top of page

Protected Petitioning Activity Can Be a Violation of G.L. c. 93A

While appeals of zoning decisions are classic petitioning activity protected by the state and U.S. constitutions and the Massachusetts Anti-SLAPP (Strategic Litigation Against Public Participation) statute, G.L. c. 231, § 59H, the Supreme Judicial Court reminded potential challengers that frivolous appeals are not invulnerable to litigation in its decision. In Bristol Asphalt Co., Inc. v. Rochester Bituminous Products, Inc., the Court refined and clarified the standards for granting a special motion to dismiss—a procedural tool to quickly dispose of claims burdening the constitutional right to petition—under that statute.  


The defendants, referred to as the Todesca litigants, owned an asphalt plant in the town’s industrial zoning district. The plaintiffs, referred to as the Bristol litigants, sought to open a competing asphalt plant on an adjacent parcel in the same zone. The Todesca litigants filed numerous challenges to block regulatory approval of the new plant. They challenged whether the proposal was a permitted use, whether site plan approval was properly granted, whether an extension of an Order of Conditions under the Wetlands Act and the local wetlands bylaw was properly granted, and whether review under the Massachusetts Environmental Policy Act was necessary. The Bristol litigants sued the Todesca litigants for unfair and deceptive trade or business practices under G.L. c. 93A, conspiracy in restraint of trade or commerce, and abuse of process, all in connection with the numerous legal challenges. In response, the Todesca litigants filed a special motion to dismiss under Section 59H. The trial court denied the motion, finding that the petitioning activity was a sham, and the Appeals Court affirmed over the dissent of Judge Englander, who noted issues with the existing anti-SLAPP analysis. 


The Court expressed concern that motions to dismiss under the statute were going far afield from the principal purpose, that is, “to obtain the expeditious dismissal of meritless claims that are based on petitioning alone.” It therefore returned to the narrow, simplified analysis that it first established in 1998, requiring that the moving party as a threshold matter show through pleadings and affidavits that the claims are based solely on the moving party’s petitioning activity and have no substantial basis on anything other than the petitioning activity. The next stage is to determine whether the petitioning activity “was devoid of any reasonable factual support or any arguable basis in law” and caused actual injury to the party against whom the special motion to dismiss was filed. Conflicting affidavits do not establish that the petitioning activity is devoid of reasonable factual support or basis in law, but nor are speculation, conclusory assertions, or averments sufficient to defeat a special motion to dismiss. In essence, the question is whether the petitioning activity was frivolous. Finally, the Court clarified that rulings on special motions to dismiss are subject to de novo review. 


Under this clarified standard, the Court ruled that the Todesca defendants that tried to frustrate competition from the Bristol litigants by repeatedly challenging the site plan and other local approvals on frivolous grounds were not entitled to a special motion to dismiss and in fact the Bristol litigants’ claims that the petitioning activity constituted unfair or deceptive acts or practices under G.L. c. 93A could proceed. Although the original company’s zoning appeals were protected petitioning activity, the Court said, those appeals did not have “reasonable factual support or an arguable legal basis”—i.e., were frivolous—and therefore were not entitled to the enhanced protection of the Anti-SLAPP statute’s special motion to dismiss.  


The decision contains a helpful appendix that sets out in summary fashion a type of decision tree showing all the stages of analysis. Anyone engaged in anti-SLAPP litigation is well-advised to consult the appendix. 

General Opines that the Tax


bottom of page