I recently told you about the legislative and judicial disdain for SLAPP (strategic litigation against public participation) suits -- suits brought by developers against development foes. The land use process is intended to be democratic, and interested persons have a right to express legitimate concerns relating to proposed development. Suits filed to chill citizen group participation are very disfavored. As I stated, that is a good thing for all of us.

But, what if development foes go too far? What if they are malicious? What if nothing can please them? What if they have never met a development plan that they liked? Can developers do anything? Can they fight back?

Yes. developers have rights, too. And that is a good thing, also. You see, the protection given to development foes is not absolute -- there are limits. While the limits are state specific, some general statements can be made. Of course, people with real concerns need to seek professional assistance before embarking on any of these missions.

What is protected is good faith, legitimately based development opposition. Even if that opposition is vigorous. If, however, the opposition is in bad faith, it generally is not protected by anti-Slapp suit laws and similar court decisions.

For example, John is developing a shopping center which is scheduled to contain a dry cleaner store. Mary owns an existing dry cleaning business three blocks away and does not want competition. To kill the project, Mary files, endless, basesless planning board challenges, knowing none of them can prevail.

She leaks articles to the press and sends out mailings, all containing false information. She is the ever-present, relentless thorn in John's side.

Mary knows that John is not a rich man, and if forced to fight a lot of battles, will likely drop the project rather than go forward. Mary cares nothing at all about the planning process, she just wants John and his potential dry cleaning tenant to go away.

In this example, John may be able to sue Mary for, among other things, malicious business interference. And if Mary lied about John's character and reputation, which often also happens in these disputes, there might be a libel or slander claim as well. Should Mary commence a frivolous lawsuit to stop development and scare away creditors, she may face an abuse of process claim, and in some states be responsible for John's costs and attorney fees. And if Mary went way overboard and filed false criminal charges so as to cause John public embarrassment, she can eventually also face additional civil liability for malicious prosecution. And the list can go on forever.

Mary knew all along that her claims had no merit. She filed her land use challenges and took her other actions not to advance legitimate planning objectives and public colloquy, but rather to bankrupt John and kill possible competition.

Same scenario, but in fact Mary can hang her hat on several legitimate planning challenges, rather than challenges that cannot possibly be deemed to be valid. Mary really could care less about any of these planning issues, but nonetheless she has identified several legitimate issues.

In that case, John may be out of luck. Even though Mary really does not care about the planning issues and simply wants to kill a possible competitor, if her challenges have legal substance she probably does not have as much legal exposure.

If John has a legitimate claim against Mary the Objector, he may be able to sue her for lost profit and all other reasonably foreseeable harm. John will have to prove his damages to the Court, and claims for lost profit tend to be more difficult because they tend to be viewed as speculative. Claims must be provable, overly speculative claims will usually not be recognized.

John may also be entitled to punitive damages. Punitive damages are intended to punish Mary for her bad deeds. A Court will look at Mary's worth and decide how much of a penalty is needed to punish Mary. The amount differs depending on the net worth of the Defendant.

For example, it would take more money to punish Bill Gates than it would to punish me. What I have provided is a general, very broad overview. Each state has its own special laws and requirements . As a general rule, development foes have a lot of latitude. As you can see, however, it is not boundless.

For more articles by Stuart Leiberman, please press here.

Published: January 10, 2002

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Stuart Lieberman, Esq. writes about environmental issues. He was a New Jersey Deputy Attorney General assigned to the State Department of Environmental Protection from 1986 to 1990. Currently he is a shareholder in the environmental law firm of Lieberman & Blecher, P.C., located in Princeton, New Jersey. Stuart can be reached at slieberman@liebermanblecher.com.