PETER KIRK, BRYAN JOHNSON, and MAXINE BREEN, v. WINIFRED I. LI, JANE FISHER CARLSON, and STEPHEN J. LAROCQUE, as they constitute the WESTON BOARD OF APPEALS, and 269 NORTH AVE, LLC.

Peter Kirk, Bryan Johnson, and Maxine Breen have brought this action as an appeal of a comprehensive permit under G.L. c. 40B, issued by the Weston Zoning Board of Appeals (ZBA) to developer 269 North Ave, LLC (269 North) for an apartment development at 269 North Avenue Weston, Massachusetts (the Project Site). The plaintiffs also seek, in Count III of the Complaint (Complaint) a declaration that stormwater runoff from the Project Site onto plaintiff Maxine Breen's (Breen) property constitutes an unlawful trespass and a nuisance. 269 North filed a counterclaim (Counterclaim) against the plaintiff Bryan Johnson (Johnson) for contribution to any trespass or nuisance that may occur. 269 North has moved to dismiss Count III of the Complaint on the grounds that the claim is not ripe for review. Johnson has moved, pursuant to G.L. c. 231, § 59H, also known as the anti-SLAPP statute, to dismiss the Counterclaim on the grounds that it was filed in retaliation for his petitioning activity in this action. The court finds that Count III of the Complaint is ripe for review and the Counterclaim does not merit dismissal under G.L. c. 231, § 59H.

Procedural History

The plaintiffs filed the Complaint on May 22, 2017. The ZBA filed its answer on June 20, 2017. The Answer and Counterclaim of 269 North were filed on July 21, 2017. The Memorandum of Law In Support of Plaintiff Bryan Johnson's Special Motion to Dismiss and Affidavit of Daniel C. Hill (Hill Aff.) were filed on September 15, 2017. Plaintiff Bryan Johnson's Special Motion to Dismiss (anti-SLAPP Motion) was filed on September 18, 2017. Also on September 18, 2017, Defendant 269 North Ave, LLC's Motion to Dismiss Counts II and III of the Complaint (Motion to Dismiss), Statement of Material Facts, Brief in Support of its Motion to Dismiss, and Appendix were filed. On October 18, 2017, Defendant 269 North Ave, LLC's Opposition to Plaintiff Bryan Johnson's Special Motion to Dismiss Counterclaim was filed. Also on October 18, 2017, Plaintiff Maxine Breen's Memorandum in Opposition to Defendant 269 North Ave, LLC's motion to Dismiss Counts II and III of the Complaint and Cross-Motion for Relief Under Rule 56 as to Count II was filed. On October 19, 2017, Defendant Weston Zoning Board of Appeals Joinder in Defendant 269 North Ave, LLC's Motion to Dismiss was filed. The anti-SLAPP Motion, Motion to Dismiss, and Cross-Motion for Relief Under Rule 56 as to Count II were heard on October 20, 2017. Upon hearing, Count II of the Complaint was dismissed without prejudice, and the Motion to Dismiss as to Count III of the Complaint and the anti-SLAPP Motion were taken under advisement. This Memorandum and Order follows.

Standard

The Motion to Dismiss seeks dismissal of Count III of the complaint under Mass. R. Civ. P. 12(b)(1), for lack of subject matter jurisdiction. "In reviewing a dismissal under rule 12(b)(1) … [the court] accept[s] the factual allegations in the plaintiff's complaint, as well as any favorable inferences reasonably drawn from them, as true." Ginther v. Commissioner of ins., 427 Mass. 319 , 322 (1998). Further, the court may either consider matters and documents outside the pleadings without converting the motion to one for summary judgment or, considering the same materials, convert the motion to dismiss into a motion for summary judgment. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 555 (1999), abrogated on other grounds by Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81 (2007); Watros v. Greater Lynn Mental Health & Retardation Ass'n, Inc., 421 Mass. 106 , 108-109 (1995). The Motion to Dismiss is not converted into a motion for summary judgment, as it can be decided on the record before the court.

The anti-SLAPP Motion seeks dismissal of the Counterclaim. The law applicable to the anti-SLAPP Motion is discussed, separately from the Motion to Dismiss, below.

Facts

For the purposes of the Motion to Dismiss only, the court accepts as true the following facts as alleged in the Complaint.

1. The defendant 269 North received a comprehensive permit from the Weston ZBA pursuant to G.L. c. 40B, §§ 20-23 for a 16-unit mixed-income apartment development (the Project) located at the Project Site. Complaint (Compl.) ¶ 1.

2. Johnson owns and resides at 277 North Avenue, Weston, Massachusetts (the Johnson Property), which property directly abuts the Project Site. Compl. ¶ 2.

3. Breen owns and resides at 266 North Avenue, Weston, Massachusetts (the Breen Property), which property directly abuts the Project Site. Compl. ¶ 4.

4. Weston's Stormwater & Erosion Control Regulations require, at a minimum, compliance with the Massachusetts stormwater standards and handbook. The Town of Weston's engineering department raised a number of substantive issues with the Project's proposed stormwater management system, which it said did not comply with the state standards. Compl. ¶ 21.

5. If seasonal high groundwater is at a higher elevation than what is assumed in the Project's stormwater modeling calculations, the infiltration systems will not function as designed, leading to flooding on the Project Site and onto abutting properties. Compl. ¶ 24.

6. In its stormwater modeling calculations, 269 North used an assumed infiltration rate for the existing conditions on the Project Site of 1.02 inches per hour, which, the plaintiffs allege, is inconsistent with known soil characteristics on site. 269 North then used a much faster infiltration rate of 8.47 inches per hour for its post-development recharge, even though the soils are not changing. Compl. ¶ 25.

7. The plaintiffs allege that 269 North's manipulation of variables in its stormwater modeling calculations has the effect of materially underestimating runoff rates under the post-development conditions. Compl. ¶ 26.

8. 269 North's soil tests data indicates that the soils on site are very permeable. In a prior iteration of its stormwater modeling calculations, 269 North used a pre-development infiltration rate of 2.41 inched per hour, which 269 North claimed represented the most restrictive soil layer on the Project Site. Compl. ¶ 28.

9. The plaintiffs allege that 269 North's stormwater model vastly overestimates the rate at which stormwater, which will be collected in proposed 6,000 square foot infiltration chambers, will recharge into the ground. Specifically, 269 North's drainage model assumes that recharge will occur over the entire 6,000 square-foot perimeter of the proposed infiltration chamber. Water can only flow out of the chambers via small holes cored in the bottom whose total area is approximately 2.5% of the area assumed by 269 North's calculations. Compl. ¶ 30.

10. There is no provision in 269 North's drainage calculations to account for eventual and certain degradation to the chamber's infiltration capacity between maintenance periods. Compl. ¶ 31.

11. Due to flaws in 269 North's drainage calculations, the infiltration chambers will not have the storage capacity that 269 North is assuming, and therefore during extreme storm events the chambers will overtop and flood abutting properties on North Avenue. Compl. ¶ 32.

12. The plaintiffs allege that stormwater from the Project Site entering North Avenue will eventually enter the catch basins and subsurface drain pipes under the road and ultimately discharge above-ground on the Breen Property. Compl. ¶ 33.

Discussion

Motion to Dismiss Count III.

In Count III of the Complaint, the plaintiffs seek, under G.L. c. 231A, § 1, a declaration that "[t]he creation of physical conditions on the Project that results in runoff from the Project Site and its upgradient watershed area entering the new drainage system in North Avenue and ultimately onto Ms. Breen's property would constitute an unlawful trespass and nuisance to Ms. Breen." Compl. ¶ 64.

"The land court . . . may on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby . . . in any case in which an actual controversy has arisen and is specifically set forth in the pleadings." G.L. c. 231A, § 1. To establish subject matter jurisdiction for a declaratory judgment to issue under G.L. c. 231A, "the plaintiff must demonstrate that an actual controversy exists and that he has legal standing to sue." District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648 , 659 (1980), citing Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290 , 292 (1977). Chapter 231A is remedial in nature and is to be liberally construed. G.L. c. 231A, § 9. "The purpose of both the actual controversy and the standing requirements is to ensure the effectuation of the statutory purpose of G.L. c. 231A, which is to enable a court 'to afford relief from . . . uncertainty and insecurity with respect to rights, duties, status, and other legal relations.'" Galipault v. Wash Rock Invs., LLC, 65 Mass. App. Ct. 73 , 84-85 (2005), quoting G.L. c. 231A, § 9; see Sahli, 437 Mass. at 705. Declaratory judgment proceedings are "concerned with the resolution of real, not hypothetical, controversies; the declaration issued is intended to have an immediate impact on the rights of the parties." Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc., 373 Mass. at 292-293.

An actual controversy is a "real dispute caused by the assertion by one party of a legal relation, status, or right in which he has a definite interest, and the denial of such assertion by another party also having a definite interest in the subject matter, where the circumstances attending the dispute plainly indicate that unless the matter is adjusted such antagonistic claims will almost immediately and inevitably lead to litigation." Bunker Hill Distrib., Inc. v. District Attorney for Suffolk County, 376 Mass. 142 , 144 (1978), quoting School Comm. of Cambridge v. Superintendent of Sch. of Cambridge, 320 Mass. 516 , 518 (1946) (internal quotations omitted).

The actual controversy must be one which would sufficiently survive a motion to dismiss, Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290 , 292 (1977), and may be present whether or not the plaintiff's rights have already been impaired. District Attorney for the Suffolk Dist., 381 Mass. at 659; School Comm. of Cambridge, 320 Mass. at 518. 269 North admits that an actual controversy exists with regard to whether or not the entry of runoff on to the Breen Property would constitute an unlawful trespass and nuisance. Counterclaim ¶ 8. 269 North argues, rather, that the claim in Count III for declaratory judgment is not ripe for adjudication and should therefore be dismissed.

Where there is an actual controversy, a plaintiff must have standing "to secure its resolution." Bello v. South Shore Hospital, 384 Mass. 770 , 778 (1981); Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc., 373 Mass. at 292-293. "The question of whether an actual controversy exists is closely related to the question of standing." Bello, 384 Mass. at 778. Standing to pursue a declaratory judgment claim requires that the plaintiff have a "definite interest in the matters in contention in the sense that his rights will be significantly affected by a resolution of the contested point." Bonan v. City of Boston, 398 Mass. 315 , 320 (1986); see Bello, 384 Mass. at 777-779 (no standing for declaring judgment construing hospital bylaws where plaintiff physicians were not members of hospital corporation, but just applicants); Galipault, 65 Mass. App. Ct. at 84 (no standing for declaratory judgment that condo owners had right of first refusal to purchase other units where court found they did not own right of first refusal nor had any other interest in it). Here, 269 North is not disputing that Breen has standing to bring Count III of the Complaint. Breen has a definitive and concrete interest in the resolution of the contested issue of whether additional runoff onto her property constitutes an unlawful trespass and nuisance.

The issue raised by 269 North is whether Count III of this action is ripe for review. Ripeness is the "time dimension [] of standing." McInnis-Misenor v. Maine Med. Ctr., 319 F.3d 63, 69 (1st Cir. 2003). It essentially focuses on the "'when' of litigation, as opposed to the 'who.'" Id. Even if plaintiffs have standing (i.e. the appropriate "who"), the "question of 'when' remains." Id. at 69-70. The ripeness doctrine's purpose "is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Abbot Lab. v. Gardner, 387 U.S. 136, 148 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). Courts apply a two-part test to determine ripeness, looking to (i) the fitness of the issue for judicial decision and (ii) the extent to which withholding judgment will impose hardship. Id. at 149; Roman Catholic Bishop of Springfield v. City of Springfield, 724 F.3d 78, 89 (1st Cir. 2013); Massachusetts Ass'n of Afro-American Police, Inc. v. Boston Police Dept., 973 F.2d 18, 20 (1st Cir. 1992). Both prongs must be met, though a weak showing on one may be compensated by a strong showing on another. Stern v. U.S. Dist. Court for Dist. of Mass., 214 F.3d 4, 10 (1st Cir. 2000); Ernst & Young v. Depositors Economic Protection Corp., 45 F.3d 530, 535 (1st Cir. 1995). The court addresses whether the plaintiffs meet each prong in turn.

1. Fitness of the Issue. Under the fitness prong, courts focus on "subsidiary queries concerning finality, definiteness, and the extent to which resolution of the challenge depends upon facts that may not yet be sufficiently developed." Ernst & Young, 45 F.3d at 535. The critical question is whether a "claim involves uncertain and contingent events that may not occur as anticipated, or indeed may not occur at all." Massachusetts Ass'n of Afro-American Police, Inc., 973 F.2d at 20; see McInnis-Misenor, 319 F.3d at 72. The point is to avoid deciding hypothetical questions. However, "the raw fact that events have not fully unfolded is not always fatal to justiciability. In such straitened circumstances, courts sometimes exhibit a greater willingness to decide cases that turn on legal issues not likely to be significantly affected by further factual development." Ernst & Young, 45 F. 3d at 536, citing Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 201 (1983).

The claim raised in Count III—that the alleged runoff onto the Breen Property would constitute an unlawful trespass and a nuisance—is fit for judicial review. 269 North argues that there are contingencies that may never happen, making resolution of this issue unfit for judicial review. See Ernst & Young, 45 F.3d at 538 (issue not ripe for review because no less than eight (8) contingent events had to occur first before any harm would come to E&Y under the statute, such that claim "depend[ed] on serendipitous events that may not occur as anticipated–or may not occur at all"). As pled, however, Count III does not rely on contingent events. Count III alleges that the Project's discharge system is in fact flawed and that it will in fact fail, causing stormwater runoff over the Breen Property to occur. This question requires a factual determination, with the support of expert testimony, of the sufficiency of the approved drainage system, to determine if it is flawed as alleged.

269 North likens the prospective nuisance and trespass alleged in Count III to that considered by the Court of Appeals in its unpublished opinion in TCR MIDAtlantic/NE Properties, Inc. v. Marques, No. 05-P-424 (Mass. App. Ct. Apr. 18, 2006). The court in TCR found, inter alia, that the trial court erred in finding that a developer's prospective actions would not amount to trespass or nuisance. Id. The TCR court found that "[w]hether either of TCR's proposed developments amounts to a 'reasonable use' so as to defeat a future trespass or nuisance claim by the defendants depends on the actual, not the theoretical, effect on the defendants' property of TCR's development." Id. This court does not read the decision in TCR to suggest that a claim of prospective nuisance and trespass may never be heard by the trial court, but rather to reach a conclusion based on the specific allegations and facts in that case. Here, unlike in TCR, the court is presented with pleadings which allege that the nuisance and trespass are and will be the conclusive result of the construction of the drainage system approved in the comprehensive permit. Unlike the developer in TCR, 269 North does have a comprehensive permit for the development which includes the disputed drainage system. If Breen is able to prove to this court that the harm alleged in Count III will be the actual result of 269 North's compliance with the comprehensive permit, rather than a theoretical one, Breen may be entitled to the declaratory relief sought. Count III is fit for judicial review.

2. Hardship to the Parties. This prong centers on the "direct and immediate dilemma" for the parties that results from withholding judicial review. Ernst & Young, 45. F. 3d at 535; see Stern, 214 F.3d at 11. "Generally, a 'mere possibility of future injury, unless it is the cause of some present detriment, does not constitute hardship.'" Sindicato Puertorriqueno de Trabajadores, SEIU Local 1996 v. Fortuno, 699 F.3d 1, 9 (1st Cir. 2012) (per curiam), quoting Simmonds v. INS, 326 F.3d 351, 360 (1st Cir. 2003); see Roman Catholic Bishop of Springfield, 724 F.3d at 90. In assessing hardship, the court focuses on a "judgment's usefulness": "rather than asking negatively, whether denying relief would impose hardship, courts will do well to ask, in a more positive vein, whether granting relief would serve a useful purpose, or, put another way, whether the sought-after declaration would be of practical assistance in setting the underlying controversy to rest." Verizon New England, Inc. v. International Bhd. of Elec. Workers, Local No. 2322, 651 F.3d 176, 188 (1st Cir. 2011) (citations omitted).

269 North argues that there is no "direct and immediate dilemma" that would result if the court should decline to act on Count III. Its contention is that a decision on Count I—the plaintiffs' challenge to the comprehensive permit—will resolve the issue by either affirming the permit and its stormwater plan or annulling it and remanding it to the ZBA. Thus, 269 North argues, the declaration sought in Count III does nothing to inoculate Breen against the future operation of the Project. Breen argues that there is a direct and immediate dilemma in that if the Project goes ahead as planned, due to useable space constraints on the Project Site, it may be too late to make necessary changes after the Project is complete. It is possible that this court could find in favor of 269 North on Count I and affirm the comprehensive permit without addressing the risk of unlawful trespass and nuisance that Breen has alleged. In other words, there is a direct and immediate dilemma regarding the nuisance and trespass, which is best resolved to the extent possible in the current action. While both claims, Counts I and III, are before this court, a finding that the runoff will or will not occur and if it does whether it will constitute an unlawful trespass or nuisance is of practical assistance in resolving a portion of the controversy underlying Counts I and III. Breen's claim for declaratory judgment in Count III, as pled, is ripe for resolution.

Anti-SLAPP Special Motion to Dismiss Counterclaim.

Johnson argues that G.L. c. 231, § 59H (anti-SLAPP statute [Note 1]) applies to the Counterclaim brought by 269 North this case, and requires the Counterclaim's dismissal. The Counterclaim seeks contribution from Johnson for any trespass or nuisance caused on the Breen Property by additional runoff flowing onto the Project Site and then onto the Breen Property from Johnson's proposed subdivision on the Johnson Property, which is in the same watershed as the Project Site. [Note 2] As discussed below, because the counterclaim is directed to this runoff, it does not arise solely from Johnson's petitioning activity. The anti-SLAPP Motion is denied.

The anti-SLAPP statute provides, in relevant part:

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 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 and supporting and opposing affidavits stating the facts upon which the liability or defense is based. If the court grants such special motion to dismiss, the court shall award the moving party costs and reasonable attorney's fees, including those incurred for the special motion and any related discovery matters. Nothing in this section shall affect or preclude the right of the moving party to any remedy otherwise authorized by law. As used in this section, the words "a party's exercise of its right of petition" shall mean 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 a legislative, executive, or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding; 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, § 59 H.

The statute is intended as "a quick remedy for citizens who are targeted by frivolous lawsuits based on their government-petitioning activities," Moriarty v. Mayor of Holyoke, 71 Mass. App. Ct. 442 , 445 (2008), and the "typical mischief" it is meant to address is "lawsuits directed at individual citizens of modest means for speaking publicly against development projects." Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156 , 161. "A SLAPP suit generally has no merit; the plaintiff's objective is not to win, but to 'use litigation to intimidate opponents' exercise of rights of petitioning and speech,' and 'to deter common citizens from exercising their political or legal rights or to punish them for doing so.'" Wenger v. Aceto, 451 Mass. 1 , 4 (2008), quoting Duracraft, 427 Mass. at 161.

In determining whether the moving party is entitled to dismissal of the claims against it under the anti-SLAPP statute, a burden-shifting analysis is applied. "As a threshold matter, the party seeking dismissal [] must demonstrate, through pleadings and affidavits, that the [non-movant's] claims are based on petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities." Wenger, 451 Mass. at 5 (internal citations and quotations omitted). "If this showing is not made, the special motion must be denied." Id. "If the showing is made, then the burden shifts to the nonmoving party [] to demonstrate, again by pleadings and affidavits, that the moving party's petitioning activities were 'devoid of any reasonable factual support or any arguable basis in law' and the petitioning activities 'caused actual injury to the responding party.'" Id., quoting G.L. c. 231, § 59H. "If these showings are made, by a preponderance of the evidence, then the special motion to dismiss must be denied. If that standard is not met for one or both elements, the special motion to dismiss must be allowed." Id.

Recently, in Blanchard v. Steward Carney Hospital, Inc., 477 Mass. 141 (2017), the SJC held that the nonmoving party may henceforth meet its second-stage burden and defeat the special motion to dismiss by demonstrating in the alternative that each challenged claim does not give rise to a SLAPP suit because each such claim was not primarily brought to chill the special movant's legitimate petitioning activities. "To make such a showing, the nonmoving party must establish, such that the motion judge may conclude with fair assurance, that its primary motivating goal in bringing its claim, viewed in its entirety, 'was not to interfere with and burden the defendants' petition rights, but to seek damages for the personal harm to it from the defendants' alleged … legally transgressive acts.'" Id. at 160, citing Sandholm v. Kuecker, 962 N.E.2d 418, 434 (Ill. 2012).

As to the threshold matter of whether or not the Counterclaim is based on petitioning activities alone and has no substantial basis other than or in addition to the petitioning activities, Johnson argues that (1) the Counterclaim is a direct response to the Plaintiffs' petitioning activity, here being the Complaint; (2) 269 North has only named Johnson in the Counterclaim and no other potentially contributing property owners in the watershed; and (3) 269 North betrayed its intentions by pejoratively describing Johnson in the Counterclaim as an individual who opposed the Project. [Note 3] The court finds that Johnson has not met his required burden to show that 269 North had no substantial basis other than the petitioning activities for filing the Counterclaim. On a § 59H special motion to dismiss a counterclaim, it is not sufficient to attack the counterclaim solely for being brought in response to the complaint. "[A]lthough claims and related pleadings filed in court may be classified as petitioning activities, plaintiffs are not thereby immunized from counterclaims filed in response to the claim." Duracraft, 427 Mass. at 168, n. 20. The Counterclaim is not directed solely to the bringing of the Complaint. Rather, it seeks to hold Johnson liable for runoff from his property that would contribute to the alleged runoff to the Breen Property.

The failure to name other watershed property owners does not demonstrate that there is no substantial basis for the Counterclaim other than the petitioning activity. 269 North was not required to name other property owners in the watershed. The Counterclaim alleges that Johnson's property makes "up a sizeable portion of the watershed which conveys stormwater onto the [Project Site] and North Avenue." [Note 4] As this court has, above, denied the dismissal of Count III, it does not follow that at this time it should dismiss the Counterclaim which seeks contribution for the trespass and nuisance alleged in Count III. As 269 North has raised a colorable claim in response to Count III of the Complaint, the Counterclaim is not based on the plaintiffs' petitioning activity alone, and the anti-SLAPP Motion must be denied. [Note 5]

Conclusion

For the foregoing reasons, the Plaintiffs' Special Motion to Dismiss is DENIED and the Defendants' Motion to Dismiss as to Count III of the Complaint is DENIED.

SO ORDERED