Allegaert v. Harbor View Hotel Owner LLC

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

volumes of the Official Reports. If you find a typographical

error or other formal error, please notify the Reporter of

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SJC-13788

LYNN ALLEGAERT, trustee,1 vs. HARBOR VIEW HOTEL OWNER LLC

& others.2

Dukes County. December 5, 2025. – March 25, 2026.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges,

Dewar, & Wolohojian, JJ.

"Anti-SLAPP" Statute. Practice, Civil, Motion to dismiss,

Counterclaim and cross-claim, Standing, Waiver.

Constitutional Law, Right to petition government. Zoning,

Board of appeals: decision, Special permit, Conditions,

Person aggrieved. Martha's Vineyard Commission. Waiver.

Civil action commenced in the Superior Court Department on

May 1, 2023.

A special motion to dismiss was heard by Elaine M. Buckley,

J.

After review by the Appeals Court, 105 Mass. App. Ct. 1123

(2025), the Supreme Judicial Court granted leave to obtain

further appellate review.

1 Of the Lynn Allegaert Revocable Trust.

2Town of Edgartown and zoning board of appeals of

Edgartown. When this matter was before the Appeals Court, the

municipal defendants filed a notice that they did not intend to

submit an appellate brief, and they have not submitted any

additional filings since the appeal was transferred to this

court.

2

A. Neil Hartzell (Ben N. Dunlap also present) for the

plaintiff.

Kevin P. O'Flaherty (Mariana Korsunsky also present) for

Harbor View Hotel Owner LLC.

The following submitted briefs for amici curiae:

Dana A. Curhan & Richard A. Goren for Jane Doe & another.

Kathleen M. Heyer for NAIOP Massachusetts, Inc.

Kimberly Kroha for Joseph Smith.

KAFKER, J. In Bristol Asphalt Co. v. Rochester Bituminous

Prods., Inc., 493 Mass. 539, 553 (2024) (Bristol Asphalt), this

court significantly revised the framework for analyzing special

motions to dismiss under our "anti-SLAPP" statute, G. L. c. 231,

§ 59H, and provided an extensive discussion of how it should be

properly applied. In the instant case, the analysis of both the

motion judge and the Appeals Court deviated from that guidance,

and we take this opportunity to clarify its proper application

here.

The defendant in this appeal, Harbor View Hotel Owner LLC

(Harbor View), asserted a counterclaim alleging that the

plaintiff, Lynne Allegaert, abused process by commencing the

underlying lawsuit.3 Allegaert responded by filing a special

motion to dismiss, pursuant to G. L. c. 231, § 59H, arguing that

3 At some point after April 2008, Allegaert transferred

ownership of her property to the Lynne Allegaert Revocable Trust

(trust), and the instant suit was commenced in Allegaert's

capacity as trustee for that trust. For simplicity, we shall

refer to the plaintiff as Allegaert, except where otherwise

noted.

3

the counterclaim targeted her for engaging in her constitutional

right to petition the courts. A judge in the Superior Court

(motion judge) denied Allegaert's motion. The motion judge

agreed that the abuse of process counterclaim was based solely

on Allegaert's act of petitioning the court, but concluded that

the counterclaim need not be dismissed because Allegaert's

petitioning activity (i.e., her lawsuit) was devoid of any

merit. Allegaert then appealed.

On appeal, the parties do not dispute that Allegaert met

her threshold burden of demonstrating that the abuse of process

counterclaim was based solely on her petitioning activity, or

that, pursuant to the Bristol Asphalt framework, the burden then

shifted to Harbor View to establish, by a preponderance of the

evidence, that Allegaert's lawsuit "was devoid of any reasonable

factual support or any arguable basis in law." Bristol Asphalt,

493 Mass. at 557, quoting G. L. c. 231, § 59H. The parties do,

however, dispute whether the motion judge misapplied that

standard, and whether Harbor View met its burden. When this

matter came before the Appeals Court, a panel of the court

stated that it could not "conclude at this stage of the

proceedings that Allegaert's claims lack any reasonable factual

support or any arguable basis in law" as the "challenged claims

in the lawsuit have not been resolved." See Allegaert v. Harbor

View Hotel Owner, LLC, 105 Mass. App. Ct. 1123 (2025)

4

(unpublished memorandum and order pursuant to Appeals Court Rule

23.0). In so doing, the panel short-circuited the required

analysis that we recently clarified in Bristol Asphalt.

Regardless of whether Allegaert's lawsuit remains ongoing,

it constitutes petitioning activity, and our anti-SLAPP statute

explicitly provides that a counterclaim targeting that act of

petitioning must be dismissed unless the petitioning activity

"was devoid of any reasonable factual support or any arguable

basis in law." G. L. c. 231, § 59H. As we explained in Bristol

Asphalt, this presents a significant hurdle. However, that

hurdle is not insurmountable, and we have provided guidance to

litigants about the ways in which this standard can be, and has

been, met in particular cases. See Bristol Asphalt, 493 Mass.

at 557-560, and cases cited.

Here, the party who filed the abuse of process

counterclaim, Harbor View, had the burden to make this showing

in order to defeat Allegaert's special motion to dismiss the

counterclaim. Because we conclude, unlike the motion judge,

that Harbor View has not demonstrated that all of the claims

raised in Allegaert's lawsuit are frivolous, Harbor View failed

to meet this burden. In doing so, we arrive at the same

conclusion as the Appeals Court panel, but apply the proper

5

analysis. Accordingly, we reverse the order of the Superior

Court denying the special motion to dismiss.4

1. Factual background. We recite the facts based upon the

pleadings and attached documentary evidence provided below,

reserving certain facts for our analysis. See Bristol Asphalt,

493 Mass. at 542.

This dispute concerns the planned construction of a new

cottage in connection with Harbor View's operation of a hotel on

Martha's Vineyard. The hotel, which first opened in 1891, is

located in an area of Edgartown (town) that was later zoned for

residential use, and the hotel is recognized as a preexisting

nonconforming commercial use. In 2008, Harbor View's

predecessor in interest, Scout Harbor View Property 1, LLC

(Scout), made plans to begin a significant renovation and

construction project on the property. As part of this project,

Scout intended to build additional cottages and expand the

footprint of the hotel campus. Toward that end, Scout applied

in 2008 for a special permit authorizing the expansion of the

preexisting nonconforming use of the property (2008

application).

At or around the same time Scout submitted the 2008

application, it also entered into an agreement with Allegaert,

4 We acknowledge the amicus briefs submitted by Joseph

Smith, Jane and John Doe, and NAIOP Massachusetts, Inc.

6

the owner of a residential property abutting the hotel.5 Under

the terms of the agreement, Scout agreed (inter alia) to

install, at its own expense, "a dense landscaping screen at a

height sufficient to block views" between Allegaert's property

and the new cottages prior to allowing any guest occupancy

therein, pursuant to a landscaping plan attached to the

agreement. The landscaping plan was to "be maintained in

perpetuity by [Scout], its successors and assigns." Scout also

agreed to "make all other reasonable efforts to ensure that the

construction and use of the [hotel] property . . . will not

cause any additional light pollution, noise pollution, allow

guests on the property views into [Allegaert]'s property or

otherwise infringe on [Allegaert]'s ability to quietly enjoy her

property." In exchange, Allegaert agreed to "support any and

all permitting by [Scout] for the property in the form of

[submitting] one letter of support" to the relevant permitting

authorities, including the Martha's Vineyard Commission

(commission) and the town's zoning board of appeals (board).

Allegaert, along with any "heirs, successors and assigns," also

agreed to waive "any and all rights of appeal from any"

permitting decision, "so long as the impacts from [Scout]'s

5 At some point after this agreement was signed, ownership

of the residential property was transferred to the trust. See

note 3, supra.

7

redevelopment and renovation plans as proposed for the [hotel]

are substantially the same, less than or reduced compared to the

impacts from those plans" as they were proposed to Allegaert.

The agreement further specified that it could "not be recorded

or registered without the written consent of both parties," and

that any dispute arising under the agreement would be subject to

binding mediation. Attached to the agreement was a copy of the

landscaping plan, which depicted the anticipated location of new

vegetative screening along the parties' shared property line and

in front of one of the new cottages, labeled "Cottage 11," which

later came to be known as Pease Cottage.6

In accordance with the terms of the agreement, Allegaert

submitted a letter supporting Scout's project to the commission

and testified at a public hearing on the matter. The commission

went on to issue a written decision approving the proposal, in

which it found, inter alia, that Scout had "worked with its

neighbors and . . . apparently addressed their concerns." The

commission imposed various conditions in connection with its

decision, including one that specified "landscaping shall

include extensive screening between the subject property and the

abutting properties to continue to provide its neighbors [sic]

6 The landscaping plan also depicts another cottage, labeled

"Cottage 10," in proximity to Allegaert's property. However,

plans to construct this cottage were abandoned in 2018.

8

privacy." Later the same year, the board voted to grant Scout's

application for a special permit (2008 special permit), and

incorporated all of the conditions contained within the

commission's decision (2008 decision).

In or around January 2018,7 Harbor View purchased the hotel.

Thereafter, Harbor View sought to change the planned

construction project in certain respects, and representatives of

Harbor View met with Allegaert to review the proposed

modifications. The revised plan called for the size of the

Pease Cottage to be increased by approximately 2,000 square

feet, along with various other changes. Harbor View submitted

an application to the board requesting to modify the special

permit to incorporate these proposed changes (2018 application),

and Allegaert once again provided a letter of support. On

August 15, 2018, the board voted to approve the 2018

application, thereby authorizing Harbor View's requested

modifications to the 2008 special permit (2018 decision). This

decision specified that the conditions imposed by the commission

in 2008 "are still in effect," in reference to (inter alia) the

7 The amended complaint alleges that Harbor View acquired

the hotel's assets on October 19, 2017. In its answer, Harbor

View admits that it acquired the property "as described" in this

paragraph of the amended complaint, but goes on to assert that

the "Hotel Property was purchased by its current ownership" in

January 2018. This minor discrepancy is immaterial to our

analysis.

9

condition requiring extensive screening of the hotel property

from abutting properties.

Nine months later, in May 2019, Allegaert noticed that the

existing vegetative screening along her property line with the

hotel, which served to block the hotel property from view of her

residence, had been removed. In a letter submitted to the

board, Allegaert indicated that while Harbor View agreed to

replant a "zig rag" row of arborvitae trees, only "one row of

small cedars spaced far apart" was initially installed, "but not

the second row [they] had agreed upon." After what Allegaert

described as a "very long and heated conversation" with the

owner of Harbor View, the owner eventually agreed to install the

second row of trees, although Allegaert's letter went on to

express concerns to the board relating to her "now exposed fence

line."

The following year, Harbor View submitted a request for a

second modification of the special permit (2020 application),

after a fire broke out that caused extensive damage to one of

the hotel buildings under renovation. The 2020 application

proposed, inter alia, that the planned location of the Pease

Cottage be moved approximately twenty-five to thirty feet to the

west and five to ten feet to the south, and that the square

footage of the building be reduced by 286 square feet. Unlike

in 2008 and 2018, when Allegaert had submitted letters of

10

support of the planned construction, she publicly voiced

opposition to the 2020 application in proceedings before the

board. At a public hearing, Allegaert requested that the board

require Harbor View to abide by the terms of the 2008 agreement,

and stated that, "without adequate screening[,] the Pease

Cottage will destroy her privacy and loom over her backyard

patio and pool." In response, a representative for Harbor View

told the board of the arborvitae trees that Harbor View had

already installed along its shared boundary with Allegaert's

property, and stated that he "was surprised and confused" by

Allegaert's comments. One member of the board went on to

express interest in learning more about Allegaert's screening

concerns, but the board declined to reopen the public portion of

the hearing and subsequently approved the modification (2023

decision). In voting to do so, one member of the board stated

that "he believed the Harbor View had done its best to screen

the property and ensure the privacy of its neighbors."

2. Procedural history. On May 8, 2023, Allegaert filed an

amended complaint seeking to appeal from the 2023 decision.

Allegaert's amended complaint also asserted claims against

Harbor View for breach of contract, nuisance, and infliction of

emotional distress, as well as a quasi contract claim based on a

theory of "[d]etrimental [r]eliance/[p]romissory

[e]stoppel/[u]njust [e]nrichment." Harbor View responded by

11

filing an amended counterclaim for abuse of process, in which it

alleged that Allegaert had commenced suit to "harass and burden

the [h]otel . . . with frivolous and vexatious claims."8

Thereafter, Allegaert filed a special motion to dismiss

Harbor View's counterclaim, pursuant to G. L. c. 231, § 59H. A

judge in the Superior Court denied Allegaert's motion,

concluding that while the abuse of process claim was based

solely upon Allegaert's petitioning activity, Harbor View had

met its burden of showing that Allegaert's petitioning (i.e.,

lawsuit) was a sham.9 The motion judge reasoned that, "despite

[Allegaert's] professed statements to the contrary," her first

claim was "essentially an omnibus appeal" from the 2008, 2018,

and 2023 decisions. The motion judge reasoned that because the

2023 decision "relate[d] directly back to the prior permitting"

authorized by the board in 2008 and 2018, from which Allegaert

never appealed, her appeal from the 2023 decision was untimely.

The motion judge similarly concluded that Allegaert's contract

and quasi contract claims "fare no better" because the agreement

8 Initially, Harbor View also raised a counterclaim for

malicious prosecution against Allegaert. However, Harbor View

omitted this cause of action from its amended counterclaim.

9 Allegaert also moved to dismiss Harbor View's counterclaim

pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974).

That motion was denied as well, but the propriety of that ruling

is not before us in this interlocutory appeal. See Haverhill

Stem LLC v. Jennings, 99 Mass. App. Ct. 626, 630 n.8 (2021).

12

she entered into with Scout was not binding on Harbor View, and

the amended complaint "fails to identify any promise, outside of

the Scout Agreement which would be a basis for her equitable

claims." Finally, the motion judge concluded that Allegaert's

claims for nuisance and emotional distress were not "actionable

at this time" because they concerned future damages and were

therefore "not ripe for review." Allegaert subsequently filed a

notice of appeal from the motion judge's ruling. See Fabre v.

Walton, 436 Mass. 517, 521-522 (2002), S.C., 441 Mass. 9 (2004)

(litigants may seek interlocutory appellate review from denial

of special motion to dismiss).

A panel of the Appeals Court reversed the denial of

Allegaert's motion in an unpublished decision. See Allegaert,

105 Mass. App. Ct. 1123. The panel, quoting Hidalgo v. Watch

City Constr. Corp., 105 Mass. App. Ct. 148, 153 (2024), observed

that "[c]laims for abuse of process 'must ordinarily await the

outcome of the lawsuit that they are challenging.'" The panel

went on to conclude that the abuse of process counterclaim must

be dismissed, stating, without further analysis, that the

"claims in [Allegaert's] lawsuit have not been resolved, and we

cannot conclude at this stage of the proceedings that

Allegaert's claims lack any reasonable factual support or any

arguable basis in law." We subsequently granted Harbor View's

application for further appellate review.

13

3. Discussion. a. Bristol Asphalt framework. The so-

called anti-SLAPP statute10 was enacted in response to the

problem of frivolous "lawsuits directed at individual citizens

of modest means for speaking publicly against development

projects." Duracraft Corp. v. Holmes Prods. Corp., 427 Mass.

156, 161 (1998) (Duracraft). To facilitate the early dismissal

of meritless claims of this nature, the statute established a

procedure whereby a party may file a special motion to dismiss

any "civil claims, counterclaims, or cross claims" that have

been filed against him or her that "are based on" the exercise

of his or her right of petition, as defined by the statute.

G. L. c. 231, § 59H. See Bristol Asphalt, 493 Mass. at 540-541.

In order to prevent these special motions to dismiss, and the

powerful procedural protections they afford to litigants, from

being misused to quell petitioning activity, our jurisprudence

has adopted "a necessarily narrow and strict construction of the

statute." Id. at 555. This has resulted in the development of

a two-stage, burden-shifting framework for analyzing the merits

of a special motion to dismiss filed under G. L. c. 231, § 59H.

See Bristol Asphalt, supra at 555-559.11

10The acronym "SLAPP" stands for "Strategic Litigation

Against Public Participation" (citation omitted). Bristol

Asphalt, 493 Mass. at 547.

11Although the special motion to dismiss at issue in this

case was denied prior to Bristol Asphalt, we apply the revised

14

Recently, in Bristol Asphalt, 493 Mass. at 542, this court

revised that framework.12 At the first stage of the revised

framework, the party seeking dismissal of a claim (i.e., the

special motion proponent) has a threshold burden to show that

the challenged claim is based solely on his or her exercise of

the right to petition, with no substantial basis other than or

in addition to those petitioning activities. Id. at 555-556.

If the special motion proponent cannot make this showing, the

motion is denied, and the challenged claim survives. Id. at

556. However, if the special motion proponent does make this

showing, the court moves to the second stage of the framework,

where the burden shifts to the opponent of the special motion to

dismiss, i.e., the party who is seeking to avoid dismissal of

his or her claim. Id. at 556-557.

At the second stage, a special motion opponent must show,

by a preponderance of the evidence, that the petitioning

activity the opponent complains of "was devoid of any reasonable

factual support or any arguable basis in law" and caused the

framework set forth in that decision because this appeal was

pending at the time of its issuance. See Columbia Plaza Assocs.

v. Northeastern Univ., 493 Mass. 570, 577–578 (2024) (explaining

that Bristol Asphalt framework is applicable to anti-SLAPP

appeal pending at time rescript issued).

In that decision we also provided an Appendix visually

12

summarizing the requisite analysis, in order to facilitate its

practical administration. See Bristol Asphalt, 493 Mass. at 569

(Appendix).

15

opponent "actual injury" in order for the challenged claim to

survive. Bristol Asphalt, 493 Mass. at 557, quoting G. L.

c. 231, § 59H. See Bristol Asphalt, supra at 559-560

(explaining that "our jurisprudence has tended to equate [this]

standard . . . with the concept of frivolousness" [quotation and

citation omitted]). Notably, unlike a motion to dismiss under

Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), this analysis

"is focused exclusively on the [proponent's] petitioning

activity," rather than the legal merits of the special motion

opponent's claims. Bristol Asphalt, supra at 550. Unless the

special motion opponent can show that the proponent's

"petitioning activity was devoid of any reasonable basis in fact

or law, the opponent's claims -- regardless of their underlying

merits -- must be dismissed" (quotations and citation omitted).

Id.

The second stage imposes a "high bar" for a special motion

opponent seeking to avoid dismissal of his or her claim

(citation omitted). Bristol Asphalt, 493 Mass. at 558. The

special motion opponent must, in effect, show that the other

party's petitioning activity was a "sham." Id. at 566. In

assessing whether this burden has been met, "[t]he question to

be determined . . . is not which of the parties' pleadings and

affidavits are entitled to be credited or accorded greater

weight," but whether there was no reasonable factual support or

16

arguable legal basis for the petitioning activity being

complained of. Id. at 557-558, quoting Benoit v. Frederickson,

454 Mass. 148, 154 n.7 (2009).

Because both prongs of this analysis "involve application

of a legal standard to documentary evidence alone," on appeal we

review the denial of a special motion to dismiss de novo.

Bristol Asphalt, 493 Mass. at 561-562.

b. Allegaert's threshold burden. In the underlying case,

Allegaert filed a special motion to dismiss Harbor View's abuse

of process counterclaim. As the special motion proponent,

Allegaert thus had the threshold burden to show that this

counterclaim was based solely on Allegaert's exercise of her

right to petition, with no other substantial basis. See Bristol

Asphalt, 493 Mass. at 555-556. The counterclaim alleges that

Allegaert "has abused process by commencing the [underlying]

[l]awsuit . . . to harass and burden the [h]otel and its

ownership with frivolous and vexatious claims." As both parties

recognize, commencing a lawsuit is a quintessential example of

engaging in petitioning activity. See 477 Harrison Ave., LLC v.

JACE Boston, LLC, 483 Mass. 514, 520 (2019) (Harrison II).

Allegaert has therefore met her first stage burden.

c. Harbor View's second stage burden. Because Allegaert

met her threshold burden, the burden shifted to Harbor View, the

opponent of the special motion to dismiss. As the special

17

motion opponent, Harbor View was required to demonstrate, by a

preponderance of the evidence, that Allegaert's petitioning

activity was devoid of any reasonable factual support or any

arguable basis in law. See Bristol Asphalt, 493 Mass. at 557-

558. As indicated, the petitioning activity at issue is

Allegaert's act of commencing suit. Her lawsuit cannot be

considered "devoid" of any reasonable factual support or

arguable legal basis if any of her claims are not frivolous.

See id. at 557; 477 Harrison Ave., LLC v. JACE Boston, LLC, 477

Mass. 162, 175 (2017) (Harrison I), S.C., 483 Mass. 514 (2019).

In considering the applicability of this standard below,

the Appeals Court panel reasoned:

"[T]he . . . claims in [Allegaert's] lawsuit have not been

resolved, and we cannot conclude at this stage of the

proceedings that Allegaert's claims lack any reasonable

factual support or any arguable basis in law. Thus, we

conclude that Allegaert's special motion to dismiss Harbor

View's counterclaim should have been allowed."

The panel reached this conclusion without any further analysis

of the factual or legal basis for Allegaert's petitioning

activity.

The Appeals Court panel is correct that, at the time the

special motion to dismiss was filed, the motion judge did not

have the benefit of knowing how the petitioning activity

concluded because the petitioning being complained of --

Allegaert's lawsuit -- is still ongoing. However, this does not

18

mean that the court can short-circuit its application of the

anti-SLAPP framework. Importantly, the question to be resolved

is not whether Allegaert's lawsuit will ultimately prove to be

successful. See Donovan v. Gardner, 50 Mass. App. Ct. 595, 601

(2000) (mere fact that petitioning activity was "unsuccessful

does not, in and of itself, mean that [petitioning] did not have

some basis in law or foundation in fact").13

Rather, the court must consider whether Harbor View has

demonstrated that, by commencing this lawsuit, Allegaert engaged

in a petitioning activity that was "'devoid' of any reasonable

factual support or any arguable basis in law." Bristol Asphalt,

13To be sure, the ultimate result of a petitioning activity

can reflect whether it was devoid of any factual or legal merit.

For instance, if a special motion opponent seeks to impose

liability on someone for commencing a lawsuit that ultimately

proved to be successful, it is self-evident that the special

motion opponent cannot meet its burden. See, e.g., Fabre, 436

Mass. at 524–525 (because final judgment entered issuing

restraining order under G. L. c. 209A, and there had been no

successful appeal or collateral attack, judgment was "conclusive

evidence that the petitioning activity [(i.e., act of seeking

restraining order)] was not devoid of any reasonable factual

support or arguable basis in law"). Other rulings or

developments in the lawsuit may also illustrate whether it

lacked reasonable factual support or an arguable legal basis.

See Demoulas Super Mkts., Inc. v. Ryan, 70 Mass. App. Ct. 259,

264-265 (2007) (where court had denied motion for attorney's

fees under G. L. c. 231, § 6F, on sole ground that lawsuit was

not wholly insubstantial and frivolous, that was equivalent to

determination that suit was not devoid of reasonable factual

support or arguable legal basis). See also SMS Fin. V, LLC v.

Conti, 68 Mass. App. Ct. 738, 746–747 (2007) ("something that

has been established by a preponderance of the evidence cannot

be devoid of any reasonable factual support or arguable basis in

law" [citation omitted]).

19

493 Mass. at 557. In making this assessment, the court's focus

is on the cognizable basis for Allegaert's petitioning activity.

See id. at 550. As with any other type of claim, an abuse of

process counterclaim targeted at legitimate petitioning activity

"rais[es] the specter of mounting liability for defense costs

and other damages associated with the ongoing litigation."

Harrison II, 483 Mass. at 528 ("Viewed objectively, a

defendant's primary motivation in that circumstance is to burden

the plaintiff's petitioning rights by hanging the possibility of

ever-increasing liability, like the sword of Damocles, over the

plaintiff's head").

Of course, "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." Bristol Asphalt, 493 Mass. at 554. Here, Harbor View

is exercising its own right of petitioning by raising a

counterclaim for abuse of process. To be sure, such abuse of

process claims "will always be, at least in part, based on a

special [motion proponent]'s petitioning activities." Harrison

I, 477 Mass. at 169. And if such claims are based solely on

petitioning activity, the special motion proponent will have

satisfied its threshold burden, rendering the claims "prima

20

facie subject to dismissal under the anti-SLAPP statute,"

Hidalgo, 105 Mass. App. Ct. at 151, if the special motion

opponent cannot meet its second stage burden. However, proper

application of the anti-SLAPP framework does not mean that all

such claims will be subject to dismissal under § 59H. See

Keystone Freight Corp. v. Bartlett Consol., Inc., 77 Mass. App.

Ct. 304, 313 (2010) ("We must interpret and apply the anti-SLAPP

statute and our case law in such a way as to continue to permit,

where appropriate and consistent with the intent of § 59H,

claims of abuse of process as delineated by the Massachusetts

common law").

As indicated, an abuse of process claim will not be

dismissed under G. L. c. 231, § 59H, where the special motion

opponent "alleges that the [special motion proponent] engaged in

any conduct germane to [the] abuse of process claim, apart from

[the] invocations of process, which can provide a 'substantial

basis' for [the] claim." Harrison I, 477 Mass. at 169. Indeed,

we have previously highlighted a number of examples where an

abuse of process claim was not, or would not be, based solely on

the special motion proponent's petitioning activities. See,

e.g., id., and cases cited. See also id. at 171 n.9 (allegation

that special motion proponent stated that "he would continue

invoking process unless the [special motion opponent] paid him a

certain amount of money -- i.e., made a statement in an attempt

21

to extort the [opponent] through his use of process -- could

provide a substantial nonpetitioning basis" for abuse of process

claim); Keystone Freight Corp., 77 Mass. App. Ct. at 316 (abuse

of process claim was not based solely on special motion

proponent's petitioning activity, but also on proponent's

fraudulent billing practices prior to commencement of collection

action).

When a defendant files an abuse of process counterclaim

that is based solely on the plaintiff's act of commencing the

underlying suit, however, the court must assess whether the

defendant has shown that the lawsuit is devoid of any reasonable

factual support or any arguable legal basis to determine whether

the counterclaim can survive a special motion to dismiss. See

Columbia Plaza Assocs. v. Northeastern Univ. 493 Mass. 570, 577

(2024). If the underlying lawsuit is frivolous on its face, the

abuse of process counterclaim will survive. By contrast, if the

abuse of process counterclaim targets the underlying lawsuit

despite there being reasonable factual support and an arguable

legal basis for the suit, the special motion to dismiss must be

granted. In any event, the court may not skip over or sidestep

this analysis merely because it does not yet know the outcome of

the underlying lawsuit. Indeed, the case that the Appeals Court

panel cited and quoted in support of its own abbreviated

approach, Hidalgo, 105 Mass. App. Ct. at 154, is one in which

22

the Appeals Court did appropriately analyze whether the special

motion opponents had met their burden of establishing the

absence of factual support or arguable legal basis for the

underlying lawsuit, notwithstanding the pendency of that

lawsuit. The Appeals Court in Hidalgo concluded that the

special motion opponents had not met their burden because the

pleadings that they relied upon (namely, their answer and

counterclaim) did "not actually provide evidence that

contradicts [the special motion proponent's] key factual

allegation that he worked for six weeks." Id. at 152-153.

With these considerations in mind, we turn now to the

question whether Harbor View has met its burden of demonstrating

that Allegaert's lawsuit is devoid of any reasonable factual

support or arguable legal basis. We begin by examining count

one of Allegaert's amended complaint, in which she seeks to

appeal from the 2023 decision of the board. Harbor View

contends that this claim lacks any such factual or legal basis

for three independent reasons: (1) the claim constitutes a

collateral, time-barred attack on the board's prior permitting

decisions; (2) the claim is legally and factually unsupported;

and (3) Allegaert cannot establish standing to contest the

decision. We examine each contention in turn.

i. Challenge to 2023 decision as collateral attack on

prior decisions. Count one of Allegaert's amended complaint

23

alleges that construction of the Pease Cottage, located "in

close proximity to [Allegaert's] home," will increase noise and

light pollution at night and "greatly diminish" her privacy

within the residential neighborhood by enabling occupants of the

cottage to look over the existing vegetative screening onto her

property. As Harbor View highlights, construction of the Pease

Cottage had already been authorized by the 2008 special permit,

and previously modified in 2018, each time with Allegaert's

express support. Noting this fact, the motion judge

characterized Allegaert's claim as "essentially an omnibus

appeal" from all three decisions, and concluded that it was

therefore untimely.

On its face, count one raises a challenge to the board's

2023 decision. The amended complaint references findings made

by the board in the 2023 decision, alleges that those findings

were deficient, and attaches a copy of that decision. Although

the motion judge observed that the 2023 decision "relates

directly back" to the 2008 and 2018 decisions, which also

authorized construction of the Pease Cottage being complained of

in the amended complaint, the motion judge was required "to

consider alleged facts beyond the plaintiff's initial pleading

. . . to determine whether the plaintiff's claims are devoid of

a factual or legal basis." Ferguson v. Maxim, 96 Mass. App. Ct.

385, 390 (2019) (discussing differences between motion to

24

dismiss under Mass. R. Civ. P. 12 [b] [6], and special motions

to dismiss under anti-SLAPP statute and analogous lis pendens

statute, G. L. c. 184, § 15 [c]).

Notwithstanding the somewhat generalized language in the

amended complaint, Allegaert's filings indicate that her appeal

is not rooted solely in the board's authorization for the Pease

Cottage, as proposed and approved in 2008 and 2018. Rather, as

is indicated elsewhere in her amended complaint and the

underlying record, the cottage's location was moved, the

vegetation screening her property from the proposed cottage was

removed without notice, and the nature of the replaced

vegetative screening, which was of utmost importance to

Allegaert, had changed in 2019.14

When the Pease Cottage was first proposed in 2008, the

commission found that the planned development would have a

"minimal overall effect upon other persons," noting that Harbor

View's predecessor in interest, Scout, "ha[d] worked with its

neighbors and ha[d] apparently addressed their concerns." The

14In addition to alleging that the existing vegetation had

been removed, Allegaert's amended complaint attached a copy of

the 2023 decision, which references the relocation of the Pease

cottage as well as Allegaert's concerns about the inadequacy of

the screening. Indeed, the documentation that Harbor View

attached to its own opposition to the special motion to dismiss

includes a letter that Allegaert submitted to the board in 2019

that details the removal and replacement of the vegetation,

leaving her with what she described as a "now exposed fence

line."

25

commission also indicated that various conditions formed "an

essential part" of its decision, including a requirement that

landscaping provide "extensive screening between the subject

property and the abutting properties to continue to provide its

neighbors privacy." This condition was incorporated into the

board's 2008 decision to grant the special permit, and the

board's 2018 decision similarly indicated that all of the 2008

conditions were "still in effect."

By the time of the 2023 decision, however, things had

changed according to Allegaert. Per the 2023 decision, the

cottage's proposed location had been moved. In 2019, Harbor

View also unilaterally removed existing vegetative screening

between the two properties. Although arborvitae trees were

installed to replace the vegetation that had been removed,

Allegaert argues that these trees will not be adequate to screen

all three stories of the Pease Cottage from view once it is

built in its new location.15 Indeed, Allegaert raised such

15The parties dispute the significance of the new location

of the Pease Cottage. As Harbor View observes, the new location

is slightly further away from Allegaert's property. By

contrast, counsel for Allegaert asserted at oral argument that

this location places the cottage in an area with less coverage

relative to Allegaert's property line. This latter argument

does not appear to have been raised in the underlying

proceedings and is therefore not properly before us. That said,

Harbor View's site plan from 2018 (which appears to be the only

site plan in the record that is based on a satellite image) does

depict thinner vegetation within this area of the property line,

although this image predates the vegetative changes in 2019. In

26

concerns at the public hearing before the board in 2023. Given

that these developments postdate the 2008 and 2018 decisions,

Harbor View has not shown that Allegaert lacked an arguable

legal basis to assert that her appeal constituted more than a

time-barred challenge of those prior decisions.

ii. Merits of Allegaert's challenge to 2023 decision.

Harbor View further contends that, even insofar as count one of

Allegaert's complaint is not considered a collateral attack on

the 2008 and 2018 decisions, there is no basis for her factual

assertions about the inadequacy of the existing vegetative

screening. It is undisputed that Allegaert appeared at the

public hearing before the board in 2023 to express her belief

that the existing vegetative screening was inadequate. A letter

that Allegaert submitted to the board in 2019 also details her

account of the removal of the existing vegetation and the

eventual planting of the arborvitae trees, which she described

as leaving her with a "now exposed fence line." To rebut these

characterizations, Harbor View submitted two photographs

depicting the arborvitae trees in the underlying proceedings.

Both of Harbor View's photographs appear to have been taken

at relatively close range, from positions that are angled toward

any event, for the reasons discussed, it remains apparent that

there is a colorable argument that Allegaert's challenge to the

2023 decision does not merely seek to relitigate issues resolved

by the board's prior permitting decisions.

27

Allegaert's property line, but do not face the property

directly. It is difficult to discern the adequacy of the

vegetative screening from this vantage point, and whether it

would be sufficient to screen the three-story construction of

Pease Cottage. According to an affidavit submitted by Harbor

View, these photographs depict "some of [the] arbor vitae trees"

that were planted, suggesting that they do not depict the

entirety of the parties' shared property line. The affidavit

does not indicate where the photographs were taken, and whether

they correspond to the particular area where Pease Cottage will

be erected. Given these shortcomings, we cannot say that these

photographs suffice to establish the absence of any reasonable

factual support for Allegaert's contention that her property is

not adequately screened from the new location of Pease Cottage.

See Bristol Asphalt, 493 Mass. at 558 ("material, disputed

credibility issues may not be resolved in the special motion

opponent's favor"). Insofar as a member of the board in the

2023 decision found that Harbor View "had done its best to

screen the property and ensure the privacy of its neighbors,"

that finding does not establish that there is no reasonable

factual support for Allegaert's assertions. Cf. E & J Props.,

LLC v. Medas, 464 Mass. 1018, 1019 (2013) (court reviews factual

findings de novo in appeal pursuant to G. L. c. 40A, § 17,

28

without affording evidentiary weight to factual findings

contained within board's decision).

We reach a similar conclusion with respect to Harbor View's

argument that Allegaert cannot establish that she is entitled to

relief from the board's 2023 decision. Again, the question

before us is not whether Allegaert will ultimately prevail on

her claims, or even whether her lawsuit raises claims that would

survive a motion to dismiss under Mass. R. Civ. P. 12 (b) (6).

Our review is instead limited to the question whether Harbor

View has established by a preponderance of the evidence that the

lawsuit is devoid of any reasonable factual support or any

arguable basis in law. See Wenger v. Aceto, 451 Mass. 1, 7

(2008) ("The critical determination is not whether the

petitioning activity in question will be successful, but whether

it contains any reasonable factual or legal merit at all").

The 2008 special permit incorporated the conditions imposed

by the commission, which called for "extensive screening between

the subject property and the abutting properties" for the

purpose of "continu[ing]" to provide those abutters with

privacy. These conditions were also incorporated into the

subsequent modification of the special permit in 2018.

Allegaert has at least an "arguable" legal basis to challenge

the 2023 decision, given that the 2023 decision was based on the

finding that the proposed modifications would "not be more

29

objectionable or detrimental to the character of the

neighborhood" than the modifications approved in 2018, which

expressly incorporated the conditions of the 2008 decision,

including the requirement to screen abutting properties from

view. The 2023 decision noted that the total size of the Pease

Cottage was being reduced, but did not address the apparent

changes to the nature of the vegetation along the property line

that Allegaert alleges provide inadequate screening at the

cottage's proposed new location. See O'Gara v. St. Germain, 91

Mass. App. Ct. 490, 499–500 (2017) ("as long as a reasonable

person could conclude there was a legal basis for the

petitioning activity, the party opposing the [special] motion to

dismiss has failed to meet his legal burden to demonstrate that

the petitioning activity lacked any basis in law").

iii. Standing to appeal from 2023 decision. We need not

dwell long on Harbor View's final argument that Allegaert lacks

standing to challenge the 2023 decision. As an initial matter,

Harbor View did not raise this argument below. Although Harbor

View's answer to the amended complaint asserted lack of standing

as an affirmative defense, Harbor View made no argument

concerning Allegaert's standing in its opposition to the special

motion to dismiss. Nor did counsel for Harbor View raise any

such argument at the motion hearing. Accordingly, the argument

has been waived.

30

Moreover, because Allegaert is an abutter,16 she enjoys a

rebuttable presumption of standing. See 81 Spooner Rd., LLC v.

Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 700-701

(2012) (although plaintiffs "always bear[] the burden of proving

aggrievement necessary to confer standing," rebuttable

presumption afforded to abutters places "the initial burden" on

opposing party to present evidence challenging abutter's

presumption of standing). Allegaert further alleged in her

amended complaint that she is aggrieved by the 2023 decision

because construction of the Pease Cottage will increase "the

noise, light pollution at night[,] and restrict sunshine during

the day." Although an abutter's rebuttable presumption of

standing "recedes when a defendant challenges a plaintiff[]

[abutter's] status as an aggrieved person and offers evidence

supporting his or her challenge," Watros v. Greater Lynn Mental

Health & Retardation Ass'n, 421 Mass. 106, 111 (1995), Harbor

View made no attempt to do so in the proceedings below. Given

Allegaert's rebuttable presumption of standing, as well as her

allegations of aggrievement that Harbor View made no attempt to

rebut, Harbor View has fallen far short of demonstrating that

there could be no reasonable factual support or arguable legal

16 As noted by Harbor View, although Allegaert no longer

owns the property, she has brought this suit in her capacity as

trustee for the trust that does. See note 3, supra.

31

basis for Allegaert's standing to raise the underlying claim.

Cf. Demoulas Super Mkts., Inc. v. Ryan, 70 Mass. App. Ct. 259,

263–264 (2007) (rejecting argument that dismissal of certiorari

action seeking review of decision issued under local wetlands

bylaw for lack of subject matter jurisdiction was, "per se,

tantamount to a determination that the action [was] devoid of

reasonable factual support or arguable basis in law," because

question of jurisdiction depended on particular circumstances of

case and interrelationship between State and municipal laws,

which "may, in some circumstances, be a fairly nuanced

question").

4. Conclusion. Because we conclude that Harbor View has

failed to meet its burden with respect to count one of

Allegaert's amended complaint, Harbor View has not demonstrated

that the underlying lawsuit is devoid of any reasonable factual

support or arguable legal basis. In light of this conclusion,

we need not analyze the factual support or legal basis for the

other claims raised in Allegaert's lawsuit, and do not address

whether Harbor View met its additional burden of establishing

actual injury. See Harrison I, 477 Mass. at 175; Hanover v. New

England Regional Council of Carpenters, 467 Mass. 587, 597 n.13

(2014). Accordingly, the Superior Court order denying

Allegaert's special motion to dismiss Harbor View's amended

counterclaim is reversed, and the matter is remanded to the

32

Superior Court for further proceedings consistent with this

opinion, including a determination as to the appropriate award

of attorney's fees in connection with the special motion to

dismiss.17

So ordered.

17Allegaert has also requested an award of attorney's fees

and costs in connection with this appeal. In light of our

conclusion that the special motion to dismiss should have been

allowed, Allegaert is entitled to such costs and may apply for

the same using the procedure established by Fabre, 441 Mass. at

10–11. See Columbia Plaza Assocs., 493 Mass. at 589-590.