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21-P-1135 Appeals Court

BRISTOL ASPHALT CO., INC., & another1 vs. ROCHESTER BITUMINOUS 

PRODUCTS, INC., & others.2

No. 21-P-1135.

Plymouth. November 2, 2022. - April 28, 2023.

Present: Rubin, Englander, & Hand, JJ.

"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.

Michael S. Rabieh for the defendants.

Brian M. Hurley for the plaintiffs.

1 Edgewood Development Company, LLC.

2 Albert Todesca and Paul Todesca, individually and as 

trustees of the Todesca Realty Trust.
2

HAND, J. This case stems from a decade-long battle between 

the plaintiffs and the defendants over the plaintiffs' efforts 

to build a bituminous concrete plant on property in the town of 

Rochester's (town or Rochester) industrial zoning district. The 

proposed plant was to be developed adjacent to an existing 

concrete plant operated by the defendants in the same district.

Beginning in 2010 and continuing through 2020, the 

defendants opposed the plaintiffs' plans before local and State 

boards and administrative agencies and sought judicial review of 

the adverse decisions of those bodies in the trial court and in 

the Appeals Court. The plaintiffs prevailed before every 

tribunal at every level. The plaintiffs contend that the 

defendants' petitioning was merely an improper attempt to 

prevent business competition. Accordingly, in August 2020, 

after the dust from the defendants' petitioning efforts had 

settled, the plaintiffs filed suit against the defendants in the 

Superior Court. In their amended complaint they alleged 

violations of G. L. c. 93A, § 11 (count I), G. L. c. 93, § 4

(count II), and abuse of process (count III). The defendants 

responded that the plaintiffs' action was an improper attempt to 

chill their rights to engage in legitimate petitioning activity,

and filed a special motion to dismiss the plaintiffs' claims 
3

under the "anti-SLAPP"3 statute, G. L. c. 231, § 59H. Applying 

the augmented burden-shifting framework set forth in Blanchard

v. Steward Carney Hosp., Inc., 477 Mass. 141, 159-160 (2017) 

(Blanchard I), S.C., 483 Mass. 200 (2019) (Blanchard II), 

modifying Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 

(1998) (Duracraft), the judge concluded that the defendants, as 

the moving parties, made the required threshold showing that the 

complaint was based solely on their petitioning activity. He 

also concluded, however, that the plaintiffs ultimately met the 

"high bar" required to defeat the motion by demonstrating that 

the defendants' petitioning activity lacked any reasonable basis 

in fact or law. See Blanchard II, supra at 204. Accordingly, 

the judge denied the defendants' special motion to dismiss.4 The 

defendants appealed that ruling under the doctrine of present 

execution. See id. at 213 (doctrine of present execution 

applies to interlocutory order denying anti-SLAPP motion); 

3 "SLAPP" is an acronym for "Strategic Lawsuit Against 

Public Participation." Duracraft Corp. v. Holmes Prods. Corp., 

427 Mass. 156, 160 n.7 (1998).

4 The defendants' special motion to dismiss included a

motion, in the alternative, for judgment on the pleadings. The 

judge allowed that motion as to so much of count III as alleged 

abuse of process based on administrative proceedings, and 

otherwise denied it. As far as we are aware, no separate 

judgment has entered as to that aspect of the plaintiffs' claim. 

In any event, the ruling is not part of the instant appeal, and 

we do not address it further.
4

Gillette Co. v. Provost, 91 Mass. App. Ct. 133, 136 (2017) 

(same).

As we discuss below, the plaintiffs' amended complaint is 

based on three petitioning efforts by the defendants to block 

the plaintiffs' plans, including the defendants' appeals from 

the unfavorable results of each. After careful review, we 

discern no abuse of discretion or error of law in the judge's 

conclusion that the defendants' petitioning activity, in its 

entirety, "lacked any reasonable factual support or any arguable 

basis in law," Baker v. Parsons, 434 Mass. 543, 553-554 (2001), 

and that the defendants' special motion to dismiss was properly 

denied, see Blanchard II, 483 Mass. at 203 (appellate court 

reviews "ruling for an abuse of discretion or error of law"). 

Accordingly, we affirm.

Background. We summarize the facts drawn from the 

pleadings and the affidavits in the record before the judge. 

Benoit v. Frederickson, 454 Mass. 148, 149 (2009).

1. The parties. The plaintiffs are Bristol Asphalt Co., 

Inc. (Bristol Asphalt), and Edgewood Development Company, LLC

(Edgewood) (collectively, Bristol parties). In 2019 Bristol 

Asphalt was established to assist Edgewood and other related 

entities in obtaining the necessary permits for the bituminous 

concrete plant (proposed plant) on behalf of the proposed 

plant's developer, Lorusso Corporation. Bristol Asphalt was 
5

also incorporated to construct the permitted plant at a site

located at 99 Kings Highway in Rochester (proposed site).

The defendants are Rochester Bituminous Products, Inc.

(Rochester Bituminous), and Albert Todesca and Paul Todesca, 

individually and as trustees of the Todesca Realty Trust 

(Todesca Trust) (hereinafter, we refer to the defendants 

collectively as the RBP parties).5 Rochester Bituminous owns and 

operates an existing bituminous concrete production facility at 

83 Kings Highway, the abutting parcel immediately south of the 

proposed site. Previously, title to that property was held by 

the Todesca Trust, of which brothers Albert Todesca and Paul 

Todesca are the trustees. Additionally, at different times Paul 

Todesca has served as a manager, officer, and director of 

Rochester Bituminous, while Albert Todesca has served as a 

"consultant." Albert Todesca and Paul Todesca, as trustees, 

also owned two neighboring residential properties located on 

5 On appeal, the RBP parties argue that in considering their 

special motion to dismiss, we should separately consider each 

defendant's role and level of involvement in opposing the plans 

for the proposed plant. Because none of the defendants raised 

this need for separate consideration below, that argument is 

waived. See Trapp v. Roden, 473 Mass. 210, 220 n.12 (2015). We 

note that nothing prevents the discrete defendants from availing 

themselves of further motions to dismiss or for summary judgment 

on grounds other than the anti-SLAPP statute as this case 

progresses, although we express no opinion on the likelihood of 

success of any such motion.
6

Kings Highway; neither property abutted the site of the proposed 

plant or was within 300 feet of it.

2. The petitioning activity. a. Site plan approval. The 

first category of petitioning activity addressed in the amended 

complaint concerns the RBP parties' challenges to the town 

planning board's approval of the site plan.6

The proposed site was located in the industrial district of 

the town. Under § IV(D)(1) of the town's zoning bylaws, as 

amended May 18, 2009, activities including "[m]anufacturing, 

industrial or commercial uses including processing, fabrication, 

assembly and storage of materials" were permitted by right in 

that district, provided that "no such use [was] permitted which 

would be detrimental or offensive or tend to reduce property 

values in the same or adjoining district." The bylaws required 

that all new development of the size and cost contemplated by 

the proposed plant be subject to site plan review and approval 

by the planning board. See Rochester Bylaws § XVI(1.1), as 

6 In his "corrected" affidavit submitted in support of the 

defendants' special motion to dismiss, Albert Todesca admitted 

that "we participated in the permit review process . . . [and] 

filed multiple . . . lawsuits and appeals" challenging the 

permitting for the proposed plant. In addition, the Todescas 

had an agreement with the abutters to the proposed site and 

other area residents whereby the Todesca Trust would fund all 

costs of the litigation opposing the site plan approval. The

Todescas also admit that the Todesca Trust sponsored the citizen 

petitions discussed in part 2.c, infra.
7

amended June 9, 2003, and October 24, 2005. In performing the 

required review for a use available as of right, the planning 

board's discretion was explicitly limited: the bylaws provided 

that "[t]he Planning Board shall approve an application" if it 

found that the proposed development conformed with the bylaw, or

if conformity could be achieved by compliance with "conditions, 

limitations and safeguards" imposed by the planning board. See 

Rochester Bylaws § XVI(1.9)(3)(a), adopted February 27, 2002. 

The planning board's discretion to deny approval of an as of

right use was limited to, as relevant here, circumstances in 

which the plan "[was] so intrusive on the needs of the public in 

one regulated aspect or another that rejection by the [b]oard 

would be tenable because no form of reasonable conditions can be 

devised to satisfy the problem with the plan." Rochester Bylaws

§ XVI(1.3)(3), as amended October 24, 2005.

Edgewood applied to the planning board for site plan 

approval for the facility in November 2010. In May 2011, after 

nine public hearings on the application, the planning board 

approved the site plan. In doing so, it concluded that the

bituminous concrete plant was a use permitted as of right in the 

industrial district and that any defects in the plan as proposed 

could be remedied through the series of conditions the board 

imposed on, among other aspects of the project, the proposed 
8

plant's compliance with State noise regulations and a traffic 

management plan.7

The Todesca Trust, through trustee Paul Todesca, and 

several abutters and other neighbors of the proposed site, 

including tenants of the Todesca Trust (abutters), appealed the 

planning board's approval of the site plan to the town's zoning 

board of appeal (ZBA). After a public hearing, the ZBA affirmed 

the planning board's decision. Pursuant to G. L. c. 40A, § 17,

a subset of the abutters,8 including both Todesca brothers, as 

trustees, appealed the ZBA's decision to the Land Court. A 

judge of that court granted partial summary judgment for 

Edgewood, rejecting the abutters' argument that the plant would 

generate noise levels so inherently "detrimental and offensive"

as to take the plant out of the category of permitted uses under 

the zoning bylaws.

7 The traffic-related conditions imposed by the planning 

board included a prohibition on truck parking on Kings Highway;

installation of traffic signs; orientation of a driveway to 

accommodate increased traffic to the site; and distribution of 

rules for truck operation to all drivers, contractors, clients, 

and the planning board.

8 Carol D'Acci, Michael D'Acci, Brandon Empey, Krystle 

Empey, Emma Galvin, Jeffrey Mason, Sean Somers, and Paul Murphy 

as trustee of the Willard Realty Trust. The named parties 

changed over the course of the litigation as tenants moved in 

and out of the residential properties near the proposed site.
9

Trial proceeded on the abutters' remaining claims, 

including that the proposed plant was a prohibited use under the 

zoning bylaws because the truck traffic and other harms

associated with its operations would be "detrimental or 

offensive" and would tend to reduce the property values in the 

same or adjoining district; and alternatively, even if the 

proposed plant were a permitted use, that the request for 

approval of the site plan should be denied because "the 

[claimed] problem[s] [with the site plan] [were] so intractable 

that [they] could admit of no reasonable solution." Prudential 

Ins. Co. of Am. v. Board of Appeals of Westwood, 23 Mass. App. 

Ct. 278, 283 (1986).

The Land Court judge first rejected the abutters' challenge 

to the proposed plant's qualification as a permitted use on the 

grounds that "there is no evidence that [the] harms [on which 

the abutters' claims were based] are inherent in an asphalt 

plant use as opposed to any other industrial use." In doing so, 

the judge found no evidence that the proposed plant "would be 

appreciably different, or more intense in character, than any of 

the existing industrial uses," including the larger and more 

intense bituminous processing use by neighboring Rochester 

Bituminous. Next, the judge found no evidence from which she 

could find that the proposed plant would tend to reduce property 

values in the industrial district as a whole. She then 
10

considered and rejected the abutters' claims that even 

considering the proposed plant as a permitted use, the ZBA erred 

in approving the site plan because the predicted problems were 

"intractable" and "admit[ted] of no reasonable solution."

Prudential Ins. Co. of Am., 23 Mass. App. Ct. at 283.

Both sides introduced evidence about whether the proposed 

plant's operation created new safety risks or was likely to 

result in traffic congestion on the adjacent roadway. The judge 

noted, however, that the abutters' evidence -- their expert's 

testimony about the ability of trucks of a certain size to pass 

or travel abreast on the driveway of the proposed facility and 

the possibility that the "queuing" of waiting trucks could 

extend onto Kings Highway -- was based on "assumed facts 

provided by the Todescas and not on . . . proposed site 

conditions."9 Concluding that (1) the risks predicted by that

expert were hypothetical and unlikely to be realized, and (2) 

any actual traffic concerns could be adequately resolved through 

the imposition of the planning board's reasonable conditions,

9 Although, as we will discuss, certain abutters appealed 

from the Land Court judgment upholding the planning board's 

decision, no appeal was pursued from this aspect of the judge's 

decision. See D'Acci v. Board of Appeals of Rochester, 91 Mass. 

App. Ct. 1118 (2017).
11

see note 7, supra, the Land Court judge rejected the abutters' 

arguments10 and, after trial, dismissed their appeal.

Three abutters funded by the Todesca Trust appealed the

Land Court judgment to this court. On April 24, 2017, we 

rejected their claims, agreed with the Land Court judge's 

reasoning, and affirmed the judgment in an unpublished 

memorandum and order pursuant to our rule 23.0. See D'Acci v. 

Board of Appeals of Rochester, 91 Mass. App. Ct. 1118 (2017). 

In doing so, we concluded that the Land Court judge had

correctly granted summary judgment on the issue of noise where 

the planning board's site approval was ultimately conditioned on 

Edgewood's conformance with State noise regulations, as 

evidenced by an air permit issued by the Department of 

Environmental Protection (DEP).11 See id. We also agreed with 

10 The Land Court judge's assessment of the likelihood that 

the risks predicted by the abutters' traffic expert would be 

realized relied on her weighing of conflicting evidence. It 

does not appear, however, that the abutters introduced any 

evidence to show that if the traffic problems they predicted did 

come to pass, the conditions imposed by the planning board could 

not address them. Although the abutters' expert opined that one 

of Edgewood's efforts to comply with those conditions -- its 

implementation of a "Temporary Truck Parking Plan" -- was 

"unworkable," there is no indication in the record that no

"reasonable solution" was achievable.

11 The planning board's conditions also required that to 

ensure compliance with the DEP regulations, Edgewood (1) provide 

the zoning enforcement officer and planning board weekly reports 

documenting ambient sound levels during the first sixty days of 

the proposed facility's operations; and (2) pay for the planning 
12

the Land Court judge "that there [was] no evidence [that 

anticipated increased noise and truck traffic near the abutters' 

homes] [were] inherent to the [proposed] facility in particular, 

'as opposed to any other industrial use,' and that the by-laws 

do not contemplate prohibiting an industrial use in an 

industrial district solely because a nearby residential property 

owner would find it offensive or detrimental." Id. Finally, 

we agreed with the Land Court judge that the abutters had 

produced no evidence to show that the proposed facility would 

cause property values across the industrial district to 

decrease, and that the abutters' argument relied on an incorrect 

interpretation of the bylaws. See id.

b. Conservation commission. The second category of 

petitioning activity engaged in by the RPB parties arose from 

Edgewood's request for an extension of an order of conditions 

issued by the town conservation commission (commission).

In December 2010, a month after it submitted its 

application for site plan approval, Edgewood filed, pursuant to 

the Wetlands Protection Act, G. L. c. 131, § 40, and the 

Rochester wetlands protection bylaw, a notice of intent with the

commission. The commission issued an order of conditions in 

March 2011, but due to delays in the site plan approval process

board's retention of a noise monitoring consultant to submit 

ongoing reports three times annually.
13

(resulting, at least in part, from the unsuccessful appeals of 

the planning board's decision), Edgewood was required to file

for an extension of the order in January 2018. It did so, and 

the commission granted Edgewood a three-year extension.

On June 26, 2018, Rochester Bituminous and three abutters

(wetlands abutters) filed a certiorari action in the Superior 

Court challenging the extension.12 See G. L. c. 249, § 4. The 

judge assigned to that case ruled against the wetlands abutters

in July 2019, concluding that they had presented no evidence of 

any changes to the area that would require the rejection of or 

revisions to the original order of conditions, and nothing in 

the applicable statutes or regulations supported their arguments

that either a new wetlands delineation or confirmation of the 

prior one was required.13 The wetlands abutters appealed from 

that judgment to this court; in 2020, we affirmed the judgment 

12 The Bristol parties do not challenge the propriety of the 

wetlands abutters' attempt to seek review of the extension order 

in this manner, rather than through an appeal to the DEP. See

generally Healer v. Department of Envtl. Protection, 73 Mass. 

App. Ct. 714, 717-718 (2009) (discussing procedures for 

obtaining review of conservation commission orders). 

Accordingly, we do not address the propriety of their chosen 

path.

13 The judge noted that the wetlands abutters could have 

appealed from the commission's order at the time it was issued 

but did not do so. The judge also rejected several other 

arguments made by the wetlands abutters, none of which impacts 

our analysis and which we therefore do not explain in detail.
14

upholding the decision of the conservation commission to approve

the extension order.14 See Rochester Bituminous Prods., Inc. v. 

Conservation Comm'n of Rochester, 98 Mass. App. Ct. 1118 (2020).

c. MEPA petitions. The final category of petitioning 

activity to which the amended complaint refers was connected to 

the RBP parties' efforts to obtain review of the proposed 

facility under the Massachusetts Environmental Policy Act, G. L. 

c. 30, §§ 61-62H (MEPA). Although the proposed plant was not 

subject to such a review, the Todesca Trust nonetheless

collected the signatures of twenty-one town residents and, 

through the trust's attorney, filed a citizen "fail-safe 

petition" in January 2018.15 The Executive Office of Energy and 

Environmental Affairs (EOEEA) issued an order in February 2018 

14 Contemporaneously with these proceedings, a group of 

twenty town residents appealed the extension order to DEP and 

from there to the Office of Appeals and Dispute Resolution 

(OADR). The OADR concluded that nothing in the applicable law 

provided for an appeal to DEP and recommended that the DEP 

commissioner issue a final decision dismissing the appeal for 

failure to state a claim upon which relief could be granted. 

After the commissioner adopted the recommendation, Albert 

Todesca appealed the final decision to the Superior Court, but 

ultimately voluntarily dismissed that complaint.

15 Under MEPA regulations, certain petitioners may seek a 

"fail-safe review" of a project that "does not meet or exceed 

any review thresholds" -- if specific requirements are met. See 

301 Code Mass. Regs. § 11.04(1) (2008). The petition submitted 

by the Todesca Trust's attorney was based on the contention that 

"[e]xtensive construction in the area" in which the proposed 

plant was sited would "amplif[y] impacts to the surrounding 

wetlands and the watershed."
15

concluding that the petition did not meet the regulatory 

requirements for MEPA review. Undeterred, in January 2020, the 

Todesca Trust again recruited signatures and submitted, through 

its attorney, a second citizen petition in which it reiterated 

the same concerns on the same basis. The EOEEA denied the 

Todesca Trust's second fail-safe petition on the grounds that it 

alleged "virtually identical facts" to the 2018 petition.

3. The present action. On September 2, 2020, the Bristol

parties filed a three-count amended complaint in the Superior 

Court alleging (1) unfair and deceptive acts and practices in 

the conduct of trade or commerce in violation of G. L. c. 93A, 

§ 11; (2) conspiracy in restraint of trade or commerce in 

violation of G. L. c. 93, § 4; and (3) abuse of process.16 In 

that complaint, the Bristol parties contended that the RBP 

parties' efforts to block the development of a new concrete 

plant were nothing more than attempts to eliminate competition 

for their own existing concrete production business, and that 

the RBP parties had repeatedly misused the petitioning process 

to accomplish that goal. The Bristol parties alleged that the 

RBP parties' challenges to its permitting efforts were 

"frivolous." They further alleged that as a result of the 

unnecessary litigation and resulting delays, they had suffered 

16 The original complaint was filed on August 17, 2020.
16

nearly $12 million in lost profits and had incurred hundreds of 

thousands of dollars in legal fees.

4. The special motion to dismiss. In response to the 

amended complaint, the RBP parties filed an answer and a special 

motion to dismiss pursuant to G. L. c. 231, § 59H. The RBP 

parties argued that all the conduct about which the Bristol

parties complained was protected petitioning activity, and that 

each of the requests the RBP parties made for review of 

Edgewood's permit applications was reasonable and reflected 

their legitimate concerns about the proposed plant. 

Additionally, the RBP parties contended that the Bristol parties

could not show that they had been injured by the RBP parties' 

petitioning activity.

After a hearing, the motion judge denied the RBP parties' 

special motion to dismiss. In a concise written decision, the 

motion judge correctly applied the analytical framework we 

discuss in detail below, concluding that, while the Bristol

parties' claims were based solely on the RBP parties'

petitioning activity, the Bristol parties had met their burden 

of demonstrating that the petitioning activity was a "sham" that 

caused injury to the Bristol parties, and that the RBP parties

were therefore not entitled to the protections of G. L. c. 231, 

§ 59H. This appeal followed.
17

Discussion. 1. Overview. "General Laws c. 231, § 59H, 

provides a procedural remedy -- the special motion to dismiss --

for early dismissal of SLAPP suits, i.e., 'lawsuits brought 

primarily to chill the valid exercise of the constitutional 

rights of freedom of speech and petition for the redress of 

grievances.'" Nyberg v. Wheltle, 101 Mass. App. Ct. 639, 645 

(2022), quoting Blanchard I, 477 Mass. at 147. "SLAPP suits 

have been characterized as 'generally 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.'" Nyberg, supra, quoting Duracraft, 427 Mass. at 161. In 

response to constitutional concerns and the difficulty of 

achieving the statute's legislative intent, see Blanchard I, 

supra at 143, the Supreme Judicial Court has built upon the

analysis first laid out in Duracraft, supra at 167-168, for

analyzing an anti-SLAPP special motion to dismiss. We pause 

briefly to review the requirements of this augmented Duracraft

framework as it applies here.

To prevail on a special motion to dismiss under § 59H, the 

special movants (here, the RBP parties) "must make a threshold 

showing 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 
18

activities.'" Fustolo v. Hollander, 455 Mass. 861, 865 (2010), 

quoting Duracraft, 427 Mass. at 167-168.

If the special movants (here, the RBP parties) make that 

"first stage" showing, the burden then shifts to the nonmovants

(here, the Bristol parties) at the second stage of the analysis 

to defeat the special motion by meeting the requirements of one 

of two analytical paths that the judge must consider 

sequentially. See Nyberg, 101 Mass. App. Ct. at 646. The first 

path tracks the statutory language and requires a showing by the 

nonmovants (the Bristol parties) establishing "by a 

preponderance of the evidence that the [special movants (here, 

the RBP parties)] lacked any reasonable factual support or any 

arguable basis in law for [their] petitioning activity . . . and 

that the petitioning activity caused the nonmoving part[ies]

'actual injury' -- i.e., that [their] petitioning activity is 

illegitimate" (quotation and citation omitted). 477 Harrison 

Ave., LLC v. JACE Boston, LLC, 477 Mass. 162, 168 (2017)

(Harrison I), S.C., 483 Mass. 514 (2019) (Harrison II). The 

judge does not consider the defendant's motivation for engaging 

in the petitioning activities; "[r]ather, the relevant inquiry 

is whether the plaintiff has demonstrated that the defendant's 

petitioning activity lack[ed] any objectively reasonable basis." 

Harrison I, supra at 173. "Proving that the moving party's 

petitioning activity was . . . a sham presents a 'high bar.'" 
19

Blanchard II, 483 Mass. at 204, quoting Blanchard I, 477 Mass. 

at 156 n.20.

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 announced in Blanchard I. If the 

judge reaches this level of the analysis, the nonmovants (here, 

the Bristol parties) are required "to establish, such that the 

motion judge can conclude with fair assurance, that [their] 

claim is not a 'meritless' SLAPP suit 'brought primarily to

chill the special movant's . . . legitimate petitioning 

activities.'" Harrison II, 483 Mass. at 518-519, quoting 

Blanchard I, 477 Mass. at 160.

Here, the motion judge determined that the RBP parties met 

their burden at the first stage, successfully shifting the 

burden to the Bristol parties. He also concluded that the 

Bristol parties, as the nonmovants, prevailed at the second 

stage by proving by a preponderance of the evidence both that 

the RBP parties' petitioning lacked "any reasonable factual 

support or any arguable basis in law," Baker, 434 Mass. at 553-

554, and that the Bristol parties had suffered resulting 
20

injury.17 We consider de novo the RBP parties' showing at the 

first stage, see Reichenbach v. Haydock, 92 Mass. App. Ct. 567, 

572 (2017), but review for abuse of discretion or error of law 

the motion judge's ruling concerning the Bristol parties' 

showing at the second stage. See Blanchard I, 477 Mass. at 160;

Nyberg, 101 Mass. App. Ct. at 646, citing Blanchard II, 483 

Mass. at 203; Reichenbach, supra at 572 n.14; Gillette Co., 91 

Mass. App. Ct. at 137.

2. Judge's analysis. a. First stage. The Bristol

parties do not dispute that their amended complaint was "'based 

on' [the RBP parties'] petitioning activities alone and [had] no 

substantial basis other than or in addition to [their]

petitioning activities."18 Reichenbach, 92 Mass. App. Ct. at 

17 Having decided the motion based on the second stage, 

first path, the motion judge properly did not reach the second 

path of the second stage.

18 We are unpersuaded by the Bristol parties' argument that 

because Rochester Bituminous was a business competitor, and thus 

engaging in petitioning activity of a kind different than that 

which the anti-SLAPP statute was intended to protect, G. L. 

c. 231, § 59H, should not apply. Though "[t]he typical mischief 

that the legislation intended to remedy was lawsuits directed at 

individual citizens of modest means for speaking publicly 

against development projects," Duracraft Corp., 427 Mass. at 

161, the statute as enacted "[does] not address concerns over 

its breadth and reach, and ignore[s] its potential uses in 

litigation far different from the typical SLAPP suit." Id. at 

163. Further, for purposes of the threshold determination, "[a] 

special movant's motivation for engaging in petitioning activity 

does not factor into whether it has met its threshold burden." 

Harrison I, 477 Mass. at 168.
21

572, quoting Office One, Inc. v. Lopez, 437 Mass. 113, 122 

(2002). We agree and conclude that the RBP parties met their

threshold burden under the first stage of the augmented 

Duracraft framework.

b. Second stage. The burden shifted to the Bristol

parties at the second stage. The motion judge correctly began 

with an assessment of the Bristol parties' showing under the 

first of the two second-stage paths and, concluding that they

had demonstrated by a preponderance of the evidence that the RBP 

parties' conduct amounted to sham petitioning,19 allowed the 

motion.20 G. L. c. 231, § 59H. See Blanchard I, 477 Mass. at 

159. Considering each of the three aspects of the RBP parties' 

petitioning activity, we discern no abuse of discretion or error 

in the motion judge's conclusion.

i. Site plan approval. A. Claims based on noise levels 

and decrease in property values. The RBP parties' noise-based 

challenge to Edgewood's site plan approval was based on evidence 

predicting that the proposed plant would raise noise levels at 

19 The motion judge concluded that the RBP parties' 

petitioning was "based on arguments that either conflicted with 

governing regulations or had no evidentiary support," and thus 

was not legitimate petitioning activity.

20 On appeal, the defendants do not challenge the motion 

judge's determination that the plaintiffs suffered actual injury 

as a result of their petitioning. Accordingly, we need not 

discuss the Bristol parties' evidence of damages.
22

adjacent properties to thirty A-weighted decibels above the 

ambient noise levels despite DEP regulations "limit[ing]

allowable increases to 10 [A-weighted decibels] above ambient." 

See 310 Code Mass. Regs. § 7.10 (2002); Policy 90-001 (Jan. 16, 

1990). In making that argument, however, the RBP parties

ignored the fact that the planning board's approval of the site 

plan was conditioned on the applicant's compliance with DEPpromulgated noise regulations -- the very regulations on which 

the RBP parties' argument relied. See D'Acci, 91 Mass. App. Ct. 

1118. Where the Bristol parties could not permissibly operate 

the plant unless they complied with those regulations, the RBP 

parties' continuing noise-based objections to the site plan 

approval lacked any reasonable legal basis or factual support.21

We likewise see no error in the motion judge's rejection of 

the RBP parties' argument that approval of the site plan 

violated § IV(D)(1) of the bylaws, which excluded from as of

21 The RBP parties contend that this argument nonetheless 

had a legal basis because the Bristol parties had failed to show 

actual compliance through the site plan submission. This 

argument verged on the frivolous; as the Land Court judge 

reasoned, and we restated, a determination of actual compliance 

could not be made until operations began. See D'Acci, 91 Mass. 

App. Ct. 1118. Additionally, as the Land Court judge explained, 

interpreting § IV(D)(1) of the bylaws to say that any industrial 

use otherwise allowed in the industrial district is prohibited 

if it has the potential for being "offensive" or "detrimental"

would confer broad (and arguably unfettered) veto powers on 

adjacent property owners in a way that is not contemplated by 

the bylaws.
23

right uses in the industrial district a use that "would . . . 

tend to reduce property values in the same or adjoining 

district." The RBP parties' evidence demonstrated, at best, a 

potential decrease in the value of certain individual 

properties, not, as the relevant bylaw required, a "tend[ency] 

to reduce property values in the [industrial] or adjoining 

districts" more generally. To the extent that the RBP parties

argued for a narrower interpretation of the bylaw, the motion 

judge did not err in implicitly deferring to the planning 

board's reasonable interpretation of its own bylaws, see Shirley 

Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 

Mass. 469, 475 (2012).22

B. Claims based on traffic. We also discern no abuse of 

discretion or other error in the motion judge's conclusion that 

the RBP parties "lack[ed] a reasonable basis in fact or law" for 

their claim that potential traffic issues required the denial of 

the application for site plan approval. Blanchard I, 477 Mass. 

at 159. As we concluded in D'Acci, and as the motion judge 

noted in his decision on the special motion to dismiss, the RBP 

22 Indeed, as the motion judge noted, both we and the Land 

Court judge had already done so. Additionally, both we and the 

Land Court judge determined that the RBP parties had failed to 

introduce evidence to show that the proposed plant would cause 

property values across the industrial zone to decrease. See 

D'Acci, 91 Mass. App. Ct. 1118.
24

parties did not present evidence at any stage to show that the 

Bristol parties' proposed bituminous concrete plant was any more 

detrimental or offensive than any other similar use, or that it 

was not a permitted use in the industrial district. See D'Acci, 

91 Mass. App. Ct. 1118.

Considering the proposed plant as a permitted use, the 

planning board was limited by § XVI of the bylaws, adopted 

February 27, 2002, to imposing conditions in support of the 

objectives outlined there,23 which it did. There was, in our 

view, no abuse of discretion in the motion judge's implicit 

conclusion that the conditions were reasonable and that 

additional site-specific conditions beyond those imposed by the 

board were not required. Since the proposed plant was a 

23 Section XVI(1.4) of the bylaws, as amended and recodified 

October 25, 2005, sets forth a series of conditions including, 

as relevant here, design requirements intended to maximize 

"vehicular safety both on the site and egressing from it," 

"minimiz[ing] visual intrusion" from vehicles and glare, and 

"[c]onform[ance] with State and local sound regulations." 

Rochester Bylaws § XVI(1.4)(7), (9)-(10), (14). Section 

XVI(1.4) also provides that "Site Plan approval shall be granted 

upon determination by the Planning Board that the [enumerated]

considerations have been reasonably addressed by the applicant. 

The Planning Board may impose reasonable conditions, at the 

expense of the applicant, to secure this result." Rochester 

Bylaws § XVI(1.4)(5). Section XVI (1.9)(3)(a) states, "The 

Planning Board shall approve an application if said Board finds

that the proposed development is in conformance with this bylaw. 

In granting approval of an application, the Planning Board may 

impose conditions, limitations and safeguards which shall be in 

writing and which shall be a part of such approval."
25

permitted use in the industrial zone, under the relevant bylaws 

the question before the planning board (and on each successive 

review) was not whether there were potential problems with the 

site plan, but whether, as provided in § XVI(1.3)(3) of the 

bylaws, as amended October 24, 2005, "rejection . . . would be 

tenable because no form of reasonable conditions [could] be 

devised to satisfy the problem with the plan."

The RBP parties' particular traffic arguments required no 

site-specific conditions.24 The motion judge relied on our 

decision in D'Acci to conclude that "there was 'no evidence' the 

proposed plant would increase noise or truck traffic any more 

than any other use permitted in the industrial zoning district." 

See D'Acci, 91 Mass. App. Ct. 1118. While true as far as it 

goes, this conclusion was part of our determination that the 

proposed facility was a permitted use; in D'Acci, we did not 

consider the traffic challenges the RBP parties raised, or 

whether additional conditions were needed to address them. Id. 

We nonetheless conclude that because the record permitted the 

judge to reach the conclusion that he did, he was within his 

discretion in denying the special motion to dismiss. See 

Gabbidon v. King, 414 Mass. 685, 686 (1993) (appellate court may 

affirm on "any ground apparent on the record that supports the 

24 See note 7, supra.
26

result reached in the lower court"). This is because it is 

apparent from the Land Court judge's decision that to the extent 

that the abutters introduced evidence supporting their traffic 

challenges, the evidence was grounded in assumed facts, rather 

than on what the dissent aptly terms "the idiosyncrasies" of the 

site plan, see post at .25 

It is true that in the Land Court trial, the abutters'

traffic expert testified, based on the proposed site plan, that 

the proposed plant's operation would result in traffic backups 

on the adjacent roadway, and that if more than six trucks were 

lined up on the driveway to pick up deliveries, any additional 

truck traffic would spill over onto the adjacent roadway. As 

the Land Court judge noted, however, the expert's testimony 

depended on essential facts about which he had no personal 

knowledge, and which were provided to him by the "Todesca 

Plaintiffs." Notably, the expert relied on the "Todesca 

Plaintiffs" for such critical facts as the dimensions of the 

trucks to be used at the site, the number of trucks that 

"actually process" through a facility and the time required to 

load each truck and to move it out of the queue of waiting 

vehicles, and the ability of the plant operators to regulate the 

25 We have reviewed the transcript of the Land Court trial, 

which was included in the record in D'Acci. See D'Acci, 91 

Mass. App. Ct. 1118.
27

timing of incoming truck traffic. The fact that the Land Court 

judge engaged in a weighing of the evidence presented does not 

mean that the motion judge abused his discretion in concluding 

that, ultimately, the site plan challenge was a sham. As the 

motion judge correctly recognized, to carry its burden at the 

second stage, first path, the Bristol parties' burden was to 

demonstrate that the RBP parties' claims lacked reasonable

factual or legal support; the Bristol parties were not required 

to show that the RBP parties' claims lacked any support. See 

Baker, 434 Mass. at 553-554. Given the Land Court judge's 

assessment, the motion judge, in ruling on the RBP parties' 

special motion to dismiss, acted within his discretion to 

conclude, as he did, that although the "Todesca Plaintiffs"

introduced evidence in support of their position, the evidence 

in question did not provide them with "a reasonable basis in 

fact or law" for their traffic claims. Blanchard I, 477 Mass. 

at 159. The bar at this stage of the analysis is "high," but 

the record here supports the judge's conclusion that the Bristol

parties met it in this case. Blanchard II, 483 Mass. at 204.

ii. Conservation commission. We discern no abuse of 

discretion or error in the motion judge's conclusion that the 

RBP parties' opposition to the commission's extension of the 

Bristol parties' order of conditions was "sham" petitioning. 

The RBP parties' argument that they had a good faith basis to 
28

bring the opposition -- and to seek certiorari review in the 

Superior Court, and then to appeal to this court -- based on the 

mere passage of time between the commission's original order of 

conditions and Edgewood's January 2018 request for an extension

lacked any basis in law or fact. See 310 Code Mass. Regs. 

§ 10.05(8)(b) (2014) (identifying bases for denial of extension 

requests, including "where new information, not available at the 

time the Order [of Conditions] was issued, has become available 

and indicates that the Order is not adequate to protect the 

interests identified in G. L. c. 131, § 40"). On this record, 

not only did the RBP parties fail to introduce evidence at any 

stage of their petitioning of any "new information" or that "the 

[o]rder [was] not adequate to protect" the relevant statutory 

interests, id., but the only evidence that was presented on the 

subject indicated just the opposite -- that the wetlands at 

issue were unchanged from the time of the original order. As 

the motion judge noted, under these circumstances nothing in the 

applicable law or regulations required the commission to conduct 

a new wetlands delineation or to reevaluate the prior one.26

26 The appeals to DEP and to the OADR were also without 

basis, as the governing statute and regulations do not provide 

for such an appeal. Cf. G. L. c. 131, § 40, nineteenth par.; 

301 Code Mass. Regs. § 10.05(7)(b) (2014). The same is true for 

Albert Todesca's subsequent appeal to the Superior Court.
29

iii. MEPA petition. We similarly determine that there was 

no abuse of discretion or other error in the motion judge's 

conclusion that the MEPA petitioning was sham litigation. Under 

301 Code Mass. Regs. § 11.04(1) (2008), to invoke fail-safe 

review, the petitioner must demonstrate three criteria: (1) 

"the Project is subject to MEPA jurisdiction"; (2) "the Project 

has the potential to cause Damage to the Environment" either 

unforeseeable when 301 Code Mass. Regs. §§ 11.00 was promulgated 

or that "would be caused by a circumstance or combination of 

circumstances that individually would not ordinarily cause 

Damage to the Environment"; and (3) "requiring the filing of an 

[environmental notification form27] and other compliance with 

MEPA and 301 [Code of Mass. Regs. §§] 11.00 . . . is essential 

to avoid or minimize Damage to the Environment; and . . . will 

not result in an undue hardship for the Proponent." Here, 

neither petition satisfied more than the first condition. 

Although the project was "subject to MEPA jurisdiction" as a 

result of its need for an air quality plan approval by the DEP, 

see 301 Code Mass. Regs. § 11.01(2)(a) (2013), there was no 

evidence that it would cause the damage to the environment at 

issue in the regulation, or that MEPA review was essential to 

27 An environmental notification form is an initial step in 

obtaining MEPA review of a given project, and serves to "inform 

the [EOEEA] Secretary of the nature of the project." See Allen

v. Boston Redev. Auth., 450 Mass. 242, 246 (2007).
30

avoid or minimize potential environmental impacts of the 

proposed plant. Accordingly, as EOEEA indicated in response to 

the first petition, and reiterated following the second one,

there was no basis for MEPA intervention.

Conclusion. The motion judge properly concluded the RBP 

parties' petitioning activity was "devoid of any reasonable 

factual support or any arguable basis in law." G. L. c. 231, 

§ 59H. Because such "sham" petitioning is not entitled to the 

protections of § 59H, the judge did not err or abuse his 

discretion in denying the RBP parties' special motion to dismiss 

at the first path of the second stage of the augmented Duracraft

analysis. We affirm the motion judge's interlocutory order 

denying the RBP parties' special motion to dismiss the complaint 

against them and remand the case to the Superior Court for 

further proceedings.

So ordered.
RUBIN, J. (concurring). I agree with and join the 

majority's opinion in its entirety. Although I therefore do not 

believe we need reach the question to resolve this case, I write 

separately to express my disagreement with my learned dissenting 

colleague's assertion that, even in the absence of a statute 

like the anti-SLAPP statute, the Federal Constitution requires 

immunity from suit (what he calls "not be[ing] subject to 

suit"), post at , for redress against all abusive litigation 

that is not within the definition of "sham" as it has been 

articulated in the United States Court of Appeals for the Ninth 

and Tenth Circuit cases he cites construing the Noerr-Pennington

doctrine of antitrust immunity for nonsham litigation1 (which, I 

note, is in any event an immunity from liability, not suit). 

See United States v. Koziol, 993 F.3d 1160, 1171 (9th Cir. 

2021), cert. denied, 142 S. Ct. 1372 (2022); CSMN Invs., LLC v. 

Cordillera Metro. Dist., 956 F.3d 1276, 1286 (10th Cir. 2020); 

Scott v. Hern, 216 F.3d 897, 915 (10th Cir. 2000). For example, 

suits alleging the tort of abuse of process, themselves facially 

protected by the petition clause of the First Amendment to the 

United States Constitution, have long been held to have merit 

even in some cases where the defendant's abusive suit led to 

1 See United Mine Workers of Am. v. Pennington, 381 U.S. 657 

(1965); Eastern R.R. Presidents Conference v. Noerr Motor 

Freight, Inc., 365 U.S. 127 (1961).
2

some recovery. See, e.g., Puerto Rico Tel. Co. v. San Juan 

Cable LLC, 874 F.3d 767, 774 (1st Cir. 2018), cert. denied, 138 

S. Ct. 1597 (2019) (Barron, J., concurring, with whom Torruella, 

J., joined) ("[T]he tort of abuse of process is itself sensitive 

to circumstance, but, presumably, the First Amendment is not 

infringed just because the tort imposes liability on some suits 

that have some merit"). See also Poduska v. Ward, 895 F.2d 854, 

857 (1st Cir. 1990) (Aldrich, J.) (even fact that jury made 

small award to defendant as plaintiff in lawsuit does not 

preclude finding that suit was abuse of process); Restatement 

(Second) of Torts § 682 comment a (1977).2 This aspect of the 

tort obviously was not outlawed at the Federal level by the 

adoption in 1791 of the First Amendment, nor in Massachusetts by 

the adoption in 1868 of the Fourteenth Amendment to the United 

States Constitution. Likewise, the relatively recent enactment 

of the anti-SLAPP statute in 1994, was not, as the dissent's 

analysis implies, unnecessary because, since 1868, one could get 

every suit to which it applies, and more, dismissed directly 

under the First and Fourteenth Amendments.

2 Although the dissent implies otherwise, see post at , I 

know of no authority holding that the clauses of the First 

Amendment prohibiting laws "abridging the freedom of speech,"

which says nothing about the motive of the speaker, and laws 

"abridging . . . the right . . . to petition the Government for 

a redress of grievances" (emphasis added) are coextensive, or 

that the analysis under them is identical.
3

I also therefore disagree with my dissenting colleague's 

conclusion that the Supreme Judicial Court's second path of the 

second stage holding in Blanchard v. Steward Carney Hosp., Inc.,

477 Mass. 141, 160 (2017), S.C., 483 Mass. 200 (2019), by which 

we are bound, that a plaintiff can defeat a special motion to 

dismiss and proceed with suit if that plaintiff can

"demonstrat[e] that [the challenged] claim was not primarily 

brought to chill the special movant's legitimate petitioning 

activities," violates the petition clause of the First 

Amendment.
ENGLANDER, J. (dissenting in part). Application of the 

anti-SLAPP act, G. L. c. 231, § 59H, in this context requires 

judges to navigate between two basic principles: on the one 

hand, the people have the fundamental right to petition the 

government for redress of grievances -- and this petition right 

sometimes includes, as in this case, the right to sue the 

government to compel it to comply with its own rules for 

conducting its business. On the other hand, parties should be 

held responsible if they make a claim before an adjudicative 

body that has no reasonable basis in fact or law, including 

answering for any damages they may cause. Here the majority 

sweepingly concludes (as did the motion judge) that all of the 

defendant RBP parties' prior contentions made to the government 

boards and agencies were without reasonable basis in fact or 

law, and thus actionable. The Federal Constitution (and the 

anti-SLAPP case law) requires a more discerning look, however, 

and in my view, one of the claims that the RBP parties 

previously asserted cannot properly be considered a "sham," and 

accordingly, cannot be subject to suit. See Kobrin v. 

Gastfriend, 443 Mass. 327, 333 (2005) ("the right of petition 

protected in the anti-SLAPP statute is that right enumerated in 

the First Amendment to the United States Constitution").

To be clear, I agree with the majority that many of the 

claims that the RBP parties previously asserted to government 
2

bodies -- including all claims that the RBP parties asserted 

based upon actions of the town of Rochester (town) conservation 

commission and the Executive Office of Energy and Environmental 

Affairs -- were entirely without basis and thus a "sham." But 

not all of the RBP parties' prior claims met that test. In 

particular, the RBP parties' Land Court challenge to the 

planning board's site plan approval raised material concerns 

about how truck traffic would infringe on the public way 

abutting the site, which concerns were backed by reasonable, 

fact-based expert testimony. In bringing suit to present such 

legitimate concerns, the RBP parties were exercising their 

constitutional right to petition the government for redress.1 

See Real Estate Bar Ass'n for Mass., Inc. v. National Real 

Estate Info. Servs., 608 F.3d 110, 124 (1st Cir. 2010). The RBP 

parties cannot be subject to government sanction for that 

exercise, and the anti-SLAPP statute cannot be construed to 

allow same. See CSMN Invs., LLC v. Cordillera Metro. Dist., 956 

F.3d 1276, 1282 (10th Cir. 2020) ("Immunity flows from this 

right, protecting those who seek redress through the courts from 

1 I do not mean to suggest that the petition clause of the 

First Amendment (petition clause) provides the RBP parties a 

constitutional right to sue the government over their neighbor's 

land use. It does not. But whereas here the Commonwealth has 

provided that right by statute (and, to that extent, waived any 

governmental immunity), the RBP parties' exercise of the right 

was protected petitioning activity.
3

liability for petitioning activities"). Insofar as the 

plaintiff Bristol parties' suit claims that the RBP parties 

violated the law (e.g., G. L. c. 93A) by pursuing these traffic 

issues, that portion of the Bristol parties' claims was required 

to be dismissed.2

My quarrel with the majority is narrow, but important.

While I agree that most of the claims and arguments that the 

RBP parties advanced in opposing the proposed development were 

without basis in fact or law, the majority also would allow the 

Bristol parties to pursue damages from the RBP parties for their 

assertion of a claim that was not "without basis." There are 

several points to be made about why such a result cannot be 

allowed.

First, we should pause for a moment to recognize that it 

should be the unusual case where a court concludes, as the judge 

did here, that a party's prior efforts to petition the 

government were without reasonable basis. Labeling petitioning 

2 As others have already observed, the case law construing 

the anti-SLAPP statute is remarkably complex, and in need of 

simplification. See Commonwealth v. Exxon Mobil Corp., 489 

Mass. 724, 728 n.5 (2022) (recognizing anti-SLAPP "case law may 

require further reconsideration and simplification"); Nyberg v. 

Wheltle, 101 Mass. App. Ct. 639, 656-658 (2022) (discussing 

"concerns" regarding anti-SLAPP case law). As I discuss infra, 

one such simplification would be to do away entirely with the 

"second path of the second stage" analysis, since that analysis 

cannot be squared with the protections afforded by the petition 

clause of the United States Constitution.
4

activity a "sham" cannot be undertaken lightly. As the majority 

notes, proving that particular petitioning activity is "a sham 

presents a 'high bar'" (citation omitted). Blanchard v. Steward 

Carney Hospital, Inc., 483 Mass. 200, 204 (2019) (Blanchard II). 

And for good reason, because if petitioning activity can be too 

easily subjected to suit, we will end up chilling the very 

activity that the anti-SLAPP statute (and the petition clause) 

were designed to protect.

Second, the standard for establishing "sham" petitioning 

was not met here with respect to the RBP parties' previous claim 

that the Bristol parties' proposed use might result in 

"detrimental or offensive" traffic impacts on an abutting 

highway. As indicated, the sham petitioning standard requires 

the Bristol parties to show that the petitioning activity they 

seek to sanction was "devoid of any reasonable factual support 

or any arguable basis in law."3 G. L. c. 231, § 59H. The test 

is objective; it does not turn or depend upon the motivations of 

the petitioner. See 477 Harrison Ave., LLC v. JACE Boston, LLC, 

477 Mass. 162, 173 (2017), S.C., 483 Mass. 514 (2019)

("motivation for engaging in petitioning activity" irrelevant to 

3 The standard is found in the language of the anti-SLAPP 

statute itself, but it also derives directly from the petition 

clause. See CSMN Invs., LLC, 956 F.3d at 1283, 1286 (first step 

of "sham-petitioning test" asking "whether the petitioning has 

an objectively reasonable basis . . . determin[es] whether 

conduct . . . loses [p]etition [c]lause immunity").
5

whether such activity "lacks an objectively reasonable basis"). 

See also CSMN Invs., LLC, 956 F.3d at 1286 (holding that 

petitioning activity may not be subject to suit unless, as a 

first step, petitioning is objectively unreasonable).

The petitioning activity I wish to focus on here was the 

RBP parties' challenge to the planning board's site plan 

approval. The RBP parties filed suit in the Land Court, as 

provided by statute. See G. L. c. 40A, § 17. One of the 

grounds they argued was that as designed and operated, the 

proposed site would result in traffic backing up onto Kings 

Highway, the public way from which the site would be accessed. 

The RBP parties presented an expert traffic engineer; he pointed 

out that the access road into and out of the plant was designed 

narrowly -- eighteen feet wide, barely enough for two trucks to 

pass in opposite directions. The expert also calculated that if 

more than six trucks were waiting to pick up finished product on 

site, the waiting trucks would necessarily spill out onto Kings 

Highway, choking traffic on that road. The RBP parties 

accordingly contended that the site plan should not have been 

approved, because it violated the town bylaw requiring that a 

proposed use not be "detrimental or offensive."

For their part, the Bristol parties did not take issue with 

their obligation to meet the not "detrimental or offensive" 

legal standard under the town bylaws. Nor did the Bristol 
6

parties challenge the RBP parties' expert's calculations or 

observations as to how many trucks could be queued on site at 

one time. Rather, the Bristol parties argued that the scenario 

painted by the RBP parties' expert was unlikely to occur. For 

one thing, the Bristol parties pointed out that one of the 

conditions of site plan approval required "no parking" signs to 

be placed on Kings Highway. But the Bristol parties' principal 

contention was a practical one: they contended that most of the 

trucks bringing raw material would be from their own or related 

companies, and those trucks could be instructed not to come to 

the site if backups were occurring. After hearing this 

evidence, the Land Court judge sided with the Bristol parties, 

but in measured words:

"On balance, I am not persuaded that [the] site plan . . . 

will result in the vehicular safety issues hypothesized by 

[the RBP parties' expert], except in unusual circumstances. 

Even if such unusual circumstances were to arise, I credit 

[the Bristol parties' expert's] testimony that [the Bristol 

parties] ha[ve] the capacity to control the majority of the 

trucks visiting the [proposed site] and therefore could 

direct trucks away from the site if the hypothetical events 

posited by [the RBP parties' expert] were to occur."

It was incorrect to conclude, on the above record, that 

this aspect of the RBP parties' claims was a "sham." The RBP 

parties' claim was based in fact (the idiosyncrasies of the 

proposed site plan, including the proximity to Kings Highway and 

the narrowness of the interior roads), and supported by 

reasonable expert testimony. The RBP parties brought an 
7

appropriate legal claim, based upon the standard of a town 

bylaw. Notably, the trial judge did not suggest the claim was 

without basis, ruling against it only after considering the 

arguments "on balance." A losing claim is not automatically a 

"sham." See Wenger v. Aceto, 451 Mass. 1, 7 (2008) ("The 

critical determination is not whether the petitioning activity 

in question will be successful, but whether it contains any 

reasonable factual or legal merit at all"); Donovan v. Gardner, 

50 Mass. App. Ct. 595, 601 (2000) ("That [defendants] were 

unsuccessful does not, in and of itself, mean that their 

[petitioning activity] did not have some basis in law or 

foundation in fact").

In short, this particular aspect of the RBP parties' 

arguments raised reasonable concerns to a government body, which 

the RBP parties were entitled to raise. The majority attempts 

to paint these concerns as "hypothetical," ante at , but that 

is a mere label, which does not meet the substance of the RBP 

parties' contentions. True, the RBP parties' expert testimony 

necessarily was hypothetical, in that the expert was addressing 

what would happen in the future, when the plant was completed 

and operating. His analysis was not rooted in fantasy, however, 

but in a facially reasonable assumption that from time to time, 

more than six trucks would be queued to pick up finished 

product. Notably, there was no planning board condition that 
8

would prevent this; there was no condition, for example, 

requiring the Bristol parties only to work with trucks from 

their own companies. And as the RBP parties' expert pointed out 

in his testimony, "no parking" signs might well be ineffective 

in preventing trucks from spilling out onto the highway, engines 

running (and thus arguably not "parked"), when there was 

insufficient room for them on site. Much more was required to 

demonstrate sham petitioning.4

Third, I disagree with the majority that we review the 

motion judge's denial of the special motion to dismiss only for 

"abuse of discretion." The question whether particular 

petitioning activity was without reasonable basis must be 

4 These traffic issues were not previously addressed by this 

court. They were not raised in the appeal from the Land Court 

judgment.

The RBP parties' traffic arguments can be contrasted with 

their contentions, also made to the planning board on site plan 

review, that the proposed plant would violate the Department of 

Environmental Protection (DEP) noise regulations. The RBP 

parties pursued this noise argument, even though the planning 

board expressly conditioned its site plan approval on the 

plant's compliance with DEP noise regulations. And the RBP 

parties thereafter pursued this noise argument to the town 

zoning board of appeals, to the Land Court, and to this court, 

at which point we noted that the planning board's conditions 

were reasonable, because "[i]n order to begin operations, [the 

plant operator] would have to apply for an air permit from DEP, 

which would only approve the permit if it found the [proposed] 

facility to be in conformance with State noise regulations." 

The RBP parties' pursuit of the noise argument in connection 

with the planning board's site plan approval thus had no 

reasonable basis in law.
9

treated as a question of law, subject to de novo review. The 

reason for this, most importantly, is that fundamental First 

Amendment rights are at stake; the RBP parties had a right to 

bring their Land Court suit, and they cannot be subject to State 

sanction (e.g., in damages) for bringing it, unless it was 

without basis in fact or law. See Scott v. Hern, 216 F.3d 897, 

914-915 (10th Cir. 2000) (collecting cases; "petitioning 

activities" are protected "from liability under the First 

Amendment" unless, among other things, plaintiff shows "the 

defendant's [prior] claims were devoid of reasonable factual 

support" or "lacked any cognizable basis in law" [citation 

omitted]).5 Under First Amendment case law, judges commonly are 

5 Citing authority addressing the tort of abuse of process, 

Justice Rubin's concurrence suggests that a party may be held 

liable for prosecuting an action that had an objectively 

reasonable basis, if the party had a subjectively improper 

motive for doing so. Stated broadly, the position the 

concurrence advances cannot be squared with the petition clause 

or the precedent I cite above (which, I note, is explicitly not 

limited to the antitrust context, but has been applied to a 

panoply of torts). See CSMN Invs., LLC, 956 F.3d at 1283. I 

note that the United States Court of Appeals for the First 

Circuit also has recognized the "long standing" First Amendment 

"right to file lawsuits that are not baseless." Real Estate Bar 

Ass'n for Mass., Inc., 608 F.3d at 124.

Indeed, I am aware of no context in which conduct 

objectively protected by the First Amendment nevertheless can be 

sanctioned, because the government (i.e., the courts) concludes 

that it does not like the subjective motivation behind the 

petitioning/speech. Accordingly, while I acknowledge a tension 

between some abuse of process authority and the above petition 

clause case law, that tension is resolved by requiring abuse of 

process plaintiffs to show that the action they are challenging 
10

called upon to exercise de novo review when State judicial 

process is invoked to sanction conduct that may be protected. 

See, e.g., Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 

485, 511 (1984) ("whether the evidence in the record in a 

defamation case is of the convincing clarity required to strip 

the utterance of First Amendment protection is not merely a 

question for the trier of fact," but is instead subject to de 

novo review). See also United Food & Commercial Workers Unions 

& Employers Midwest Health Benefits Fund v. Novartis Pharms. 

Corp., 902 F.3d 1, 14 (1st Cir. 2018) ("review of whether the 

plaintiffs have plausibly alleged 'sham' litigation is de 

novo"). Moreover, whether the plaintiffs have shown that the 

defendants' petitioning activity was "without reasonable basis 

in fact or law" is a question of law that this court is equally 

able to evaluate, based upon the trial court record.6 Where the 

prior petitioning activity was reasonably based, our standard of 

was objectively without basis. See Protect Our Mountain Env't, 

Inc. v. District Court, 677 P.2d 1361, 1369 (Colo. 1984).

6 This is certainly the case where, as here, the factual and 

legal basis for the prior petitioning activity is evident from 

the petitioning activity itself. As the statute contemplates, 

there may be circumstances where the court takes additional 

evidence on such subjects, but in the vast majority of cases the 

judge's ruling will be on a paper record. See Kitras v. 

Aquinnah, 474 Mass. 132, 138, cert. denied, 580 U.S. 1000 (2016) 

("no special deference is shown" where findings are premised "on 

documentary materials").
11

review should not afford the motion judge "discretion" to deny 

the anti-SLAPP special motion to dismiss, thereby allowing a 

case to go forward that is prohibited under the First Amendment.

The cases the majority cites for applying an abuse of 

discretion standard -- in particular, Blanchard v. Steward 

Carney Hosp., Inc., 477 Mass. 141 (2017) (Blanchard I), S.C., 

483 Mass. 200 (2019) (Blanchard II) -- do not require a contrary 

result. In Blanchard I, the Supreme Judicial Court announced an 

alternative means by which plaintiffs can defeat special motions 

to dismiss -- the complexly labelled "second path" of the 

"second stage" of the anti-SLAPP analysis. Blanchard II, 483 

Mass. at 204-205. In Blanchard I, the Supreme Judicial Court 

explained that this new, second path analysis should be applied 

by "the motion judge, in the exercise of sound discretion, . . . 

assess[ing] the totality of the circumstances pertinent to the 

nonmoving party's asserted primary purpose in bringing its 

claim." Id. at 160. That language, however, related to the 

alternative path that the Supreme Judicial Court had just 

announced; it does not set the standard to apply when reviewing 

whether a special motion to dismiss can be avoided by showing 

that the challenged petitioning activity lacked a reasonable 

basis.7

7 While there are several other anti-SLAPP cases that 

describe the standard of review as "abuse of discretion or other 
12

Fourth, the decision below, which denied the motion to 

dismiss in its entirety, cannot be justified on a theory that 

most of the defendants' petitioning activity was, in fact, a 

sham. The anti-SLAPP case law requires a more careful and 

discerning analysis. The Supreme Judicial Court's decision in 

Blanchard I made this clear, where the court separately 

addressed two components of the plaintiffs' libel claim, holding 

that one survived the anti-SLAPP statute, while one might not. 

See Blanchard I, 477 Mass. at 150-153. As we noted in Haverhill 

Stem LLC v. Jennings, 99 Mass. App. Ct. 626, 634 (2021), when 

applying the anti-SLAPP statute, "the allegations need to be 

carefully parsed even within a single count." Accordingly, 

while the anti-SLAPP motion was properly denied as to many of 

the bases of the Bristol parties' claims, the motion had to be 

granted as to claimed damages arising out of the traffic 

error of law," (emphasis added), Kobrin, 443 Mass. at 330-331, I 

do not view those cases as inconsistent with the de novo 

standard I espouse here. See Marabello v. Boston Bark Corp., 

463 Mass. 394, 397 (2012); Cadle Co. v. Schlichtmann, 448 Mass. 

242, 250 (2007). In Wenger, for example, the Supreme Judicial 

Court clearly applied a de novo standard of review in holding, 

as a matter of law, that two counts of a plaintiff's complaint 

must be dismissed under the anti-SLAPP statute, because the 

defendant's prior petitioning activity had a reasonable basis in 

fact and law. See Wenger, 451 Mass. at 7. But see Gillette Co. 

v. Provost, 91 Mass. App. Ct. 133, 137-140 (2017) (arguably 

applying abuse of discretion standard only).
13

contentions highlighted above.8 The First Amendment precludes 

the Bristol parties from recovering for that conduct. See CSMN 

Invs., LLC, 956 F.3d at 1286 (petition clause immunizes 

objectively reasonable claims). See also United States v. 

Koziol, 993 F.3d 1160, 1171 (9th Cir. 2021), cert. denied, 142 

S. Ct. 1372 (2022) ("constitutional right to petition" 

"immunize[s] from statutory liability" "most litigation 

activities" not constituting a "sham").

Fifth and finally, I need to go on to address the "second 

path of the second stage" of the anti-SLAPP analysis. Why this 

is necessary is not simple to describe, but I will give it a 

try: (1) if (as here) the plaintiffs' (Bristol parties') claim 

is based solely on the defendants' (RBP parties') prior 

8 I acknowledge that it will not always be easy to separate 

protected petitioning activity from unprotected conduct, where 

both are the subject of the allegations of a single count. This 

issue has previously arisen when applying the first path of 

anti-SLAPP analysis -- that is, whether the plaintiff's claim is 

based "solely" on petitioning activity. Sometimes, as with the 

G. L. c. 93A claim in Haverhill Stem LLC, the allegations of 

petitioning and nonpetitioning activity in a single count are so 

interrelated that the entire count must be allowed to go 

forward, while recognizing that those allegations that challenge 

protected petitioning activity cannot be the basis for an 

ultimate recovery. See Haverhill Stem LLC, 99 Mass. App. Ct. at 

633-634. On the other hand, in Blanchard I, the two types of 

allegedly libelous statements could be separately addressed, 

with one type being deemed petitioning activity and thus 

(potentially) dismissible. See Blanchard I, 477 Mass. at 161. 

Here, as in Blanchard I, the defendants' traffic contentions in 

the Land Court are sufficiently separable and distinct that suit 

based upon that objectively reasonable petitioning activity 

should have been dismissed at this stage.
14

petitioning activity, then the first stage is satisfied, and the 

anti-SLAPP statute applies to bar the claim, unless (2) the 

petitioning activity sued upon is a sham (under the second 

stage, first path), in which case the anti-SLAPP statute does 

not apply to bar the claim and the case can go forward.

So far, so good. But as noted, in Blanchard I the Supreme 

Judicial Court set forth the alternative "second path." See 

Blanchard I, 477 Mass. at 160. Under that alternative, even if 

a lawsuit seeks to sanction petitioning activity and the 

petitioning activity had a reasonable basis (i.e., was not a 

sham), dismissal under the anti-SLAPP statute can still be 

avoided on the plaintiffs' showing that its lawsuit was not 

"primarily brought to chill" the defendants' prior assertions of 

their petitioning rights. See id. In Blanchard I, the Supreme 

Judicial Court reasoned that this second path was required to 

further mitigate "the possibility" that defendants "may . . . 

use the [anti-SLAPP] special motion [to dismiss] to eradicate 

[plaintiffs'] . . . claim[s]," even where the plaintiffs' claims 

are not "primarily geared toward chilling [legitimate] 

petitioning" -- thus (arguably) chilling the plaintiffs' own 

petitioning rights in the process. Id. at 157.

Because I have concluded that a portion of the RBP parties' 

prior petitioning activities was not a sham, under Blanchard I

and its progeny I would need to analyze this second path. But 
15

in my view, such an analysis is unnecessary, and indeed, 

constitutionally inappropriate. As discussed above, the 

defendants' traffic contentions were (1) petitioning activity, 

and (2) not a sham. Under the United States Constitution, this 

has to be the end of the analysis. The arguments were protected 

under the First Amendment's petition clause, and as a result, 

could not be the basis for a State law damages claim. See CSMN 

Invs., LLC, 956 F.3d at 1286-1288 (District Court properly 

dismissed suit seeking to sanction State-based claims that were 

objectively reasonable). See also Scott, 216 F.3d at 914-915. 

The plaintiffs' claims based upon those arguments must be 

dismissed, as must any such claims based on protected 

petitioning activity.9

To the extent described above, I dissent from the 

majority's opinion affirming the denial of the motion to 

dismiss.

9 It should not be a controversial proposition that the 

protections provided under the anti-SLAPP statute equal (at 

least) those under the First Amendment. The statute's text 

expressly protects a "party's exercise of its right of petition 

under the constitution of the United States," which it defines 

in part as "any . . . statement falling within constitutional 

protection of the right to petition government." See G. L. 

c. 231, § 59H. Accordingly, at least in the context of the 

claim at issue here, the "second path of the second stage" 

cannot be applied because it could allow a claim to go forward 

where the claim violates the petition clause. It may well be 

that anti-SLAPP analysis can be simplified by eliminating this 

second path.