read More
  1. 1
  2. 2
  3. 3
  4. 4
  5. 5
Contact Our Firm

Quick Contact Form