Massachusetts SLAPP

Richard Vetstein Quoted In Boston Globe Article About Recent Developers’ Rights Case

by Rich Vetstein on March 24, 2010

in Massachusetts Real Estate Law, Permitting/Zoning

Boston Globe reporter Jenifer McKim read my blog post, Four Toed Salamanders And SLAPP Suits, and decided that it would be a great topic to write about. Her superb article, How A Salamander Raised A Rights Issue, was published today, and I was fortunate enough to be quoted:

Richard Vetstein, a Framingham real estate lawyer, said the decision was a victory for developers in a state that has an especially tough permitting process.

“Whether it is zoning, whether it is wetlands, you name it, vernal pools, you can invoke some pretty serious regulation and have a property get bogged down pretty quickly,’’ said Vetstein, who wrote about the salamander case on his Massachusetts Real Estate Law blog.

The case is very interesting, pitting free speech rights against developers’ rights to build.

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Four Toed Salamanders and SLAPP Suits

by Rich Vetstein on March 9, 2010

in Massachusetts Real Estate Law, Permitting/Zoning

spotted-salamander_721_600x450The recent case of Brice Estates v. Smith where an abutter trespassed on a developer’s land to photograph endangered female four toed salamanders got me thinking about the frequent convergence of developer’s rights vs. citizen’s free speech rights in real estate disputes. In the case, the abutter sought refuge under the pro-free speech anti-SLAPP law, but the court said that he was still trespassing.

A SLAPP is an acronym for Strategic Litigation Against Public Participation. Before being legislatively outlawed, real estate developers would often use SLAPP lawsuits to muzzle abutters who would organize and complain during town meetings and sue to stop real estate projects. The abutters couldn’t afford to defend against the SLAPP suits, so they would back down.

Concluding that citizens’ free speech rights were being suppressed by SLAPP suits, the Massachusetts Legislature in 1994 outlawed them in what’s now referred to as the “anti-SLAPP Act.” The law protects such free speech activities such as filing zoning appeals, reporting violations to state agencies, and lobbying. The anti-SLAPP Act has been one of the most litigated pieces of legislation within the last 15 years.

Anyways, back to the four toed salamanders. Proving the existence of endangered wildlife (spotted frogs, diamond backed terrapins, barn owls, you get the picture) is a sure fire way to get a real estate project derailed, or at least subject to much stricter permitting, delays and scale downs. And that’s exactly what the abutter did in the Brice Estates case when he tip-toed onto the developer’s land with his Nikon to do his best National Wildlife photo-essay. So naturally, the developer sued the abutter for trespassing.

Arguing that the trespass claim was really a SLAPP suit, the abutter said that the developer sued him just for reporting the salamander to the state. The court disagreed, ruling that trespassing wasn’t a constitutionally protected right.

So the moral of the story is that a quest to find a female four toed salamander can get you into some legal trouble.

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