Board of Selectmen of Duxbury v. Webster Point Village, LLC.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-810

BOARD OF SELECTMEN OF DUXBURY

vs.

WEBSTER POINT VILLAGE, LLC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The town of Duxbury (town), acting by and through its board

of selectmen (board), brought this action against developer

Webster Point Village, LLC (WPV), raising breach of contract and

related claims. 1 A judge of the Superior Court denied WPV's

special motion to dismiss brought under the "anti-SLAPP"

statute. See G. L. c. 231, § 59H. WPV appeals from the adverse

ruling on an interlocutory basis under the doctrine of present

execution. See Blanchard v. Steward Carney Hosp., Inc., 483

Mass. 200, 212-213 (2019) (Blanchard II). We affirm.

1 The board's complaint contained the following claims and
requests for equitable relief: declaratory judgment (count 1),
breach of contract (count 2), breach of the implied covenant of
good faith and fair dealing (count 3), promissory estoppel
(count 4), quantum meruit (count 5), and injunctive relief
(count 6).
Background. We recite only so much of the long history of

this case that is necessary to decide the appeal. On June 21,

2006, following a remand from the housing appeals committee

(HAC), the town's zoning board of appeals (ZBA) issued an

amended comprehensive permit (2006 amended comprehensive permit)

to Delphic Associates, LLC (Delphic), WPV's predecessor in

interest. The 2006 amended comprehensive permit authorized the

construction of an affordable housing project, required work to

commence within one year, and was subject to numerous

conditions, including a conservation restriction condition (2006

conservation restriction condition). 2

Following the lapse of the permit, lengthy litigation

ensued over Delphic's request to reinstate it, culminating in a

Superior Court judgment in Delphic's favor. After the ZBA

noticed its appeal from the judgment to this court, four parties

(the board, the ZBA, Delphic, and WPV) entered into a settlement

2 The ZBA granted the 2006 amended comprehensive permit subject
to 106 conditions, including condition twelve, which included,
as herein relevant, the following provisions: "Prior to any
grading, land disturbance, issuance of any building permit and
construction of any structure or infrastructure, [Delphic] shall
execute and cause to be recorded at the Plymouth County Registry
of Deeds, a Conservation Restriction pursuant to G. L. c. 184,
s. 31, clearly identifying the land areas noted on the approved
plans as 'Restricted Area' to be left in their natural
vegetative state with no provisions for site alteration. . . .
The Conservation Restriction required by this paragraph shall be
deemed an independent condition and requirement from that or
those required by the Commonwealth's Natural Heritage and
Endangered Species Act."

2
agreement and mutual release (2012 settlement agreement) whereby

Delphic and WPV agreed not to request modifications of certain

conditions. 3

Further proceedings required by the 2012 settlement

agreement, see note 3, supra, were held before the ZBA, which

issued a modified comprehensive permit (2015 modified

comprehensive permit) to WPV in August 2015 in light of the

number of modifications requested and changed circumstances. 4

Like the 2006 amended comprehensive permit, the 2015 modified

3 The 2012 settlement agreement provided, as herein relevant,
that "for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the undersigned Parties agree
. . . [that] the [ZBA] shall . . . withdraw the Appeal . . .
[and] [u]pon dismissal of this appeal and subject to any future
appeals this Amended Comprehensive Permit shall become final."
As part of the settlement, the parties agreed that "Delphic
and/or WPV . . . shall not request modification from the [ZBA]
or from the HAC of . . . [sixty-nine conditions of the 2006
amended comprehensive permit, including the 2006 conservation
restriction condition]." The agreement stated that it was
"negotiated in good faith and constitutes a fair and reasonable
resolution of the Parties' dispute." The parties also agreed
that Delphic and/or WPV would submit a request for modification
of the 2006 amended comprehensive permit to bring it in line
with the requirements of Zoning Bd. of Appeals of Amesbury v.
Housing Appeals Comm., 457 Mass. 748 (2010).

4 In its decision, the ZBA stated that the 2015 modified
comprehensive permit superseded the 2006 amended comprehensive
permit and an earlier comprehensive permit and that those
"previous permits shall have no further force or effect." The
ZBA further stated that the 2012 settlement agreement "shall
remain in full force and effect except as specifically
superseded by [the] Modified Comprehensive Permit" and that
"[n]othing in [the] Modified Comprehensive Permit waives the
[ZBA's] argument that other conditions that WPV agreed not to
modify in that [settlement] [a]greement remain non-modifiable."

3
comprehensive permit required WPV, as a condition of building,

to record a conservation restriction (2015 conservation

restriction condition). The language of that condition was

substantially similar to the 2006 conservation restriction

condition.

In November 2020, WPV asked the HAC to eliminate the 2015

conservation restriction condition, claiming that the condition

could not be satisfied, that the 2012 settlement agreement was

void insofar as it prohibited WPV from requesting modifications

of certain conditions, and that, moreover, the 2012 settlement

agreement did not prohibit WPV from requesting that the board or

the HAC modify the 2015 conservation restriction condition. In

March 2021, the board notified WPV that its request to the HAC

violated the 2012 settlement agreement. After the HAC

determined that WPV's request was not properly before it, WPV

asked the ZBA to eliminate the 2015 conservation restriction

condition as an "insubstantial change" to the 2015 modified

comprehensive permit. Shortly before the ZBA denied the

request, the board filed this action; WPV responded with a

special motion to dismiss. Applying the burden-shifting,

augmented Duracraft framework, see Reichenbach v. Haydock, 92

Mass. App. Ct. 567, 572 (2017), a judge denied the motion,

concluding that (1) WPV failed to meet its stage one burden and

4
(2) even if WPV met its burden, the board prevailed at the

second stage.

Discussion. We consider de novo WPV's showing at the first

stage but review for abuse of discretion or error of law the

motion judge's ruling concerning the board's showing at the

second stage. See Reichenbach, 92 Mass. App. Ct. at 572 (de

novo first stage); Blanchard v. Steward Carney Hosp., Inc., 477

Mass. 141, 160 (2017) (Blanchard I). At the first stage of the

framework, the moving party and alleged target of a SLAPP suit

(here, WPV) bears the burden of establishing "through pleadings

and affidavits that the claims against it are based on the

petitioning activities alone and have no substantial basis other

than or in addition to the petitioning activities" (quotations

and citation omitted). Blanchard I, supra at 147.

If the special movant meets its threshold burden, the

nonmoving party may defeat the motion in one of two ways at the

second stage of the framework. Under the first and less

traveled path, the nonmoving party may prevail by showing, "by a

preponderance of the evidence, that the special movant's

petitioning activity was devoid of any reasonable factual or

legal support and that it caused the nonmoving party actual

injury." Cardno ChemRisk, LLC v. Foytlin, 476 Mass. 479, 484

(2017). See Blanchard II, 483 Mass. at 204, quoting Blanchard

I, 477 Mass. at 156 n.20 ("[p]roving that the moving party's

5
petitioning activity was, in essence, a sham presents a 'high

bar'"). If, and only if, the nonmoving party fails to make the

showing required under the first path of this second stage, the

judge must then consider the nonmovant's showing under the

second stage's second path. See 477 Harrison Ave., LLC v. JACE

Boston, LLC, 483 Mass. 514, 519 (2019) (Harrison II). Under

this second path, the nonmoving party may withstand the special

motion to dismiss by "demonstrat[ing], such that the motion

judge may conclude with fair assurance . . . two elements: (a)

that its suit was colorable; and (b) that the suit was not

brought primarily to chill the special movant's . . . legitimate

exercise of its rights to petition, i.e., that it was not

retaliatory (quotations and citation omitted). Blanchard II,

supra.

We agree that WPV's conduct in seeking the removal of the

2015 conservation restriction condition from both the HAC and

the ZBA was protected petitioning activity, and that the town's

claims in this action are based on WPV's petitioning activity.

See G. L. c. 231, § 59H (defining "party's exercise of its right

of petition" to "mean any written . . . statement . . .

submitted to a legislative, executive, or judicial body, or any

other governmental proceeding"). See also Cardno ChemRisk, LLC,

476 Mass. at 484-485. However, to meet its stage one burden,

WPV was required to show that the board's claims were based

6
solely on WPV's petitioning activities. WPV's motion foundered

on this requirement.

It is well established that "[m]any preexisting legal

relationships may properly limit a party's right to petition,

including enforceable contracts in which parties waive rights to

otherwise legitimate petitioning." Duracraft Corp. v. Holmes

Prods. Corp., 427 Mass. 156, 165 (1998). Here, as part of the

2012 settlement agreement, WPV waived its future petitioning

rights with respect to the 2006 and 2015 conservation

restriction conditions. 5 See id. at 165-166 ("quintessential

example of [proper] waiver is a settlement agreement, in which a

party releases legal claims against an adversary that otherwise

properly could be prosecuted by petitioning the court"). These

facts establish that the board had a "substantial basis other

than or in addition to the petitioning activities" for bringing

this lawsuit. 6 Blanchard I, 477 Mass. at 147, quoting Fustolo v.

5 For reasons that we explain, we are unpersuaded by WPV's
argument that it did not waive its future petitioning rights
with respect to the 2015 conservation restriction condition.

6 Whether the board's claims turn out to be ultimately
"meritless," as WPV maintains, is a matter beyond the purview of
the stage one inquiry. See Burley v. Comets Community Youth
Ctr., Inc., 75 Mass. App. Ct. 818, 822 (2009) (question for
judge at stage one concerns "only the nature of the conduct
alleged by the plaintiff . . . and not the merits of the case").
See also 477 Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass.
162, 168 (2017) (Harrison I) ("In assessing the conduct that is
complained of, a judge considers only the allegations that are
relevant to the discrete causes of action brought").

7
Hollander, 455 Mass. 861, 865 (2010). See Harrison II, 483

Mass. at 520 ("claim for breach of contract [or breach of the

implied covenant of good faith and fair dealing] sometimes may

present a substantial basis other than the petitioning activity

itself for purposes of the anti-SLAPP act"); 477 Harrison Ave.,

LLC v. JACE Boston, LLC, 477 Mass. 162, 171 (2017) (Harrison I)

(where plaintiff alleged that defendants filed two false

insurance claims, substantial nonpetitioning basis for its G. L.

c. 93A claim existed and thus defendants could not show claim

was based solely on their petitioning activity); Duracraft

Corp., supra at 168 (nondisclosure agreement constituted

substantial basis for plaintiff's lawsuit other than petitioning

activity and defeated special motion to dismiss).

In fact, in its 2020 modification request to the HAC, WPV

reserved its rights to bring a lawsuit to have the portions of

the 2012 settlement agreement that prohibited it from making

modification requests declared void. As WPV candidly

acknowledged to the HAC, the other parties to the 2012

settlement agreement had the same constitutionally protected

right to petition the Superior Court to enforce it. 7 Having

7 WPV stated that it did not "believe it should be WPV's burden,
or would serve WPV's interests, to bring such an action at this
point." WPV expressed its hope that the HAC would simply allow
the changes, and acknowledged that if the HAC did so, some other
entity, including the ZBA, could then bring a legal claim
charactering WPV's request "as a breach of contract." WPV's

8
taken this position with the HAC and admitted the existence of

an actual controversy between the parties, it is inconsistent

for WPV to now argue that the board's lawsuit for breach of

contract was based solely on WPV's petitioning activities.

Even assuming for the sake of argument that WPV made the

required showing at the first stage, the judge neither erred nor

abused his discretion in concluding that the board established

both elements required by the second stage second path. 8 First,

we discern no abuse of discretion in the judge's determination

that the board's primary breach of contract claim is

"colorable," which in this context means "worthy of being

presented to and considered by the court" and "offer[ing] some

reasonable possibility of a decision in the party's favor"

(quotations and citations omitted). Blanchard II, 483 Mass. at

next sentence foreshadowed this very proceeding: "If the HAC or
the respective boards believe the terms of [the 2012 settlement
agreement] effectively prohibit any modification of the [2015
conservation restriction] condition, then WPV expects that one
way or another this issue will be decided in Superior Court,
which has jurisdiction over interpretation and enforcement of
contracts."

8 We note that the judge skipped the first analytical path of the
second stage. See Harrison II, 483 Mass. at 519. On appeal,
the board does not purport to meet the "high bar" of the first
path. Where WPV does not claim error by the judge in this
regard, nothing turns on the judge's omission. The actual
injury, if any, sustained by the board from WPV's modification
requests was a required element of proof for the board with
respect to the first path, but not for the second path, and
thus, we need not address it. See id. at 518.

9
207-208. The colorability of the claim is supported by the

plain language of the 2012 settlement agreement and the

comprehensive permits. As part of the 2012 settlement

agreement, WPV expressly agreed that it would not seek

modifications of sixty-nine conditions contained in the 2006

amended comprehensive permit from either the ZBA or the HCA.

The relevant portions of the 2012 settlement agreement regarding

the nonmodifiable conditions were not "specifically superseded"

by the 2015 modified comprehensive permit, see note 4, supra,

and thus remained in full force and effect, 9 and as the judge

noted, the substance of the 2006 and 2015 conservation

restriction conditions was "largely the same." Notwithstanding

the previous agreement, in 2020 and 2021, WPV submitted requests

for the elimination of a covered condition -- to both the HCA

and the ZBA.

As for the second element, we discern no abuse of

discretion in the judge's determination that, based on the

totality of the circumstances, the board's claims do not amount

to a SLAPP suit (i.e., brought primarily to chill WPV's

legitimate petitioning activities). 10 See Blanchard II, 483

9 Moreover, the 2015 modified comprehensive permit expressly
preserved the ZBA's rights to insist on WPV's adherence to the
conditions listed in the 2012 settlement agreement.
10 To the extent that WPV seizes on a few words in the judge's

decision to show that the judge did not apply the correct fair
assurance standard, we find WPV's arguments unpersuasive.

10
Mass. at 209-210. The judge could reasonably have inferred that

the board, which waived its appellate rights in consideration of

WPV's promises in the settlement agreement, was aggrieved by

WPV's subsequent requests to have the 2015 conservation

restriction condition eliminated, and through this action was

seeking damages for the harm caused by WPV's legally

transgressive acts. 11

Order dated May 25, 2022,
denying special motion to
dismiss affirmed.

By the Court (Wolohojian,
Singh & Hand, JJ. 12),

Clerk

Entered: August 8, 2023.

11 WPV's request for attorney's fees is denied.
12 The panelists are listed in order of seniority.

11