Bristol Asphalt, Co., Inc. v. Rochester Bituminous Products, Inc.

NOTICE: All slip opinions and orders are subject to formal

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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.